2. NCAHRMM Spring Conference 2018
Employment Law Primer:
Management Guidelines For Hiring, Respectful Workplaces, Employee Discipline & Terminations
Presented by: Meghan Engle, Esq., Brenda Hubbard (CFVHS) Edward Schenk, Esq. (Williams Mullen, PC)

3. INTERVIEWING AND HIRING FOR MANAGERS

4. Interviewing and Hiring - Managers
Interview process affects company image
1 candidate hired
19 others will share their experience
Social media, LinkedIn, Glassdoor, Indeed, etc.
What do you want them to say?
Interviewers need experience (just like candidates)
Interest + Aptitude (both are necessary)
Knowledge of the company & job
Effective communication
Understand employment laws (non-discrimination)
Provide complete job information
Job descriptions and “essential functions”
Reporting structure
Work locations and conditions
Welcome and answer questions
“Interests + Aptitude” = a vital combination Good interviewees WANT to do the job (Interest) AND they possess the TOOLS to be skilled in the role (Aptitude)
Written job descriptions that completely and accurately describe essential job functions are important for several reasons – clear expectations and employment law compliance (later discussed)

5. Interviewing and Hiring – Legal Responsibilities
Management team has the capacity and authority to do great good
Face of the company – promotes culture
Set expectations – lead by example
Managers also have the capability to do great harm
Managers “speak for the company”
Can create legal liability through even one act
Managers have a personal responsibility to know and follow the law

6. Interviewing and Hiring – Potential Problems
Discrimination: Making decisions based on “protected characteristics” (i.e., race, sex, religion, age, disability, military service, pregnancy, etc.)
Protected classes under federal law
Age
Citizenship
Color
Disability
Genetic Information (family history)
Membership in a labor union
National origin
Race
Religion
Sex
Veterans’ or military status

7. Interviewing and Hiring – Potential Problems
Sexual orientation* (divided courts)
Gender identity*
Martial status
Parental status
Lawful use of lawful products and off duty conduct
Firearm possession use**
Emerging Protections & State Laws
*NOTE there is an trend among the courts in the US to include “Sexual Orientation” within the definition of “sex discrimination” under Title VII of the Civil Rights Act of meaning, jurisdictions outlaw sexual orientation discrimination; however, there is a split among the courts
The issue of gender identity protection has not yet rendered enough court decisions to establish binding precedents in most jurisdictions
For our purposes, the EEOC takes the position that both sexual orientation and gender identity ARE PROTECTED UNDER TITLE VII
** Firearm possession rights are on the rise among states – For example, many states now have laws that ALLOW POSSESSION ON EMPLOYER PREMISES
If EE has legal possession (i.e., permit)
Locked in vehicle
Out of plain sight

8. Interviewing and Hiring – Candidate Screening – The “Do’s”
Do focus on minimum job requirements and candidate qualifications
Do know and follow the company’s policies
Do apply uniform standards– stay objective
Do recognize the importance and value of diversity
Do be aware of the social media and Google rabbit hole!!
Note: “Googling” and reviewing social media of candidates is A VERY SLIPPERY SLOPE – like putting the genie back in the bottle, you cannot “un-see” what you learn
Too much room for inconsistent “personal judgment” calls
PANDORA’S BOX: passing judgment on lifestyle choices, legal off duty conduct or protected characteristics

9. Interviewing and Hiring – Candidate Screening – The “Don’ts”
Where were you born?
Where is your family from?
Are you married?
Do you have kids? Who takes care of them?
What is your native language?
Don’t require information related to impermissible factors
Be prepared to define the legitimate business reasons for the “yes” and “no” piles
Don’t make premature “fit” determinations based on resume or application data (name, school, hobbies, interests, languages, etc.)
Say this:
What languages are you fluent in? Can you read and write them proficiently?
Are there any reasons you cannot meet the attendance, punctuality and workday schedule of the position?
Are you authorized to lawfully work ion the United States?

10. Interviewing and Hiring – Hot Topics
Criminal Background Checks and Credit Checks
Disparate impact claims
Significant amount of litigation in recent years
Medical Inquiries
Pre-offer: “Can you perform the essential job functions with or without reasonable accommodation”
Post-offer, pre-employment: much more leeway, still heavily regulated; BUT no family medical history (G.I.N.A.)
Pay History: Basing pay on applicant’s prior salary history (alone) can open door to sex discrimination claim and equal pay claims (EEOC position and some courts) w

11. Interviewing and Hiring – Tool Box
Clear, Complete Offer Letters - Who, What, When, Where
Start date
Pre-employment requirements (I-9, background check, drug test, etc.)
Position, location, supervisor
Rate, time and place of pay
Exempt versus nonexempt (Fair Labor Standards Act)
Define the workweek
Bonus, commission, incentive compensation (specifics)
Benefits eligibility and waiting periods
PTO
Acknowledgment of company policies
At-Will employment
Restrictive Covenant Agreements - Non-Disclosure, Non-Solicitation and Non-Competition Agreements
Disparate impact claims
Significant amount of litigation in recent years
Medical Inquiries
Pre-Offer: “Can you perform the essential job functions with or without reasonable accommodation”
Post-offer, pre-employment: much more leeway, still heavily regulated; BUT no family medical history (G.I.N.A.)
Pay History: Basing pay on applicant’s prior salary history (alone) can open door to sex discrimination claim and equal pay claims (EEOC position and some courts) w

12. Respectful Workplaces: Leading the Charge on Anti-Harassment and Discrimination

13. What Happened?
The recent movement has led to a national dialogue, increased concern and has been a call to action to employers, legislators and regulators to address and prevent workplace harassment.

14. EEOC Special Task Force
The results of the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace, reported in 2016 were publicized, defining criteria for training, reporting, investigating and action.

15. Compliance With Authenticity
Training is a key element
To be successful, it must go beyond “check the box” compliance standards
“[Compliance training] is not training to change your mind. It’s training to keep your job.”
- Jonathan A. Segal, EEOC Select Task Force Member
The EEOC suggests that supervisors and managers--are a crucial resource in preventing harassment.
As a member of management, you are an agent of the company-what you know--the company knows. You will be held responsible for complying with the company’s anti-harassment policy.

16. The Importance of Training
Empowering leaders, managers and bystanders with refreshed training and confidence in what to do and how to do it when faced with behavior that could be interpreted as inappropriate creates trust and enables redundancy.
The Goal Permanency
#Beyondahashtag

17. Unlawful Harassment Title VII of the Civil Rights Act of 1964
Prohibits discrimination on basis of race, color, sex, national origin, religion
MAY also include sexual orientation and gender identity
Discrimination includes harassment
Americans with Disabilities Act
Qualified individuals with disabilities
Age Discrimination in Employment Act
Employees over age 40
State Human Rights Laws (NC Equal Employment Practices Act)

18. Three Elements of Harassment
Behavior that is unwelcome;
Behavior that is related to a person’s protected status;
Behavior that results in
Tangible employment action (“quid pro quo”) OR
Hostile working environment

19. “Quid Pro Quo” vs. Hostile Work Environment
Behavior that results in a tangible employment action is also referred to as “quid pro quo” sexual harassment.
Offering employment benefits in exchange for sexual favors
Making or threatening reprisals after a negative response to sexual advances
Typically, only managers or supervisors have the authority to take these tangible employment actions.
Example: Sue receives smaller raises based on performance than other employees with similar performance because she refused to go out on a date with her supervisor.
Example: Jane receives higher pay because she IS sleeping with the boss; but because her co-worker Sue is being treated less favorably, Sue may have a claim for harassment

20. Tangible Employment Actions – Quid Pro Quo
Tangible adverse employment actions include:
Termination
Failure to promote
Demotion
Undesirable reassignment
Significant change in benefits, compensation or work assignments
KEY TO REMEMBER: No defense based on company policy because managers are agents of the company – strict liability
Even if the harassment is not “quid pro quo,” it is still illegal if it creates a hostile work environment

21. Who? Who is a potential harasser? Who can be a victim of harassment?
Anyone within the organization
Clients and customers
Vendors
Contract employees
Attendees at employer functions
Others, depending on circumstances
Who can be a victim of harassment?
Candidates for employment

22. Hostile Work Environment
Unwelcome comments or conduct in the workplace that are sufficiently severe and/or pervasive to alter the terms and conditions of the work environment:
Pressure for dates or unwanted sexual advances
Offensive comments concerning
Appearance and clothing
Body parts
Telling discriminatory or harassing jokes or making innuendos
Display of inappropriate photos or images
Using derogatory words or phrases
“Stray remarks” may no longer be a defense
No tolerance for odious, offensive language in the workplace

23. Policies and Procedures – Train to Report
Know and Follow Your Anti-Harassment, Non-Discrimination and EEO Policy
Clear assurance against retaliation
Multi-faceted, accessible avenues of complaint
Assurance that confidentiality will be protected to the extent possible
A complaint process that provides prompt, thorough and impartial investigation
Assurance of immediate and proportionate corrective action
Managers are representatives of the company. If you receive a report of harassment or witness inappropriate behavior, it’s your duty to report it
See something, say something!

24. Discipline & Terminations

25. Discipline and Terminations – A difficult Part of the Job
Most Common Problems
Avoiding Confrontation
Fear of Mistakes
Legal issues
An effective disciplinary approach can help solve these issues
Reasons for Discipline:
Misconduct
Poor Performance
Types of Discipline:
Punitive – Punishment measures
Corrective – Behavior modification

26. Disciplinary Action Checklist
Know all the facts accurately.
Review how other employees were disciplined—is this employee receiving the same treatment others have received for the same offense?
Is the rule that has been violated reasonable?
Did the employee know the rule—or should he or she have known the rule?
Is the rule being applied reasonably?
Have any preliminary procedures been followed?
Except in cases such as observed theft, assault and other dangerous or harmful offenses, has the employee first been warned?

27. Disciplinary Action Checklist
Is this employee personally guilty, rather than being guilty by association with another?
Does the proposed discipline fit the misconduct?
What is the employee's disciplinary record?
How long has the employee been with the organization?
Does the employee have a reasonable excuse for the rule infraction or misconduct?
Can the employee's responsibility for the rule infraction or misconduct be proven by direct, objective evidence or only by circumstantial evidence or conjecture?
Did you have an opportunity to keep this employee from committing an offense and fail to do so?

28. Elements of a Good Disciplinary System
A code of conduct
A philosophy of discipline
Knowledge of the consequences of misconduct
Fair investigation
Consistent discipline procedures
Quick response
Review of the planned discipline by HR
Appeal by the employee
Reservation of employer rights

29. Responsibility for Discipline
Usually, initial responsibility lies with the employee's immediate supervisor.
Know when to seek advice!
Routinely discuss disciplinary action taken with HR and upper management.

30. Discipline – Avoiding Retaliation
Retaliation Occurs When:
Employee status is protected
Based on discrimination laws
Employee conduct is protected
opposing discrimination
participating in discrimination proceedings
Other protected conduct (types of leaves, military service, whistleblowing, union activity, etc.)

31. Discipline – Avoiding Retaliation
Document, document, document!
Avoid unequal treatment
Keep all discipline job-related
Be aware of all recent “protected activity” (medical leaves, injury claims, harassment reports, etc.)
Prove independent basis for discipline

32. Discipline – Progressive Steps
Specific steps will be followed when discipline is required.
One or more verbal warnings
One or more written warnings
Suspension with or without pay
Termination of employment
Goal is to correct behavioral problems rather than to punish employees.

33. Discipline – Progressive Steps
Verbal warning
Talk about the problem behavior
Explain what behavioral change is needed
Explain what you expect the improved behavior will be
Explain ways for the employee to attain the requested level of improvement

34. Discipline – Progressive Steps
Verbal warning
Written warning
State the problem
Refer to previous warning(s)
Allow employee’s response
Explain your specific expectations for improvement
Have employee confirm understanding of expectations
Create written documentation of the warning

35. Discipline – Progressive Steps
Verbal warning
Written warning
Suspension
Follow organizational procedures
4. Termination

36. Discipline – Progressive Steps
Documentation
Can help improve performance through increased focus on communication
Enhances communication by providing a written record
If done correctly, provides justification for disciplinary actions

37. Termination – Checklist
Company Property
All electronic devices (including USBs)
Building and facilities access credentials
Credits cards, parking passes, etc.
Confidential information (business intelligence, customer info)
Computer network access and login information
Remove corporate authority – signatory cards, bank accounts, web-based portals

38. Termination – Checklist
Wages and Final Pay
On or before next regular payday
Review and include PTO subject to payout
Earned, unpaid commissions, bonuses or other incentive compensation
Follow company policy and state/federal law
Withholding/Conditioning Final Pay
Very risky
Only allowable in limited circumstances, and usually based on prior authorization

39. Termination – Checklist
Insurance and Benefits
Coordinate COBRA notice or state law equivalent
Notify employee of coverage termination date
Confirm unique arrangements with insurance carrier
Rollover of 401(k) and other benefit plans – notify all providers of termination date
Review obligations for medical reimbursements, dependent care reimbursements, etc.

40. Termination – Checklist
Exit Meeting
Discuss appropriate details regarding termination (effective date, business reasons for termination, pay and benefits after termination, if any, unemployment eligibility, etc.)
Review confidentiality agreements, noncompetes, etc.
Confirm employee’s address for future mailing of information
Provide employee with a contact person and information for questions arising after the meeting
Confirm all in writing – hand-delivered or following asap by mail

41. Questions & Discussion