© 2008 dinsmore & shohl llp w w w. d i n s l a w. c o m overview of employment laws and...

© 2008 Dinsmore & Shohl LLP

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OVERVIEW OF EMPLOYMENT LAWS AND EMPLOYMENT PRACTICES

March 13, 2008

Presented to:Western Hills Exchange Club

By Robert J. ReidDinsmore & Shohl LLP

255 East Fifth Street, Suite 1900Cincinnati, OH 45202

513-977-8200


STATE AND FEDERAL STATUTESAFFECTING THE EMPLOYER-EMPLOYEE

RELATIONSHIP The Americans With Disabilities Act (“ADA”)

– Prohibits discrimination against otherwise qualified persons because of an impairment that constitutes a disability.

– Requires reasonable accommodation that enables a disabled employee to perform the essential functions of a job, unless the accommodation results in undue hardship on the employer.

– Enforced by the Equal Employment Opportunity Commission.



RELATIONSHIP Title VII of the Civil Rights Act of 1964

– Prohibits discrimination in employment because of an employee’s race, color, religion, sex, or national origin.

– Enforced by the Equal Employment Opportunity Commission.

– After EEOC consideration, an employee may bring a private cause of action. Also, the EEOC may bring an action if it chooses to do so.

– Remedies, procedures, and burdens of proof are now covered by the 1991 Civil Rights Act.



RELATIONSHIP Age Discrimination in Employment Act

– Prohibits discrimination in employment because of the age of an employee who is 40 or older.

– Enforced by the Equal Employment Opportunity Commission.– Some procedures and burdens of proof are now covered by the 1991 Civil

Rights Act, and are similar to those that involve Title VII. Jury trials are available.

– Remedies are defined by the Fair Labor Standards Act and include back pay, reinstatement, a double-damage provision for willful violations, and attorneys’ fees


STATE AND FEDERAL STATUTESAFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP

National Labor Relations Act

– Prohibits discrimination against employees engaged in protected, concerted activity. Generally, union activity.

– Governs the relationships between employers and unions, including the selection of unions as collective bargaining representatives and the duty to bargain in good faith.



RELATIONSHIP Workers’ Compensation Statute

– Protects employees against discrimination because they have filed a claim for workers’ compensation.

– There are procedural notice requirements which an employee must meet before bringing an action in state court.



RELATIONSHIP The Family and Medical Leave Act of 1993 (“FMLA”)

– Provides up to 12 workweeks of unpaid leave during any 12 month period for an employee to care for a new child or deal with a serious health condition afflicting the employee or the employee’s parents, spouse, son or daughter.

– Must have a covered employer and an eligible employee.


APPLICATION OF LEGAL PRINCIPLES

Application Forms

– Application forms must be reviewed and sanitized to ensure they contain no illegal questions. Inquiries, whether direct or indirect, into the applicant’s race, color, religion, sex, national origin, handicaps, age or ancestry must be eliminated. In addition, under the ADA the employer’s inquiry must relate to whether the applicant can perform the essential job functions. No inquiry into the nature or severity of the disability is permitted. Likewise, no inquiry can be made concerning past filing or existence of workers’ compensation claims.



– Some common improper inquiries include: Date of high school graduation Age or sex of applicant Listing of disabilities or medical conditions List prior arrests Inquiry into type of military discharge Requiring photographs before hiring



– At Will Disclaimers

Every employment application should contain comprehensive employment-at-will disclaimers. These disclaimers should specifically indicate the employment relationship will be on an at-will basis such that either the employer or employee can terminate the relationship at any time for any or no reason. Additionally, the disclaimer should indicate that no one other than a specifically listed company official has the authority to change the relationship.



– Falsification Statements The application should state that the applicant verifies the

statements are true and recognizes and agrees that providing any false information may result in termination.



– Drug Tests If the employer is going to do drug testing of either applicants or

employees, the application should provide authorization for the testing and the release of the test results to the employer. Also, there should be a release of all liability for the testing and any action taken based on the results.



Interviews – The individual performing employment interviews should receive

training to ensure that improper inquiries are not made. Note that inquiries that are illegal on applications also generally are illegal in interviews. Thus, do not inquire into the applicant’s age, children and other personal family matters. Under the ADA, you can require an applicant to demonstrate how he is going to perform the job for which he applied.



Employment Contracts

– Consider using specific employment-at-will contracts, especially if you are a smaller employer. This can be done easily by sending the applicant a letter reflecting the pay and benefits and including an at-will statement. Have the employee sign the letter and return the original to you.



Reference Checks

– If you plan on checking applicants’ references, it is a good safeguard to get authorizations specifically permitting the references to release information to you.

– If you use an investigative agency, get an indemnification agreement protecting you from any liability resulting from the agency’s conduct.

– If you use an investigative agency, you will need to follow the authorization and disclosure requirements of the Fair Credit Reporting Act (“FCRA”).


EFFECTIVE DISCIPLINE

Administer discipline to employees as you would like to have it administered to you by providing them the following:

– Specific examples of shortcomings or infractions.

Provide detailed descriptions, dates, production data, and any other facts that will help employees precisely comprehend the problem.



– An opportunity to present their own case. Give employees the chance to explain their actions and to describe

the causes behind problems, including your performance as a supervisor. Listen to them and make sure to take into account their version.



– Respect. In discipline, as in every other aspect of supervision, you should deal with

your employees in a mature fashion. Avoid condescension, lecturing, and scolding; and above all, do not lose your temper.

– A clear understanding of the consequences. If you are asking for improved performance, make sure employees

understand what benefits they can expect as a result of improvement and what risks they run if their performance remains unchanged. These consequences should be clear and specific and tied to measurable criteria.



– Specific recommendations to correct performance.

Employees often need extra coaching and guidance to improve their performance. Be sure to offer this assistance to help employees meet expectations. Remember that you must work with employees to help them meet expectations. This means that you must be as committed to their success as they are, sometimes more.



– A positive attitude from management. Remember that positive reinforcement is always more effective than

negative. Note all improvements in an employee’s performance and encourage continued efforts to meet expectations.

– A second chance. One-time performance problems can disappear for good if you deal with

them in a positive manner and leave them behind. Be careful not to hold a grudge against an employee simply because he/she has demonstrated a performance problem in the past. As much as possible, start with a “clean-slate” after corrective action has been initiated.


PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST

This summary checklist sets forth several advance steps an employer may consider in its personnel practices, particularly before terminating an employee.



Sanitize your employment documents (at-will vs. just cause).

– Applications

– Handbooks

– Offer letters

– Evaluations



Train your supervisors/top management (at-will and discrimination laws).



Conduct an investigation (do not accept second or third hand information).

– Suspend employee pending outcome.– Interview witnesses.

Obtain written (witnessed) statements. Document oral statements.

– Interview employee (have a witness present). Obtain written (witnessed) statement. Document oral statements.



Document the results of the investigation. Just the facts. Do not editorialize.

Preserve statements, evidence, and documentation in a separate investigation file.



Have decision reviewed by some other management person or local counsel not involved in the matter, if possible.

– Timing (does discharge recently follow safety/discrimination complaint, worker’s compensation claim, etc.)?

– Consistent with policies, procedures and practices.

– Consistent with discipline for similarly situated employees.

– Consult legal counsel



Announce the decision only on a “need to know” basis. Handle termination message in an effective and respectful manner.

If claim, charge or suit is filed, notify legal counsel immediately.

– Do not communicate (orally or in writing) with opposing counsel or administrative agency with which charge was filed.


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Robert J. ReidPartner

Dinsmore & Shohl LLP255 East Fifth Street

Suite 1900Cincinnati, Ohio 45202

(513) [email protected]

Robert J. ReidRobert J. Reid is a Partner in the Labor and Employment Law Department. Rob's practice includes the defense of private and public employers in labor and employment issues, including discrimination and civil rights issues, breach of employment contracts, employment-at-will, OSHA matters, wage and hour questions, collective bargaining negotiations, labor arbitration, and unfair labor practice issues under the National Labor Relations Act and corresponding state law.

Education

J.D., University of Cincinnati College of Law (Law Review, 1993) B.A., Xavier University (summa cum laude, 1990)

Bar Admissions

Ohio, KentuckyCourt Admissions

U.S. Court of Appeals for the Sixth Circuit, U.S. District Court for the Eastern District of Kentucky, U.S. District Court for the Southern District of Ohio, U.S. District Court for the Eastern District of Michigan, U.S. District Court for the Eastern District of Wisconsin Selected Professional & Civic Organizations

Cincinnati Bar Association, Labor and Employment Law CommitteeIndustrial Relations Research Association, Past PresidentOhio State Bar Association, Labor and Employment Law CommitteeWestern Economic CouncilWestside Lawyers' AssociationCincinnati Academy of Leadership for Lawyers, Class V InducteeBusiness Networking International

Awards & Recognitions

Certified by the Ohio State Bar Association as a Specialist in Labor and Employment LawNamed Ohio Super Lawyer by Law & Politics

Dinsmore & Shohl LLP

255 East Fifth StreetSuite 1900Cincinnati, Ohio 45202(513) [email protected]


Dinsmore & Shohl LLPis a full-service law firm with offices in Kentucky, Ohio, Pennsylvania and West Virginia

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© 2008 dinsmore & shohl llp w w w. d i n s l a w. c o m overview of employment laws and...

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