avoiding the employment practices minefield
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Avoiding the Employment Practices Minefield. Dennis J. Walsh , Esq. Attorney. The Agenda. What are the Employment Practices Minefields? Has the economic environment affected these claims? Have the type of claims changed over the years? What are the “hot” claims today? - PowerPoint PPT PresentationTRANSCRIPT
Dennis J. Walsh, Esq. Attorney
Avoiding the Employment Practices Minefield
The Agenda What are the Employment Practices Minefields?
Has the economic environment affected these claims? Have the type of claims changed over the years? What are the “hot” claims today? Have the methods for avoiding these claims changed? Where are the minefields during the Interactive
Process (IP)? Where are the minefields when you make a decision
about whether to accommodate a disabled employee or not?
Q & A
Sexual Harassment is still alive and well Particularly supervisor harassment
Sexual orientation harassment claims are now more prevalent than ever The impact of Societal changes
Pregnancy Harassment Failure to provide accommodation
Race and Ethnicity Harassment Inappropriate statements in the workplace
and/or dislike issues Not everyone can get along Turning workplace issues into harassment issues
Harassment Claims:Something Old, Something New
Harassment Claims:Something Old, Something NewReal Cases
Sexual orientation and cleanliness Pictures, etc. of the significant other The inconvenient pregnancy? Performance issues are all
race/ethnicity related Can you do anything to prevent
these claims?
Retaliation Rears Its Head
More and more lawsuits including this claim?
What and how is it alleged? The dangerous claim How to avoid it with current
employees
Retaliation Rears Its Head:Real Cases
The March 15th retaliation The request for
accommodation retaliations The work comp offender The allergic to coming on
campus employee What can you do to avoid
these claims?
Failure to Prevent Discrimination/Harassment:
What does it mean? Simple to Avoid?
The New Add On Claim
The “No Win” Scenarios: What to Do?
Consensual Sexual conduct by a supervisor still creates problems
The Work Comp offender that becomes the ADA victim
The employee whistleblower
The Common Law Claims
Claims that arise from case law and not statute per se
Wrongful termination against public agencies
Defamation Invasion of Privacy IIED What can you do to minimize these type
of claims?
Tips for Minimizing these claims:
Documentation is still the key Following your policies and procedures to the
letter Objectivity by the decision makers Using outside investigators when appropriate
Be selective Discipline/Termination with Dignity
Some Things Never Change
Avoiding the Disability Minefields
Still by far the biggest problem issue in employment practices
The Work Comp overlap issue still alive, well and growing
Difficult cases to settle and get rid of The interactive process is fertile
ground for litigation Let’s breakdown the issues and
discuss some situations that illustrate the problems
The Reasonable Accommodation Process
Look At The Job Involved ToDetermine Its Purpose And ItsEssential Functions A Written Job Description Prepared by persons in the know Signed by the Employee
IP Minefields:Agreeing on the essential job duties
The Written Job Description The Frequency and Duration of the duties
Matching up the medical restrictions with the proper essential job duties And agreeing upon it
Get Clarification if Disagreements exist Can’t determine accommodations without
clear understanding by both sides of specifics of the restrictions What specifics do you need?
The Reasonable Accommodation Process Meet With The Employee to Discuss and
Agree on Functional Limitations and Essential Job Duties
IP Minefields:Agreeing on the essential job duties
What if the employee disagrees with the JFA?
Doctor Verification Of Functional Limitations Is Permissible
Discussion of doctor reports re limitations is acceptable
Do not blindly rely upon WC doctor reports What if the employee disagrees with their
doctor What if the doctors disagree about the
condition of the employee?
IP Minefields:What are the Functional Limitations?
Dealing with Workers’ Comp terminology for job restrictions “No Heavy Lifting” “No Repetitive Bending, Stooping, Etc.” “Prophylactic Lifting Restriction” “TTD” “Part-time Work” “Stress free environment”
Need to have clear understanding of these terms Do they impact essential job duties?
IP Minefields:Fitness for Duty Exams
Can be a blessing and a curse Pick and choose the right time to get
one Must be a good reason for doing so
Give definitive instructions on what you need from the FFD Doctor Confirm in writing
Provide FFD Doctor with all information necessary Past medical records, job description
Have HIPPA release from employee
The Reasonable Accommodation Process
After meeting with the employee,identify and list potentialaccommodations and assess howeffective each would be in enablingthe individual to perform essential job functions Determine if they are reasonable or not
i.e. Cause an undue hardship or direct threat to employee or others
Review all alternative vacant positions to go over with the employee
The Reasonable Accommodation Process
Meet with the employee again to discuss & agree or disagree on the R/A’s or why there is no R/A If no R/A available, discuss
alternative vacant available positions the employee is minimally qualified for
Any and ALL vacancies, full or part-time and that may come up in the near future
IP Minefields:Meeting with the Employee
It’s the “Interactive Process” not the “Unilateral Process” Make sure you seek their input or lack
thereof Don’t make any decisions during the last
meeting Even if your mind is all ready made up
Be Prepared Have all docs re vacant positions and
minimum quals at the meeting
The Reasonable Accommodation Process
If accommodations are available, consider preference of employee and select accommodation that best serves the needs of both It is an ongoing process that is the burden of
the employer Offer and discuss available alternatives The evaluation of proposed accommodations
requires ongoing dialogue and an assessment of the effectiveness of each accommodation
IP Minefields:Trying to Accommodate Two steps:
Can I accommodate to existing position? How about alternative vacant positions?
Do you really want to accommodate this employee?
Are you prepared to discuss all possible accommodations? Have you done your homework?
IP Minefields:Temporary/Light Duty Positions Not required under ADA/FEHA
Work Comp related to reduce costs How do they affect your duty to
accommodate? How do you handle the employee that
wants the light duty position to become permanent?
The Reasonable Accommodation Process
Document the Process Including: Analysis Meetings With The Employee The Decision Making Process The Final Determination &
Communication To Employee Methods of Documentation
IP Minefields:Documenting the Process
All or nothing Emails are discoverable!
Be careful what you say Have standardized forms to use
Letters to doctors Meetings with Employee Your thought process re accommodation
The Reasonable Accommodation Process Follow–Up with the employee on any
accommodations offered Changes should be done if necessary and
documented Don’t make a promise you can’t keep!
IP Minefields:Proper Communication
With the employee Even during Worker’s Comp injury
Between Risk Management and HR With the TPA on the Worker’s Comp
Claim They are not advisors on the
ADA/FEHA issues Between WC attorney and
Employment Attorney Be Proactive
IP Minefields:Failure to Engage in IP The New Catch All Claim Reasons:
Ignoring employee request Ignoring employee restrictions Ignoring change in employees restrictions Ignoring employees complaints about
being able to do the job Within the restrictions With the accommodations
IP Minefields:Problems that Arise
The Employee that doesn’t agree with the FFD restrictions or lack thereof
Know ALL of the employee’s qualifications for vacant positions
Denying accommodations that have been given to others
Policies and Practices that violate ADA/FEHA
IP Minefields:Problems that Arise
Allowing employee right to use ALL unpaid leaves available
Having a final IP meeting before placing employee on the 39 month re-hire list Explaining to employee what this means
Not Just in a Letter