Employment Law for HR Professionals - JKD Law – Law Site · 2020. 2. 21. · EEOC Charge Statistics for FY 2019 • Disability 24,238 (33.4%) Race 23,976 (33%) • Sex 23,532 (32.4%)

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Copyright © 2005-2020

Employment Law for HR Professionals

[Slides not included in Manual]

Jonathan K. Driggs, Attorney at Law, P.C.Employment Law Consulting & Seminars

(801) 361-6706 | [email protected] | jkdlawpc.com

Employment Law For HR Professionals

Scenario

• Sara has serious concerns about Luke’s performance and meets with him to discuss.

• She starts with a lot of praise (some undeserved).

• She then says, “Luke, I have a minor concern about <performance problem>.”

• She follows up with a lot more praise (again, some undeserved) and ends the meeting.

• Luke walks out thinking what?

• Sara walks out thinking, “I hope Luke got the hint.”


Section 5: Retaliation Claims

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EEOC Charge Statistics for FY 2019

• Disability 24,238 (33.4%)

• Race 23,976 (33%)

• Sex 23,532 (32.4%)

• Age 15,573 (21.4%)

• Nat’l Origin 7,009 (9.6%)

• Color 3,415 (4.7%)

• Religion 2,725 (3.7%)

• Genetic Info 209 (.3%)

• Total Charges: 72,675



• Retaliation 39,110 (53.8%)

• Disability 24,238 (33.4%)

• Race 23,976 (33%)

• Sex 23,532 (32.4%)

• Age 15,573 (21.4%)

• Nat’l Origin 7,009 (9.6%)

• Color 3,415 (4.7%)

• Religion 2,725 (3.7%)




Scenarios

• Two employees call OSHA about a safety violation without giving OC an opportunity to fix the problem. They do this in bad faith (they are upset about something else). The manager wants to fire them for “disloyalty.”

• Eli is accused of sexual harassment by his employee, Zoe. As a result of the investigation, Eli is cleared of any wrongdoing. However, Eli is upset that his reputation has been damaged. He withholds a pay increase Zoe otherwise deserved.

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Questions about Business Conduct Incident Reports (BCIRs)

• When should a BCIR be filed?

• In an ongoing situation, when should a new BCIR be opened?


Excerpts from EEOC’s Retaliation—Making it Personal

How evidence of retaliation is found:

• Temporal proximity

• Verbal or written statements

• Comparative evidence that a similarly situated employee was treated differently

• Falsity of the employer's proffered reason for the adverse action



The act of retaliation is equivalent to revenge where a person perceives unfair treatment and attempts to restore equilibrium by taking the matter into his or her own hands.

Research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one's self image.



The process of retaliation begins with a perceived offense (e.g., initiating a discrimination claim).

If those accused sincerely believe that they have done nothing wrong, or if they believe that their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation.

In this regard, retaliation is a coping mechanism –a way of alleviating the psychological discomfort associated with perceived injustice.



Several factors ultimately affect whether a manager will engage in retaliation. These include the manager's psychological traits, perceptions of the organizational culture, and organizational opportunities.

Personalities with higher risk of retaliating:

• Those with a sense of entitlement will experience offenses much more emotionally than others and take them much more personally.

• Authoritarian personalities, people who place a high value on status in group settings


Excerpts from EEOC’s Retaliation—Making it Personal ‐‐ How HR Can Help Managers

Talk to the manager who has been accused:

• Acknowledge the potential emotional response involved with being accused of a discriminatory action

• Discuss the problematic implications of seeking to avenge any perceived offense

• Review examples of both constructive and problematic responses with the manager

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Scenario

More than a year after being accused of sexual harassment, Eli approaches his HRG and presents a strong case for putting Zoe on a PIP.

Shortly thereafter, Zoe is terminated as a result of Eli’s recommendation.


Scenario

More than a year after being accused of sexual harassment, Eli has approached his HRG and presented a strong case for putting Zoe on a PIP (with a strong possibility of termination following).

Cat’s paw legal doctrine: employee seeks to hold employer liable based on the retaliatory intent of a supervisor who was not responsible for making the ultimate employment decision.


Scenario

Liza discovers that one of her employees has flamed her on Facebook by posting the following statement online:

“My manager, Liza, is a total b----.” She’s making us work tons of overtime and doesn’t give a %@&! about the impact on our personal lives. My fellow coworkers, I know you’re lurking out there. “Like” my comment if you agree that we should get this slave-driving pathetic-excuse-for-a-human-being fired! I am TIRED of dealing with her abusive and despicable treatment! SHE IS THE WORST MANAGER I HAVE EVER WORKED FOR IN MY 20 YEAR CAREER!”


Scenario

A manager approaches you about concerns about Tom, an employee. His coworkers are upset about the frequent posts he is making on social media regarding his political views (his coworkers consider his views to be a bit extreme/insensitive). Coworkers are pressuring the manager to take action against Tom.

All of Tom’s social media activity happens outside of work. While Tom’s views may be outside the mainstream, Tom is not making any threats, violating policies, etc.

What should you do?


Employees always have the right to…

• Call government agencies

• Make internal and external complaints alleging their employment law rights have been violated

• Act as witnesses to those doing the above

• Engage in “concerted activities” under NLRA

• Exercise rights under the law

Retaliation protections apply regardless of the validity of the complaint!


Section 2: An Overview of the Legal System

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Understanding the Interplay between Different Levels of Government

FEDERAL GOVERNMENT:• LB: Congressional gridlock• EB: Gov’t agencies and

Executive Orders• JB: Conservative majority

in Sup. Court maintained

STATE GOVERNMENTS:• Response depends

upon political orientation• Liberal: Passing pro-Ee

laws they wish Congress would pass

• Conservative: Some try to limit local gov’ts power to pass pro-Ee ordinances

LOCAL GOVERNMENTS:• Response depends upon

political orientation• Liberal: Passing pro-Ee

laws they wish Congress would pass


Examples of Different Types of Laws being Passed by State & Local Governments

• Paid sick leave

• Fair pay laws

• Salary inquiry bans

• Predictable scheduling

• Legalization of marijuana

• “Ban the Box” (limiting criminal background inquiries)

• Vive la France! The right to disconnect (Ers must negotiate with Ees about when they don’t have to respond to calls/emails)


Democrat‐Controlled House is Already Passing New Legislation

• Paycheck Fairness Act (passed 03/27/19)• Prohibit employers from asking job applicants about their salary history

• Prohibit employers from retaliating against workers who discuss their pay

• Require employers to show that pay disparities between men and women are job-related and consistent with business necessity (amends EPA)

• Raise the Wage Act (Passed 07/18/19)• Would raise the federal minimum wage incrementally until it reaches $15 in 2025

• Forced Arbitration Injustice Repeal Act (Passed 09/20/19)• Would prohibit pre-dispute arbitration agreements in employment

• Protecting the Right to Organize (PRO) Act (Passed 02/06/20)• Condenses union election time, revokes Er attorney/client privilege, requires Ers to

disclose Ee personal contact info, limits independent contractor classifications

Little chance of passage by the GOP-controlled Senate, but a clear sign of what will happen if/when Dems get full control of Congress


Section 4: Employment Discrimination Laws

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• Disability 24,238 (33.4%)

• Race 23,976 (33%)

• Sex 23,532 (32.4%)

• Age 15,573 (21.4%)

• Nat’l Origin 7,009 (9.6%)

• Color 3,415 (4.7%)

• Religion 2,725 (3.7%)




Legal Trend: Some States & Local Gov’ts Passing Laws Regarding Applicant Salary History (SH)

• Laws include a mix of the following provisions:• Banning questions about SH

• Prohibiting adverse actions or retaliation against applicants who don’t disclose

• Banning use of SH when setting comp

• When inquiries or use of SH are permissible

• Requiring pay ranges to be disclosed to applicants

• A few states have “banned SH bans!” (MI & WI)

• When no ban in Ers jurisdiction: when are these laws applicable for out of state applicants?

• It is lawful in all jurisdictions to ask: “What are your salary expectations?”

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Gender Wage Equity Debate: Federal Level

• Paycheck Fairness Act

• Would amend and strengthen Equal Pay Act

• Gaining traction since 2009

• Passed in House 2019

• Now: not likely to pass until political change in White House & Congress

• Passing PFA is #1 legislative priority once political change happens


Gender Wage Equity: States Passing Aggressive Wage Equity Laws (Paycheck Fairness Act)

• The following states have recently passed versions of the Paycheck Fairness Act:• California

• Illinois

• Maryland

• Massachusetts

• New Jersey

• Oregon

• Washington

• More states likely to follow!


Sexual Orientation Issues

• Teasing/taunting behavior

• Imitating stereotypical behavior

• “Is he or isn’t he?” gossip

• Jokes

• Figures of speech, name-calling

• Unnecessary references and inquiries

• Respectful interaction with LGBT customers

• “Respect” allows for differences in opinion but not for disrespectful treatment


How Appearances of Discrimination are Created

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1. Favoring those Most like Ourselves

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Scenario

Bryson manages both male and female employees.

But he is more comfortable hanging out with his male employees and talking/doing “guy stuff.”

As a result, female employees don’t get to spend as much time with their boss as do their male coworkers.

Bryson then has to select one of his employees for promotion… and he selects a male employee.

What appearance is potentially created?

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2. Poisoning the Well

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• “We could hire two good young engineers for what we’re paying Charlie.”

• COO referred to employee as an “old, gray-haired f---.” (rhymes with “tart”)

• “At least your husband has a good job.”

• “I know some say we have a ‘bro’ culture here, but I’m a 35 year old male, what do you expect?”

• Military service was “bull----” and “a bunch of smoking and joking” and “a waste of taxpayer’s money”

• Use of racially offensive language

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Excerpts from My Sad Catalog of Racial Slur Cases

• Minority employee standing next to white coworker who is talking to their white boss on the phone (overhears boss use racial slur)

• White supervisor jokingly uses racial slurs in attempt to “bond” with minority employee… “we’re buddies, right?”

• White, male supervisor really into hip-hop culture mistakenly sends text with racial slur to his African American employee instead of his outside of work friend



• School superintendent told older employee “I need 21st century communication skills” and that a younger coworker “is better at that”

• Superintendent gave PP presentation to staff on “21st century communication skills” that included the following definitions:• “Digital immigrants” = people born before

computer technology had developed

• “Digital natives” = people born after computer technology had developed

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• Plant manager commented that he “was not a big fan of hiring people with physical disabilities.”

• Then manager sent out a group text to other managers about employees in question in which he stated, “Well I don't think it's gonna work out guys bc of the physical issues and needing to take pain meds for them. [Plant Manager] is not a big fan of hiring people with physical disabilities. Sorry if I would have known about them before I would have said something to u guys.”

• Shortly thereafter, the manager sent an email to the staffing company regarding the employees, in which he stated that they “have some physical disabilities that they are taking pain meds for on [an] as needed basis and [P.M.] is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer.”


2. Poisoning the Well (HR Version! )

• Caucasian head of HR Dept. said “let’s change the complexion of the group.”

• “Men have a propensity to commit sexual harassment.”

• “You know what’s in your file.”

• HR Director began termination meeting with, “we’re not letting you go because you’re sick.” Then, when asked for the reason, she said without further explanation, “I think you know what it is.”

• “That’s so gay!”

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LGBT Discrimination

• Well qualified police sergeant in St. Louis County, MO, told that the “command staff has a problem with your sexuality” and to “tone down your gayness” in ordered to be promoted to Lieutenant.

• A jury awarded $20 million in order to “send a message”

--Wildhaber v. St. Louis County, Oct. 2019


3. Creating your own Monsters

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Scenario

New hire Dane is assigned to Ava’s team.

Ava quickly finds out that Dane has a toxic personality.

Ava doesn’t have time or energy to deal with Dane.

Dane does things that should trigger a warning, but no warnings are issued. Perf. evaluations come and go and everything is marked “good/excellent.”

After 3 years, Dane is transferred to a new manager who IS willing to grapple with Dane and…


Scenario

Employee “Barbara,” has complained to her manager about inappropriate, sexual comments and behavior from her coworker “Ted.”

The manager’s preliminary check into the situation has uncovered some very troubling information about how Ted has acted towards Barbara (substantiating Barbara’s concerns). What advice would you give to managers about how best to convey this sensitive info to HR?


Section 7: Illegal Harassment

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Wrong Takeaways from #MeToo Movement

• “I’m being a lot more careful now. Specific changes that I have made: No meetings with women in my office. No one-on-one meetings with any women. No more walk-and-talk meetings with women to the coffee shop.” – 38 year old male, San Francisco, Tech Industry

• “Back in November, management had a meeting where we decided that travel needs to be limited to people that are not potential HR problems. So no more young people of any gender can go on trips with management. People who do travel together must also be the same gender. We also cannot sit next to each other on the plane, so there is no way to work on the flights.” –53 year old male, Wash. DC, consulting

#ChangedbyMeToo, NBC News, May 30, 2018

https://www.nbcnews.com/specials/changed-by-me-too#slide-1

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Things That Leaders Really Should Never Say or Do

• Commenting on sexual attractiveness of employees• “Evaluating” sexual attractiveness

• Flirtatious behavior

• Making references to sex• Sexualizing conversations

• Wandering eyes

• Watch out for rationalizations:• “Work is stressful, I am just providing comic relief…”

• “Had I known my employees were offended, I wouldn’t have said it. They never asked me to stop or looked uncomfortable”

• Allowing “favored” employees greater leniency


Section 8: The Rights of Disabled Employees

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Examples of “Regarded as Disabled” Cases

• During the job interview, the applicant voluntarily discloses that she has a back problem but believes she can do the job. The demeanor of the hiring manager changes and he states that the job is probably not a good fit for her. She doesn’t get an offer.

• An employee misses several days of work. There are vague statements about health issues being the cause. The manager sends text messages to the employee threatening to fire him if he doesn’t return ASAP.


Scenario: Suspected Mental Health Issue

Sara is a long term employee who has typically performed well. Recently, however, her performance has significantly declined. Her manager approached you (the HR person) and said, “she’s acting like she is struggling with depression.” Sara has notdisclosed the existence of any medical problems to the company.


Pop Quiz!

An employee approaches her supervisor and discloses that she has a medical condition. She implies that she may need an accommodation.

What should the supervisor say in response?

• “Please tell me more about your medical condition.”

• “How can I help you?”


Scenarios & Cases

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Scenario

Jerry is a skilled machinist working in a position that requires mandatory overtime (which happens frequently). He has some ongoing problems with his back.

One day he hands you a note from his doctor requesting the accommodation of limiting his work hours to no more than eight per day.


Scenario

Assembly workers are required to rotate through four different work stations.

Manny brings in a note from his doctor stating that due to his back condition (a workplace injury originating in 2017), he can only work stations #1 and #3.

This is a union environment and some of Manny’s requested accommodations conflict with seniority rights.


Scenario

During the interview process, Lindsey enthusiastically indicates that she can perform various manual labor tasks required for the job.

However, during her first week on the job, she struggled to perform these functions.

On the second week, she brought in a note from her physician indicating that she has ongoing shoulder/neck impairments and that she needs various accommodations.


Case Law: Associational Discrimination under the ADA

• A supervisor demanded that an employee "leave his personal problems at home" after he requested short-term schedule adjustments to care for his disabled daughter

• The employee also plausibly alleged that he was terminated out of "fear" that he would be "distracted" at work due to his daughter’s disability.

• "Though the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination." --Kelleher v Fred A. Cook, Inc., 2nd Circuit, September 24, 2019.

• Another sad and avoidable example of “poor managerial handling” related to disability issues!


Scenario: Inconsistent Use of Medication

Tonya has been diagnosed with bipolar disorder.

When she takes her meds consistently, she can perform the essential functions of her job with reasonable accommodation.

When she doesn’t take her meds, her performance falls below acceptable levels.


Scenario

Kylie asks for a red Titan Osaki 3D Pro Cyber Massage Chair (only $5,795!) as an accommodation for her back problem.

However, there is a chair available for $500 that meets her doctor’s requirements.

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ADA Reasonable Accommodation Requests: Managers should Watch their Manners and No Magic Words Required!

• The employee wished to take a leave of absence due to her worsening medical condition. She texted her store manager inquiring about how to request a leave of absence. One week later, she followed up with a text about a rumor that she intended to quit, which was allegedly spread among coworkers by the manager.

• In three messages, the manager responded that: "there was no leave of absence," she could remain with Dollar General as long as she could "do the job and not be sick all the time," and she should "read the employee handbook.“ She was fired for missing work.

• Court: a reasonable jury could conclude that the employer was aware of the employee’s disability; that she requested an accommodation; and that the employer, had it engaged in the interactive process, could have reasonably accommodated her. TRAIN YOUR MANAGERS!!!

--Garrison v. Dolgencorp, LLC, October 3, (8TH Cir. 2019)


Training Tips to Share with Managers When Employees Struggle with Health‐Related issues that impact Performance or Attendance

• When approached by the employee, train managers to:

• Be polite and professional… avoid threats!

• Focus on: “how can we help you?”

• Don’t focus on: “tell me all the medical details”

• The need for accommodation can be implied by the circumstances… train managers to recognize when it happens it and go get help from HR!

• Avoid granting sizeable accommodations without first gaining approval from you (HR)

• Follow up with employee in timely manager

• All communications with employee (including via text) must be professional and respectful


Scenario: The Long, Slow Decline

Michael’s performance has been declining. Warnings have been issued. If improvements are not made, he will likely be terminated.

Michael informs HR that he has been diagnosed with depression. He utilizes both the FMLA & ADA.

He exhausts his FMLA through use of a full time and intermittent leave.

He continues to miss a lot of work on an intermittent basis, his performance remains poor.

His supervisor is becoming increasingly frustrated. Some communications (including via text) reflect this frustration.


EEOC: Factors to Consider when Determining if Undue Hardship Exists due to LOAs

• Amount of leave requested (including leave already taken)

• Frequency of leave

• Degree of flexibility regarding days leave is taken

• Whether need for intermittent leave on specific dates is predictable or unpredictable

• Impact of the employee’s absence on coworkers and on whether specific job duties are able to be performed in an appropriate and timely manner

• Impact on employer’s operations and ability to serve customers in appropriate and timely manner

--Employer Provided Leave and the Americans with Disabilities Act, U.S. EEOC, May 9, 2016


Scenario

Tony (supervisor) and Mario have a somewhat complicated working relationship.

One day, Mario brings in a note from his doctor verifying that he has a sleep disorder and needs a flexible start time (1-2 hours).

This really irritates Tony. But when questioned, Tony struggles to come up with a meaningful reason as to why a flexible start time wouldn’t work for Mario’s position (other than the fact that the company doesn’t normally allow flexible start times).


Scenario

Cheryl is a Purchasing Agent. Her current performance problems would typically result in a PIP being issued.

However, her manager is taking a “hands off” approach because Cheryl has a disability (migraine headaches) that requires fairly extensiveaccommodations (with frequent dialogues about effectiveness, etc.)

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Case Law: Failing to Discipline is Disparate Treatment Discrimination

Employer may have discriminated against disabled employee by not counseling him for performance problems, when non-disabled employees were counseled and therefore given the opportunity to improve.

--Caldwell v. KHOU TV, 5th Circuit, 2017


Scenario

A manager you support is planning on terminating Natalie on Friday for a mix of performance problems and policy violations.

However, on Thursday she informs you that he has been diagnosed with chronic depression and needs an accommodation. She claims there is a link between her condition and her performance problems.

Alternative scenario: during performance evaluation meeting, while the manager is giving Natalie feedback about improving her performance, Natalie discloses depression condition.


ADA: Accommodations are Always Prospective:Dewitt v. Southwestern Bell Tel. Co., 10th Circuit., 2017)

Facts: Ee with diabetes worked as a call-center CSR. She was on a LCA for performance. Two months later, she dropped two calls. Her supervisors conducted a suspension meeting, and Ee explained she did not remember ever taking the calls and that she was experiencing dangerously low blood sugar levels at time. She was terminated. She filed suit for failure to accommodate.

Holding: for employer. Accommodations are always prospective. Ers not required to excuse past misconduct even if related to disability (no requirement for “retroactive leniency”).


Scenario

Tia has OCD. She is having ongoing conflicts with her supervisor regarding how her job assignments are given to her. Tia has asked her supervisor to put her assignments in writing, along with listing a completion date.

The supervisor prefers to stop by Tia’s cubicle and give her instructions verbally. The supervisor thinks Tia is just being difficult, but Tia claims that she feels overwhelmed and stressed when her manager just “dumps stuff on her.”


Scenario: Anti‐Social Behavior

At times Tom can be a little rude, abrasive and argumentative when interacting with team members. He is often a little intense, causing coworkers to avoid him at times. There aren’t specific concerns about violence from Tom. His performance is otherwise satisfactory.

He has been diagnosed with PTSD as a result of military service in Iraq and his physician has indicated that his condition will cause him to struggle in his interactions with others.


Scenario

Val, an Administrative Assistant, asks if she can bring Fluffy to work because he (i.e., Fluffy) needs to take medicine on a set schedule.

Val then says Fluffy is an emotional support animal (ESA) and she needs to bring him to the office with her to help manage her anxiety.

Fluffy has growled and bared his teeth at other employees. He’s also messed on the floor.

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ADA: Service Animals as Accommodations

• Title I of ADA does not define “service animal” (SA)

• Obligation to accommodate trained SAs is high unless undue hardship/safety issue

• Obligation to accommodate ESAs is unclear

• Per Job Accomm. Network:

1. No animals policy?

2. Medical verification

3. Interactive dialogue

• Animal trained, under employee control at all times?

4. Trial basis? (in writing)


Section 10: The Family & Medical Leave Act

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Case Law: Right to Decline Use of FMLA

Employee declines to use FMLA for out of country trip to care for ill father (instead, trip classified as “vacation”). She fails to return to work from vacation on time and is terminated per NC/NS policy.

Court: “We thus conclude that an employee can affirmatively decline to use FMLA, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

--Escriba v. Foster Poultry Farm, Inc., 9th Circuit (2014)


But Wait! DOL Opinion Letter States that Leave May not be Delayed (FMLA2019‐1‐A, March 14, 2019)

• “An employer may not delay the designation of FMLA-qualifying leave or designate more that 12 weeks of leave (or 26 weeks if military caregiver leave) as FMLA leave.”

• “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee or the employer may decline FMLA protection for that leave.”

• “The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

• DOL “disagrees with the Ninth Circuit’s holding” in Escriba v. Foster Poultry Farms, Inc.


So… A Review of Important FMLA Fundamentals

• FML can run concurrently with any other type of leave• And must run per recent DOL Opinion Letter!

• If it qualifies as FML, it’s can be treated as FML• And must be per recent DOL Opinion Letter!

• Stay tuned! Time will tell if courts adopt rigid position taken by DOL in its recent opinion letter• DOL Opinion Letters do not have the force of law, but can

be highly influential upon the courts

• Remember: if you are audited by DOL, they will use their own rules and standards

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FMLA Scenario

Jennifer applies for FML for her own SHC. An Eligibility Notice is given to her (she is eligible) along with a medical certification (MC) for her physician to complete. Because the need was unforeseeable (sudden onset), the employer allows her to begin leave immediately pending final confirmation (the completion of her MC).

However, despite repeated requests, after more than three weeks Jennifer has still not returned her MC. What are the employer’s options?

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Reduced Schedule Leave Scenario

Phyllis is taking reduced schedule and intermittent FML as she recovers from surgery. During this period, she is not meeting productivity requirements (prorated per her leave) and she has been mildly insubordinate with her supervisor.


Scenario

Liz is ready to return from FML/STD leave due to her knee surgery. However, per her doctor, she is requesting a part-time/light-duty position. What is your obligation under this situation?

You become aware that Liz’s manager’s initial response was, “you can’t come back to work until you are 100%.”

So, how do you handle situations in which employees appear to no longer be able to do their jobs?


FMLA Case Law: Employee Fraud

A county maintenance worker who was also the lead singer for a local rock band was terminated after his employer found that he had performed on nights he had taken FMLA leave for his throat condition.

The evidence showed the employer had an "honest belief" that employer was abusing FMLA when it terminated him, thus the employee could not establish that his termination was in retaliation for exercising his FLMA rights.

--Beishl v. Co. of Bucks, E. D. PA, Sept.18, 2019

TIP: When fraud is suspected, don’t rush to judgment. Analyze facts carefully, give the employee a chance to respond, and get input from medical professionals on specifics.


Section 11: Responding to Employee Misconduct & Poor

Performance

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The Coaching Model

• If your son or daughter were playing on a sports team, what would you expect from the coach?

• If the coach never gave your son or daughter feedback about his/her performance, would you feel you’re getting value from the relationship?


Setting the Expectation to be Coached

• Discuss: the role of a coach

• To give feedback (praise and correction) in order to maximize performance Inform employee:

• “I am your coach”

• Reveal motivation: “I am committed to helping you be successful in your role”

• Set expectation: “I will be giving you feedback”

• Make agreement: are you willing to receive feedback?

• New hires:

• Have this conversation during onboarding process

• Have this conversation during the job interview

• Are you hiring employees who are willing to be coached?

• Existing employees:

• Reset expectations during one-on-one meetings

• Can be discussed in team meetings as well

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Scenario

Michelle manages Ali. They went to high school together years ago and played on the same volleyball team. They fellowship at the same church and have many shared family and friend connections (resulting in them often seeing each other outside work).

Ali’s performance has been poor for some time and is getting worse. Michelle, however is reluctant to take action against Ali because their history and social connections make it all, well… complicated.


Ineffective Delivery Techniques

• The Hallway Attacker

• Passive Aggressive Behavior

• The Gossiper

• The Way-Too-Nice Manager

• The Ownership Failure

• The Cowardly Emailer

• The Procrastinator

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Scenarios

An applicant tests positive for marijuana. When informed of test results, she produces a prescription for medical marijuana (for back pain).

Lex is in a safety sensitive position. One day, he appears to be under the influence at work and is tested. He tests positive for marijuana. When informed of test results, he produces a prescription for medical marijuana (for anxiety).


Legalization of Marijuana

• Marijuana is illegal under federal law

• ADA excludes illegal substances

• Failure to accommodate cases being brought under state disability laws

• 33+ states and DC have legalized or decriminalized marijuana in some form

• 11 of these states have legalized recreational usage

• Level of protection varies significantly from state to state

• Many of these laws are ambiguous regarding employment protections (focus mainly on protection from criminal prosecution)

Employment Law For HR Professionals Employment Law For HR Professionals

Marijuana and the Workplace: Questions to Ask

• What type of usage and where? • Medical or recreational, on or offsite?

• What are the applicable laws for the jurisdiction?• Does law provide employment protections?

• Options: 1) Employee protections, 2) employer protections, 3) do not address

• Is usage within scope protected by law?

• Company’s policy issues• How did issue arise? (test, voluntary disclosure?)

• Job-specific issues• Was the person impaired at work? Impacting performance?

• Safety sensitive position?

• Governmental restrictions? (e.g., FAA, DOT)

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Documents

Employment Law for HR Professionals - JKD Law – Law Site · 2020. 2. 21. · EEOC Charge Statistics for FY 2019 • Disability 24,238 (33.4%) Race 23,976 (33%) • Sex 23,532 (32.4%)