2010 LEGAL UPDATE
This survey of employment law issues formatted as a 10 part training course was developed by NISHRM’s Vice President for Legislation, Todd Hunter Thomas, an attorney with Loeffler Thomas Touzalin LLP in Northbrook. The course is designed to be presented by an experienced HR professional at regular internal meetings with managers. The concepts in this brief format are included in a more comprehensive training workshop conducted by Mr. Thomas. (Copyright 2010, Todd Hunter Thomas, www.ltt-legal.com)
10 Minute/10 Week Course for ManagersTopics to be covered in manager meetings
Ø Week 1 Retaliation/Harassment ·
o Retaliation is now the most common form of charge filed at the EEOC (tied with Race discrimination). It is easier to prove someone complained of discrimination, and then suffered some adverse action, than it is to prove there was discrimination in the first place. Managers are the most frequent target of retaliation charges, and if harassment is involved (and in some other cases), the manager may face personal liability. Managers must understand how the No Harassment/No Retaliation Policy works. Managers must prohibit all potentially offensive conduct, and notify HR of any complaint or objection.
Ø Week 2 Unemployment compensation
o U/C is a public benefit to assist in transition, and can be denied only for a willful violation of a reasonable company rule. This is a high standard. Warnings and documentation are required and will be the key to success. Claims are charged to the employer after an employee works 29 days.
Ø Week 3 Time off, FMLA, Workers’ Compensation, Disability, STD
o All of the above may overlap and managers must inform HR of all time off requested, planned, taken and ending. Failure to give the FMLA notices may result in overuse of time off. The most common form of FMLA is for the employee’s own health. FMLA has been expanded significantly to include time off for family members of service men and women. Vessa protects victims of abuse, as well as their family, entitling them to leave. Vessa leave does not overlap other paid time off. FMLA and Vessa leave may not be used as a basis for poor evaluation, or discipline.· Employees may not be retaliated against because of workers’ compensation. Automatic termination after a period of time on workers’ compensation is not approved by the EEOC. If it is necessary to replace them, however, employees on workers’ compensation are not guaranteed a return to work (after FMLA runs out).
Ø Week 4 Overtime, minimum wage
o Overtime cases are one of the fastest growing forms of cases. They are difficult to defend without very good documentation, and they are expensive. Overtime is based on 40 hours per week (not 80/2 wks or 8/day). All time worked must be paid, whether authorized or not. Unauthorized overtime is a basis for discipline. Employees are lawfully entitled to an uninterrupted break of 20 minutes. Failure to enforce break time may subject the company to severe penalties. No other breaks are required. Comp time is prohibited for employees “exempt” from overtime (most salaried employees), because it can convert the employee to non-exempt (entitled to overtime).
Ø Week 5 Documentation helps you:
o Discipline and discharge poor performers. Defend yourself and the organization if sued. Prepare for a hearing, deposition or trial (imagine not having records!). Justify what you want to do. Manage employees and maintain control.
Ø Week 6 At will employment
o Employees and the organization may terminate their employment relationship at any time for any reason, unless discrimination or other unlawful motivation is involved. Personnel policies are not a contractual guarantee of rights and may be modified without notice. At will is not an excuse for poor documentation; nor is it a defense to a charge of discrimination.
Ø Week 7 Termination
o HR is your partner. When immediate action is warranted, suspend rather than terminate. Review policies. Review personnel records. Plan and prepare. The goal is no surprises.
Ø Week 8 When to contact HR
o You receive any complaint. You hear about a potential problem. You’re unsure (e.g., how to deal with an employee or policy). You anticipate a need (e.g., for discipline or discharge). You need assistance (e.g., communicating with an employee, preparing documentation).
Ø Week 9 Interviewing land mines.
o Avoid: Anything personal. Family, child care. Transportation. Credit. Arrests. Appearance, manner. Personal activities not on resume.
Ø Week 10 How to use company policies
o When a question arises. Before taking action. When a complaint is made.
