Hot Topics
in
Employment Law
Speaker: John Purtill CPA
ICPAS Management Conference
August 8, 2002
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Today’s Topics
Circuit City and mandatory arbitration
Mitigating measures and the ADA
Vicarious liability
Wage & Hour classification
Computerize it!
Casey Martin
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1 - Employee disputes
Court remedies
State court
Federal court
Administrative
EEOC complaint (within 180 days)
NLRB
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Circuit City
Standard employment application
Employment agreement
Dispute resolution agreement
ADEA, Title VII CRA ’64, ADA, FMLA
1 year from cause of action
Allowed
NLRB, EEOC, state agencies
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Dispute procedures
Filing form
Time limits
Arbitrator selection
Time and place
Legal representation
Discovery, interrogatories, depositions
Hearings
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Federal Arbitration Act
Authorizes arbitration clauses
Contracts valid
Lawsuits must be referred to arbitration
Courts can enforce awards
Doesn’t apply to maritime, transport
www.lawmemo.com/arb/res/faa.htm
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Circuit City V. Adams
Adams files state discrimination action
CCS sues to compel arbitration
U. S. Supreme court
Adams:Arbitration Act excludes workers in
ICC
Supremes (5-4) May 2001:
Only transportation workers excluded
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What can be arbitrated?
Almost all employer/employee disputes
Federal discrimination statutes
Descrimination
ADA
Age Discrimination
Federal wage and hours laws
State common law contract rights
Wrongful discharge
State statutes and constitution
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What about Ryan’s?
Ryan’s Family Steak Houses
January 2002
Arbitration clause
One-sided
Federal court – unenforceable
Headed to Supreme Court?
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Want to do this?
Requirements for agreement
Meet standards for contract (duress, fraud)
Mutual – both must give up rights
Equal rights - fees, right to pick arbitrator
Fairness – credible reputable arbitrators
American Arbitration Assoc: www.adr.org
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2 - ADA disabilities
Major life activity (physical function)
Walking, seeing, hearing, lifting, reaching
Traditional disabilities
AIDS/HIV, blindness, cancer
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Discrimination considerations
Types of functions
Essential
Marginal
Selection criteria
Reasonable accommodation
Physical
Work rules
Hardship
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Last Month
Supreme Court
USAir v. Barnett
Cargo handler injured on job
Applies for mail room job
ADA
Court: Not need to prefer disabled worker
over more senior workers
Not reasonable accommodation
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Remedies
If discriminated against
Lawsuit
EEOC complaint
Remedy
Back pay
Reinstatement
Legal fees
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Disabilities
Examples
Diabetes
Emotional illness
Epilepsy
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Mitigating measures
Controlled disability not disability
Medicines
Appliances
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Controlled Disabilities
EEOC definition changed by courts
Murphy v. UPS
Mechanic with high blood pressure
Sutton v. United Airlines
20/20 corrected vision
Albertsons Inc. v. Kirkingburg
Driver with waivable vision deficiency
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Action plan
Position descriptions for all positions
Specify essential functions
Not:
Prepare operations report
This:
Read computer terminal
Lift packages into truck
Walk from kitchen to tables
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3 - Vicarious liability
Refers to sexual harassment
Employer liable for acts of agents
Executives
Supervisors
Employees, contractors, vendors, etc.
Issues
Pervasiveness
Either direct or constructive knowledge
"Knew or should have known"
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Sexual harassment
Hostile working environment
Any combination works: MF, FM, FF, MM
Rank not important
Claim made by direct target
3rd party offended by consenting parties
Economic injury, discharge not required
Only requirement: harasser's conduct unwelcome
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Burlington Industries v. Ellerth
Burlington had anti-harassment policy
Ellerth and indirect supervisor
Constant sexual harassment
On the job
Ellerth leaves Burlington
Sues
Claims hostile working environment
Burlington responsible!
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Faragher v. Boca Raton
Boca Raton had anti-harassment policy
Not widely distributed
Faragher and 2 life guard supervisors
Harassed her
Also other life guards
Third supervisor knew – didn’t report
Employer responsible!
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Doe v. Lago Vista
Lago Vista Independent School District
Has anti-harassment policy
High school teacher and supervisor
Sexual relationship
Encounters take place off school property
Administration not aware
Employer not responsible, plus
Requires actual knowledge
Deliberate indifference to misconduct
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The rules
Driver is employer knowledge (maybe)
Tangible employment outcome
No defense
No adverse outcome, 2 defenses
Employer: reasonable care to prevent and
corrected promptly
Employee: unreasonably failed to take
advantage of prevention
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Action plan
Policy
Supervisor training
Easy employee access to reporting
Top management support
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4 - Wage & Hour classification
"Glorified clerk" complaint
Taco Bell, Starbucks, others
Working supervisors - exempt executives
No OT, etc
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Exempt executive
IN and Federal rules identical
Salary
At least 80% of time to function
(60% in retail/service)
Management is primary duty
Supervise 2 or more FTEs
Authority to hire, fire
High degree of judgment
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DOL Audit areas
Docking for sick time
Prorating/carry-over: pay in full every pay period
Administrative doing low-level routine production
Professional degrees not doing professional jobs
Or jobs not related to the degree they hold
Job skills v. independent judgment
“Execs” with > 20%/40% non-exempt
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To do
Re-audit risk jobs:
First level supervisors
Professionals
Sales
Administrative
Revisit position descriptions
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5 - Computerize it!
80-90% of companies use manual methods
Employee evaluations
Position descriptions
Policy manuals
Outcome
Time-consuming
Inflexible
Delayed
Inaccurate
Software availability
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Automating evaluations
KnowledgePoint Performance Now!
Custom form per job
Percentage allocation of skills
Narrowly defined meanings for “1” to “5”
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Evaluation input screen
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Example rating
Communications
Keeps others adequately informed
Choices
1 - Frequently fails …
2 - Unless reminded, sometimes fails …
3 - Keeps others adequately informed
4 - Careful to keep …in a timely manner
5 - Extremely thorough and proactive …
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Automating PDs
KnowledgePoint Positions Now!
Start PD by extracting from master library
Covers all EEOC elements
Objective statements of position demands
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PD elements
Essential duties and responsibilities
Supervisory responsibilities
Qualifications
Education and/or experience
Language skills
Mathematical skills
Reasoning ability
Certificates, licenses, registrations
Work environment
Physical demands - essential functions!
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Physical Demand input screen
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Vision input screen
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Automating manuals
KnowledgePoint Policies Now!
Most products from California
Thoroughly tested
Use Q&A approach
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Policy development
Overview of topic
Advice on topic
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6 - Casey Martin
PGA pro golfer
Klippel-Trenaunay-Weber syndrome
Issues
Casey – walking is incidental
PGA – walking is essential function
Supreme court opinion (7-2) May ‘01
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Last month
Supreme Court
FMLA
Ragsdale v. Wolverine Worldwide
Wolverine allows 7 months FMLA leave
After 7, Ragsdale requests 12 more weeks
Says wasn’t notified about first leave
Court: Don’t have to give
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Thanks for listening!
Contact information:
John S. Purtill, CPA
203-272-2844 (voice)
203-272-2583 (fax)
John@Purtill.com
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