Law Office of Randy Brown
Prepared Exclusively for HR Florida
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
HR Department
Boot Camp
October 2, 2007
Presented by:
Arthur R. “Randy” Brown, Jr.
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
INTRODUCTION
Law Office of Randy Brown
The Relevant Employment
Workplace Laws
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
THE BEGINNING


The Civil Rights Act of 1866
THE LABOR LAWS OF THE
1930s
National Labor Relations Act of
1935
 Fair Labor Standards Act of 1938

Law Office of Randy Brown
The Relevant Employment
Workplace Laws
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

THE ANTI-DISCRIMINATION
LAWS OF THE 1960s
The Equal Pay Act of 1963
 Title VII of the Civil Rights Act of
1964
 The
Age
Discrimination
in
Employment Act of 1967

Law Office of Randy Brown
The Relevant Employment
Workplace Laws
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

EXPANSION
OF
ANTIDISCRIMINATION LAWS IN
THE 1970s
The Rehabilitation Act of 1973
 Employee Retirement Income
Security Act of 1974
 The Pregnancy Discrimination Act of
1978


Vietnam Era Veterans' Readjustment
Assistance Act (VEVRAA) of 1974
Law Office of Randy Brown
The Relevant Employment
Workplace Laws

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
RESURGENCE OF STATUTORY
REGULATION SINCE THE LATE
1980s AND EARLY 1990s





The Immigration Reform and Control
Act of 1986
The Americans With Disabilities Act of
1990
The Civil Rights Act of 1991
The Family and Medical Leave Act of
1993
The Employee Polygraph Protection Act
of 1998 (EPPA)
Law Office of Randy Brown
The Relevant Employment
Workplace Laws
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

OTHER WORKPLACE LAWS
The Florida Civil Rights Act (FCRA)
 Health Insurance Portability and
Accountability Act of 1996 (HIPAA)
 The Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA)
 The Federal Unemployment Tax Act
(FUTA)

Law Office of Randy Brown
Workplace Trends And Legal
Developments
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
The EEOC received 75,768 charges of
discrimination in 2006. The charges
stopped a 4-year decline.






35.9% alleged race bias
30.7% alleged sex discrimination
29.8% alleged retaliation
20.6% alleged disability discrimination
21.8% alleged age discrimination
Monetary benefits paid to victims of
discrimination in 2006: $229.9 million,
compared with $415.4 million in 2004.
Law Office of Randy Brown
Protected Statuses
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Individuals are protected against
discrimination on the basis of:






Age (40 and
over ADEA
only)
Race
Color
Sex
Religion
National
Origin





Pregnancy
Disability
(Handicap
under FCRA)
Citizenship
Vietnam era
veteran status
Marital Status
(FCRA only)
Law Office of Randy Brown
Era Of Large Settlements And
Jury/Court Verdicts
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





$600,000 settlement for a national origin
harassment lawsuit
$1.2 million to 12 Hispanic employees for
hostile work environment
$4 million jury award for disparate
treatment, a hostile work environment and
retaliation
$2.75 million for an employment
discrimination lawsuit
$21 million verdict for sexual harassment
Law Office of Randy Brown
Era Of Large Settlements And
Jury/Court Verdicts
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

And many older but very significant
sexual harassment
verdicts/settlements:





$21 million in 2004
$2 million in 2004
$10 million in 2003
$5.4 million in 2003
$10 million in 2002
Law Office of Randy Brown
Era Of Large Settlements And
Jury/Court Verdicts
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


On June 11, 1998, the EEOC announced
that Mitsubishi Motor Manufacturing of
America, Inc. would pay $34 million to
resolve a sexual harassment suit the
EEOC brought against the auto maker.
On February 13, 1998, a jury awarded a
former UPS manager $80.7 million in
compensatory and punitive damages for
a claim of retaliation.
Law Office of Randy Brown
Era Of Large Settlements And
Jury/Court Verdicts
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

And the landmark cases:


In Weeks v. Baker McKenzie, 74 Cal. Rptr. 2d
510, 516 (1998), the jury awarded $50,000 in
compensatory damages, $225,000 in punitive
damages from the harasser, and $6.9 million
in punitive damages against Baker McKenzie in
a case involving a lawyer, a law firm, a
secretary, and sexual harassment.
In 1997, Publix Super Markets agreed to pay
$81.5 million to settle a class action sex
discrimination lawsuit.
Law Office of Randy Brown
Cases Where Individuals Were
Liable For Workplace Violations

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

A district court held that individuals may be
liable for FMLA violations. The district court
judge wrote that “the FMLA has been
interpreted to impose individual liability on
employees.” The court found that the term
“employer” in the FMLA should be interpreted
like the term “employer” in the FSLA. Brown v.
CBK, 2005 U.S. Dist. LEXIS 31960 (W.D. Tenn.
2005).
A district court held that individuals can be liable
under the FMLA. Specifically, the court noted
that individuals, like a supervisor who exercises
sufficient control over the decision to terminate
an employee could be liable for violating the
FMLA. Mize v. Mendoza Co., et al., 2005 U.S.
Dist. LEXIS 28110 (S.D. Ohio 2005).
Law Office of Randy Brown
Individual Liability

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
The Wisconsin Court of Appeals ruled
that the president and part-owner of a
home nursing company can be held
individually liable under the Americans
with Disabilities Act. The majority relied
on the ADA’s definition of “employer”
which includes “any agent,” to conclude
that the defendant, who owns 47.5% of
the company could be held liable as an
employer for alleged discrimination
against the plaintiff.
Law Office of Randy Brown
Forecast For The
Future Workforce
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Census figures
Future of the U.S. Labor Pool
Youth At Work Issues
Law Office of Randy Brown
Workplace Trends that Need to
be Addressed Strategically
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Pregnancy Discrimination
Jury Verdict Research
The State of the Workplace
Whistleblower And Retaliation Claims
Law Office of Randy Brown
Favoritism: Regulating
Workplace Relationships
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Co-worker Dating Statistics
Policies
Office Romances
Regulating Off-duty Conduct
And
PERSONNEL/HR RECORD
COMPLIANCE WORKSHOP
Law Office of Randy Brown
TEST YOUR KNOWLEDGE
Myth or Fact?
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
The law tells you how to set up your
records.
Myth


The law tells you what records to
have but not the form
You must respond to subpoenas and
request for records
Myth

Depends on the subpoena
Law Office of Randy Brown
TEST YOUR KNOWLEDGE
Myth or Fact? continued

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
You are required by law to allow
employees to see there personnel
files
Myth


Not in Florida
Supervisors’ files are private and not
subject to discovery
Myth

All relevant documents are
discoverable
Law Office of Randy Brown
TEST YOUR KNOWLEDGE
Myth or Fact? continued
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Personnel files must be retained for
30 years or the life of the company,
whichever is longer
Myth

Most files personnel files can be
destroyed seven years after an
employees termination, unless
they contain OSHA documents, or
concern unresolved litigation
Law Office of Randy Brown
PENALTIES FOR NONCOMPLIANCE
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Very large fines and criminal
penalties

INS proposed a $580,000 fine
against a South Carolina textile
firm, supervisors and officers were
charged with criminal liability and
prison, and criminal charges
against the company could amount
to $60 million
LEGAL COMPLIANCE
Law Office of Randy Brown
Laws with Records
Requirements
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

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
Fair Labor Standard Act (FLSA)
Immigration Reform and Control Act
(IRRCA)
Civil Rights Act 1964 (Title VII)
Executive Order 11246 (Affirmative
Action)
Vietnam Era Veterans Readjustment
Assistance Act (VEVRAA)
Law Office of Randy Brown
LEGAL ISSUES WITH RECORDS
continued
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

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
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

Age Discrimination in Employment Act
(ADEA)
Occupational Safety & Health (OSHA)
Consolidated Omnibus Budget
Reconciliation Act (COBRA)
Family and Medical Leave Act (FLMA)
Employee Retirement Income Security Act
(ERISA)
Unemployment Insurance
Law Office of Randy Brown
FLSA


Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Enforced by the U.S. Department of Labor
Applies to all employers
Minimum wage
 Federal $5.85/hour
 Increases $6.55 - Summer of 2008,
$7.25 - Summer of 2009
 Florida $6.67




Increases January 1
Over time
 After 40 hours in a work week at time
and one-half of the regular rate of pay
Exempt vs. non-exempt
Time records required
 Retain records for at least 3 years
Law Office of Randy Brown
FORM I-9

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





Note changes in acceptable
documentation
Employers have 3 days to complete after
date of hire
Keep all I-9s in one file
Copies of documentation not required,
but are recommended
Cannot ask for more documentation than
is allowed by IRCA
Forms are available at
http://www.uscis.gov/files/form/i-9.pdf
Law Office of Randy Brown
TITLE VII
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Poster required
EEO-1 Report for 100+ employees



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
Government EEO-4
Public Schools EEO-5
Colleges/universities EEO-6
File September 30 of each year
Obtain forms from the Joint
Reporting Committee
Law Office of Randy Brown
AFFIRMATIVE ACTION

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Non-construction (service and supply)
contractors with 50 or more employees
and government contracts of $50,000 or
more are required, under Executive Order
11246, to develop and implement a
written affirmative action program (AAP)
for each establishment.
Keep records for 7 years




Test records and results
Job group analysis
Affirmative action program evaluations
Written plan
Law Office of Randy Brown
VEVRAA

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



The law requires that employers with Federal
contracts or subcontracts of $25,000 or more
provide equal opportunity and affirmative action for
Vietnam era veterans, special disabled veterans,
and veterans who served on active duty during a
war or in a campaign or expedition for which a
campaign badge has been authorized.
VETS-100 report annually
Obtain report from Office of Veterans Employment
and training
Each contractor and subcontractor shall maintain
for a period not less than 1 year records regarding
complaints and actions taken, and such
employment or other records as required by OFCCP

Failure to maintain complete and accurate records is a
ground for the imposition of appropriate sanctions
Law Office of Randy Brown
ADEA
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Employers with 20+ employees
Retain payroll records for 3 years,
other records for at least one year
from personnel action
Law Office of Randy Brown
OSHA
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Display poster in every work location
OSHA 200 log is posted during
month of February
Copies of citation or violation posted
until situation is corrected
Retain records for 5 years and
hazardous material records for 30
years
Law Office of Randy Brown
COBRA
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Employers with 20 or more
employees who have a group
insurance plan
Notice requirements




Initial notice
Upon qualifying event
Upon termination of coverage
Retain records 6 years
Law Office of Randy Brown
FLMA
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

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

Employers with 50 or more
employees in 75 mile radius
12 weeks of leave in a 12 month
period must work 1,250 hours over
past year
Post notice
Advise employee of rights
Respond to request in writing
Retain records for 3 years
PRIVACY AND
CONFIDENTIALITY
Law Office of Randy Brown
WHY IS CONFIDENTIALITY SO
IMPORTANT?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Employee’s need for privacy
Classified management
information
Legal ramifications
Law Office of Randy Brown
SAMPLE PERSONNEL RECORDS
AND PRIVACY POLICY
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Purpose
Scope
Policy
Procedure
Law Office of Randy Brown
FLMA AND ADA RECORDS
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Permit access only to:





Supervisors with a need to know
First aid and safety personnel
Government official auditing for
FMLA or ADA compliance
For use by Workers’ Compensation
Insurance companies for life and
health insurance
Law Office of Randy Brown
EMPLOYEE ACCESS FOR FILES

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Florida has no statute (some states do)
Make a policy
 All contents
 Copies with the employee’s
signature
 Require a written request
 View with company
representative present
 Reasonable intervals
Letters of reference, criminal records,
and legal actions are usually excluded
Law Office of Randy Brown
RESPONDING TO SUBPOENAS
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Differences in types of
subpoenas
Tips for reducing employer
liability
Law Office of Randy Brown
CREDIT CHECKS/REQUESTS FOR
EMPLOYMENT VERIFICATION
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





Obtain written consent from
employee
Submit all requests in writing
Phone requests, confirm only dates
and title
Provide only information about past
earnings
Make a copy for your files
Law Office of Randy Brown
RESPONDING TO REFERENCE
CHECKS
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Provide only name, dates of
employment, and job title. Except,
when there is a dangerous employee
Do not volunteer salary information,
just confirm it
With employees authorization,
release designated information, no
more
Law Office of Randy Brown
RESPONDING TO A
GOVERNMENT AGENCY
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





Pay attention to factual details
Conduct a thorough investigation
Gather and review all relevant
documents
Be professional, but assert your
rights
Be familiar with regulations and
procedures
CYA: Consult your attorney
Law Office of Randy Brown
RESPONDING TO WAGE AND HOUR
AUDITS
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Audit notifications
On-site investigations


Ask for three pieces of
identification, I.e.,
Credentials(photo ID), Badge, and
business card
Records that must be provided



Sales records
Payroll records
I-9s
Law Office of Randy Brown
RESPONDING TO EEOC
DISCRIMINATION CHARGES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






Responding to a charge
Receipt of charge
Gathering evidence
Testimonial evidence
Confidentiality
Documents to respond to EEOC
inquiries
Law Office of Randy Brown
RESPONDING TO OFCCP AUDITS

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Review of documents
I-9 forms
 Personnel files
 Employment application and
other records
 Interviewer notes
 Recruiting records
 Employer’s support of minority
employment interests
 Training records
 Discipline records or files
 Payroll records

ACCURATE PAYROLL
RECORDS AND TIMESHEETS
Law Office of Randy Brown
WAGE AND HOUR
RECORDKEEPING
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Breaks
Accuracy
Overtime Pay

Who is covered under the Law?
Exempt classification
 Non-exempt classification

Law Office of Randy Brown
OVERTIME AND “COMP” TIME
REGULATIONS
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Overtime Pay Requirements



Compensatory Overtime




Voluntary Overtime
Unrecorded Overtime
Private Sector Employers
Public Sector Employers
Minimum wage and overtime pay
investigation
Rules on docking exempt employee
pay
Law Office of Randy Brown
MAINTAINING EXEMPT STATUS
OF SALARIED EMPLOYEES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Pay Docking
FMLA--Intermittent Leave
Docking
Compensatory Time
Liability
Law Office of Randy Brown
GARNISHMENT WHAT
EMPLOYERS SHOULD KNOW
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Employer’s Role in the
Garnishment Process


Limitations
Employees’ Rights
Law Office of Randy Brown
DEDUCTIONS, EMPLOYEE
LOANS, AND ADVANCES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






Enter every advance on payroll records
Enter interest or processing fee separately
Require written agreement between
Employer/Employee
Ensure amount deducted is reasonable
Keep copies of agreement with payroll
records
If more than one deduction is made, identify
each amount separately
Current Trends
Law Office of Randy Brown
The Supreme Court
Continues to Reward
Proactive Employers
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Faragher v. City of Boca Raton
and Burlington Industries v.
Ellerth
Kolstad v. American Dental
Association
Circuit City v. Adams
Law Office of Randy Brown

Determining whether an employer engaged in
“good faith efforts” to comply with discrimination
laws is a fact based inquiry.

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

It is no secret that juries are sympathetic to
employees and sometimes overly generous when
it comes to punitive damages awards.



Most practitioners view Kolstad as a means to limit
liability for punitive damages. They just might be
surprised that Kolstad is actually allowing more, rather
than fewer, employees to receive punitive damages
The average punitive damages award in employment
cases was $2.7 million. Daily Labor Report, June 19,
1997
Now that employers face a far greater chance of
going to trial, they also face a far greater risk of
exposure to liability.
Critical to establish an anti-discrimination policy,
distribute it, train all employees and supervisors,
and thoroughly investigate and pursue complaints
through to resolution.
Law Office of Randy Brown
Preventive EEO Practices
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Communicate With Associates
Work with the “experts” – your
HR team
Law Office of Randy Brown
How to Combat the Negative
Workplace Trends as Employment
Litigation Increases
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Zero Tolerance
Develop Sound Employment Policies
And Practices To Continuously Strive
For Effective Associate Relations In
The Workforce
Maintain Core Values By Adhering To
Appropriate Workplace Philosophies
Law Office of Randy Brown
Foundation for Law of
Training
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

The U.S. Supreme Court
decided three landmark rulings
in 1998 and 1999:



Burlington Industries v. Ellerth, 524
U.S. 742 (1998)
Faragher v. The City of Boca Raton,
524 U.S. 775 (1998)
Kolstad v. American Dental Assoc.,
527 U.S. 526 (1999)
Law Office of Randy Brown
Why Train?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Good for Business
Reduced absenteeism and
turnover
Increased morale and
productivity
Eliminate other types of thirdparty interference
Law Office of Randy Brown
The Good, The Bad,
and The Ugly
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
The Good


Employers with the foresight to
engage in adequate preventive
measures have a better chance to
win their day in court.
The Bad and The Ugly

Unfortunately for employers, case
law is replete with cases in which
a company’s preventive strategies
fell short of the court’s
expectations.
Law Office of Randy Brown
Training Fundamentals
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Topics for Training:


Equal Employment Opportunity
Laws
Harassment – It’s not only about
sexual harassment, but also:
Race
 Religion
 Sex

Law Office of Randy Brown
Topics for Training

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






Color
National Origin
Race
Religion
Age
Disability
Any other category protected under
applicable FEDERAL, STATE or
LOCAL law.
Law Office of Randy Brown
Topics For Training

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






Diversity
Effective Hiring
Managing Leave and Related
Issues (ADA, FMLA, and State
Worker’s Compensation laws)
Privacy (Internet, e-mail, etc.)
OSHA
FLSA
Reductions In Force
Law Office of Randy Brown
Who Should Be Trained?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Executives

Supervisors/Managers

Associates
Law Office of Randy Brown
Other Considerations
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Duration

Frequency

Documentation of Attendance

Proper Presentation

E-Training/Customized Videos,
etc.
Law Office of Randy Brown
Basics of Equal Employment
Opportunity
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Exceptions to the rule of equal
treatment:
Disability
Religion
Law Office of Randy Brown
Basics of Equal
Employment Opportunity
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Applicants and associates with equal
qualifications, skills, and abilities must be
treated equally. While distinctions based
on
lawful
criteria
(e.g.,
quality,
performance
or
productivity)
are
permitted, the reasons for these
distinctions
should
be
documented
thoroughly.
Employers must be able to provide valid
business-related reasons for adverse
employment actions against applicants
and associates.
Law Office of Randy Brown
Basics of Equal
Employment Opportunity
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Standards that appear to be neutral
and apply to all applicants or
associates still may be discriminatory
if they impact more heavily on
protected classes. The employer
would then be required to prove that
the policy is justified by business
necessity.
Law Office of Randy Brown
Basics of Equal
Employment Opportunity
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Employment
decisions
based
on
stereotypes usually lead to unlawful
results.

Applicants and associates must be
evaluated on their individual abilities
and performance, not on unjustified
assumptions about them as members of
a group.
Law Office of Randy Brown
Basics of Equal
Employment Opportunity
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Common stereotypes to avoid:







Women cannot do strenuous work.
Men cannot do work requiring great dexterity.
Hispanics and Asians cannot communicate
clearly in English.
African-Americans lack sufficient education to
master highly technical jobs.
Disabled workers have high absenteeism rates.
Older workers are less productive than younger
workers.
Young women are not interested in job
upgrading because they plan to quit when they
get married.
Law Office of Randy Brown
EEO Test
TRUE/FALSE
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
()
Ray Chambers is rejected for a
position as an assistant, even
though he is qualified. His
application is rejected because on
it he stated he was convicted of
petty larceny in 1989. This
rejection is unlawful.
Law Office of Randy Brown
EEO Test
TRUE/FALSE
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
()
Manager Bragg is discussing
candidates for promotion to a
recruiter. When Jill Ferguson is
suggested, Bragg rejects the idea. "Jill
is a good associate, but recently
engaged. My experience has proven
time and time again that newly-wed
women leave their jobs within two
years and don’t concentrate anymore."
Bragg's experience is a valid basis for
rejecting Jane.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
When Betsy Francis applied for a
mailroom position, which required her
to lift heavy equipment, she was
laughed out of the office. The
supervisor commented that "that gal
certainly isn't built to do that." The
supervisor is not legally justified in his
position.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Elaine Mayfair responded to an ad for
an client relations specialist. When she
appears for the interview, you observe
that she wears very thick glasses, uses
a white cane to assist her, and has
asked for help in completing the
employment application. You are
justified in rejecting her application
since her disability disqualifies her for
the position.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Accounting Manager Bob Jones needed
an assistant. He told the HR
Department not to bother him with
anyone who was not a college
graduate. "My assistant needs brains,
independence, and initiative," he says
to explain the degree requirement.
Bob is not justified in requiring a
college degree.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Although Mary Sanders has never
actually been propositioned by her
supervisor, his comments and jokes to
her co-workers during lunch together
have made her very uncomfortable.
These comments constitute sexual
harassment.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
A single, isolated incident is an
insufficient basis upon which to
bring a charge of sexual
harassment.
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Joe has not been finishing his
work assignments as fast as his
co-workers. Since he reached age
65, he has "slowed down." He can
be required to retire?
Law Office of Randy Brown
TRUE/FALSE
()
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Serena has been absent or late
often since she became pregnant.
Since she has a "disability," she
cannot be disciplined.
Law Office of Randy Brown
TRUE/FALSE
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
Alice Accountant wants to transfer to the
marketing department as it is a better
opportunity for her. You are concerned
because all the other employees are males.
Although Alice would otherwise be qualified,
you believe it is necessary to advise her that
because the department is all male she might
be subjected to harassment. Essentially, you
tell her that this group of male employees
often tell sexual jokes that even you find
offensive. After your candid disclosure to her
she decides she does not want the position.
Although the manager of the department
thinks that Alice is well qualified and would
be a good addition to the department you are
justified in not giving her the transfer as she
says she does not want it.
Law Office of Randy Brown
TRUE/FALSE
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
Mary Malingerer works as a
receptionist. In the last three years,
she has had three separate workers’
compensation claims against the
company. In addition, she has taken
the full amount of her 12 weeks of
leave entitlement under the federal
Family and Medical Leave Act. Her
supervisor tells you that she is sick and
tired of Mary’s “shenanigans.” You
decide to assist the Supervisor in
getting rid of Mary. Is this decision
lawful?
Law Office of Randy Brown
TRUE/FALSE
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
In an effort to eliminate poorperforming associates and recruit
associates with a fresh perspective and
new ideas for the company’s success,
you send out a memo to your
management team describing the ideal
candidates for the positions as having
“lots of work time ahead of them.” You
subsequently terminate three
employees all of whom are over the
age of 40 and hire three employees in
their 20’s. Are your actions lawful?
Law Office of Randy Brown
TRUE/FALSE
()
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
()
Mandy Maternal, a supervisor in the
accounting department, has recently
returned from maternity leave. As her
manager, you are concerned about how she
will perform with a new child at home.
During a casual conversation with her you
ask her how she is planning on spacing her
offspring. She reluctantly obliges your
question. You then express your concern by
stating that you think she will not “show the
same level of commitment she had shown
because she now has a little one at home”
and explain that you think her supervisory
job is “not for a mother.” This fact pattern
in violation of any employment laws?
Law Office of Randy Brown
Lawful Hiring Practices
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

WHAT AN INTERVIEWER
SHOULD NOT ASK
Law Office of Randy Brown
1.
2.
3.
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
4.
5.
6.
7.
8.
9.
10.
Do not ask the applicant how old he or she is.
Do not ask the applicant his or her date of birth.
Do not ask the applicant how long he or she has
resided at his or her present address.
Do not ask the applicant what his or her previous
address was.
Do not ask the applicant what church he or she
attends or the name of his or her priest, rabbi or
minister.
Do not ask the applicant what his or her father's
surname is.
Do not ask the female applicant what her maiden
name was.
Do not ask applicants whether they are married,
divorced, separated, widowed or single.
Do not ask applicants who reside with them.
Do not ask applicants how many children they
have.
Law Office of Randy Brown
11.
12.
13.
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
14.
15.
16.
17.
18.
19.
Do not ask the ages of any children of applicants.
Do not ask who will care for children while the
applicant is working
Do not ask how the applicant will get to work,
unless owning a car is a job requirement.
Do not ask the applicant where a spouse or
parent works or resides.
Do not ask the applicant if he or she owns or
rents his or her place of residence.
Do not ask the applicant the name of his or her
bank or any information as to amount of loans
outstanding.
Do not ask the applicant whether he or she ever
had his or her wages garnished or declared
bankruptcy.
Do not ask the applicant whether he or she was
ever arrested.
Do not ask the applicant whether he or she ever
served in the armed forces of another country.
Law Office of Randy Brown
20.
21.
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
22.
23.
24.
25.
Do not ask the applicant how he or she spends
his or her spare time or what clubs he or she
belongs to.
Do not ask the applicant what foreign languages
he or she can speak, read or write (unless job
requirement).
Do not write anything on the application form
Do not ask the applicant about prior workrelated injury or illness.
Do not ask the applicant whether he or she has a
disability.
Do not ask the applicant whether he or she has
ever filed a workers' compensation claim.
Law Office of Randy Brown
Workshop
Can You Ask It?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
1. "Can you perform job functions with or
without reasonable accommodation?
2. "Can you perform the functions of this job
with __or without __ reasonable
accommodation? (Check one)“
3. Do you need reasonable accommodation
to perform this job? (Applicant has no
known disability)
4. Do you have a disability which would
interfere with your ability to perform the
job?
Law Office of Randy Brown
Workshop
Can You Ask It?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
5. You ask all applicants: Please
describe/demonstrate how you would
perform these functions (essential and/or
marginal).
6. You ask only certain applicants who have
not disclosed a disability and disability is
not obvious: Please
describe/demonstrate how you would
perform these functions (essential and/or
marginal).
7. How many days were you sick last year?
8. Have you ever been injured on the job?
Law Office of Randy Brown
Workshop
Can You Ask It?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
9. Have you ever filed for workers'
compensation?
10. Can you meet the attendance
requirements of this job?
11. Do you drink alcohol?
12. How much alcohol do you drink each
week?
13. Have you ever been arrested for driving
under the influence?
Law Office of Randy Brown
Workshop
Can You Ask It?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
14. What prescription drugs are you
currently taking?
15.
Do you currently use illegal drugs?
16.
Have you ever been treated for alcohol
problems?
17.
Have you ever been treated for mental
health problems?
18.
Do you have the required licenses to
perform this job?
Law Office of Randy Brown
Workshop
Can You Ask It?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
19.
How much do you weigh?
20.
How tall are you?
21.
This job requires the preparation of
detailed proposals with summary
charts and graphic displays. These
proposals must frequently be prepared
under tight time frames. Can you
perform this function with our without
reasonable accommodation?
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Managing Day-To-Day
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
An associate comes to work one
morning toting his lunchbox with a
large confederate flag affixed to the
front. The associate tells you that he
would like to place his lunchbox on
the break room table so that everyone
may have the pleasure of looking at
his confederate flag throughout the
day. Can you lawfully tell the
associate that he may not display the
confederate flag throughout the day?
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
A group of associates have gathered
around the water cooler one
afternoon. They are discussing
current events. As you are walking by
to refill your coffee mug, you overhear
one them mention that she believes
that “Muslims are really dangerous
people and we should all do our best
to stay away from them.” What do you
do?
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Your office has a monthly meeting
and celebration with cake, cookies
and other treats. As you are leaving
the meeting room after this month’s
meeting, you overhear a known
devoutly Catholic associate making
comments that are specifically
derogatory to Jews to his co-workers
around the cake. He is telling jokes
and speaking derogatorily about
Jewish people generally. How do you
handle this situation?
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
One of your drivers is a vegan. A
vegan is someone who does not eat
meat, diary or animal products. She
does not wear leather or any other
material that come from animals nor
does she use products that have been
tested on animal skins or derive any
ingredients from animals. As part of
her job, you ask her to hand out
discount meal coupons for use at the
local hamburger joint. She refuses,
claiming it is against her religion. Is
veganism considered a religion? May
you lawfully require her to pass out
the coupons? May she lawfully
refuse?
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
You are a supervisor and you receive a
phone call from a friend of yours who
handles hiring issues at another company.
Your friend asks you for the “real rundown”
on a former associate of yours who has
applied for a similar position at his company.
Since this person is a friend, you grant his
request and give him the “real rundown” on
the candidate including your own personal
opinion of her work, personality as well as
her personal life, including the fact that she
has cancer and was continually sick which is
why her employment did not work out for
your company. Was your handling of the
situation the best practice to use? How
should you have handled the situation?
Law Office of Randy Brown
Workshop
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
One of your associates is blind. He
has an awful attitude toward his coworkers, supervisors and customers.
He is often insubordinate. He fails to
observe your safety procedures and
policies. This failure could result in
injury to himself or others. He has
received many negative performance
evaluations and has often been
disciplined.
You fire him for
insubordination. Can you lawfully do
so, taking into consideration his
disability?
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Strategies To Assist
Employers In
Managing Leave
Issues
Law Office of Randy Brown
The Absence Management
Problem
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





The workforce is getting older and
sicker
Multiple federal laws protect
absences
State laws also protect absences
Ignorance of obligations does not
excuse non-compliance
Absenteeism costs companies
significant $$$
Law Office of Randy Brown
The Absence Management
Problem Compounded
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Intermittent Leave and PartTime Work Schedules







Inability to plan for absences
Difficulty of “spotting” protected
absences
Difficulty of “tracking” protected
absences
Tendency to lump into PTO plans
Calculating 12 workweeks of FMLA
leave
Perception of inconsistent treatment
Potential for requests to become
“contagious”
Law Office of Randy Brown
Targeted Associate Absence
Management
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Keys to success:



Developing “peripheral vision”
concerning legal protections
Aggressively reviewing absence
explanations and medical
documentation
Develop medical based evidence
Law Office of Randy Brown
Laws Impacting Strategies
for Managing Associate
Leaves of Absence
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






FMLA
ADA
State FMLA
State Disability Discrimination
Laws
State Pregnancy Leave Laws
State Workers’ Compensation
Laws
Law Office of Randy Brown
Leave Management Basics
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Understanding FMLA and ADA
Obligations
Identifying The Legal
Landmines Employers Face
When Attempting To Untangle
The Web Of Overlapping Laws
ADA
FMLA
WC
Law Office of Randy Brown
The ADA Rule
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

An employer cannot
discriminate against:


A qualified person with a
disability;
A person is qualified if:

He/she can perform the essential
functions of a job, with or
without a reasonable
accommodation that does not
pose an undue hardship
Law Office of Randy Brown
Who is a “person with a
disability”?
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



A person with a physical or
mental impairment that
substantially limits one or more
major life activities
A person who has a record of
such an impairment
A person who is regarded as
having such an impairment
Does not include:


Temporary disabilities
Environmental, cultural or economic
disadvantages
Law Office of Randy Brown
What are “essential
functions”?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Fundamental job duties – not
marginal
Factors to consider:




Work experience of others
Information on job descriptions
Amount of time spent performing
function
Consequences of not requiring the
associate to perform the function
Law Office of Randy Brown
Reasonable Accommodation

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Anything that facilitates
successful performance of
essential job functions
Examples:







Making facilities accessible
Job restructuring
Granting a leave
Modifying work schedules
Modifying equipment
Reassignment to vacant positions
Does not include eliminating
responsibility for performing
essential functions
Law Office of Randy Brown
Undue Hardship
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Significant difficulty or
expense
Factors considered:




Cost
Financial resources of company
Type of business
Impact on operation
Law Office of Randy Brown
Significant ADA Supreme
Court Case
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

On January 8, 2002, the United
States Supreme Court ruled that the
ADA, which protects disabled
individuals from discrimination, only
covered physical impairments if they
also affect activities of daily living
and not just the ability to perform a
specific job. Toyota Motor Mfg. Ky.
Inc. v. Williams, 122 S.Ct. 681
(2002).
Law Office of Randy Brown
Recent ADA Development

Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
On January 10, 2006, the U.S. Court of Appeals
for the Fourth Circuit ruled that the ability to
eliminate bodily waste is a major life activity
under the ADA.


The court specifically stated, “The elimination of bodily
waste is...not only of ‘central importance to daily
life,’...but of life-sustaining importance.” He further
stated that, “Without it, hazardous toxins would remain
in the body and eventually become fatal. For all of
these reasons, waste elimination also fits comfortably
within the EEOC’s non-exhaustive list of major life
activities, which includes ‘functions such as caring for
oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”
The Second, Third and Eighth circuits are the
only other circuits to address this issue and have
also ruled that such is a major life activity.
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Recent Cases Dealing with
Leave Issues and Affecting
Employers
Emory v. AstraZeneca Pharmaceuticals LP
(3d Cir. 2005)


An employee with physical limitations including
the loss of the use of his right hand, as well as
mental limitations including limitations in math,
spelling and reading was able to maintain his job
as custodian, raise a family and be active in
community organizations.
Despite overcoming these obstacles, the
employee was passed over for a permanent
promotion to a position he held temporarily and
filed a discrimination charge alleging violations
of the ADA.
Law Office of Randy Brown
Emory v. AstraZeneca
Pharmaceuticals LP (3d Cir.
2005)
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Plaintiff filed suit in the U.S. District Court for the
District of Delaware alleging discrimination for
failure to promote and failure to provide reasonable
accommodations and further claimed he was
substantially limited in the major life activities of
walking, learning and performing manual tasks.
The court found that the plaintiff was not disabled
under the ADA as “his limitations are not substantial
or severe.”
The district court also noted that although the
plaintiff had learning impairments, they could not
be considered substantially limiting primarily
because of the challenges he was courageous
enough to undertake and, in some cases, overcome.
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Emory v. AstraZeneca
Pharmaceuticals LP (3d Cir.
2005)
The Appeals Court reversed the district court’s
ruling concluding that the district court “missed the
mark” by concluding the plaintiff was not disabled
because he had been able to overcome many
obstacles.
The Appeals court stated, “what a plaintiff
confronts, not overcomes, is the measure of
substantial limitation under the ADA.”
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



Emory v. AstraZeneca
Pharmaceuticals LP (3d Cir.
2005)
On January 25, 2006, acting on remand,
the U.S. District Court for the District of
Delaware concluded that the plaintiff
provided evidence that his disabilities were
a factor in the company’s decision not to
promote him.
Specifically, it was found that a member of
the hiring panel referred to him as
“Rainman.” Further, another manager
made a statement saying that training him
would be a waste of time.
Given these circumstances, the court ruled
this was enough to warrant a trial.
Law Office of Randy Brown
Making Disability
Management Work for You
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Keeping the Lid on Workers’
Compensation Costs by
Reducing the Need for Leave
and Returning Injured
Associates Back to Work
Quicker
Law Office of Randy Brown
Recommendations
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Train supervisory personnel on
legal obligations triggered when
associates are absent due to an
injury or illness.
Integrate HR or legal earlier
and deeper into disability
management leave issues
Law Office of Randy Brown
What Policies & Procedures
Create Best Practices?
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





Hiring practices
Medical examinations
Reasonable accommodation
Return to work programs
Leaves of absence
Termination
Law Office of Randy Brown
Return To Work Programs
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Priority of responses to injured
workers



Fully employ through reasonable
accommodations in current position
Reassignment to vacant, existing
positions
Modified/light duty (i.e., Relieving
responsibility to perform essential job
functions)
Law Office of Randy Brown
Preparing to Succeed
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Educate medical professionals:



Tell them what you know about the job
through job descriptions and narratives
that highlight specific risks
Explain what associate has told you
about the condition
Explain workplace incidents
Law Office of Randy Brown
Determining Just How Far You
Must Go To Accommodate
Associates With Disabilities
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



The employer and the associate with a
potential disability should engage in an
informal process to clarify what the
individual
needs
and
identify
the
appropriate job modification/reasonable
accommodation
The employer may ask the associate
relevant questions that will enable them
to make an informed decision about the
request.
The exact nature of the dialogue will vary.
Law Office of Randy Brown
Determining Just How Far You
Must Go To Accommodate
Associates With Disabilities
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



In some cases, both the disability and
accommodation will be obvious and there
may be no need to engage in any
discussion.
However, in some circumstances, the
employer may need to ask questions
concerning the nature of the disability
and the individual's functional limitations.
Suggestions from the individual with a
disability may assist the employer in
determining the type of accommodation
to provide.
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following a request for
reasonable accommodation?
An associate tells her supervisor
that she is having trouble getting
to work at her scheduled start
time due to medical treatments
she is undergoing.
Yes____ No____
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following a request for
reasonable accommodation?
An associate tells his supervisor
that he needs six weeks off to get
treatment for a back problem.
Yes___ No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following a request for
reasonable accommodation?
An associate tells her supervisor
that she would like a new chair
because her present one is
uncomfortable.
Yes___ No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Can the supervisor ask the individual
requesting reasonable
accommodation for any/additional
documentation to prove disability?
An HR Specialist tells the HR Director
that she is having trouble reaching
materials on high shelves because of
her shoulder injury.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Can the supervisor ask the individual
requesting reasonable
accommodation for any/additional
documentation to prove disability?
An associate ‘s spouse phones the
associate‘s supervisor on Monday
morning to inform her that the
associate had a medical emergency
due to multiple sclerosis, needed to be
hospitalized, and which requires time
off.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Can the supervisor ask the individual
requesting reasonable accommodation for
any/additional documentation to prove
disability?
An associate gives her employer a letter from
her doctor, stating that the employee has
asthma and needs the employer to provide her
with an air filter. This letter contains
insufficient information as to whether the
asthma is an ADA disability because it does
not provide any information as to its severity.
Furthermore, the letter does not identify
precisely what problem exists in the
workplace that requires an air filer or any
other reasonable accommodation.
Yes ___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Has the employer violated the ADA?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
The Company is impressed with an
applicant’s resume and contacts the
individual to come in for an interview.
The applicant, who is deaf, requests a
sign language interpreter for the
interview. The Supervisor in the
department cancels the interview and
refuses to consider further this
applicant because it believes it would
have to hire a full-time interpreter.
Yes___
No___
Law Office of Randy Brown
Workshop Reasonable
Accommodation
Has the employer violated the ADA?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
An individual who has paraplegia
applies for an specialist position.
Because the office has two steps at the
entrance, the employer arranges for the
applicant to take a typing test, a
requirement of the application process,
at a different location. The applicant
fails the test. The Company does not
provide any additional reasonable
accommodations.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Has the employer violated the ADA?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
An associate with HIV infection must
take medication on a strict schedule.
The medication causes extreme nausea
about one hour after ingestion, and
generally lasts about 45 minutes. The
associate asks that he be allowed to
take a daily 45-minute break when the
nausea occurs. The Director of the
department refuses to grant this
request.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Has the employer violated the ADA?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
A mail room associate requests that she
be allowed to change her hours from
7:00 a.m. to 3:00 p.m. to 10:00 a.m. to
6:00 p.m. because of her disability. The
mail room is open from 7:00 a.m. to
7:00 p.m. and it will still have sufficient
coverage at the beginning of the
morning if it grants the change in
hours. The mail room does not grant
the requested accommodation.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Has the employer violated the ADA?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
A computer technician, due to his disability, requests
an adjustment in his work schedule so that he starts
work at 8:00 a.m. rather than 7:00 a.m., and finishes
one hour later in the evening. The technician works
with three other associates who cannot perform their
jobs without the technician. As a result, if the
employer grants this requested accommodation, it
would have to require the other three associates to
adjust their hours, find other work for them to do from
7:00 to 8:00, or have the associates do nothing. The
Company denies the request claiming undue hardship.
However, the Company discusses other
accommodations that would not result in undue
hardship.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following lawful under the FMLA
and/or ADA?
An associate with an ADA disability has
taken 10 weeks of FMLA leave and is
preparing to return to work. The
Supervisor wants to put her in an
equivalent position rather than her
original position.
Yes___
No___
Law Office of Randy Brown
Workshop
Reasonable Accommodation
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following lawful under the FMLA
and/or ADA?
An associate with an ADA disability
requests that she be excused from
work one day a week for the next six
months because of her disability. The
Company does not provide this
accommodation claiming undue
hardship.
Yes___
No___
Law Office of Randy Brown
FMLA Fundamentals
Labor & Employment

851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Covered Employers


50 or more associates in 20 or more
calendar weeks in the current or
preceding calendar year
Covered associates



12 Months/1250 Hours
50/75 Miles
Note: ADA, Title VII, state disability
discrimination, pregnancy leave and
workers’ compensation laws do not
have minimum service requirements
Law Office of Randy Brown
FMLA: When Do You Get
Leave?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Birth/Adoption/Foster Care

Serious Health Condition
Law Office of Randy Brown
FMLA: Birth/Adoption/Foster
Care
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




Bonding Leave For Newborns
within first 12 months of birth
It applies to both men and
women
Do not have to give
intermittent leave (but you can
be more generous)
Adoption: Leave can be taken
to finalize adoption/court
papers
Law Office of Randy Brown
FMLA: Serious Health
Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


To care for serious health
condition of parent, spouse or
child (covered relations)
To care for associate’s own
serious health condition
Law Office of Randy Brown
FMLA-Serious Health
Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






Overnight Stay in Hospital
Absence Plus Treatment
Pregnancy
Chronic Conditions
(Asthma/Epilepsy)
Permanent/Long Term Conditions
Requiring Supervision (Alzheimer’s)
Multiple Treatments for Non-Chronic
Conditions (Chemo/Physical
Therapy)
Law Office of Randy Brown
FMLA-Serious Health
Condition: Absence Plus
Treatment
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

More Than Three Consecutive
Calendar Days Out of Work


Treatment by HCP on two or more
occasions
Treatment by HCP at least once
plus “Regimen of Continuing
Treatment”

Continuing Treatment:


Rx
Therapy
Law Office of Randy Brown
FMLA – 12 Weeks
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Need not be taken all at once



Unless to care for new born
Intermittent and Reduced
Schedule Leave
Can be taken in smallest
increment that the Company
measures time
Law Office of Randy Brown
FMLA - Associate’s
Notification Burdens
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





Must provide medical
certification for any leave
taken due to a serious health
condition
Second and Third Opinions
Notice of planned medical
treatment
Recertification
Return to Work Certifications
Law Office of Randy Brown
FMLA-Benefits While On
Leave
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Continuing Medical Insurance



Determine Method for Payment
of Associate Portion
Be Careful if you Cut off Medical
Insurance
Other Benefits: follow uniform
and non discriminatory policy
Law Office of Randy Brown
FMLA-Reinstatement Rights
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

“Same or Equivalent” Position



Equivalent Pay
Equivalent Benefits
“Key Associate” Exception is
Limited

Must Show that Reinstatement
Would Cause “Substantial and
Grievous Economic Injury”
Law Office of Randy Brown
Practical FMLA Guidance On
Employers’ Notification
Requirements
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


It is the employer’s responsibility to
designate leave as FMLA-qualifying
and to give notice of the designation
to the associate.
Where the employer does not have
sufficient information about the
reason for leave, the employer
should inquire further of the
associate to ascertain whether the
leave is potentially FMLA-qualifying.
Law Office of Randy Brown
Practical FMLA Guidance On
Employers’ Notification
Requirements
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Once the employer has acquired
knowledge that leave is being taken for an
FMLA-qualifying reason, the employer
must promptly (within two business days
absent extenuating circumstances) notify
the associate that the leave is designated
and will be counted as FMLA leave.
The employer’s notice may be oral or in
writing.

If the notice is oral, it must be confirmed in
writing no later than the following payday.
(Unless the payday is less than one week after
the oral notice, in which case the written notice
must be no later than the subsequent payday.)
Law Office of Randy Brown
Disciplining Your Associates for
Absenteeism Without Violating the
FMLA
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com




It is unlawful to discriminate against or discipline
an associate because the associate has taken leave
authorized by the FMLA.
However, if an associate has attendance problems
unrelated to the use of FMLA leave, the associate
may be held to the same attendance standards as
any other associate.
The FMLA only requires that when disciplining an
associate for excessive absences, you remove
FMLA-qualifying leave from consideration.
For this reason, no-fault attendance policies will
not pass muster unless they carve out exceptions
for the use of FMLA-protected leave.
Law Office of Randy Brown
Critical Steps to Prevent
Disciplinary Actions from Being
Deemed Retaliatory or
Discriminatory Under the FMLA
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Although you have heard these tips
before, it is particularly important
in dealing with retaliation or claims
of wrongful discharge:



Be careful
Document
Train your managers and/or
supervisors on the front line who
are responsible for acting on behalf
of management
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
How to Prevent Managers and
Supervisors In Your Organization
From Being Found Personally
Liable Under the FMLA

Your management team must be instructed
that they have a legal obligation:





To cooperate with associates seeking leave
To maintain attendance records carefully
To be cautious in dealing with attendance
problems
Too keep close tabs on associates taking time off
for illness or to care for a relative
To be sure their subordinates know that they
have a right to family and medical leave
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
How to Prevent Managers and
Supervisors In Your
Organization From Being
Found Personally Liable Under
the FMLA





To refrain from pressuring or threatening
people who ask for FMLA leave
To keep personal feelings from affecting their
judgment on leave questions
To help associates schedule FMLA leave when it
is foreseeable
To get clearance for any serious disciplinary
action against someone who has taken or
requested FMLA leave
To refer difficult FMLA questions to their
superiors or to HR
Law Office of Randy Brown
Workshop
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious
Health Condition" under the FMLA?
An recruiter with flu symptoms, calls
his supervisor for two days in a row
and states he cannot come in but does
not see a doctor about his/her illness.
_____
Yes
_____
No
Law Office of Randy Brown
Workshop
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious
Health Condition" under the FMLA?
An associate is absent for three days with a
sore ankle. On the third day, he sees the
doctor about his condition. Other than
wrapping his ankle, the doctor does not
prescribe any medication as the associate is
diagnosed with a sprained ankle and the
doctor tells him that he may return to work
the next day.
_____
Yes
_____
No
Law Office of Randy Brown
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious
Health Condition" under the FMLA?
A client relations specialist is out for
three days with a sinus infection
diagnosed by her doctor on the first
day of her illness. The doctor
prescribes antibiotics and tells her to
take the rest of the week off to
recover.
_____
_____
Yes
No
Law Office of Randy Brown
Workshop
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious
Health Condition" under the FMLA?
An executive assistant tells her supervisor
that she must leave a half-day early to pick
up her sick child at school. The next
morning, the assistant calls the supervisor to
inform her that due to her child’s illness, she
will not be coming into work for three more
days.
_____
Yes
_____
No
Law Office of Randy Brown
Workshop
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious Health
Condition" under the FMLA?
Jack has been working for the Company for 6 months.
Last Friday, he came to your office claiming he
needed a leave of absence due to carpel tunnel
syndrome. He handed you a doctor’s note stating
that he needed 5 months of leave for recovery and
treatment. The Company’s policy provides leave only
as required by the FMLA.
a.
How much leave must the Company
provide to Jack?
b.
Would the answer be different if Jack
previously worked for the Company for 7 months?
_____
_____
Yes
No
Law Office of Randy Brown
Workshop
Serious Health Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious Health
Condition" under the FMLA?
In July, an associate requests 4 weeks vacation to
begin July 4. Her vacation is denied because she had
not prescheduled the vacation and also due to
staffing needs. Several days later, the associate
returns to her supervisor’s office and states she will
be submitting forms to apply for FMLA leave
beginning July 4 to travel to South Africa to care for
her mother who is seriously ill.
leave?
a.
Will the associate be granted FMLA
_____
Yes
_____
No
Law Office of Randy Brown
Workshop Serious Health
Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious Health
Condition" under the FMLA?
An associate, diagnosed with cancer, is being treated
with chemotherapy but doesn’t tell his Supervisor
about the diagnosis or treatments. After becoming
gravely ill as a result of the treatments, his doctor
orders him to take three weeks off of work to
recover. At this time, the associate is forced to tell the
Company that he has cancer and will be out for
several weeks. Will the Company now be able to
count the time already taken by the associate for the
cancer treatments as FMLA leave?
____
Yes
_____
No
Law Office of Randy Brown
Workshop Serious Health
Condition
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Is the following considered a "Serious Health
Condition" under the FMLA?
An associate receives permission from her Manager to
miss work on a Friday for removal of an ingrown
toenail. Her doctor advises her that she can return to
work the following Monday. Complications arise from
the procedure and the employee is unable to return to
work on Monday and calls off to her Manager. Not
mentioning a request for leave under the FMLA but
keeping in constant contact with her employer, the
associate misses work for more than one month. Is
this associate eligible for FMLA leave?
____
Yes
_____
No
Law Office of Randy Brown
Handbook as Expressed or
Implied Contract
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com





General Rules
State-Specific Information
Handbook as Binding the
Associate
Use of Disclaimers
Consistent Policy Application
Law Office of Randy Brown
PROPER AND EFFECTIVE
DOCUMENTATION
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



The Critical Role of
Documentation
The Final Checklist Before
Disciplinary Action
Tips To Minimize The Risk Of
Employment Litigation When
Documenting And Assessing
Associates
Law Office of Randy Brown
Workshop
Documentation Workshop
Please evaluate the following documentation
examples. How might they be handled?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
1. Today Mary Jones reported that Tom Smith had
been telling dirty jokes to her in front of others.
She said she laughed at the jokes, but that she
was really embarrassed.
2. Paul Smith came in to complain that his
supervisor, Sally Jones, harasses him all the time.
She tells him that he's lazy and he wants her to
quit harassing him.
3. Claire Smith reported to me today that Bill Jones
keeps putting his arm around her and she wants
him to stop, but she doesn't want to make him
angry because he's a nice guy.
4. Frank is a good associate but he needs to improve
his communication skills.
Law Office of Randy Brown
Workshop Documentation
Workshop
Please evaluate the following documentation
examples. How might they be handled?
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
5. Mary's attitude has been a problem since she was
transferred from accounting to the mail room. I have
advised her that she needs to improve her attitude.
6. Harry bothers the other associates by hanging
around them and talking when they all should be
working.
7. Sally has commented on Suzanne’s “professional
skills”, but there are a few things she would like to
note. Suzanne needs to work on her interpersonal
skills; she is overbearing, abrasive, Sally thinks she is
macho; Sally objects to a lady using the type of
language that Suzanne does; Suzanne needs to take
a course in charm school; Sally has advised Suzanne
to walk more femininely, have her hair styled, wear
make-up and jewelry.
Law Office of Randy Brown
Large Verdict: You Do Not
Have To Be The Next
Wal-Mart!
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

On December 22, 2005, a California
jury awarded a class of 115,919
current
and
former
Wal-Mart
employees $172 million for missed
breaks in violation of a state law that
mandates a 30-minute, unpaid meal
break (Savaglio v. Wal-Mart Inc., Cal.
Super. Ct., No. C-835687, verdict
12/22/05).
Law Office of Randy Brown
ASSOCIATE STATUS ISSUES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

The Fair Labor Standards Act





Exempt vs. Non-Exempt
Requirements For Exempt Status
Salary Basis Test for “White Collar”
Exempt Status
White Collar Exemptions
Compensable Working Time
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Wage and Hour
Law Office of Randy Brown
The Fair Labor Standards
Act
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Overtime Compensation








Overtime Rate
Overtime Computation
"Comp Time“
Daily Overtime
Offsets Against Overtime
Offsets Against Excess Minimum
Wage Payments
Regular Hourly Rate
Holidays, sick leave or vacation
Law Office of Randy Brown
The Fair Labor Standards
Act
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Definition
of
Compensable
Working Time Under the FLSA



Time spent in primary work
activities;
Idle or stand-by time controlled
or requested by employer;
Time spent by an associate
outside normal hours suffered or
permitted by employer that
benefits the employer.
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


COMMON FLSA WORK TIME
QUESTIONS AND PROBLEMS
FOR NON-EXEMPT
ASSOCIATES
Unauthorized Working Time
Meal Periods


A California jury awarded a class of
115,919 current and former WalMart employees $172 million for
missed breaks in violation of a
state law that mandates a 30minute, unpaid meal break
Rest Periods and Coffee Breaks
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com






COMMON FLSA WORK TIME
QUESTIONS AND PROBLEMS
FOR NON-EXEMPT
ASSOCIATES
Travel Time
Travel Away From Home
Community
On-Call Pay and Other Pay for
Non-Working Time
Medical Care
Lectures, Meetings or Training
Vacations, Holidays or Sick Leave
Law Office of Randy Brown
COMMON FLSA WORK TIME
QUESTIONS AND PROBLEMS
FOR NON-EXEMPT
ASSOCIATES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com



FLSA Recordkeeping
Requirements
"Rounding Off"
State Wage and Hour Laws
Law Office of Randy Brown
INDEPENDENT
CONTRACTOR ISSUES
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com


Definition
Economic Reality Test
Law Office of Randy Brown
Inclusion of Cash and Non-Cash
Bonus Items in Taxable Income
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com

Anything of value provided to an
associate is “income” unless a
specific statutory exclusion can
be found and the requirements
for the exclusion met .
Law Office of Randy Brown
Labor & Employment
851 N. Donnelly St.
Suite 6
Mt. Dora, FL 32757
(352) 508-4237
brownlaw@comcast.net
www.randybrownlaw.com
Thank you for Attending