EMPLOYMENT LAWS What All Employers Need To Know In A Tough Economy David L. Weinstein Faegre Baker Daniels LLP Copyright © 2014 Faegre Baker Daniels LLP All Rights Reserved Disclaimers The information contained in this presentation is intended for general information purposes only and should not be construed as legal advice or opinion on any particular facts or circumstances. Managers are urged to consult an attorney with legal questions concerning specific factual situations. The information in this presentation has been distributed only to Company supervisors, for their guidance. This information does not offer a contract of any kind between this Company and any employee. 2 For-Profit v. Non-Profit Employers There are few differences between the legal obligations of for-profit employers and non-profit employers. Few administrative agencies, courts, judges or juries will decide employment claims in your company’s favor merely because of its status as a non-profit employer 3 Most Employment Laws Governing For-Profit Employers Apply Equally to Non-Profit Employers “At-will” employment provides the same limited protection to both forprofit and non-profit employers. Discrimination prohibition laws apply to small non-profit employers (e.g., Chicago and Cook County Human Rights Ordinances apply to employers with even 1 employee, as does Illinois Human Rights Act [sexual harassment and disability discrimination] and Federal Civil Rights Act of 1866). The stakes are HIGH for your company and you. 4 Unemployment Benefits and Non-Profit Employers Myth: Non-profit employers are not subject to the unemployment insurance system – FALSE! Non-profit employers can register with the Illinois Department of Employment Security (“IDES”) to become a “reimbursable employer” and pay the full amount of each valid claim as it is made. Alternatively, non-profit employers can register with IDES and pay quarterly contributions – the same as for-profit employers. 5 Workers Compensation and Non-Profit Employers Myth: Non-profit employers are not subject to the workers compensation system – FALSE! Non-profit (and for-profit) employers can apply with the Illinois Workers Compensation Commission to self-fund workers compensation claims. Alternatively, non-profit employers can purchase workers compensation insurance – the same as for-profit employers. 6 Employment – The Basic Contract Eighty years ago, the employment contract was terminable at will by either party for any reason – or no reason at all. The courts referred to the relationship as “employment at will.” All job duties and conditions were unilaterally set by the employer. Employees had no rights – beyond the agreed wages for work already performed – unless those rights were specifically provided in an individual written contract of employment or in a union contract. The “employment at will” contract gave an employee only two alternatives: accept the job each day; or quit the job. 7 In today’s workplace, the law of the employment contract has changed dramatically. Now, courts in Illinois and other states have found that employees may have the rights in the employment contract including: 8 Employee’s Right To Enforce Written Publications The Company Uses For Employees The written materials that a company provides to its employees may be determined by a court to create an “implied contract” between employer and employee. Implied contracts can be avoided by properly wording all written materials given to employees and inserting appropriate contract disclaimers. This is primarily the concern of persons authorizing and writing the publications, but it is an important principle that every supervisor needs to know. 9 Employee’s Right To Enforce Oral Commitments By Supervisors and Managers For example, a supervisor who says to a worker “you will have a job here as long as your work is good” may have made an oral contract that the employee never will be discharged except for “good cause.” That contract may be enforceable in court. So a supervisor must be careful about oral commitments - remember they may be legally enforceable. 10 Employee’s Right To “Good Faith And Fair Dealing” From Supervisors Courts in some states have said that supervisors must exercise “good faith and fair dealing” toward employees. This means that supervisors must deal with subordinates honestly and objectively. It also means that any decision adverse to an employee should not be finalized until after fair consideration of all facts which may bear on the decision. It means that an employee suspected of misconduct never should be disciplined or discharged without an opportunity to tell his or her side of the story. This is not a right to escape fair punishment; it is a right to be heard before any final decision is made. 11 Employee’s Right To Be Free Of Reprisal For Complaints Exercising Legal Rights So long as an employee performs the job satisfactorily, he or she should not be punished for exercising rights created by law. For example, an employee cannot be terminated for filing for workers’ compensation, reporting a crime, organizing with co-workers, supporting a union or exercising any other legal right. This does not mean that an employee can blithely absent himself or herself from work to exercise legal rights, but as long as all work is done and work rules followed, the exercise of legal rights is generally protected. 12 Employee’s Right To Be Free Of Defamation Employees and former employees increasingly seek damages because a supervisor has said something untrue about them which hurts their reputation. While a supervisor can, and should, communicate misconduct problems within the chain of command, he or she should not talk about employee misconduct to anyone outside the company or to anyone inside the company who does not need to know of the employee’s problems. Such communication can amount to slander - and money damages paid by both the firm and the supervisor could be the result. 13 Employees’ Obligations Satisfactory and Diligent Work Performance Obedience Loyalty Cooperation Business-Like Dress and Conduct 14 Discrimination – Do’s and Don’ts Protected Categories The first thing to understand about “discrimination” is that legally it only covers actions taken against people because they are in certain protected categories. It means treating those people in some way less favorably than other people not in the same category. The basic protected categories are: a. Race/Color b. National Origin/Ancestry c. Sex/Marital Status/Sexual Orientation d. Religion e. Age (for persons age 40 and over) f. Mental or physical disability not preventing performance of essential job functions g. Veteran status h. Genetic dispositions 15 Discrimination: Unequal (Disparate) Treatment If similarly situated or equally qualified persons receive unequal treatment because of one person’s protected characteristic, unlawful discrimination may have occurred. For example: if a black employee and a white employee get into a fight, and both are equally at fault, discharging the black employee while the white employee is only reprimanded, could constitute unlawful discrimination. Or if a Hispanic employee is discharged for theft when a white employee, months previously, was only reprimanded for the same kind of theft, unlawful discrimination may have occurred. 16 Sexual Harassment Any act or discussion, direct or indirect, involving sexual activity may be a form of unlawful sex discrimination, known as sexual “harassment.” This includes any unwelcome touching and verbal sexual approaches, innuendoes or jokes. 17 Sexual Harassment Sexual harassment can occur regardless of whether the “harasser” is male or female, and regardless of whether the offended person is of the opposite or the same gender as the harasser. 18 Sexual Harassment It is also unlawful for a supervisor to fail to act to cure any atmosphere of sexual harassment of which he or she is aware. This does not mean all “shop talk” involving vulgarities is necessarily illegal. But it does mean that any such words from a supervisor could lead to liability if reasonably viewed as having unwelcome sexual connotations by the person to whom they are directed. 19 Sexual Harassment To avoid complications, a supervisor simply should never engage in sexual banter with persons under his or her charge – in or outside the workplace. 20 Discrimination: Failure To Accommodate Disability Or Religion Unlike the other protected categories, persons in the categories of “disability” and “religion” have the added legal protection that the employer and the supervisor must “reasonably accommodate” their needs. 21 Discrimination: Accommodating Religion As for religion, employers also must accommodate workers’ requests, so long as doing so causes only minimal disruption to the company. For example, a person must be given time off for religious observance if it can be done without seriously hurting the employer’s regular business activities. 22 Discrimination: Accommodating Disabilities A qualified disabled person must be provided (or at least offered a) reasonable accommodation for his or her disability if that would enable the person to do the “essential functions” of the job, and the accommodation will not cause the company undue hardship. It also means that the job environment must be tailored to make it possible for qualified disabled people to work. For example, a person who suffers from night blindness must be allowed to work an altered schedule to avoid night driving if it can be done without undue hardship to the employer. 23 Discrimination: Freedom From Retaliation An employee who thinks he or she has been discriminated against has the right to discuss the matter with his/her supervisor, other persons in management, or a governmental agency. 24 Discrimination: Retaliation Any retaliation for making a complaint is strictly illegal. Whether the retaliation is obvious (such as discharging the complaining person) or subtle (such as denying a merit increase for “uncooperativeness”), it is illegal. 25 Discrimination: Retaliation A complaint should not necessarily be viewed as a sign of disloyalty. It should be taken seriously, and investigated objectively. While it is true some complaints of discrimination are insincere, the great majority are sincere expressions of perceived mistreatment. But even if the complaint is insincere, retaliation still is prohibited. 26 Suggestions To Avoid Appearance Of Discrimination Apply all rules and standards equally to everyone. Don’t make exceptions - exceptions become rules. Give consistent signals and candid appraisals. The hardest case to successfully defend is a discharge for unsatisfactory performance shortly after a “merit” increase intended to motivate substandard performance. Such mixed signals breed discrimination charges. 27 Suggestions To Avoid Appearance Of Discrimination Don’t delay decisions. Problems not immediately acted upon often imply that a bad situation has been accepted or condoned. A delayed decision also may look arbitrary or unfair. Further, a bad situation often gets worse and the cure may have to be more severe. 28 Suggestions To Avoid Appearance Of Discrimination Assume everyone wants to advance within the organization. Supervisors sometimes assume certain employees have no interest in advancement or better salaries because of attitudes they appear to display. That is a bad assumption. All employees should be considered for advancement. Choices should be made based on the best qualifications; don’t overlook anyone because he or she “appears” uninterested. 29 Suggestions To Avoid Appearance Of Discrimination Give clear instructions and warnings. Don’t ever think “he/she should have known” what was expected. Tell everyone clearly what is expected. To hold employees to certain rules of conduct, the rules must be made clear. 30 Suggestions To Avoid Appearance Of Discrimination Always hear an employee’s side of the story before taking action against him/her. An employee should be heard before anything bad happens to her or him by persons in authority. A supervisor should not take action against an employee until all the facts are in. When immediate action is required but all the facts are not known, consider a short, paid suspension instead of more drastic action. 31 Suggestions To Avoid Appearance Of Discrimination Avoid making decisions based on subjective “feelings” about people – rely on objective facts. A person’s performance in a current job is usually a good predictor of success in an upgraded job; especially if some upgraded tasks have been assigned to see how the person responds to the additional responsibilities. Subjective “feelings” as to promotability are not nearly as dependable - or as credible if a discrimination charge contests such a decision. 32 Suggestions To Avoid Appearance Of Discrimination Explain decisions to affected employees. Some discrimination claims are filed because something negative happened to an employee and nobody explained why. A lengthy explanation is seldom required. But some explanation is almost always appropriate. For example, an employee who knows he/she is being considered for a promotion, but is not selected, generally should be given some reason for the decision. 33 Sensitive Personnel Decision Points Hiring decisions. Are you looking objectively at each candidate? Avoiding any stereotype assumptions? Giving each candidate the same chance to show he/she is best for the job? 34 Sensitive Personnel Decision Points Evaluation and performance reviews. Are you using the same standards to evaluate everyone? Looking at what they actually did objectively? Avoiding preconceived opinions about their abilities? Being fully candid with them? Directly addressing problems rather than hoping they will go away? 35 Sensitive Personnel Decision Points Promotion considerations and decisions. Are you considering all possible candidates? Avoiding assumptions that certain people simply are not promotable? Talking to others to get second opinions where needed? Discussing the new job with all qualified candidates? Keeping an open mind until everyone has been interviewed if you have several candidates? Saying something positive to each unsuccessful candidate after the decision is made? 36 Sensitive Personnel Decision Points Discipline and discharge decisions. Are the rules clear? Are you sure you have all the facts? Did you talk directly to “the accused” about the incident before a decision is finalized? Check out any plausible explanation he/she has made? Apply the same penalty for this infraction in the past? Confront the issue directly with the employee? Avoid the inclination to be vague about unpleasant matters - be candid and blunt? Document everything in writing in objective language? 37 Sensitive Personnel Decision Points Assignment and change in work content. Are assignments - and changes - fair as to content and complexity? People adequately trained for jobs they are expected to do? Did you consider preferences of people before finalizing changes? Check to see how people react to changes? 38 Recordkeeping – Documentation Because every personnel-related decision a supervisor makes has the potential to be attacked as discriminatory, it is essential that good documentation be kept on facts and reasons for actions. 39 Recordkeeping – Documentation Occurrence memos and written warnings should be narrative in form, use objective terms to describe an incident, and avoid opinions, conjecture and other subjective material. 40 Recordkeeping – Documentation Memos or warnings on discipline matters should describe the incident as close to blow-by-blow as possible. They should say what happened, and not use adjectives to characterize the event. 41 Recordkeeping – Documentation For example, a memo should say: “I told Sally to return to her desk immediately and retype the letter. She said ‘I will not’ and stood in the aisle with her arms folded.” A memo for that incident should not say: “I gave Sally an instruction. She was insubordinate.” 42 Recordkeeping – Documentation Memos and warnings should be kept in an employee’s official personnel file. In Illinois and some other states, employees are entitled to go through their personnel file and enter a response to any negative material with which they disagree. Any request by an employee to see his/her file should be referred immediately to the appropriate people in personnel. 43 Recordkeeping – Documentation Memos and warnings generally should be shown to employees before they are put in the file. Their content should be discussed with the employee. 44 Recordkeeping – Documentation Performance evaluations should be filled out accurately -especially if negative things are said. Failure to identify negatives may mislead the employee as to where he/she stands and limit the employee’s potential to achieve satisfactory performance. 45 Recordkeeping – Documentation Personnel files should not contain little “reminder” notes on scratch paper. They often are only partial reports and may be misleading. If there is a significant problem, there should be a full memo and/or specific warning about it. 46 Questions? 47