J Walsh Esq Attorney Avoiding the Employment Practices Minefield The Agenda What are the Employment Practices Minefields Has the economic environment affected these claims Have the type of claims changed over the years ID: 343038
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Slide1
Dennis
J. Walsh
, Esq. Attorney
Avoiding the Employment Practices MinefieldSlide2
The Agenda
What are the Employment Practices Minefields?Has the economic environment affected these claims?
Have the type of claims changed over the years?What are the “hot” claims today?Have the methods for avoiding these claims changed?Where are the minefields during the Interactive Process (IP)?
Where are the minefields when you make a decision about whether to accommodate a disabled employee or not?
Q & ASlide3
Sexual Harassment is still alive and well
Particularly supervisor harassmentSexual orientation harassment claims are now more prevalent than ever
The impact of Societal changesPregnancy HarassmentFailure to provide accommodationRace and Ethnicity HarassmentInappropriate statements in the workplace and/or dislike issuesNot everyone can get along
Turning workplace issues into harassment issues
Harassment Claims
:
Something Old, Something NewSlide4
Harassment Claims:
Something Old, Something New
Real CasesSexual orientation and cleanliness
Pictures, etc. of the significant other
The inconvenient pregnancy?
Performance issues are all race/ethnicity related
Can you do anything to prevent these claims?Slide5
Retaliation Rears Its Head
More and more lawsuits including this claim?What and how is it alleged?
The dangerous claimHow to avoid it with current employeesSlide6
Retaliation Rears Its Head:Real Cases
The March 15th retaliation
The request for accommodation retaliationsThe work comp offenderThe allergic to coming on campus employeeWhat can you do to avoid these claims?Slide7
Failure to Prevent Discrimination/Harassment:
What does it mean?Simple to Avoid?
The New Add On ClaimSlide8
The “No Win” Scenarios: What to Do?
Consensual Sexual conduct by a supervisor still creates problems
The Work Comp offender that becomes the ADA victimThe employee whistleblowerSlide9
The Common Law Claims
Claims that arise from case law and not statute per seWrongful termination against public agenciesDefamation
Invasion of PrivacyIIEDWhat can you do to minimize these type of claims?Slide10
Tips for Minimizing these claims:
Documentation is still the keyFollowing your policies and procedures to the letter
Objectivity by the decision makersUsing outside investigators when appropriateBe selectiveDiscipline/Termination with Dignity
Some Things Never ChangeSlide11
Avoiding the Disability Minefields
Still by far the biggest problem issue in employment practicesThe Work Comp overlap issue still alive, well and growingDifficult cases to settle and get rid of
The interactive process is fertile ground for litigationLet’s breakdown the issues and discuss some situations that illustrate the problemsSlide12
The Reasonable Accommodation Process
Look At The Job Involved To
Determine Its Purpose And ItsEssential FunctionsA Written Job Description Prepared by persons in the knowSigned
b
y the
EmployeeSlide13
IP Minefields:
Agreeing on the essential job duties
The Written Job DescriptionThe Frequency and Duration of the dutiesMatching up the medical restrictions with the proper essential job duties
And agreeing upon it
Get Clarification if Disagreements exist
Can’t determine accommodations without clear understanding by both sides of specifics of the restrictions
What specifics do you need?Slide14
The Reasonable Accommodation Process
Meet With The Employee to Discuss and Agree on Functional Limitations and Essential Job DutiesSlide15
IP Minefields:
Agreeing on the essential job duties
What if the employee disagrees with the JFA?Doctor Verification Of Functional Limitations Is PermissibleDiscussion of doctor reports re limitations is acceptable
Do not blindly rely upon WC doctor reports
What if the employee disagrees with their doctor
What if the doctors disagree about the condition of the employee?Slide16
IP Minefields:What are the Functional Limitations?
Dealing with Workers’ Comp terminology for
job restrictions“No Heavy Lifting”“No Repetitive Bending, Stooping, Etc.”“Prophylactic Lifting Restriction”
“TTD”
“Part-time Work”
“Stress free environment”
Need to have clear understanding of these terms
Do they impact essential job duties?Slide17
IP Minefields:Fitness for Duty Exams
Can be a blessing and a curse
Pick and choose the right time to get oneMust be a good reason for doing soGive definitive instructions on what you need from the FFD DoctorConfirm in writing
Provide FFD Doctor with all information necessary
Past medical records, job description
Have HIPPA release from employeeSlide18
The Reasonable Accommodation Process
After
meeting with the employee,identify and list potentialaccommodations and assess howeffective each would be in enabling
the individual to perform essential job functions
Determine if they are reasonable or not
i.e. Cause an undue hardship or direct threat to employee or others
Review all alternative vacant positions to go
over with the employeeSlide19
The Reasonable Accommodation Process
Meet
with the employee again to discuss & agree or disagree on the R/A’s
or why there is no
R/A
If
no
R/A available, discuss alternative vacant available positions the employee is minimally qualified for
Any and ALL vacancies, full or
part-time and that may come
up in the near futureSlide20
IP Minefields:Meeting with the Employee
It’s the “Interactive Process” not the “Unilateral Process”
Make sure you seek their input or lack thereofDon’t make any decisions during the last meetingEven if your mind is all ready made upBe Prepared
Have all docs re vacant positions and minimum
quals
at the meetingSlide21
The Reasonable Accommodation Process
If accommodations are available, consider preference of employee and select accommodation that best serves the needs of both
It is an ongoing process that is the burden of the employerOffer and discuss available alternatives
The
evaluation of proposed accommodations requires
o
ngoing dialogue and an assessment of the effectiveness of each accommodationSlide22
IP Minefields:Trying to Accommodate
Two steps:Can I accommodate to existing position?
How about alternative vacant positions?Do you really want to accommodate this employee?Are you prepared to discuss all possible accommodations?Have you done your homework?Slide23
IP Minefields:Temporary/Light Duty Positions
Not required under ADA/FEHAWork Comp related to reduce costs
How do they affect your duty to accommodate?How do you handle the employee that wants the light duty position to become permanent?Slide24
The Reasonable Accommodation Process
Document the Process Including:
AnalysisMeetings With The EmployeeThe Decision Making ProcessThe Final Determination &Communication To Employee
Methods of DocumentationSlide25
IP Minefields:Documenting the Process
All or nothingEmails are discoverable!
Be careful what you sayHave standardized forms to useLetters to doctorsMeetings with Employee
Your thought process re accommodationSlide26
The Reasonable Accommodation Process
Follow–Up with the employee on
any accommodations offeredChanges should be done if necessary and documentedDon’t make a promise you can’t keep!Slide27
IP Minefields:Proper Communication
With the employee
Even during Worker’s Comp injuryBetween Risk Management and HRWith the TPA on the Worker’s Comp ClaimThey are not advisors on the ADA/FEHA issuesBetween WC attorney and Employment Attorney
Be ProactiveSlide28
IP Minefields:Failure to Engage in IP
The New Catch All ClaimReasons:
Ignoring employee requestIgnoring employee restrictionsIgnoring change in employees restrictionsIgnoring employees complaints about being able to do the jobWithin the restrictions
With the accommodationsSlide29
IP Minefields:Problems that Arise
The Employee that doesn’t agree with the FFD restrictions or lack thereof
Know ALL of the employee’s qualifications for vacant positionsDenying accommodations that have been given to othersPolicies and Practices that violate ADA/FEHASlide30
IP Minefields:Problems that Arise
Allowing employee right to use ALL unpaid leaves available
Having a final IP meeting before placing employee on the 39 month re-hire listExplaining to employee what this meansNot Just in a LetterSlide31
Dennis
J. Walsh
Attorney, Walsh & Associates
dwalsh@walshlawyers.com
www.walshlawyers.com