2013 NMHC Human Resources Forum - PowerPoint Presentation

2013 NMHC Human Resources ForumFrom Hire to Fire: The Life Cycle of an Employee Justin C. Eller and Darah M. Okeke | May 14, 2013

Meet MichaelMichael is a Property Manager at Dinder Mufflin Residential, a multi housing provider with properties throughout the U.S. Michael needs a new maintenance technician and thinks he has found the perfect candidate – his childhood friend Jim. May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee 2

Michael and Jim reconnected last year via Facebook. A few months ago, Jim posted that he had been laid off and was looking for maintenance work. Michael tells Jim about the opening and forwards his name to HR. Jim’s background check reveals that he was convicted of marijuana possession several years ago during college, and that he recently filed for bankruptcy. As a maintenance tech, Jim would be required to enter tenants’ apartments unaccompanied. 3 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee Meet Jim

Hot Topic #1: Background ChecksEEOC’s 2012 Guidance Requires i ndividualized assessment Factors to consider Notice requirementOpportunity to address the negative resultsConflicting state laws 4 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

5EEOC is pursuing these cases aggressively Pepsi - $3.13 Million Settlement Unemployed Job Applicants EEOC is reviewing, may issue guidance prohibiting unemployment discriminationSome states are considering restrictions Credit Checks: Still a “no-no” if no legitimate business necessityHot Topic #1: Background ChecksMay 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Gaskell v. University of Kentucky (E.D. Ky. 2010)Internet search of frontrunner applicant for position of Director of University Observatory uncovered information about applicant’s religious beliefs and applicant was not offered position State law restrictions on access to employees’ social media accounts California, Delaware, Illinois, Maryland, Michigan, New Jersey & Utah 6 Hot Topic #2: Social Media May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Jim Gets Hired!Despite his spotty past, Jim is hired as the maintenance technician at Michael’s property. Jim’s regular work hours are 8:00 am to 5:00 pm with a one-hour lunch break. H e is also on-call several nights a week. Dinder Mufflin gives Jim a smartphone for his on-call duties, and he responds to work phone calls, emails and text messages at all hours of the day and night. 7 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Audits / enforcement and collective actions are still on the rise!Compensable or Non-Compensable? Time spent using smartphones / mobile devices On-call time Practical Pointers Pay non-exempt employees for ALL hours workedTimekeeping is key - if you have no record of an employee’s hours worked, the employee’s memory/records may be accepted as true 8 Hot Topic #3: Wage & Hour May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Baby on Board!After joining Dinder Mufflin, Jim met and married Pam, a leasing consultant. They recently learned they are expecting their first baby! As the pregnancy progresses, Michael overhears Pam complaining that her chair is hurting her back and that she is having trouble showing apartments because of all the walking. Michael is concerned that Pam may ask for an accommodation and may frequently request leave. 9 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Hot Topic #4: Accommodation &Leave LegislationAccommodations for pregnancy-related disabilities Mandatory paid sick leave laws 10 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

11 Recent FMLA Regulations 99% of changes are catching up the regulations to statutory amendments that took effect in 2009 Counting FMLA Leave: Must use the smallest increments used for other forms of leave, and in no greater increments than 1-hour blocks If employee returns to work before increment is used, employer can only count the amount of leave actually used May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

12Military Leave “ Qualifying Exigency ” Leave O nly covers deployment to a foreign countryNew category of “qualifying exigency” leave - “parental care”“Rest and recuperation” leave – increased from 5 days to a maximum of 15Other Changes:“Serious injury or illness” expanded to include pre-existing conditionsLeave available to family members of recent veterans who require careMay 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

USERRA Leave CountsIf an individual’s employment is interrupted by service in the military or other service protected by USERRA, the period of absence counts to meeting FMLA’s 12-month threshold for eligibility. The employee is also credited with the equivalent of the number of hours he/she would have worked for meeting the 1,250-hour threshold for FMLA eligibility . 13 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Other FMLA UpdatesCaring for an Adult Child: Child must have disability as defined by ADA Child must be incapable of self-care because of a mental or physical disability Child must have a serious health condition for which they are in need of care “ Son or daughter” includes in loco parentis:Same sex couplesUnmarried couplesOther non-traditional families 14 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Baby on Board! (cont.) Before Pam and Jim found out they were expecting a baby, Pam applied for an opening as a supervisor. She has been with Dinder Mufflin for 5 years and has always had excellent performance reviews. 15 Michael is concerned about promoting Pam while she is pregnant and with an upcoming maternity leave. During Pam’s interview for the supervisor position, Michael asks questions about her commitment to Dinder Mufflin , her future career plans, and if Jim will take paternity leave. May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Hot Topic #5: Trends in Discrimination ClaimsEEOC recently noted an “incredible increase” in pregnancy bias charges (March 2012) Santiago–Ramos v. Centennial P.R. Wireless Corp . ( 1st Cir. 2000 ): Direct supervisor “specifically questioned whether [the plaintiff] would be able to manage her work and family responsibilities .”Sheehan v. Donlen Corp. (7th Cir. 1999): A supervisor told the plaintiff that she was being fired so that she could “spend more time at home with her children,” and the head of her department remarked that “she would be happier at home with her children.” 16 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Caregiver Discrimination29% of U.S. population provides care for disabled, chronically ill, or older family member or friend during any given year 17 different legal theories under which caregiver discrimination claims have been advanced Other Trends: Sexual orientation discrimination Gender identity/expression discrimination“Reverse” discrimination 17 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee Hot Topic #5: Trends in Discrimination Claims

18Pam returns from maternity leave, and she and Jim are back to their old ways in the office – playing practical jokes, mostly on Dwight. Pam and Jim form a Facebook group called “Dwight is Stinky!” and many of their coworkers join the group and post comments about how annoying Dwight is at work. When Pam and Jim learn that Dwight will run the office while Michael is on vacation, they use their Facebook group to convince their coworkers to call out “sick” on Dwight’s first day in charge . Michael learns of the scheme and fires Pam and Jim on the spot. Pam and Jim are Practical Jokers May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Are Pam and Jim’s Actions “Protected, Concerted Activity”? Concerted activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” The NLRB expanded this definition to include those “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” 19 Back to Hot Topic #2: Social Media May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

20Hispanics United of Buffalo, Inc. (NLRB 2012) Employee solicited feedback from coworkers on Facebook regarding one employee’s critical comments about all employees’ work product. Coworkers objected to the criticism by commenting on employee’s initial Facebook post, were terminated for violating employer’s “bullying and harassment” policy.NLRB found terminations violated NLRA because the Facebook postings were protected, concerted activity.Protected, Concerted Activity (cont.)May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee

Questions ? 21 May 14, 2013 | From Hire to Fire: The Life Cycle of an Employee