legal update for supervisors: legal issues that impact...
TRANSCRIPT
Legal Update for Supervisors:
Legal Issues That Impact Supervisors
April 12, 2017
Human Resources Training Series
Colleen Treml, General Counsel
Kenneth Danton, Assistant General Counsel
Alex Teodosio, Assistant Vice President, Human Resources
Overview of Topics
Overview of Laws Affecting Supervisors
Tips and Scenarios for Legal Documents and Issues
Attorney-Client Privilege
Legal Hiring Do’s and Don’ts
Background Checks/Fair Credit Reporting Act/EEO Issues
Hiring Foreign Nationals & Non-Discrimination Issues
Privacy and Health Records
Disability Issues
Topic #1: The Legal Landscape:
Overview of Laws Affecting Supervisors
Federal law
State law
Local ordinances/laws
University policies and procedures
Practical application of these
Federal/State Law Federal
Non-discrimination laws
Non-retaliation provisions
Workplace safety laws
Family and Medical Leave Act
Wage and hour (overtime) laws
Laws as federal contractors,
i.e., affirmative action
HIPAA – privacy of health records
State
Non-discrimination, non-retaliation,
wage and hour (minimum wage), etc.
Workers’ compensation
Leave laws and rules, i.e.,
“reasonable” maternity leave in Ohio
Privacy laws, i.e., breach notification
Licensure statutes/regulations, i.e.,
teaching license, CPA, etc.
University Policies
University policies and department policies
HR Policies
Faculty Handbook for faculty-specific issues
General university policies, i.e., firearms policy,
smoking policy, conflict of interest policy
Department policy, i.e., procedure to call in sick
Why is This Important?
Why is this important?
Consistent with our Mission
Want employees to be treated fairly and consistently
Need to comply with the law
Potential risk for university of reasonable and
unreasonable suits
Key Facts Why is this important?
Average jury verdict in discrimination case is $325,000
56% of the verdicts were in the $250,000 to $1 million range
Average defense costs for a discrimination case is $250,000
Potential civil and criminal liability for supervisor,
i.e., intentional discrimination, sexual harassment
Time loss by supervisors to address and defend case
Potential personal liability
Topic #2: Tips and Scenarios for
Legal Documents and Issues
Scenario #1:
Bob’s Call: What Would You Do? You pick up the phone. The person identifies himself as Bob
Smith.
Bob says that he represents Sue, an employee in your
department.
He tells you that Sue is about to be terminated, and he just
needs a copy of the pertinent policies.
He also just wants to know if he can attend the Human
Resources meeting.
What should you do?
Referring Attorneys to Legal Affairs All contacts from external attorneys should be referred to the
Office of Legal Affairs (OLA).
Do not feel obligated to assist or discuss the matter with the
attorney.
As a supervisor, you generally are represented by the OLA for
duties related to your job.
External attorneys are not permitted to discuss matters with you
without the consent of university counsel.
External attorneys cannot attend HR meetings with employees, unless related to a sexual harassment matter.
Scenario #2:
Mike and the Trouble with Subpoenas
Mike contacts you to say that he just received a subpoena
delivered to him at his university office.
He says the subpoena indicates he is being asked to provide
deposition testimony tomorrow in a matter related to work at
his former institution.
He says he wants help getting out of testifying.
What should you tell Mike?
OLA LOVES Handling Subpoenas
Refer all issues about legal documents and subpoenas
to Legal Affairs.
What is a subpoena? What is a legal complaint?
The university often can assist with coordinating dates
with counsel, sitting in the deposition, or representing
the faculty member in litigation if university-related.
Is this JCU-related?
Scenario #3:
Barb’s Visitor: How Much Information
Can You Divulge? You receive a call from Barb indicating that someone from
a recruiting firm is at her desk asking to conduct a
background check of records for employment with the
hiring firm. He also wants the student’s contact information
and grades.
Barb is aware the individual is a student and an employee.
Barb asks you what she can tell him?
Barb’s Visitor: Student Records
Contact Human Resources or OLA
Be aware of Family Educational Rights and Privacy Act
(FERPA) concerns.
Protects educational records maintained by university from
disclosure
Can be shared internally for legitimate educational purposes
Directory information can be given without consent from
the student.
Educational records can be disclosed with a written consent of the student.
Barb’s Visitor: Employment Records
Be aware of HR policies on employee records
Personnel records are confidential.
Dates of employment/title can be released without written
consent, generally handled through “the Work Number”.
In certain circumstances, records can be released with
written consent of employee.
Recommendation: Consult with HR on when to provide
information to prospective employers.
Scenario #4:
The Knock: What Would You Do?
There is a knock at your door, and you look up to see a woman with a
notebook. She advises you that she is with a government agency and is
conducting an investigation.
She begins asking you questions about a project conducted by a
faculty member and a student.
She asks you to call the faculty member’s chair to come meet with the
two of you. She also asks for the student’s status in the school.
What should you do?
Things to Remember Stay in control and be polite.
Ask for identification - obtain a card or write down.
Ask if there is a subpoena or warrant, and ask for a copy.
Advise that you need to contact the university’s OLA.
Advise you do not wish to proceed without counsel being
present. You can decline interview requests.
Wait for guidance before calling in others to be interviewed or
permitting a search.
Be aware of FERPA educational records issues.
Topic #3: Legal Privilege:
A Protected Space to Seek Legal Advice
Attorney Client Privilege Applies When:
• Communications between a client/agents of a
client and legal counsel AND
• Made in confidence AND
• For the purposes of obtaining or providing legal
assistance or counsel
What does it mean when a
communication is legally privileged?
That conversation is legally protected from disclosure to outside
entities in the event of litigation or a government investigation
Privilege can be lost.
Candid discussions, admissions, or considerations that were
brought up during the course of a legally privileged
communication do not need to be revealed in a case that arises
Pre-existing documents, records, or physical evidence are not
shielded from disclosure when given to an attorney.
Subject to internal policies and protections, legal privilege does
not shield documents from internal disclosure to appropriate
persons within the organization.
Communications that are not seeking legal advice
What isn’t covered?
Common Privilege Pitfalls
If a client discloses privileged communications to a third party,
then it will often waive the privilege. For example, forwarding
a legal memo separately to your boss or a committee to
discuss it.
Holding an otherwise privileged discussion in a setting where
confidentiality or confidence is not a reasonable expectation.
Involving unnecessary third parties in privileged
conversations.
Scenario: Legal Advice and Pizza
Jimmy has a question for the legal office related to a faculty
issue. He runs into Colleen at Pizzazz and, with other JCU staff
present, he outlines his problem and asks for Colleen’s advice.
Colleen later sends him an e-mail with advice on the risks they
discussed. Jimmy e-mails a copy of this memo to his VP along
with his next presentation.
Jimmy then calls Sue, the legal assistant in the Legal Affairs
Office, and gives her an update about his legal question to pass
along to Colleen.
Has Jimmy potentially waived the legal privilege?
Yes, because:
the issue was discussed in a setting that was not conducive to an expectation
of confidentiality due to the presence of other people/employees.
Jimmy forwarded a copy of the privileged memo to a third party who was not
involved in the privileged conversation.
Talking to Sue in OLA did not endanger the privilege protections as she is
covered by the office’s confidentiality protections and can pass along confidential
information when required.
Topic #4: Legal Hiring Do’s
and Don’ts
Non-Discrimination Federal law: prohibits discrimination based on
race color national origin gender, pregnancy disability age marital status veteran status
University policy prohibits discrimination on race, color, national origin, sex, sexual orientation, disability, age, veteran status
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Interview Questions
Any question asked in hiring emails, interviews, dinner conversations should not be related to or lead to an inquiry about these factors.
i.e. Question asked at dinner about whether applicant has childreni.e. Applicant raises issues about their pregnancyi.e. Asking applicant about their accent
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What Questions are Lawful and
Unlawful?
What do you think about these questions?
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Topic #5: Background Checks
Pre-Employment Screening & Post-Hire
Disclosure Policy JCU has a new policy concerning background checks prior to
hire. Follow the steps described in this policy during the hiring
process.
Requires employees to disclose to Human Resources any
criminal conviction or any pending criminal charge/indictment
other than routine traffic infractions unless the employee drives
as part of their job duties.
HR is in charge of authorizing any additional pre-employment
screening.
The Fair Credit Reporting Act (FCRA)
FCRA governs the use of consumer reports or investigations
in the hiring process .
Before obtaining a consumer report, such as a background
check, an employer must obtain written consent and provide
certain notices.
The FCRA would also apply to “off the books” background
checks.
Before you use the results of a background check
for an adverse decision, you must provide the
applicant with standard documents.
After you take adverse action on a background
check report, you are required to provide the
applicant other specific documents.
Triggers for Compliance Requirements
Scenario: Sue Smith and Conducting Background
Checks
Sue Smith is hiring employees to fill two positions.
One position involves an administrative assistant who will assist with files,
cash-handling, contraband destruction, and ticket billing at JCUPD, and the
other position involves part-time work setting up events.
The final candidates for both of these positions have background checks that
show criminal convictions relating to misdemeanor possession of marijuana.
How should you handle this?
Pointers
Working closely with HR will assure that all required forms and notices are
given.
The two positions have different risk levels with respect to persons with a
criminal history related to possession. The second job seems to have a
much lower risk relative to the criminal history presented.
JCU’s new policy requires this decision to be made in consultation with HR.
Some groups are disproportionately likely to be convicted of crimes.
Therefore it is not advisable to automatically disqualify everyone with any
criminal history from consideration.
Office Investigation Billy is thinking about hiring Joe for a new programming/development position.
However, Joe’s references don’t give Billy the full picture concerning his
capabilities.
Billy contacts Gabby, a JCU staff member who worked at Joe’s former
employer, to ask about Joe’s work performance.
Gabby’s contacts are more than happy to tell her about Joe and all of the best
office gossip they have.
They think Joe is not social enough because he refuses to attend events with
drinking since he has started at his new church. Also, Joe messed up their
winter vacation plans when he went out on FMLA to get a liver transplant.
Internal Investigation
Does this violate the FCRA?
Does this put Billy in a better position regarding the
hire?
Internal Investigation
Probably not.
Billy did not follow JCU’s background check policy.
He now knows about Joe’s religion, disability and
FMLA leave.
Special Investigation!
Professor Plum is thinking about hiring Julie as an office assistant.
Because of the sensitive records involved in his work, he asks his drinking
buddy, Johnny Law, who works as a police officer/private detective, to find
out about her history.
Johnny searches his public record and other databases and finds out that
Julie was arrested for possession of marijuana in 1978 when she was 17.
Also, he finds out that she filed for divorce last month and she recently
reported receiving harassing phone calls.
Does this violate the FCRA? JCU’s background check policy? Ohio Law?
Special Investigation
Yes, no authorization was obtained.
The use of a private investigator has special legal
requirements that were not followed.
The use of police resources for this kind of check
would probably be unlawful.
Topic #6: Hiring
Foreign Nationals and
Discrimination Issues
Non-Discrimination Federal law prohibits discrimination based on race, color,
national origin, ethnicity
Hiring
Employment
i.e. Not wishing to hire an individual from a particular country or with an accent
i.e. Thinking an individual of a particular nationality poses a greater risk
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Citizenship
Federal law does not prohibit basing hiring decisions on
being a U.S. citizen
Some federal grants require that recipients be U.S.
citizens
BUT that can equate to discrimination based on national
origin.
May not promote diversity
i.e. Asking - “Are you a U.S. citizen?”
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Ability to Work in United States
Important questions to ask applicants:
1. Are you able to work in the United States without
sponsorship?
Are you able to provide documentation upon hire of your
authorization to work in the United States?
Are there any time limitations on your ability to work in the
United States?
What sponsorship would be required?
2. Have you ever been on a J visa?
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Types of Visas/Permanent Resident1. H-1B: visa with employer sponsor
3 years
Renewable for 3 years
Can transfer to another institution
Costs must be paid by employer for H-1B and for renewals
2. TN (NAFTA Professional): For citizens of Canada and Mexico
3 years, with renewal for 3 years
Employer does not have to pay for TN, but often does
3. Permanent Resident (Green Card)
Usually 3-step process
Employer must pay for first step at least ($2000 plus filing fees)
Usually requires job posting or re-posting, other paperwork
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What sponsorship means
Sponsorship by the University means assisting with immigration status to permit employee to work here.
Involves:
Time – to collect documents, file documents
Money
i.e. H-1B visa: $1800 plus filing fees
i.e. Green Card: $6000 plus filing fees
Uncertainty - may not be known whether employee will be authorized to work by start date (i.e. H-1B)
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Hiring Considerations
Qualifications of employee
Employee’s contribution to diversity, mission
Ability to retain employee if employee remains at the University beyond initial visa (i.e. H-1B expires, permanent resident)
Travel restrictions, residency requirements
Loss of employee after having sponsored employee on non-immigrant or immigrant visa
Timing of start date
Ability of University to pay
Ability or willingness to ask employee to pay a portion
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Scenario: Interviewing Enrique
Your department is interviewing candidates for a coordinator position. At one interview, Enrique raises that he would need the University to help him with his immigration status to work here.
Can you ask:
1. What is your citizenship?
2. What kind of sponsorship do you need?
3. What is your current visa status?
Can you decide not to hire him because he could not start soon enough because of his immigration status?
Can you decide not to hire him because of the cost to the University?
Can you decide not to hire him because he is from a particular country?
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Scenario: Interviewing Enrique
1. No – don’t ask citizenship
2. Yes – can ask kind of sponsorship
3. Yes – eventually
Yes – timing is acceptable factor
Yes – cost is acceptable factor
No – country of origin is not a consideration
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Topic #7: Health and Disability Related
Information
Legal Trends: Increased Privacy of Health
and Disability Information Health and disability information is implicated by laws that
affect activity on JCU campus, including:
Genetic Information Nondiscrimination Act
Health Insurance Portability and Accountability Act
The Family and Medical Leave Act
Americans with Disabilities Act
Section 504 of the Rehabilitation Act
The Family Educational Rights and Privacy Act
Protecting Private Info
These laws and the regulations have moved the discussion
of health specifics out of the decision maker’s office and
into HR/disability offices.
Clear expectation that records will be maintained
separately
In some cases, decision makers will be insulated from the
specifics of health or disability related information.
Privacy Considerations in our Collegial
Environment
Other than in discussions with HR, OLA, or in safety
responses, it is not advised to share information concerning
another employee’s health or disability info.
Employers are often held liable for what supervisors
learned in casual conversation with subordinates,
especially if the supervisor elicited the information.
Scenario:
Sue’s Encounter with FMLA Sue is having trouble with her subordinate, Steve, who is
often absent from work on FMLA leave and needs
accommodations related to short term memory loss.
She has been sending emails to others in the department
about his absences, and they believe his migraines and
medical leaves are exaggerated, as they see him playing
piano on the weekends.
Steve gave her a doctor’s note for his absences, and she
would like to share it with you as her supervisor.
(Continued)
Sue’s Encounter with FMLA
Sue says that the office is very busy, and everyone is
having to take on Steve’s work. Also his
accommodations aren’t fair and she doesn’t see why he
should get them. She wants to do something about his
generally poor performance.
What should you do?
What Sue Could Have Done …
Sue’s plan creates potential issues.
Family and Medical Leave Act
Americans with Disabilities Act
Any email is a discoverable document
Orally advise Sue about FMLA protections
Contact HR
Consider privileged conversation with the OLA
ADA Confidentiality The ADA contains strict confidentiality requirements. Medical information
revealed by an applicant or employee must be kept confidential.
Disability and FMLA records must be kept in a separate file from other
personnel documents.
These documents should not be in supervisors’ files.
The ADA’s confidentiality requirements protect:
information voluntarily revealed
information revealed in response to an employer’s written or oral
questions or during a medical examination.
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Exception to Confidentiality
An employer may share medical information with others in
certain instances:
hiring decision makers where medical information is
related to essential functions of job
health and safety personnel for safety planning
government officials investigating compliance with the
ADA etc.
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Topic #8: Handling
Employment Disability
Issues
What is the ADA?
Americans with Disabilities Act (ADA) - federal law
Employers cannot Discriminate against applicants or employees based on a
disability Retaliate against applicants or employees related to a
disability Fail to provide reasonable accommodations for an
applicant’s or employee’s disability Fail to provide a barrier-free work environment
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Americans with Disabilities ActDisability Definition
Definition of “disability” is broader now
Employees with chronic conditions or with conditions in remission
can be considered disabled
Note: The disability does not have to substantially limit an activity
related to work (i.e. insomnia – may substantially limit
sleeping although not related to a job function directly)
Essential Functions of the Job
An applicant or employee must:
be qualified to perform the essential functions of the job
with or without reasonable accommodation
satisfy the job requirements
educational background, employment experience, skills,
licenses, and any other qualification standards that are
job related
i.e. an assistant who cannot type vs. an assistant who cannot run
errands in a short period of time
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Interviewing Issues
Supervisors cannot:
ask questions that are likely to reveal the existence of a
disability before making a job offer.
This includes written questionnaires and inquiries made during
interviews, as well as medical examinations.
Questions and medical examinations can be permissible after
extending the job offer, but before the individual begins work.
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HiringProhibited Interview Questions
During a job interview, supervisors cannot ask:
Have you ever been hospitalized?
Have you ever been treated for a mental disorder?
How many days were you absent last year due to illness?
Do you have any known physical disabilities?
Are you taking any medications?
Have you ever been treated for alcoholism or drug addition?
Do you have any physical or mental impairments that would affect your job performance?
Have you ever filed a workers’ compensation claim?
Do you have a heart condition?
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HiringAcceptable Interview Questions
During a job interview, you can ask:
Do you have the ability to perform the job functions related
to an essential duty of the job?
(i.e. Can you lift 20 pounds? Can you type 50 words a
minute?)
Describe or demonstrate how you will perform the job-
related functions that are essential duties of the job.
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Scenario: Elevator or No Elevator
Sally calls Larry about interviewing for a position in her department.
Larry tells Sally that he is excited to interview, and tells Sally that he uses a wheelchair .
Sally was planning to interview Larry with the entire department on the second floor of the building.
There is no elevator in the building.
Can Sally decide not to interview Larry because he is in a wheelchair?
What could Sally do?
What is permissible if Larry is most qualified for the job?
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Scenario: Elevator or No Elevator
Sally cannot refuse to interview Larry because of an
accommodation we have to make.
Installing an elevator would be an undue hardship.
Sally would have to conduct the interview in another location.
Sally could not decide not to hire Larry because he could not
work on the 2nd floor. A reasonable accommodation would need
to be provided.
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Medical Inquiries of Employees
Medical inquiries during employment are only OK if:
job related and necessary for the work of the
University
the employee poses a direct threat to self or others.
Voluntary medical exams part of employee health
program
i.e. wellness programs
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What are Reasonable Accommodations?Reasonable accommodations to applicants and employees – to help perform job duties:
Acquiring or modifying equipment or devices (i.e. installing a ramp or modifying a
workspace)
Job restructuring
Part-time or modified work schedules; extensions of leave
Reassignment to vacant positions
Adjusting examinations, training materials, or policies (i.e. training and written material
in Braille, audiotape or computer disk)
Providing readers or interpreters
Making the workplace readily accessible and usable by individuals with disabilities
* Cost is not a reason to refuse a reasonable accommodation
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Scenario: Helping Out Greta
Bob notices that Greta, his employee, seems to be having trouble
paying attention at work.
He tells Greta that he thinks she might have ADHD and may want
to see a doctor to get help.
He starts to help out Greta by giving her work assignments only
in writing, while he gives other employees their assignments
orally.
Did Bob do anything wrong?
Scenario: Helping Out Greta
Bob may have violated the ADA by perceiving Greta as disabled.
Greta must request an accommodation.
Bob can address performance issues.
Bob should not accommodate Greta for a disability on his own.
Greta needs to go through the Human Resources accommodation
process.
Bob should contact Human Resources about the issue.
Campus Contact Information
ADA Coordinator (Garry Homany)
Faculty & staff concerns
Requests for physical accommodations
Human Resources (Ryan Armsworthy)
Leave extensions
Work duties accommodations
Student Accessibility Services (Allison West Kaskey)
Student request for accommodation and classroom instruction issues, complaints
Facilities (Carol Dietz)
Design of new, accessible buildings
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Thank you
Colleen Treml
General Counsel
Office of Legal Affairs
(216) 397-1590
Kenneth Danton
Assistant General Counsel
Office of Legal Affairs
(216) 397-1590
Alex Teodosio
Assistant Vice President, Human Resources
Human Resources Department
(216) 397-1905