legal update - insight performance...nov 15, 2018 · 11/15/2018 1 legal update november 15, 2018...

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Legal Update

November 15, 2018

Presented By: Dave Wilson, Esq.Hirsch Roberts Weinstein LLP

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President Trump had three things to say about marijuana policy during his campaign:

1. He was “in favor of medical marijuana 100 percent,”;

2. He was skeptical of legalizing it more broadly; and

3. Marijuana policy should basically be left to the states.

Public Support for Marijuana Grows...

A 2/23/17 Quinnipiac poll found U.S. voters favored legalization 59% to 36%, with only Republicans and older voters opposed.

An impressive 71%, including majorities of Republicans and older voters, think the federal government should not interfere in states that have legalized marijuana. Gallup and other polls report similar findings, including strong majority support for legalizing among Republican millennials.

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30 states and DC have legalized

medical marijuana for medical purposes.

State Law

9 states have legalized

recreational marijuana

State Law

What if an employer wants to accommodate off duty medical marijuana use?

Sample Policy Language:

The Company may in its discretion accommodate legally recognized medical marijuana users when possible depending on the Employee’s position. Employees who obtain a registration card from the state Department of Public Health must submit a letter to the Director of Human Resources attaching a copy of their card and requesting a reasonable accommodation. The Company will then enter into a discussion with the Employee and where applicable the Employee’s Health Care provider to determine if such accommodation is appropriate under the circumstances.

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Types of Drug Testing Procedure

Random:

Pre-Employment

Reasonable Suspicion

Post-Accident

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2.

3.

4.Balancing test: does legitimate, business interest of employer outweigh employee’s interest in privacy?

Safety sensitive positions only

Advanced notification

Retesting to confirm

EAP

No termination for first-time positives

Last change agreement

Drug Testing

Reasonable Suspicion Checklist

Go through checklist, with at least one witness signing off as well

Signs of current impairment include: Bloodshot eyes

Poor coordination

Drowsiness

Perception of time

Odor, or cover-up

1234

Educate employees about the law and Company’s position

Consider revising Company’s Substance Abuse Policy

Consider revising Company’s Drug Testing Protocol

Consider revising Company’s Reasonable Accommodations Policy

Next Steps

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Documentation Do's And Don'ts:

Dodging Dangerous Drafting Deficiencies

Be treated with dignity and respect

Understand how they are performing

Have opportunities to learn, improve, and grow

Advance and succeed at work

Feel valued by their employer

Most employees want to:

THE SUPER SUPERVISOR

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Setting goals & expectations

Training & mentoring

Evaluating performance & providing constructive feedback

Creating performance improvement plans

Addressing issues

Recording discipline & remedial action

Showing gratitude & expressing pride

Recording accomplishments

Motivating the team

The Super Supervisor understands the importance of recruiting, motivating, and retaining strong team members and uses documentation as a tool for:

“If you don’t write it down,

it never happened!”

General Documentation Tips

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Documents commonly prepared or revised by HR professionals:

Hiring documents – job postings, job descriptions, interview notes, offer letters

Performance documents – evaluations, warnings, termination letters, RIF paperwork, meeting notes

Investigation documents – interview notes, communications with accuser, accused and witnesses, findings and reports

Documents that set forth terms and conditions of employment – agreements, policies, reasonable accommodation plans, game plans for addressing a workplace issue

Communications – confirming a discussion, responses to requests for information and assistance, announcements

IF YOU DON’T WRITE IT DOWN…IT NEVER HAPPENED!

1. lose their memory;

2. change jobs;

3. retire to Florida; or

4. fall apart on the witness stand.

Juries tend to believe what they read if it was written at the time of the incident.

Documents do not:

When documents go bad, they:

Make promises that the employer can’t ordoesn’t keep, or limits the employer’s flexibility

Are inaccurate or untruthful

Create the impression that a decision wastainted by unlawful bias

Are not written clearly and misunderstood

Are hurtful, callous, or otherwise negativelyimpact employee morale

Violate people’s privacy

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When documents are good, they are:

Accurate and truthful

Understandable

Objective

Thorough

Have a clear “end game”

Emotionally intelligent

Consistent

Reviewed and approved (HR, counsel)

Types of Documentation:Performance &

Discipline

“If the employee is surprised, you have failed”

“If you don’t document it, it never happened”

The goal: “Notice and opportunity to improve”

Beware “Zero to Sixty”

“It’s nothing personal; just business ...”

Remember these performance evaluation platitudes:

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Failure to Document

• MCAD & Baker v. Plymouth County Sherriff’s Office

“Neri testified that he had numerous discussions with Superintendent Gillan about Complainant’s performance. He did not document these conversations because he was not planning to discipline Complainant; he merely wanted his performance to improve. I do not credit his testimony. I find that if Neri’s concerns about Complainant’s performance were as serious as he claims they were, so as to ultimately lead to his demotion, that these concerns would have been documented.

***

[finding unlawful retaliation] I concur with Complainant that the scant evidence of Complainant’s purported deficient performance and the lack of supporting documentation or testimony other than Neri’s and Gillan’s supports the conclusion that Respondent’s reasons for demoting him are not credible.”

Inconsistency

• City of Salem v. MCAD

“As for the first nondiscriminatory reason proffered by the city –that Brown was not offered a position because he could not be reached for the second-stage interview… Chief Connelly did not list Brown’s unavailability on any of the numerous documents submitted to the DPA as a reason for the bypass.

The fact finder may properly take into account weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action.”

Types of Documentation:Accommodations

& Leaves of Absence

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FMLA BASICS

Eligible employee is entitled to take up to 12 weeks of unpaid leave during any 12 month period due to:

Birth/adoption of child;

Employee’s own serious health condition(e.g., illness, injury, impairment, or physical or mental conditions requiring inpatient care or continuing treatment by health care provider, involving more than 3 days of incapacity);

Care of employee’s spouse, parent, or child with serious health condition; and/or

Various military leaves.

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Note: Employees may be eligible for other forms of leave in addition to, or besides, FMLA.

FMLA-Eligible Employee

Indicates Need for Leave

Event 1:

Within 5 business days of request for leave (or knowledge of need for leave), employer sends employee a Notice of Eligibility of Rights and Responsibilities (available through DOL website).

Documentation:

FMLA Documentation at Various Stages

Before Employee Takes Leave

If employee is eligible, employer may request that they complete a Certification Form (different forms for different kinds of FMLA leave, all available through DOL). If requested, employee should provide employer with Certification Form within requested time period (no less than 15 days). After it is provided, employer has 5 days to provide Designation Notice (make sure to check the box for requiring employee to provide a Fitness for Duty Certificate and attach a job description).

Event 2: Documentation:


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While Employee is On Leave

Employer may require employee to report to employer “periodically” regarding their status and intention to return to work.



Employee’s Leave Will Soon

Expire

Employer sends letter to employee whose FMLA leave is about to expire and who may request an extension of leave as a reasonable accommodation for disability.

For employee to be eligible for extension of leave due to disability, employee must provide medical documentation.



Employee Returning from

Leave Due to Employee’s Own Serious Health

Condition

Employer should ask employee to submit a Fitness-for-Duty Certificate.

Event 5A: Documentation:


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Termination of Employee Due to Indefinite

Leave

Employer sends letter to employee on indefinite leave notifying of termination.

Event 5B: Documentation:


Do’s and Don’ts of FMLA Documentation:

Document each phase, from providing the employee with initial FMLA paperwork through employee’s return from leave, and everything in between!

Supplement written documentation with in-person interactions. The human touch can go a long way towards making an employee feel valued, and you will follow-up with an email to document the conversation.

Kick your feet up, assume everything will go as it should, and neglect to document the process!

Refuse to discuss leave with employee by phone or in person and rely exclusively on email.

“If you don’t document it, it

never happened!”

REMEMBER:

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Americans With Disabilities Act and M.G.L. c. 151B

TWO OBLIGATIONS:

1 2Employers Shall Not Discriminate Against Qualified

Disabled Individuals

Employers Must Provide A

Reasonable Accommodation

to Qualified Disabled

Individuals

Qualified Disabled/Handicapped Individuals

Capable of performing the essential functions of a job with or without reasonable accommodation

Essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires

Does not include the marginal functions of the position

WHAT IS REASONABLE ACCOMMODATION?

Enables employee to perform the essential functions of his positionDoes not cause the employer undue hardship

• Significant difficulty or expense –based on net cost

• Unduly extensive, substantial or disruptive (does not include morale); or

• Would fundamentally alter the nature or operation of the business

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Defined as “significant difficulty or expense.” Considerations include: the nature and cost of

accommodation

financial resources of employer

impact on business operations and clients

employee morale and customer preference are not factors

Undue Hardship

INTERACTIVE PROCESS

Generally, employee is responsible for informing

employer accommodation is needed

Employee’s request triggers interactive process

Employer and employee should work together to

identify reasonable accommodation

Employer is not required to adopt employee’s suggestion if another accommodation is

feasible

Document the interactive dialogue, including:

1. Employee indicating that they have a disability

2. Employer’s willingness to engage in an interactive dialogue

This should be a consistent part of the employer’s communications

3. Accommodations the employer offers to the employee

4. Employee’s response to the accommodations that employer offers

Did the employee try the accommodation? If so, how did it work out?

Did the employee reject the accommodation? If so, did they suggest something else to try?

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Document the interactive dialogue, including:

4. Accommodations that the employee requests and the employer’s response

If appropriate, document the reasons why a requested accommodation would cause an undue hardship for the employer

5. Requests for medical documentation

6. Employer’s willingness to speak directly with the employee’s medical provider to understand disability and explore possible accommodations

Documentation is just another way of saying “put it in writing”

If part of the interactive dialogue happens in an in-person meeting or by phone, follow-up with an email to document what was said, including:

Employer’s willingness to engage in interactive dialogue

Any accommodations that were offered by employer or employee

Any requests for medical documentation or to speak to the employee’s medical provider

Next steps for continuing the interactive dialogue

Types of Documentation:Investigative Reports

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Investigations of Employee Complaints

Thank the employee for coming forward. Assure the employee that the company takes these matters seriously.

Do more listening than talking!

Do not form conclusions about whether the complained-of behavior did or did not occur.

Get buy-in from the employee on next steps• In most instances, you should involve HR

• Do not promise absolute confidentiality

• If employee wants to handle the situation on their own, you should still inform HR, document (and provide all documentation to HR), and follow-up

Prepare initial memos to accuser and accused

Be neutral and objective. Keep your emotions in check!

Be scrupulously truthful and accurate. Also, be clear about what you have personal knowledge of, and what was reported by others

Be specific, detailed and complete – what, when, where, how, who else was present

Do not make conclusions while collecting information –

• Wrong: Joseph engaged in sexual harassment

• Right: Claudine reports that on Jan. 2 at 2 pm, Joseph told a sexually explicit joke in front of her and Carmen

Indicate what you told the employee. (For example, “I told Claudine that I would report the matter to HR and get back to her”)

Investigation of Employee ComplaintsPrepare appropriate documentation

→ Incident

→ Interim measures

→ Investigation

→ Conclusions and Recommendation

Investigation of Employee Complaints:Structure of Documentation of Investigations (IIIC):

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Investigating Employee Complaints:

Coordinate with HR on next steps

• You are not alone

HR conducts an investigation

(formal or informal)

Decision is made regarding

appropriate remedial action

(coaching, counseling,

discipline, transfer, etc.)

Follow-up tasks:• Check-in with employee about

how things are going• Be on alert for

retaliatory behavior

David [email protected]

617-348-4314

Questions?