2015 Employment Law Practice Tips

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1 2015 Employment Law Practice Tips November 2015 Shelley I. Ericsson

2 Sources of Rules Laws/Regulations Policies Agreements Guidelines

3 Employment-At-Will Working arrangements not governed by collective bargaining agreements or contracts Either party can terminate at any time for any lawful reason or no reason Subject to anti-discrimination and other laws (public policy)

4 Typical Employment Related Claims Discrimination/Harassment/Retaliation Wage & Hour/Pay Leave Laws Breach of Contract Implied or express Intentional Torts Outrage/intentional infliction of emotional distress Assault/Battery Negligence Claims Negligent hiring, retention, and supervision

5 Discrimination Deviating from Policy/Practice w/o adequate justification/explanation Harassment Failure to Accommodate (religion, disability) Retaliation

6 Employer Thresholds for Coverage Under Various Employment Statutes TITLE VII 15 or more employees Americans with Disabilities Act of 1990 (ADA) 15 or more employees Age Discrimination in Employment Act (ADEA) 20 or more employees Family and Medical Leave Act (FMLA) 50 or more employees Genetic Information Non-Discrimination Act (GINA) 15 or more employees Kansas Act Against Discrimination (KAAD) 4 or more employees Missouri Human Rights Act (MHRA) 6 or more employees

7 Title VII of the CRA of 1964 as amended by CRA of 1991 Prohibits discrimination/harassment based on race, color, religion, sex, national origin Prohibits retaliation for discrimination complaint(s)

8 PDA: Pregnancy Discrimination Act Requires Company to treat pregnancy like any other medical condition Prohibits discrimination against females based on actual pregnancy, or capacity to become pregnant

9 ADEA: Age Discrimination in Employment Act Prohibits discrimination/harassment against people 40 years and older based on age Prohibits retaliation regardless of age

10 ADAAA: Americans with Disabilities Act as Amended Prohibits discrimination/harassment based on physical or mental disability Requires reasonable accommodation of physical or mental disability Restricts ability to ask medically-related questions Requires medical information be treated CONFIDENTIALLY

11 ADA: Disability A mental or physical impairment That substantially limits One or more of the major life activities History of having such a disability Being regarded as having such a disability

12 ADA Amendments Act of 2008 Defines Major Life Activities (MLAs) MLAs include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, breathing, learning, concentrating, thinking, communicating, and working. Also includes Major Bodily Functions MLA also includes operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

13 Family And Medical Leave Act Eligibility: an employee is covered by the FMLA if he or she meets the following eligibility requirements: Completion of 12-months of cumulative service (or 52 weeks of work if the work is intermittent); and, Worked at least 1,250 hours*, including overtime, in the 12 months immediately preceding the date the FMLA leave will begin *Hours worked are not counted for overtime exempt professional staff (salaried/no overtime). These employees are automatically considered to have worked 1,250 hours Has not already used the current year's 12-week FMLA leave entitlement

14 Family And Medical Leave Act (FMLA) 12 Weeks Unpaid Leave Continuous or Intermittent Health Insurance Continued Must Restore to Same or Equivalent Position May Not Interfere or Retaliate May NOT Use Against Employee In Any Evaluation Process

15 Genetic Information Nondiscrimination Act Became effective November 21, 2009 Bars employment discrimination based on an individual s genetic information Or a family member s genetic information Or the potential that a latent family genetic disorder may exist Prohibits deliberate ACQUISTION of employee s/applicant s genetic information Absolutely prohibits USE of genetic information Even if lawfully acquired Strict confidentiality of genetic information Even if lawfully acquired

16 Genetic Information Nondiscrimination Act (GINA) Genetic information defined to include information about An individual s genetic tests The genetic tests of an individual s family members The manifestation of a disease or disorder in a family member Family medical history Genetic information does NOT include Age or sex

17 GINA (Title II) NOT a Genetic Test (according to regulations): Test for Drug/Alcohol Use Test for infectious/communicable disease(s) transmitted through food handling Blood counts, cholesterol tests, liver function tests

18 GINA (Title II) 6 Exceptions to Acquisition Prohibition Inadvertent ( water cooler ) acquisition Voluntary Wellness Program Knowing, voluntary, written authorization Individually identifiable information only given to the individual Only provided to employer in aggregate

19 Examples of GINA Moments (Water Cooler/Inadvertent Acquisitions) Sorry if I m not on my game today. I just found out my sister has breast cancer. I may have to go out of town tomorrow. We re waiting to hear back on my dad s prostate cancer test. Did you hear the news? Lisa just found out her brother has colon cancer. Sorry I won t be in today. I am on the way to the hospital. I just found out my twin sister has some kind of brain tumor.

20 Exceptions to Acquisition Prohibition Information required to administer leave under FMLA or state family or medical leave law Publicly available records But cannot search public records for purpose of gaining genetic information

21 Exceptions to Acquisition Prohibition To monitor biological effects of toxic substances in workplace With written notice Government mandated or Voluntary and written authorization Law enforcement or human remains identification For QA/to detect sample contamination

22 Remedies/Damages Title VII/ADA, GINA caps on punitives/compensatory damages employees maximum $50, employees maximum $100, employees maximum $200, employees maximum $300, Jury trials for all

23 Missouri Human Rights Act ( MHRA ) RSMo Chapter 213 Human Rights RSMo It shall be an unlawful employment practice: (1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual: (a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability;

24 Missouri Human Rights Act ( MHRA ) RSMO Additional unlawful discriminatory practices. It shall be an unlawful discriminatory practice: To retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter;

25 Exhaustion of Administrative Remedies Prior to filing a lawsuit under either Title VII or MHRA, complainant must first exhaust administrative remedies MHRA must file Charge with MHRC within 180 days of alleged conduct Title VII must file Charge with EEOC within 300 days of alleged conduct (because of dual filing) Farrow v. St. Francis Medical Center game changer. Must contest timeliness of claim at administrative stage or that defense is waived

26 Exhaustion of Administrative Remedies Two agency tracks: Investigation Employer submits position statement responding to Charge allegations Mediation Designated mediator (free) will attempt to assist parties in reaching a resolution prior to position statement being submitted Settlement includes withdrawal of Charge and waiver of complainant s right to pursue allegations in Court

27 Exhaustion of Administrative Remedies If mediation unsuccessful, investigation conducted Once findings issued (most often no probable cause, i.e., no statute violation), then Notice of Dismissal and Right to Sue letter issued Complainant has 90 days from receipt of Right to Sue letter to file lawsuit If filed outside 90 days, barred based on SOL RSMO provides that Any action brought in court under this section shall be filed within ninety days from the date of the commission's notification letter to the individual but no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party. (although continuing violation exception extends SOL if conduct is of same nature, and continuing)

28 Litigation of Employment Claims Federal Claims must be pursued in federal court Better for employers Summary judgment option Caps If filed in state court with federal question (i.e. Title VII, ADA, ADEA, etc.), employer can remove case to federal court State Claims - as of 2003, MHRA claims can be pursued in state court, with jury trial Better for Plaintiffs Summary judgment rare No caps

29 Litigation of Employment Claims Three basic ways to establish a prima facie case: prima facie is what an employee has to prove in a discrimination case in order to require an employer to explain itself in court. It's that minimum set of facts that a plaintiff has to include in a court complaint and be prepared to actually prove. First is when the employer has a "facial" policy of unlawful discrimination. Second is where there is "direct evidence" or what you might call a smoking gun.

30 Litigation of Employment Claims Three basic ways to establish a prima facie case (cont d): Third, is "circumstantial evidence." Most cases fall into this category, and things can get a bit complicated The US Supreme Court had a famous case in which a man claimed he wasn't hired because he was black. The Court said this is what he had to show: He was a member of a protected class (in this case, he was black). He applied for the job, and the job was open. He had the minimum qualifications for the job. He was not hired. The job remained open, or a person of another race was hired for it. That framework became the model for all other circumstantial evidence discrimination claims: race, sex, religion, national origin, age, disability, etc.

31 Litigation of Employment Claims Once an employee provides a court with a prima facie case, then the employer is allowed to rebut that case If the employee uses "direct evidence" or "circumstantial evidence," then the employer rebuts by "articulating" a "legitimate non-discriminatory reason."

32 Litigation of Employment Claims Once an employee provides a court with a prima facie case, then the employer is allowed to rebut that case The employee then has an opportunity to prove that the reason asserted by the employer is really just a "pretext" or a fake or a cover-up for the real reason

33 Litigation of Employment Claims A typical disparate treatment employment discrimination case will go through two procedural steps. Step one - Summary Judgment. After the employee files a complaint and the employer files an answer and there has been some discovery (such as depositions), the employer usually files a motion for summary judgment. The judge must decide whether there is enough evidence to justify sending the case to a jury. Step two - Trial. At a trial (either by a jury or by the judge without a jury), the judge or jury will decide who wins.

34 Litigation of Employment Claims Here's the thought process for a judge who is deciding a motion for summary judgment: whether there is sufficient evidence of illegal discrimination to justify a trial. Let's assume Jane applied for a job and didn't get hired. Employee's prima facie case: Jane shows that she is female, applied for a job that was open, has the basic qualifications, was not hired, and a male got the job. This prima facie case creates an inference that Jane was not hired because of sex. The employer better rebut that case. Employer's rebuttal: The employer produces evidence of a legitimate nondiscriminatory reason for not hiring Jane. (Such as: someone else was more qualified; Jane has a criminal record.) At the summary judgment stage, the employer doesn't have to prove this reason is true, but does have to produce some evidence.

35 Litigation of Employment Claims Summary judgment process cont d This rebuttal destroys the inference, so we're back to square one. Jane better do something, and what she better do is show pretext. Pretext: Jane will provide evidence that the non-discriminatory reason relied on by the employer is really a pretext for sex discrimination. Jane has to show that there is at least a factual dispute as to what the real reason was. Usually she needs to have proof that the employer's reason was manufactured, or the employer shifted from one reason to another, or something else to indicate that the employer's reason is false (that is, it's a pretext). If Jane can provide evidence of pretext, she should be able to move to Step Two - the Trial.

36 Litigation of Employment Claims Missouri statute has different threshold than federal statute contributing factor v. motivating factor Punitive damages cap includes attorney fees prior to calculation RSMo limits the amount of punitive damages in most civil cases to the greater of $500,000 or 5x the net amount of the judgment awarded to the plaintiff against the defendant The Missouri Supreme Court ruled that in determining the net amount of the judgment against the defendant, attorneys fees should be included See Hervey v. Missouri Department of Corrections, Missouri Supreme Court, Aug 2012

37 Questions?

38 Contact Shelley Ericsson

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