Employment Law 101

1. Employment Law 101 Sheree Wright Office of General Counsel Vanderbilt University October 6, 2004

2. Areas to Cover Today: • General recommendations • Summary of selected laws • Internal resources to help with issues • General trends

3. Goal Learn to spot issues and “triage” situations

4. General Recommendations Top 10 mistakes YOU won’t make: • Not being nice enough • Being too lenient (for a while) • Not documenting discussions/meetings • Not checking with the appropriate office internally • Not telling the lawyer/HR rep everything the first time

5. Top 10 Mistakes (cont’d) • Thinking that the law is simple to apply – the “armchair lawyer” • Not filling out First Reports of Work Injury(when you don’t know if the injury or condition is compensable) • Not implementing disciplinary steps • Not enforcing rules/guidelines/policies uniformly • Not reading the Handbook/Collective Bargaining Agreement

6. General Recommendations • Keep medical information separate and protected • Use e-mail cautiously • Beware of “Off the Record” conversations

7. “The Law”- Selected Major Laws • Family & Medical Leave Act (FMLA) (Federal) • Non-discrimination laws (Federal and State) • Workers’ Compensation laws (State) • Wage & hour laws (Federal and State)

8. Family and Medical Leave Act • Staff member must meet eligibility criteria • At least 1250 hours of service in prior 12 months • At least 12 months of employment • Must be taken for a qualifying condition – “serious health condition” • If eligible, can take up to 12 weeks in a 12 month period

9. Non-discrimination Laws • Includes state and federal laws • Do not discriminate on the basis of a protected class & remember: Assume everyone is in a protected class!! • Harassment (sexual and on other grounds) falls here • Same sex harassment is actionable (1998 Supreme Court decision) • Includes Americans with Disabilities Act, which may impose an obligation to accommodate if the person has a disability

10. More on the Americans with Disabilities Act • There are 3 ways to argue that a person has a disability and is protected: • “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” • “ a record of such an impairment” • “being regarded as having such an impairment”

11. More on the Americans with Disabilities Act • “Disability” has a very specific meaning under ADA: • Impairment • Substantially limits • Major life activity (e.g. seeing, hearing, walking)

12. Don’t use the “D” word (Disability) • Has very different meanings under different laws or circumstances: • Disability under Tennessee Workers’ Compensation Act • Disability under Social Security Disability law • Disability under ADA • Disability under the Family and Medical Leave Act • Disability under Disability Insurance Policy

13. More on the ADA • When dealing with performance or conduct issues, don’t be an amateur physician! • Dangerous to diagnose when you are not the treating physician • Do not raise the issue of whether the performance or conduct may be related to a medical condition – let the employee raise that issue • If the employee raises the issue – contact the appropriate internal office

14. Accommodation Do not reach or convey conclusions on the ability to accommodate – analysis is tricky

15. Workers’ Compensation Law • If unclear, complete the First Report of Work Injury form • Tennessee Workers’ Compensation Act is a benefits statute, not a leave statute

16. Wage and Hour Laws • Fair Labor Standards Act – Federal • Exempt employees • Non-exempt employees

17. Retaliation Cannot retaliate against the employee for raising an issue under these laws!

18. Other Claims – Frequently joined with statutory causes of action • Defamation • Intentional/Negligent Infliction of Emotional Distress • Negligent Hiring/Retention • Privacy claims • Claim for vacation payout

19. Analysis Do not try to analyze the situation alone – get help!

20. Internal Resources • Human Resource Services • Office of General Counsel

21. Trends • It is harder for an individual to qualify for protection under the ADA Toyota case ( January 8, 2002 – U.S. Supreme Court) • Joinder of multiple causes of action has increased • Class actions are more prevalent

22. Hypothetical – Part 1 Sheree Suehappy, an Administrative Assistant in the Anywhere Department, had been with the department for five years. She occasionally complained of back pain and numbness in her fingers. She had mentioned that the numbness in her fingers was worse after she had done a lot of typing or knitting. Her Administrative Officer, Greg Gregarious, valued her work and put up with her complaints.

23. Hypothetical – Part 1 (cont’d) She had never mentioned that she wanted to make a workers’ compensation claim or that she had any trouble doing her job. After her department moved, she mentioned that her back was worse, and went to her doctor. The doctor prescribed physical therapy and asked her to stay home to rest for a week.

24. Hypothetical – Part 1 (cont’d) While at the orthopaedic, she mentioned the tingling in her hands after she typed or knitted. The doctor advised her that she may have a workers’ compensation claim. Sheree advised Greg about this conversation, but said that she did not want to file a workers’ compensation claim and was happy to use her health insurance. She likewise did not request FMLA leave for the week off, but instead used her accumulated sick time.

25. Hypothetical – Part 1 (cont’d) Greg is unsure what to do. He has come to you for advice. What would you tell him to consider doing?

26. Hypothetical – Part 2 • Sheree Suehappy has returned to work. She learned from watching all the “court” shows on TV that she may be entitled to accommodations on the job for her permanent restrictions. She has the following restrictions: • No repetitive typing • No lifting over 15 pounds • No sitting for longer than an hour • She needs an ergonomically correct keyboard & chair What is Greg to do?