It’s The Law: The Legal Side of Management

1. It’s The Law:The Legal Side of Management Presented by: Ginny Lederman Associate University Counsel Temple University

2. Legal Topics Covered • Employment Discrimination • Harassment • Interviewing • Terminations • Progressive Discipline • FMLA • FLSA • Other State Tort Laws

3. COURSE OBJECTIVES • Learn how the law impacts your managerial and supervisory practice • Know Who to Call and When • Understand the Importance of Interviewing • Know How/When to Discipline • Answer that Burning Question You’ve Always Wanted Answered

4. Lets Begin • Who Are Your Resources • Office of University Counsel • Human Resource Department • Office of Affirmative Action • What Do You Want to Learn Today? • What Does It Mean to Discriminate?

5. DISCRIMINATION • Merriam-Webster-dis·crim·i·nate (dĭ-skrĭm'ə-nāt') • To make a clear distinction; distinguish: discriminate among the options available. • To make sensible decisions; judge wisely.

6. UNLAWFUL DISCRIMINATION • To make distinctions on the basis of class or category without regard to individual merit; • show preference or prejudice because of protected class status

7. THE PROTECTED CLASSES • Title VII of the Civil Rights Act of 1964 • Sex • Race • Color • Religion • National Origin

8. THE PROTECTED CLASSES • Pregnancy Discrimination Act • Veterans • Age Discrimination in Employment Act • Over 40

9. THE PROTECTED CLASSES • Americans With Disabilities Act/Federal Rehab. Act • Physical or mental impairment • That substantially limits • A major life function

10. THE PROTECTED CLASSES • NON-FEDERALLY PROTECTED CLASSES • Sexual Orientation & Gender Identity • HIV Status • Marital Status • OTHER – TU POLICY MANUAL

11. Employment Discrimination may occur when the following subjective employment decisions are made: • Hiring and promotion • Assigning work and responsibilities • Training, coaching, and counseling • Establishing terms (length) of employment • Establishing conditions of employment • Establishing privileges (benefits) of employment

12. Types of Discrimination • Disparate treatment is intentionally treating a person in a protected class differently from other employees. • Disparate impactis usually unintentional and it occurs when a decision, practice, or policy has a disproportionately negative effect on a protected group. • Retaliation discrimination occurs when a person takes action against another person who has exercised his or her right to complain about discrimination, or when someone participates in the discrimination complaint process, even if they are just a witness who provides a statement during a discrimination investigation.

13. Types of Discrimination • HARASSMENT • Two Types • Quid Pro Quo • “this for that” • job benefit or adverse action based on request or receipt of sexual favors • supervisor only • Hostile Environment • unwelcome behavior • sever and/or pervasive • alters terms and conditions of employment • co-workers and/or supervisors

14. THE HOSTILE ENVIRONMENT • “Simple Teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” • Sever and Pervasive • Objective and Subjective Test

15. THE HOSTILE ENVIRONMENT • Weigh several factors including: • Frequency • Severity • Physically threatening or humiliating vs. mere offensive utterance • Interference with work performance • No Bright Line – Likely Jury Question

16. AN AFFIRMATIVE DEFENSE • Temple Exercised Reasonable Care to Prevent and Correct Promptly Harassing Behavior • The Employee Unreasonably Failed to Take Advantage of Any Preventative or Corrective Measures Offered by Temple

17. OTHER EMPLOYMENT LAWS • THE FAIR LABOR STANDARDS ACT • Exempt vs. Non-Exempt • Important – Non-Exempt Entitled to Overtime • Exempt Based on Duties • Salary • Primary Job – Executive, Administrative, Learned Professional, Creative Professional, Computer Professional and/or Outside Sales • T Grades • Guidance but not dispositive • T-23 and below – presumed non-exempt • T-24 predominately exempt with exceptions • T-25 and above – likely exempt • New Policy Will Have Process to Question/Categorize

18. OTHER EMPLOYMENT LAWS ● The Family and Medical Leave Act  Up to 12 weeks of in 12 month period  Worked for TU for 1 year  1250 hours in prior 12 months period  Serious Health Condition * employee, child, parent, spouse

19. OTHER EMPLOYMENT LAWS  Serious Health Condition *More than 3 days with medical treatment *chronic conditions *non-chronic which would become chronic/serious without leave *ongoing treatment or incapacity related to serious health condition *pregnancy/prenatal care

20. OTHER EMPLOYMENT LAWS • AT-Will Doctrine in Pennsylvania • Workers Compensation • Unemployment Compensation • OSHA • Torts • Privacy • False Imprisonment

21. Interviewing Guidelines Be Prepared Focus on Job Related Criteria and Essential Functions of the Job Only Information You Need to Make Lawful Distinctions between candidates

22. Interviewing Pitfalls Remember Unlawful Discrimination – Develop Lawful Way to Get Same Information I see your ring, do you have children? Will you be able to work Saturday (religious garb)? Aren’t you too old for this job? How are you going to handle tough guys?

23. Video Steps Training Counseling Oral Warning Written Warning Last-Step Option Termination TU Steps General Counseling Verbal Warning (with documentation) Written Warning Final Written Warning Three working days suspension Termination Six Steps to Progressive Discipline

24. Written Documentation Steps: • Define the Problems • Explain the Situation • Describe Needed Correction • Offer Assistance • Communicate Consequences

25. A CASE STUDY • Break into Small Groups • – Select Spokesperson • Review Problem • Group Discussion

26. MOST IMPORTANTLY • You Are Not Alone – Don’t Fly Solo • HR • OAA • OUC • Only Dumb Question is the one you don’t ask