General Employment Law Issues

1. General Employment Law Issues Presented: January 26, 2007

2. This material is intended to provide general information in summary form on legal topics, current at the time of first publication. • For formal legal advice please contact the University of Iowa Office of General Counsel phone: 319-335-3696 email: general-counsel@uiowa.edu

3. Outline of Presentation:General Employment Issues • Employment laws • General Employment Relationship • Hiring Issues • Evaluation and Progressive Discipline • Termination

4. 1. Employment Laws • Federal Law • Iowa Law • Tort and Related Liability Concerns

5. An employer cannot discriminate on the basis of: Race Color Gender Religion National Origin (not age or disability) In making decisions regarding: Hiring Firing Training Discipline Compensation Benefits Classification Or other terms/conditions of employment A. Federal Law:Title VII of the Civil Rights Act of 1964

6. Who must comply with Title VII • Generally, employers engaged in interstate commerce if they have: • More than 15 employees for 20 weeks of current or preceding year • Iowa Civil Rights Act – 4 or more employees

7. Who is Covered by Title VII • Public (governmental) employees • Private (non-governmental) employees • Undocumented workers

8. Remedies Under Title VII • Back Pay • Front Pay • Reinstatement • Seniority • Retroactive Seniority • Injunctive Relief • Compensatory Damages • Punitive Damages • Attorney Fees

9. Title VII -- continued • No personal liability of supervisors • Supervisors can be personally liable under Iowa law [Iowa Civil Rights Act, I.C. Chap. 216] • Retaliation for participation in Title VII processes can be a separate complaint

10. Civil Rights Act of 1991 • Expanded Title VII and Americans with Disabilities Act (ADA) • Jury trials • Compensatory and punitive damages • Dollar caps on damages • Attorney fees • Declaratory and Injunctive Relief

11. Title VII – Basic Cases • Disparate Treatment – intentionally treated differently because of illegal criterion • Adverse Impact -- employment practices appear neutral but are discriminatory in operation • Elements/Burdens • Employee -- Adverse employment action as member of “protected class”? • Employer -- Legitimate business reason for decision? • Employee – Pretext?

12. Title VII -- Sexual Harassment • Unwelcome harassment based on sex (includes same sex) • Same basic standard used for race and other protected classes

13. Sexual Harassment – Pre-1998 • Quid pro quo • Hostile environment

14. Sexual Harassment – Post 1998 Recommended Employer Actions* • Develop an Antiharassment policy • Distribute the Policy • Conduct Training • Audit Employment Decisions • Conduct Prompt and Thorough Investigations • Take Prompt and Effective Remedial Measures • Follow up on Remedial Measures * From Fundamentals of Employment Law, 2nd Ed. (2000), pp 79-82.

15. Severe and Pervasive • Multiple actions vs. • Single incident • Reasonable person standard

16. Employer Defense if no tangible adverse employment action • Clear anti-harassment policy communicated to employees, access to file complaints, prompt investigation and correction • Alleged victim unreasonably failed to take advantage of complaint procedures

17. Sexual Harassment – Coworker or Third Party Against Employee • Employer maybe liable for hostile environment if • Knew or reasonably should have know about behavior; AND • Failed to take proper and corrective action • Harassment still must have been sufficiently severe and pervasive

18. Title VII Pointers • Discrimination claims under Title VII and other employment discrimination legislation generally must be proved just as any other lawsuit. • The employee must offer evidence to support any claims. • Employers do not have to fear being sued if they consistently treat employees in a protected class just as they would those of any other similarly situated employee. • Title VII is not a job guarantee for women and minorities.

19. Other Federal Laws:ADEA • ADEA – Age Discrimination in Employment Act • Prohibits discrimination and retaliation on the basis of age against employee aged 40 or older • Iowa law age 18 • Applies to hiring, promotion, discharge, compensation, other terms of employment • Employers with 20 or more employees

20. Other Federal Laws: ADA • ADA – Americans with Disabilities Act • Prohibits employers from discriminating against qualified individuals with disabilities who, with or without reasonable accommodation, can perform the essential functions of a job.

21. Other Federal Laws: FMLA & FLSA • FMLA – Family Medical Leave Act • Period of leave – 12 weeks in 12 month period • Intermittent leave possible • Paid v Unpaid • FLSA – Fair Labor Standards Act • Sets federal standards for: • Minimum wage • Overtime pay • Record keeping requirements • Child labor standards

22. Other Federal Laws -- 1 • Civil Rights Act of 1866, 42 U.S.C. §1981 (prohibits racial discrimination in employment by private companies and unions) • Civil Rights Act of 1871, 42 U.S.C. §1983 (prohibits deprivation of the constitutional rights of due process and equal protection of certain federal, state, local, and municipal employees; requires “state action”) • Older Workers’ Benefit Protections Act, 29 U.S.C. §623 (specifies the elements which must be contained in a valid waiver and release of an ADEA claim)

23. Other Federal Laws -- 2 • National Labor Relations Act, 29 U.S.C. §158(a) (prohibits employment discrimination for union activity) • Equal Pay Act, 29 U.S.C. §206(d) (prohibits wage discrimination in employment on the basis of sex) • Pregnancy Discrimination Act of 1978 (amends Title VII), 42 U.S.C. §2000e (prohibits discrimination in employment, health or disability programs, or sick leave programs on the basis of pregnancy, childbirth, or related conditions)

24. Other Federal Laws -- 3 • Consumer Credit Protections Act, 15 U.S.C. §1674(a) prohibits discharge of employees because of garnishment of wages) • Judiciary and Judicial Procedure Act, 28 U.S.C. §1875 (prohibits discharge of employees for service on grand or petit jury) • Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. §660(c) (establishes general health, safety, and welfare standards in employment, and prohibits discrimination or retaliation for asserting rights under the Act)

25. Other Federal Laws -- 4 • Drug-Free Workplace Act of 1990, 41 U.S.C. §701 (imposes affirmative obligations on covered contractors (those with federal contracts of $25,000 or more), including implementing a drug abuse policy statement, a drug awareness program, and taking disciplinary actions against employees who violate the employer’s policy. • Employee Polygraph Protection Act of 1988, 29 U.S.C. §2002 (prohibits submission to polygraph examination as condition of employment or discharge of an employee who refuses such examination; comparable Iowa law found in Iowa Code §730.4)

26. Other Federal Laws -- 5 • Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988 (provides for the recovery of attorney fees by the prevailing party in civil rights/discrimination cases) • Immigration Reform and Control Act of 1986, 8 U.S.C. §1324b (prohibits discrimination against individuals (other than unauthorized aliens) because of national origin; requires all employers with 4 or more employees to confirm an employee’s eligibility to work in the U.S. on Form I-9 within 3 days of hire)

27. Other Federal Laws -- 6 • Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), 26 U.S.C. §4980B(f) and 29 U.S.C. §1191b (requires employers to provide the option of continued group health insurance coverage to employees separated from employment for 18 months, at the expense of the employee) • Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Pub. L. 104-191 (to improve portability and continuation of health insurance, and to provide for accountability and security in transmittal of health records)

28. Other Federal Laws -- 7 • Fair Credit Reporting Act of 1986 (“FCRA”), 15 U.S.C. §1681 (governs the collection and use of credit information for employment purposes; noncredit background checks can also be included, and employers must take care to comply with FCRA when doing background checks on applicants and/or employees) • Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub L. 104-193 (requires all employers to furnish the state with the name, address, and social security number of every new employee hired, as well as the name, address, and IRS identifying number of the employer)

29. Other Federal Laws -- 8 • Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §2511, et. Seq.(generally prohibits the interception and retrieval of oral, wire, and electronic communications (including e-mail) unless it is done or there is consent by a party, or by court order) • Executive orders 11246 (1965) and 11375 (1968), 41 C.F.R. Chapter 60.(nondiscrimination provisions that apply specifically to federal contractors and subcontractors that are basically parallel to Title VII. Prohibits discrimination on the basis of race, color, religion, sex or national origin. Also contains some equal opportunity and affirmative action requirements.) Executive Orders 11246 and 11375 are enforced by the Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”)

30. Other Federal Laws -- 9 • Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1001(b)(establishes standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans) • Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §4301, et seq. (replaced the Veterans Reemployment Rights Act in 1994; generally imposes obligations on public and private employers to provide employees leave to serve in the military and reinstate employees returning from military leave. See also Iowa Code § 29A.43 noted below.) • Sarbanes-Oxley of 2002, 18 U.S.C. §1514A, et seq. (public accounting requirements to address corporate fraud; whistleblower protections; civil and criminal penalties; DOL remedies; does not apply to non-profits)

31. B. Iowa Law • Iowa Civil Rights Act – Iowa Code Chapter 216 • Unfair employment practice to discriminate in hiring or employment because of age, race, creed, color, sex, national origin, religion, or disability, unless based on the nature of the occupation. [Similar to federal BFOQ] • Age prohibition is age 18 • Nonjury trials • Supervisors – potential individual liability

32. Iowa – Alcohol and Drug Testing • Iowa Code §730.5 – private employers only • 5 circumstances when testing can be done random, reasonable suspicion, prospective employees, during/completion of rehabilitation, or if permitted by federal law • Requirements to do testing • Written, uniform policy must explain possible discipline/rehab • Rehabilitation required in some cases • Done at employer’s expense; employee paid if on duty • Employer may be liable for use of false positive result

33. Iowa – Employee References • Iowa Code §730.2 – Antiblacklisting • Iowa Code §91B.2 --Qualified immunity for providing reference, unless employer acts “unreasonably”: • Violates employee’s civil right • Person who receives reference is not authorized • Information not relevant

34. Other State Laws -- 1 • Polygraph Examinations, Iowa Code §730.4 (prohibits requiring an applicant or an employee to take a polygraph examination as a condition of employment) • Occupational Safety and Health Act, Iowa Code §88.9(3) (prohibits discrimination against an employee because the employee has filed a complaint or testified in proceedings under the Act. • Labor Union Membership, Iowa Code §731.1 (prohibits an employer from denying or refusing employment to any person because of association or refusal to associate with a labor union)

35. Other State Laws -- 2 • Jury Duty, Iowa Code §607A.45 (prohibits threatening, coercing or discharging an employee because of jury service) • National Guard, Iowa Code §29A.43 (requires employers to grant leave of absence for temporary active duty and prohibits an employer from discharging an employee for being an officer or enlisted person of the military force of the state) • Court-ordered Drinking Drivers Course, Iowa Code §321J.22(3) (prohibits discharge of an employee solely for the reason of work absence to attend a court-ordered drinking drivers course)

36. Other State Laws -- 3 • Wage Payment Collection Act, Iowa Code §91A (requires the payment of all earned “wages”, prohibits certain deductions from wages, and prohibits discriminating against any employee because the employee has been involved in an action under the Wage Payment Collection Act. §91A.3.3-4 also require payment to be made at normal place of employment or by mail, unless otherwise agreed upon by employee) • Right to Vote, Iowa Code §§49.109-110 (prohibits employers from discharging employee by virtue of exercise of right to vote or for insisting upon time off from work to vote) • Elected Officials, Iowa Code §§55.1, 55.3, 55.4 (prohibits discharge of employees by reason of their service in elected a position)

37. Other State Laws -- 4 • Garnishment, Iowa Code §642.21(2)(c) (prohibits discharge of an individual because the individual’s earnings have been subject to garnishment for an indebtedness) • Genetic Testing, Iowa Code, §729.6 (restrictions on genetic testing of employees) • Electronic and mechanical eavesdropping, Iowa Code §727.8 (generally prohibits electronic or mechanical eavesdropping, though sender or recipient or person openly present and participating or listening to communication can record) • Personnel Information, Iowa Code §91B(1) (permits employee access to and copy of personnel file)

38. C. Tort and Related Liability Concerns • Defamation • Intentional Infliction of Emotional Distress • Invasion of Privacy • Negligent hiring • Employer knew, or should have known if exercised ordinary care, of employee’s lack of fitness • Employee’s incompetence or dangerous characteristics caused injury • Employment/agency relationship between employer and employee

39. 2. General Employment Relationship • Contractual Nature of Employment • Freedom to contract • An employee may choose to work or not to work for a given employer • An employer may choose to hire or not to hire a given applicant • Congress passes employment-related laws when it believes that the employee is not on equal footing with the employer

40. 2. General Employment Relationship • Iowa General Rule - Employment “At Will” At-Will-Employment: An employment relationship where there is no contractual obligation to remain in the relationship, either party may terminate the relationship at any time, for any reason as long as the reason is not prohibited by law, such as for discriminatory purposes.

41. 2. General Employment Relationship • Iowa General Rule - Employment “At Will” • Statutory Conditions and Exceptions • Public Policy Exceptions • Contractual Exceptions, Terms and Conditions • Employee Handbooks

42. 3. Hiring Issues • Job descriptions, advertisements, application forms • Interviewing • Checking references • Equal Employment and Affirmative Action

43. Interviewing Guidance • Questions that are business related and used for a nondiscriminatory purpose are appropriate. • Any question concerning disability, specific health inquiries, and workers’ compensation history are prohibited by the ADA • Questions regarding age, sex, religion, marital status, nationality, and ethnicity are not prohibited by federal law but they are dangerous. • If it would be improper to ask a question on the application, it is just as improper to ask for the same info in an interview. Source: Employment Law for Business, Fifth Edition, Bennett-Alexander, Hartman (2007)

44. UNACCEPTABLE What is your maiden name? Are you a U.S. Citizen? ACCEPTABLE Have you ever used another name? Can you, after employment, submit verification of your legal authorization to work in the U.S.? Interviewing Question Examples Source: Employment Law for Business, Fifth Edition, Bennett-Alexander, Hartman (2007)

45. UNACCEPTABLE What nationality or ancestry are you? How old are your kids? Are you pregnant? What is your spouse’s name? ACCEPTABLE Questions as to languages applicant reads, speaks or writes may be acceptable if relevant to the particular position. A statement of company policy regarding work assignment of employees who are related. Interviewing Question Examples Source: Employment Law for Business, Fifth Edition, Bennett-Alexander, Hartman (2007)

46. UNACCEPTABLE Are you in good health? Do you have any disabilities? Does your religion prohibit you from working weekends or holidays? ACCEPTABLE Can you perform [specific job-related tasks]? A statement of regular days, hours or shifts to be worked Interviewing Question Examples Source: Employment Law for Business, Fifth Edition, Bennett-Alexander, Hartman (2007)

47. Guidelines for Checking References • Get applicant’s written permission to check • Get relevant references – as many as possible • Check references before making final offer • Investigate discrepancies in information • Be skeptical of silence or evasiveness – investigate further • Don’t check references applicant asks not to check

48. Other Checks? • Criminal -- state law specific, reasons to check?, check all applicants for position, “convictions” vs. “arrests,” written permission • Driver Operator Record -- relevance • Consumer credit -- be aware of federal Fair Credit Reporting Act [“FCRA”]

49. 4. Evaluation and Progressive Discipline • Performance Evaluation -- regularly, consistently, honestly; notice, time, opportunity to improve; document • Progressive Discipline • Informal counseling of expectations • Written reprimand • Suspension, with or without pay • Termination

50. 5. Termination • Grounds for Discharge – “Cause” • Procedures • Pre-termination • Termination • Post-termination • Constructive Discharge