Avoiding the Employment Practices Minefield

1. Avoiding the Employment Practices Minefield Dennis J. Walsh, Esq.Attorney

2. The Agenda • What are the Employment Practices Minefields? • Has the economic environment affected these claims? • Have the type of claims changed over the years? • What are the “hot” claims today? • Have the methods for avoiding these claims changed? • Where are the minefields during the Interactive Process (IP)? • Where are the minefields when you make a decision about whether to accommodate a disabled employee or not? • Q & A

3. Harassment Claims: Something Old, Something New • Sexual Harassment is still alive and well • Particularly supervisor harassment • Sexual orientation harassment claims are now more prevalent than ever • The impact of Societal changes • Pregnancy Harassment • Failure to provide accommodation • Race and Ethnicity Harassment • Inappropriate statements in the workplace and/or dislike issues • Not everyone can get along • Turning workplace issues into harassment issues

4. Harassment Claims:Something Old, Something NewReal Cases • Sexual orientation and cleanliness • Pictures, etc. of the significant other • The inconvenient pregnancy? • Performance issues are all race/ethnicity related • Can you do anything to prevent these claims?

5. Retaliation Rears Its Head More and more lawsuits including this claim? What and how is it alleged? The dangerous claim How to avoid it with current employees

6. Retaliation Rears Its Head:Real Cases • The March 15th retaliation • The request for accommodation retaliations • The work comp offender • The allergic to coming on campus employee • What can you do to avoid these claims?

7. Failure to Prevent Discrimination/Harassment: The New Add On Claim What does it mean? Simple to Avoid?

8. The “No Win” Scenarios: What to Do? Consensual Sexual conduct by a supervisor still creates problems The Work Comp offender that becomes the ADA victim The employee whistleblower

9. The Common Law Claims • Claims that arise from case law and not statute per se • Wrongful termination against public agencies • Defamation • Invasion of Privacy • IIED • What can you do to minimize these type of claims?

10. Tips for Minimizing these claims: Some Things Never Change • Documentation is still the key • Following your policies and procedures to the letter • Objectivity by the decision makers • Using outside investigators when appropriate • Be selective • Discipline/Termination with Dignity

11. Avoiding the Disability Minefields • Still by far the biggest problem issue in employment practices • The Work Comp overlap issue still alive, well and growing • Difficult cases to settle and get rid of • The interactive process is fertile ground for litigation • Let’s breakdown the issues and discuss some situations that illustrate the problems

12. The Reasonable Accommodation Process • Look At The Job Involved ToDetermine Its Purpose And ItsEssential Functions • A Written Job Description • Prepared by persons in the know • Signed by the Employee

13. IP Minefields:Agreeing on the essential job duties • The Written Job Description • The Frequency and Duration of the duties • Matching up the medical restrictions with the proper essential job duties • And agreeing upon it • Get Clarification if Disagreements exist • Can’t determine accommodations without clear understanding by both sides of specifics of the restrictions • What specifics do you need?

14. The Reasonable Accommodation Process • Meet With The Employee to Discuss and Agree on Functional Limitations and Essential Job Duties

15. IP Minefields:Agreeing on the essential job duties • What if the employee disagrees with the JFA? • Doctor Verification Of Functional Limitations Is Permissible • Discussion of doctor reports re limitations is acceptable • Do not blindly rely upon WC doctor reports • What if the employee disagrees with their doctor • What if the doctors disagree about the condition of the employee?

16. IP Minefields:What are the Functional Limitations? • Dealing with Workers’ Comp terminology for job restrictions • “No Heavy Lifting” • “No Repetitive Bending, Stooping, Etc.” • “Prophylactic Lifting Restriction” • “TTD” • “Part-time Work” • “Stress free environment” • Need to have clear understanding of these terms • Do they impact essential job duties?

17. IP Minefields:Fitness for Duty Exams • Can be a blessing and a curse • Pick and choose the right time to get one • Must be a good reason for doing so • Give definitive instructions on what you need from the FFD Doctor • Confirm in writing • Provide FFD Doctor with all information necessary • Past medical records, job description • Have HIPPA release from employee

18. The Reasonable Accommodation Process • After meeting with the employee,identify and list potentialaccommodations and assess howeffective each would be in enablingthe individual to perform essential job functions • Determine if they are reasonable or not • i.e. Cause an undue hardship or direct threat to employee or others • Review all alternative vacant positions to go over with the employee

19. The Reasonable Accommodation Process • Meet with the employee again to discuss & agree or disagree on the R/A’s or why there is no R/A • If no R/A available, discuss alternative vacant available positions the employee is minimally qualified for • Any and ALL vacancies, full or part-time and that may come up in the near future

20. IP Minefields:Meeting with the Employee • It’s the “Interactive Process” not the “Unilateral Process” • Make sure you seek their input or lack thereof • Don’t make any decisions during the last meeting • Even if your mind is all ready made up • Be Prepared • Have all docs re vacant positions and minimum quals at the meeting

21. The Reasonable Accommodation Process • If accommodations are available, consider preference of employee and select accommodation that best serves the needs of both • It is an ongoing process that is the burden of the employer • Offer and discuss available alternatives • The evaluation of proposed accommodations requires ongoing dialogue and an assessment of the effectiveness of each accommodation

22. IP Minefields:Trying to Accommodate • Two steps: • Can I accommodate to existing position? • How about alternative vacant positions? • Do you really want to accommodate this employee? • Are you prepared to discuss all possible accommodations? • Have you done your homework?

23. IP Minefields:Temporary/Light Duty Positions • Not required under ADA/FEHA • Work Comp related to reduce costs • How do they affect your duty to accommodate? • How do you handle the employee that wants the light duty position to become permanent?

24. The Reasonable Accommodation Process • Document the Process Including: • Analysis • Meetings With The Employee • The Decision Making Process • The Final Determination &Communication To Employee • Methods of Documentation

25. IP Minefields:Documenting the Process • All or nothing • Emails are discoverable! • Be careful what you say • Have standardized forms to use • Letters to doctors • Meetings with Employee • Your thought process re accommodation

26. The Reasonable Accommodation Process • Follow–Up with the employee on any accommodations offered • Changes should be done if necessary and documented • Don’t make a promise you can’t keep!

27. IP Minefields:Proper Communication • With the employee • Even during Worker’s Comp injury • Between Risk Management and HR • With the TPA on the Worker’s Comp Claim • They are not advisors on the ADA/FEHA issues • Between WC attorney and Employment Attorney • Be Proactive

28. IP Minefields:Failure to Engage in IP • The New Catch All Claim • Reasons: • Ignoring employee request • Ignoring employee restrictions • Ignoring change in employees restrictions • Ignoring employees complaints about being able to do the job • Within the restrictions • With the accommodations

29. IP Minefields:Problems that Arise • The Employee that doesn’t agree with the FFD restrictions or lack thereof • Know ALL of the employee’s qualifications for vacant positions • Denying accommodations that have been given to others • Policies and Practices that violate ADA/FEHA

30. IP Minefields:Problems that Arise • Allowing employee right to use ALL unpaid leaves available • Having a final IP meeting before placing employee on the 39 month re-hire list • Explaining to employee what this means • Not Just in a Letter

31. Dennis J. Walsh Attorney, Walsh & Associates dwalsh@walshlawyers.com www.walshlawyers.com