Breakout Session # 410 Anthony L. Martin and William J. Daley Attorneys Lewis and Roca LLP Date 04/12/06 Time 2:25

2. Overview of Lawful and Effective Employment Practices of Importance to Government Contractors Breakout Session #410 Anthony L. Martin and William J. Daley Attorneys Lewis and Roca LLP Date 04/12/06 Time 2:25 pm – 3:25 pm NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

3. PURPOSE OF TRAINING • Educate you about law and policy • Enable you to avoid the legal pitfalls of the employment process • Maintain a safe, fun and productive workplace • Protect the company and yourself from costly, time consuming legal proceedings NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

4. DISCRIMINATE According to Webster: To make distinctions in treatment. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

5. IS ALL DISCRIMINATION BAD? • Sometimes it is OK to make distinctions between people Example: The person with greater experience gets the promotion • The law prohibits distinctions made based on protected characteristics Example: The male gets the promotion over female just because of his gender. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

6. HARASS According to Webster: To trouble, worry or torment NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

7. HARASSMENT-ALWAYS WRONG, SOMETIMES UNLAWFUL • Harassment can become unlawful when someone is tormented because of a protected characteristic such as race or gender • All other harassment is against company policy NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

8. RETALIATE According to Webster: To return like for like. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

9. RETALIATION • A retaliation claim is the victim’s best friend: • The plaintiff in a retaliation case does NOT NEED A VALID UNDERLYING CLAIM NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

10. RETALIATION Retaliation is prohibited by most discrimination statutes as well as public policy: • Whistleblowing • Making a Workers Comp claim • Refusal to lie under oath • Refusing to violate the law NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

11. OBLIGATIONS OF THE COMPANY • Make the workplace free of unlawful discrimination, harassment and retaliation • Promptly and confidentially investigate complaints of discrimination, harassment and retaliation • Where discrimination, harassment and retaliation may have occurred, take prompt and appropriate remedial action (i.e., discipline commensurate with the offense) NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

12. KEY QUESTIONS TO ALWAYS ASK YOURSELF WHEN MAKING PERSONNEL DECISIONS • Am I using job related criteria in making this decision? • Am I treating this person the same as I treat other similarly situated individuals? NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

13. HISTORTY OF EMPLOYMENT LAW Prior to 1964, pursuant to the Civil Rights Act of 1866, the only protected class was race NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

14. 1964-Title VIICivil Rights Act In addition to the creation of the EEOC, Title VII made it illegal for employers to treat individuals differently based on the following protected characteristics: • Race • Religion • National Origin (ethnic background) • Sex (gender) NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

15. TITLE VII Discrimination prohibited as to: • Hiring • Promotion • Discipline • Termination • Wages • All other terms and conditions of employment • Retaliation prohibited NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

16. Damages in 1964 • Back wages • Injunctions • Attorneys fees NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

17. 1967 AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) • Age added as a protected characteristic (40 and over) • Liquidated damages also available • BEWARE: Stray remarks and skewed policies NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

18. 1980 EEOC GUIDELINES EEOC interprets Title VII to prohibit: “unwelcome sexual advances, request for sexual favors and other verbal and physical conduct of a sexual nature that has the interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment” NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

19. 1986 - Vinson vs. Meritor • Facts • New Law NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

20. 1990 Americans with Disabilities Act (ADA) • Disability is a protected characteristic • Definition of disability: physical or mental impairment which substantially limits a major life activity • In addition to prohibition of discrimination, reasonable accommodation is required NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

21. ADA cont. • A modification need not eliminate an essential function of the job • Production standards need NOT be lowered • A modification need not be made if it creates an unreasonable hardship for the company • Beware: record or regarded as disabled • REQUIRED: Interactive Process NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

22. 1991-Civil Rights Act • Amends Title VII and the ADA, adding additional damages: • Compensatory damages • Punitive damages • Jury trials NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

23. Other Federal Laws • Pregnancy Discrimination Act of 1978 (PDA) • Equal Pay Act of 1963 (EPA) • Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) • Family and Medical Leave Act of 1993 (FMLA) NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

24. WHEN CAN AN INDIVIDUAL SUPERVISOR OR COWORKER BE LIABLE? • State law torts • Assault • Battery • Infliction of emotional distress • DEFAMATION NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

25. HOW TO AVOID THE LEGAL PITFALLS OF THE EMPLOYMENT PROCESS NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

26. DON'T HIRE THE WALKING LAWSUIT Effective Tools for Avoiding a Potential Problem Employee: • Application • Interview Effectively • Thorough Reference Checks • Drug Screening • Criminal Background Checks • Comprehensive Orientation Training • Introductory Periods NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

27. Employment Applications • Require every applicant to complete an application. • Do not accept resumes in place of a completed application. • Ensure that each application is completed and signed. • Include questions relating to criminal history. • Include an arbitration provision. • Request comprehensive employment history. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

28. Employment Applications • Evaluate completed applications carefully. Be on the look-out for: • Unexplained gaps in employment history. • Excuse making or victim mentality with respect to leaving of prior employment. • Incomplete applications or failure to sign the application. • Inconsistencies. • Vague description of past duties. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

29. Effective Interviewing • Let the applicant do the majority of the talking. • Ask open-ended questions. • Pose hypothetical situations. • Ask about past experiences. • Don’t settle for generalized answers – ask for details or examples. Document the interview, but be careful where you write comments. Never write directly on the employee’s application. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

30. Age Marital Status Religion National Origin Sexual Orientation Health Issues Union Philosophy Children/Pregnancy Effective InterviewingQuestions NOT To Ask NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

31. Verifying References • Contact former employers. • Inquire about rehire status. • Speak with former supervisors. Recognize that many former employers will only be willing to give a “neutral” reference verifying only dates of employment. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

32. Drug and Alcohol Screening Drug and alcohol abusers: • Have a higher incidence of workplace accidents. • Have a higher overall absentee rate. • Are less productive when they are at work. Nevada, in contrast to a growing number of states, permits pre-employment screening – take advantage of it. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

33. Criminal Background Checks • Limit instances of workplace violence. • Ensure the safety of employees, customers and clients. • Limit exposure for claims of negligent hiring, retention and supervision. • Especially important for small companies. • Internet sex offender registries. If your company doesn’t currently do background checks, yesterday is a great time to start. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

34. Comprehensive Orientation Training • Thoroughly explain company policies and procedures. • Review Benefits. • Obtain signed employee acknowledgement upon completion. • Clearly set out performance expectations. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

35. Introductory Periods • Gives the employer an “out.” • Easier to explain. • Lower risk of legal action. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

36. REDUCING EXPOSURE TO LIABLITY THROUGH DOCUMENTATION, POLICIES AND EFFECTIVE EMPLOYEE RELATIONS NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

37. Comprehensive Employee Handbooks • Identify employer expectations. • Preserve employer’s rights. • Limit exposure during litigation. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

38. The Importance of Accurate Record-Keeping • Wage and Hour Records. • I-9 Compliance. • FMLA and Other Leave or Accommodation Requests. • Attendance Records. • Disciplines and Employee Counseling. Consistent and accurate record-keeping makes your lawyers happy. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

39. Agreements • Confidentiality • Non-solicitation • Non-competition • Compelling Arbitration in lieu of Litigation Take steps to ensure that nothing in these agreements alters or destroys the at-will nature of the employment relationship. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

40. Maintain Open Channels of Communications • Identify problems before they become a problem. • Reduce discrimination, harassment and retaliation claims. • Keep employee morale and productivity high. • Avoid union organizing activity. • Retain good employees and reduce turnover. Employees are often a great source of information for improving efficiency or increasing productivity. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

41. DISCIPLINE, EVALUATIONS, AND DISCHARGE UNLAWFUL CONSIDERATIONS NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

42. Race Gender National Origin Religion Age Sexual Preference Whistleblowing Veteran/Military Status Union Activity Disability Worker’s Comp. Claims Refusal to Engage in Unlawful Acts Discipline, Evaluations, and DischargeUnlawful Considerations NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

43. Common Methods of Discipline • Verbal Warning • Written Warning • Suspension • Discharge Document, Document, Document (even the Verbal Warning) And remember – BE PROACTIVE. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

44. Appropriate Discipline • Investigate thoroughly. • Discipline with respect. • Explain purpose of discipline. • Provide expectation and/or assistance. • Offer opportunity for comment. • Obtain signed acknowledgement. • Apply discipline consistently. • Ensure policies/discipline do not disproportionately impact those of a particular protected class. • Document, Document, Document. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

45. Proper Performance Appraisals • Base appraisal on: • Entire evaluation period (not just recent events). • Accurate data. • Actual performance - not on length of service. • Objective criteria – not personal feelings. • Provide reasons for ratings. • Provide expectation and/or assistance where needed. • Offer opportunity for comment. • Obtain signed evaluation. • Be consistent – but not routine. NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

46. Discharge • Prior to effectuation, consider: • Decision’s conformance with disciplinary procedures. • Impact of discharge on morale. • Effect on business-related matters. • Timing of effectuation (e.g., late in week, end of shift) • Legal implications (e.g., temporal proximity). • Discharge with dignity. • During termination meetings: • Have a witness present. • Be firm, but do not react emotionally. • Allow for comment. • Present the employee’s final paycheck - if possible. • Remember – BE CONSISTENT NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

47. CASE STUDIES NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

48. The Swearing, Pious Employee An employee in your department is very vocal about his religious beliefs. Other workers tease him about his religion because he uses very foul language and talks very graphically about sex. Is this violation of policy? NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

49. Mr. Meanhead Your manager is sometimes very rude to you and raises his voice unnecessarily. It makes you so upset you want to quit. Other employees say it’s just his “management style.” Is this illegal harassment? NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management

50. I Was Only Joking!!!! You told a sexual joke to your co-workers and your supervisor overheard you. You received a written warning. No one complained about your behavior. Should you have received a written warning? NCMA World Congress 2006 : Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management