Legal Responsibilities and Risk Management

1. National Apartment Association Education Institute Certified Apartment Property Supervisor Legal Responsibilities and Risk Management

2. Restrooms Breaks Lunch Cellular Phones Smoking Housekeeping

3. Introductions • Name • Company • Number of Units • How Many Years In the Business • Two sentences about what you think about Law and Risk in your job

4. Participate fully. Help us stay on track. Have fun. Ground Rules

5. Apartment Communities and the Law • Hiring Employees Lawfully • Establishing Workplace Guidelines • Counseling, Disciplining, and Terminating Employees • Ensuring Workplace Health and Safety • Observing Rental Laws • Maintaining Habitable Properties • Working with Contractors and Contracts • Managing Risk • Current Legal Trends Learning Outcomes: Legal Responsibilities and Risk

6. 2. Apartment Communities and The Law

7. Laws exist to protect people’s rights. As a multi-property supervisor, you need to be aware of those rights for employees and residents—and see that the community management teams comply with the rule and the spirit of the law. Failure to follow local, state, and federal laws can potentially put the company and the properties into serious legal jeopardy. Laws and Legal Obligations

8. When conducting background checks on employees or applicants, you must notify them and get their permission to obtain a credit report. • If the employee or applicant is not hired based on something in his or her report, you must provide • the contact information for the Credit Reporting Agency, and • a Statement of FCRA Rights Fair Credit Reporting Act (FCRA)

9. Extends the FCRA • Addresses consumer concerns about identity theft • Addresses in more depth the procedure for inaccuracies in consumer reports • Gives the consumer the right to restrict how businesses use their non-public personal information Fair and Accurate Credit Transaction Act (FACTA)

10. In all stages of employment you may not discriminate based on: Race Color Religion Sex National origin Title VII of the Civil Rights Act of 1964, as Amended

11. Prohibits employment discrimination to applicants or employees who are 40 or older • Applies to employers with 20 or more employees Age Discrimination in Employment Act (ADEA)

12. Prohibits employment discrimination against disabled applicants or employees who can perform the essential functions of the job, with or without reasonable accommodation • Applies to employers with 15 or more employees Title I of the Americans with Disabilities Act (ADA)

13. Sets requirements for minimum wage and overtime eligibility Regulates child labor Applies to employers with 2 or more employees Fair Labor Standards Act (FLSA)

14. Requires employers to pay equal wages to male and female employees who perform similar work (equal skill, effort, responsibility) • Applies to employers with 2 or more employees Equal Pay Act

15. Requires employers to grant up to 12 weeks of unpaid leave during a 12-month period for: • Birth or adoption • Employee’s serious health condition • To care for a parent, spouse, or child with a serious health condition Family Medical Leave Act (FMLA)

16. Requires employers to have a safety program to protect employees from hazards • Requires information to be accessible to employees about hazardous materials they may use • Requires periodic safety training • Requires documentation of workplace injuries Occupational Safety and Health Act(OSHA)

17. Prohibits employment discrimination based on national origin or citizenship status Requires the processing of an I-9 form to prevent the hiring of illegal aliens Applies to employers with 3 or more employees Immigration Reform and Control Act(IRCA)

18. Regulates the labor management relationship • Prohibits discrimination based on union activity • Applies to private sector employers that have an impact on interstate commerce National Labor Relations Act (NLRA)

19. Prohibits employment discrimination because of an applicant’s or employee’s military obligations • Requires employers to reinstate employees to their former jobs after honorably completing military duty Uniformed Services Employment and Reemployment Rights Act (USERRA)

20. Prohibits an employer from disciplining or terminating an employee for being called to serve on a federal jury Jury Systems Improvement Act

21. Prohibits employers from requiring applicants to submit to a polygraph exam • Applies to private sector employers except: • Security firms, and • Pharmaceutical manufacturers, distributors and dispensers Employment Polygraph Protection Act

22. Notices about federal laws must be posted where employees can see them such as: • Near time clocks • In break rooms • In designated department locations • Some states require notices to be in more than one language (e.g., Spanish) so be aware of your state’s requirement. Federal Posting Requirements

23. Management • was legally responsible for the “control area” • failed to repair the “system and/or property damage” or a problem that caused the injury. • knew or should have known that an accident was likely to happen in the area. • could have sharply reduced the chances of an accident with reasonable attention to the maintenance or repair problem. • Negligence is governed by Common Law What is Negligence?

24. Activity: What is Your Experience?

25. 3. Hiring Employees lawfully

26. List core tasks and accountabilities for the job. • Maintain objectivity and provide a useful standard by which to fairly evaluate all candidates who apply. • Strong legal defense tool • Resources for writing job descriptions: • www.naahq.org • www.shrm.org Job Descriptions

27. References • Credit Checks • Driving Records • Criminal History • Employment Eligibility (Legal to Work in the United States) • Skills Testing • Drug Testing (after conditional offer) • Medical Exams (after conditional offer) Background checks

28. Offer to send the applicant’s signed consent to a full disclosure of employment information • Typical Questions: • What are the applicant’s greatest strengths? • What are his or her greatest opportunities? • Would you hire this person again? • Confirm salary, title, dates of employment Contacting Past Employers

29. Prepare questions in advance Use only acceptable questions! Ask all applicants the same questions (use of an interview guide is recommended) Ask only job related questions Keep application forms and employment records for at least one year Interviewing

30. Restate the “at will” employment relationship. Give a written list of job duties. Give a written offer of pay and benefits. Refer to the employee handbook that includes company policies. Provide a document for the employee to sign and accept the job offer. WHEN Extending Conditional Offers,

31. The employee works at the will of the employer. The employer can terminate the employee at any time for any reason, or for no reason at all (but not for discriminatory reasons). The employee is free to quit at any time. “At Will” Means…

32. Activity: what Is Your Experience with Hiring Employees?

33. 4. Establishing Workplace Guidelines

34. Minimum Wage – know the current federal and state minimum wage • Overtime - Covered non-exempt employees must receive overtime pay for all hours worked in excess of 40 hours per week • Recordkeeping – • Keep employee time and pay records. • Display posters outlining the requirements of the FLSA - federal and state labor posters as well. Complying with FLSA

35. Setting High Standards Maintaining a Drug-Free Workplace Maintaining a Harassment-Free Workplace Use an Employee Handbook to Further Outline These Policies Establishing Clear and Legal Rules

36. Suggested Employee Handbook Topics • Introduction • Hours • Pay and Salaries • Benefits • Drug and Alcohol Abuse • Harassment • Attendance • Discipline • Employee Safety • Smoking • Complaints • Workplace civility • Conduct not covered by the handbook

37. New Employee Orientation • Company culture and history • How the company (or apartment community) is organized, in terms of work teams and functions • Workplace rules • Health and safety rules • Pay and benefits • Work schedules • And anything else relevant to working in the community

38. Employees will know what you expect of them and will receive feedback on their work. • You can recognize and reward good employees • You can identify and coach workers who are having trouble. • You will stay in touch with the needs, concerns, and problems of employees. • You can identify potential problems earlier. • Performance reviews can help keep future legal problems to a minimum by helping track and document employee issues. WHY Conduct performance reviews?

39. Activity: Discuss Experiences with Workplace Rules

40. 5. Counseling, Disciplining, & Terminating

41. Your expectations of how the job should be performed How the employee is currently performing Critical element(s) where the employee is failing or falling short What the employee must do to bring performance to an acceptable level Topics To Include in a Counseling Meeting

42. SAMPLE Progressive Discipline

43. Seven Steps - Disciplining Employees

44. Provide a private office or area. • Include a peer as a witness to the meeting. • Have the final paycheck prepared in advance, including any benefits, vacation, or severance pay if required by state law. • Keep accurate and detailed documentation of the termination meeting. • Represent the company in a professional, ethical, and honest manner. Terminating Employees

45. Activity: Discuss Your Experience with Counseling and Terminating Employees

46. 6. Ensuring Workplace Health And Safety

47. This protocol must educate employees on: • Hazardous chemicals they work with • How to use them properly • How to avoid potential accidents or injuries Hazard Communication Standard

48. Hazard Communication Standard Compliance • Hazard Evaluation • Labeling • Material Safety Data Sheets (MSDS) • Written Plan • Training Programs

49. Material Safety Data Sheets- Identification Hazardous Ingredients or Components Physical and Chemicals Characteristics Fire and Explosion Hazard Reactivity Data Health Hazard Data Spill or Leak Procedures Special Protection Special Precautions MSDS

50. Must be a written procedure • Must be accessible to employees at all times • Must establish contractor responsibilities • Must establish annual auditing procedures • Must establish an inventory of hazardous energy sources and procedures to de-energize them • Must provide for training and retraining Lockout/Tagout Procedures