So You Want To Do The Right Thing, But Is It Legal? Walter Stella - Partner, Miller Law Group

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1 So You Want To Do The Right Thing, But Is It Legal? Walter Stella - Partner, Miller Law Group

2 Session Objectives So You Want To Do The Right Thing, But Is It Legal Identify Practices That Create Legal Risk Analyze Potential Strategies To Minimize Those Legal Risks Develop Best Business Practices To Reflect those Strategies

3 So You Want To Do The Right Thing, But Is It Legal The Road To Litigation Is Paved With Good Intentions

4 So You Want To Do The Right Thing, But Is It Legal The Road To Litigation Is Paved With Good Intentions Facts First female hire Owner/manager discusses work environment Owner/manager invites new hire to raise any issues with him Owner/manager periodically checks in with new hire New hire: never affirmatively complains or raises any issues reassures owner/manager when asked What went wrong?

5 So You Want To Do the Right thing, But Is It Legal? No Good Deed Goes Unpunished

6 Facts So You Want To Do the Right Thing, But Is It Legal? No Good Deed Goes Unpunished Employee hired with impeccable resume Employee is well liked by peers and superiors alike Performance issues identified early on Company believes employee can add value Company tries employee in different roles Performance issues persist Employee eventually terminated as part of a reduction in force What went wrong? (Reid v. Google, 50 Cal.4 th 512 (2010))

7 So You Want To Do the Right Thing, But Is It Legal? Never Make Promises You Can t Keep

8 So You Want To Do the Right Thing, But Is It Legal? Never Make Promises You Can t Keep Facts Employee requests two months leave for surgery Company approves leave Manager arranges for employee to receive full pay and benefits during leave Manager promises job reinstatement at end of leave What went wrong? (Smith v. Primecare Medical, Inc., Civil Action No. 1:08-CV-1397 (M.D. Pa. 2008))

9 So You Want To Do the Right Thing, But Is It Legal? Make Sure The Cure Is Not Worse Than The Disease

10 Facts So You Want To Do the Right Thing, But Is It Legal? Make Sure The Cure Is Not Worse Than The Disease You were recently hired as the head of HR Early in your tenure, you conduct an audit of your workforce Pay equity analysis Exempt v. non-exempt status Contractor v. employee status You conclude that your new company has exposure You draft a very eloquent memorandum to senior management detailing the issues and the exposures What could go wrong?

11 So You Want To Do the Right Thing, But Is It Legal? Maintaining Confidentiality Of Investigation Is A Good Thing, Right?

12 So You Want To Do the Right Thing, But Is It Legal? Maintaining Confidentiality Of Investigation Is a Good Thing, Right? Facts Employee lodges a complaint HR conducts a thorough and prompt investigation EEOC guidance suggests that confidentiality is important to encourage victims/witnesses to come forward During interviews, employees are asked to maintain confidentiality of investigation and matters discussed Company is small and investigation can be extremely disruptive What went wrong? (Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015)).

13 So You Want To Do the Right Thing, But Is It Legal? Remember: Different Supervisor, But Same Employer

14 So You Want To Do the Right Thing, But Is It Legal? Remember: Different Supervisor, But Same Employer Facts Employee has a disability Employee habitually late First line supervisor does not impose discipline Supervisor s boss asks supervisor to get it under control What went wrong? (McMillan v. City of New York, 711 F. 3d 120 (2013))

15 So You Want To Do the Right Thing, But Is It Legal? Beware Of Unintended Consequences Facts What went wrong? (EEOC, et. al. v. New Prime Trucking, Inc., Civil Action No. 6:11-CV W.D. Mo. 2014)) Employer sued for hostile work environment Employer takes claims seriously Employer takes remedial steps to avoid future claims Changes in policies and practices Employer used female only trainers

16 So You Want To Do The Right Thing, But Is It Legal? And, If That Wasn t Enough.. Always know the answer to why now? If you can t say anything nice, say nothing at all. Yes, it is possible to care too much. When it comes to medical issues, leave it to the experts

17 Key Takeaways So You Want To Do The Right Thing, But Is It Legal? Doing the right thing does not always work. Analyze every employment action for: Potential negative outcomes, and Take steps to avoid those risks Deviating from usual practices and procedures creates risks