Cities and Labor Law

Transcription

1 Cities and Labor Law Best Practices in Labor and Employment Law for Municipalities and Political Subdivisions Presented by Sarah E. Kuntz Associate Attorney, Smith Porsborg Schweigert Armstrong Moldenhauer & Smith

2 N.D. Department of Labor and Human Rights The state department responsible for enforcing N.D. labor and human rights laws North Dakota Human Rights Act, N.D.C.C. ch Overtime, N.D. Admin. Code (4) Paid Time Off, N.D. Admin. Code (12) Paydays & Record Keeping, N.D.C.C , 03, N.D. Admin. Code Deductions from Pay, N.D.C.C Unpaid Wages, N.D.C.C

3 Equal Employment Opportunity Commission Enforces federal laws prohibiting employment discrimination Worksharing Agreement with NDDOL Purpose is to preserve complainant s rights under federal law NDDOL dual files eligible employment charges with EEOC NDDOL conducts the investigation for the EEOC Also, a complainant can file a complaint directly with the EEOC

4 Unlawful Discriminatory Practices N.D.C.C State Policy Against Discrimination It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination or coerce others to discriminate.

5 Unlawful Discriminatory Practices (cont.) N.D.C.C State Policy Against Discrimination Race Color National Origin Religion Sex Age Disability Marital Status Public Assistance Lawful Activity Participation off employers premises, during non-work hours, not in direct conflict with employer s business interests Applies to employment, housing, public accommodation, and public services

6 Unlawful Discriminatory Practices (cont.) Retaliation against a complainant for reporting any types of discrimination is also unlawful N.D.C.C North Dakota has a whistleblower statute to protect employees from retaliation as a result of reporting harassment or discrimination in the workplace N.D.C.C Whistleblower defined N.D.C.C (1) NDDOL only assists in settling whistleblower claims and makes no substantive determinations N.D.C.C (4)

7 NDDOL Process Employee files a Complaint with the NDDOL Each type of discrimination has a specific timeframe within which to file complaint NDDOL will serve a copy of the Complaint on the employer Provide a timeline for when the employer must respond in writing to the Complaint NDDOL will conduct an investigation can take up to years to complete After investigation, if NDDOL finds probable cause to believe a violation has occurred, NDDOL will issue Charge of Discrimination If Charge issued, the NDDOL will provide an administrative hearing to determine remedy *NDDOL will emphasize conciliation throughout the process to resolve the issues in the Complaint informally

8 Post-Complaint Process: Tips in Responding to NDDOL/EEOC Complaints Consult with legal counsel as soon as received Gather all documentation related to the Complaint as soon as possible Best practice: It is better to be more inclusive than exclusive. Follow recommendations of legal counsel Providing information and documentation to legal counsel Participating in investigations process

9 Pre-Complaint: Tips to Prevent, Manage, and Mitigate Potential Complaint Situations 1. Do Not Discriminate! Best practice: Try to minimize treating employees differently 2. Stay current on discrimination law Best practice: Ensure supervisors, human resources, and counsel work together to stay up-to-date on the prevailing discrimination law 3. Do not be afraid to contact legal counsel if you have any questions 4. Address reports of potential discrimination promptly and effectively

10 Pre-Complaint: Tips to Prevent, Manage, and Mitigate Potential Complaint Situations (cont.) 5. Keep all policies up-to-date and apply them uniformly Best Practice: Make sure to thoroughly document if it is legitimately necessary to treat an individual differently than other employees 6. Create and implement a grievance procedure for reporting discrimination and other types of complaints helps to streamline process Best practice: Include requirements for a written incident report, grievance procedure, and timeline for written response 7. Require supervisors to document and retain all documents related to workplace discrimination Best Practice: Encourage written reports, written requests, meeting notes, and other proper documentation

11 Best Practice Key: Documentation Timesheets & Time Off Requests s/Letters Written Incident Reports Written Reprimands Employee Files Written Meeting Notes Written Policies Written Complaints Up-to-Date and Accurate Job Descriptions Organizational Charts Written Decision-making

12 Best Practice Key: Remedial Action Understand the discrimination complaint presented Investigate the complaint Identify the appropriate remedial action Implement the remedial action Remedial action actions reasonably calculated to stop the harassment Document at each step of the process Ex. Request written complaint, draft report for investigation, draft report for implementation of remedial action

13 Case Examples Race Discrimination Disability Discrimination Discrimination in Access to Public Services

14 Other Potential Issues Process for Termination of Employee Employee actions vs. Supervisor actions Social Media and Employees Reasonable Accommodation for Disabled Employees Gender and Restrooms Use of Religious Language by Employees

15 Resources NDIRF Human Resource Reference Guide for Local Governments North Dakota Department of Labor and Human Rights Equal Employment Opportunity Commission North Dakota Century Code Local human resources department Local counsel

16 Any Questions?