Employment Law Update for Nonprofits Presented By: James F. Olney, J.D. Senior HR Consultant, Associated Financial Group Suzette Frith Chief Operating Officer, TSE, Inc. Employment Laws in the Workplace Clean Indoor Air Act Drug-Free Workplace Act of 1988 Employee Polygraph Protection Act Employee Retirement Income Security Act (ERISA) Equal Pay Act Fair Labor Standards Act (FLSA) Federal Immigration Reform & Control Act Federal Unemployment Tax Act (FUTA) Health Insurance Portability and Accountability Act (HIPAA) Genetic Information Nondiscrimination Act (GINA) National Labor Relations Act Occupational Safety & Health Act (OSHA) Portal-to-Portal Act Reconstruction Era Civil Rights Statutes Rehabilitation Act of 1973 Social Security Act Military Leave Act of 1994 (USERRA) VETS 100 Minnesota s Human Rights Act Minnesota s Equal Pay for Equal Work Act Minnesota s School Conferences & Activities Leave MNOSHA AWAIR Right to Know Minnesota s Health Insurance and Continuation Minnesota s Workers Compensation Act Minnesota s Child Labor Laws Minnesota s Wage & Hours Laws Minimum Wage Overtime Minnesota s Soc Sec Number Protection Laws Minnesota s Prohibition on Genetic Testing Minnesota s Wage Payment & Deductions Laws Minnesota s Drug Testing Laws Minnesota s Personnel File Laws 1
Employment Laws in the Workplace Minnesota s New Hire Reporting Laws Minnesota s Polygraph Laws Minnesota s Lawful Consumable Products Act Minnesota s Record Retention Laws Minnesota s Election Leave Law Minnesota s Jury Duty Law Minnesota Witness Duty Law Minnesota s Election Judge Law Minnesota s Nursing Mothers Law Minnesota s Leave for Civil Air Patrol Service Law Minnesota s Leave for Immediate Family Members of Military Personnel Injured or Killed in Active Service Minnesota s Leave to Attend Military Ceremonies Minnesota s Whistleblower Laws Americans With Disabilities Act (ADA) Civil Rights Act of 1991 Pregnancy Discrimination Act Title VII of Civil Rights Act of 1964 Age Discrimination in Employment Act (ADEA) Consolidated Omnibus Reconciliation Act (COBRA) Older Workers Benefit Protection Act Minnesota s Notice of Employee Rights Minnesota s Bone Marrow Leave Minnesota s Parental Leave Act Minnesota s Sick or Injured Child Care Leave Minnesota / Federal Affirmative Action Requirements EEO-1 Report Executive Order 11246 Federal Family & Medical Leave Act (FMLA) Mental Health Parity Act EEO-1 Report Worker Adjustment Retraining Notification Act (WARN) At-Will Employment & EEO / Discrimination Laws 2
Employment At-Will Employment is at will in every state (except Montana) The employment relationship may be terminated by either the employee or employer at any time and for any reason - so long as it is not an illegal reason Terms and conditions of employment from hiring to compensation to work schedules to termination are at the employer s discretion Employees are free to accept or reject (i.e. by quitting) the terms and conditions established by the employer Employment Lawsuits Two basic ways to prove a claim: Direct Evidence Circumstantial Evidence The appearance of a wrong reason can be just as bad as actually being wrong Consistency is critical (e.g., attendance) Bad relationships with supervisors is single biggest driver of legal claims 3
The Four Ways to Lose an Employment Law Claim 1. Contract theory: Union collective bargaining agreement Handbook statements Oral promises 2. Retaliation Work comp, whistleblowing, OSHA, etc. 3. Violation of Leave Laws or FLSA: The Four Ways to Lose an Employment Law Claim 4. Harassment & Discrimination: Race Military service / Veteran status Color Citizenship/immigration status Religion Union membership Sex/Pregnancy Membership in local HR commission National origin Marital status Disability Receipt of public assistance Age Sexual orientation Ancestry Genetic testing Creed Lawful consumable products 4
Wage & Hour Laws Fair Labor Standards Act (FLSA) Minimum Wage Overtime State may have its own minimum wage and overtime rules Minors Volunteers Recordkeeping 5
Exempt v. Non-exempt Exempt employees not subject to: Overtime pay Recordkeeping requirements To be Exempt, must pass two tests: Salary Basis test, AND Primary Duties test Salary Basis Test Minimum salary of $455 per week Generally no deductions from salary with limited exceptions Absences for illness (whole day increments only) Absences for personal reasons (whole day increments only) FMLA leave (partial day absences) Restrictions do not apply to paid vacation/sick/pto banks 6
Exempt Categories Primary duties must fall into specified categories Executive Administrative Professional Computer Outside Sales People Industry/Position Specific Exemptions Overtime & Hours Worked Overtime = ½ x regular rate Hours worked over 40 (or 48) hours/week Determined on weekly, not payroll, basis All hours worked must be compensated and must be counted toward overtime Calculating hours worked can be difficult Overnight shifts / on-call time Travel time Breaks 7
FMLA & State Leave Laws FMLA The FMLA provides an absolute leave right It does not require light duty or accommodations It does not take undue hardship in to consideration 8
FMLA Covered employees are those who: Worked for the employer for at least 12 months (need not be consecutive) Worked at least 1,250 hours during previous 12 consecutive months Work at a location with at least 50 employees within a 75 mile radius FMLA Amount of leave 12 weeks in any 12 month period for most leaves Employer must designate 12 month period used to calculate available leave 26 weeks in a single 12 month period to care a service member injured in the line of duty 9
FMLA Reasons for leave: Birth, adoption, or placement for foster care of a child Serious health condition of the employee To care for a covered family member with a serious health condition For qualifying exigencies in connection with a covered family member s active military duty To care for a covered family member injured during active duty FMLA Commonly occurring categories of Serious Health Condition: Overnight hospital stay Continuing treatment by health care provider Doctor s visit resulting in more than 3 days of incapacity plus treatment Incapacity due to pregnancy Chronic health conditions 10
FMLA Employer should designate leave as FMLA as soon as possible Employee need not ask for FMLA by name PTO, sick leave; STD/LTD; worker s comp Can designate leave as FMLA over employee s objection Retroactive designation is possible Intermittent leave is very difficult to manage and can be easily abused Disability & the ADA 11
Basic ADA Protections Cannot discriminate against a qualified individual with a disability regarding: Job application procedures Hiring, advancement, or discharge Compensation, training, or other terms, conditions, or privileges Must provide reasonable accommodations to employees and applicants ADA is to be construed in favor of broad coverage to the maximum extent permissible Definition Of Disability A physical or mental impairment that substantially limits one or more major life activities (mitigating factors are not considered) OR Having a record of such impairment OR Being regarded as having such impairment The physical or mental impairment must last longer than 6 months Do not need to provide reasonable accommodations for regarded as disabilities 12
Major Life Activities Caring for oneself Performing manual tasks Walking Breathing Learning Working Seeing Hearing Speaking Sleeping Eating Reading Concentrating Thinking Communicating Standing Lifting Bending Major Bodily Function Reasonable Accommodation A workplace modification or adjustment that enables qualified applicants or employees to be considered for a position, or perform an essential job function, essential job functions are those that the position exists to perform unless undue hardship would result 13
Reasonable Accommodation Telecommuting Job restructuring Modifying work schedule Job reassignment New or modified equipment Providing temporary aides Leave of absence Reasonable Accommodation Once requested, employer must engage in interactive process with employee Failure to do so alone can violate law Employee must cooperate with employer s request for medical documentation Employers should always request confirmatory medical information Employer does not have to accept employee s preferred accommodation 14
Undue Hardship Significant difficulty or expense incurred with respect to an accommodation Factors to be considered, include: Nature and cost of accommodation Financial resources/size of employer Impact on business operations Good faith efforts to find alternatives Whether employer has provided similar accommodation in the past (precedent) Worker s Compensation 15
Work Comp Claims Work comp does not legally require: Leave, light duty, or accommodations Continuation of health and other benefits Work comp system creates strong financial incentives to grant time off and offer light duty FMLA, ADA and COBRA may apply Work comp is no fault Injuries arising out of and in the course of employment Work Comp Claims MNOSHA requires most employers to have an AWAIR program with a formal Safety Committee Notice and Filing First Report of Injury Notify Carrier as soon as you learn of work related injury File even if claim is questionable (if in doubt, file) Employer can only get in trouble for not notifying carrier 16
The Importance of Documentation Daily Supervisor s Log Managers must keep a daily employee file that tracks employee performance and significant events Significant events include such things as: a. Conversations about work assignments b. Informal counseling or coaching sessions c. Acknowledgment of a job well done d. Member / coworker complaints or compliments Unemployment / EEOC implications 17
Formal Performance Documentation Performance documentation should include: Identification of the objective performance expectation History of previous formal and informal meetings Description of current problem (using fact-based examples and de-escalated language) Identification of measurable resolution Employee signature should be obtained, but isn t legally required Questions? james.olney@associatedfinancialgroup.com sfrith@tse-inc.org 18