Managing Within The Law - Drexel University

Managing Within The Law

Engaging U

• Introductions • Presentations with Q & A

- Family Medical Leave – Keyanah Jones - Disability Resources – Jenny Dugger - Equality and Non-Discrimination – Michele M.

Rovinsky-Mayer - Legal Issues for Managers – JuHwon Lee - Employee Relations – Nadia McCrimmon

• Case Study/Practice • Report-Out & Expert Feedback

Family Medical Leave

Keyanah Jones, HR Consultant Human Resources

• Recognize when to mention the acronym “FMLA” - Employee using excessive sick time - Conversation with employee about performance turns to

discussion regarding their illness • Details of an employee’s illness (or their

family member’s) are not up for discussion - The less you know regarding the FMLA reason, the less

risk you take on with FMLA

• It is ok to reach out to your employee while

they are out - Sometimes it is not what you say but how you say things

• HR is your resource

- When you are unclear about FMLA, its process and what you can and cannot do

Questions?

Disability Resources

Jenny Dugger, Director Office of Disability Resources

People with disabilities encounter greater barriers • Across all age groups, persons with a disability were

much less likely to be employed than those with no disability and less education (US Bureau of Labor Statistics, 2010)

• Labor Force Participation - People with Disabilities – 20.0% - People without Disabilities – 68.9% • Unemployment Rate - People with Disabilities – 12.9% - People without Disabilities – 8.7% (Office of Disability Employment Policy –http://www.dol.gov/odep/)

Applicable Federal Legislation and University Policies: • The Americans with Disabilities Act (ADA) • Equality and Non-Discrimination Policy • Reasonable Accommodation of People with

Disabilities Policy

Applicants/Application Process • Keep the idea of accessibility for everything in mind

• All work-related processes should be universally accessible

• Communication goes a long way:

Ex: “If you have a disability and need an accommodation, please contact the Office of Disability Resources at 215-895-1401.”

• Service animals – The only questions you may ask are:

1) “Is this a service animal due to the existence of a disability?” 2) “What task or function does it perform for you?” NOTE: You cannot ask if a person has a disability, but you can (and should) ask if the applicant/interviewee can meet the essential functions of the job with or without a reasonable accommodation.

Accommodations/Registration Process with ODR • If an applicant or employee tells you they have a disability,

please refer them to ODR.

• If an employee seems to be struggling, provide them with all applicable resources (including ODR), referencing the observed behavior that elicited the concern.

• Employees requesting reasonable accommodations must present supporting documentation from a physician, psychologist, or other diagnosing/treating specialist to ODR.

Accommodations/Registration Process with ODR • The Director of Disability Resources handles all employee

requests for accommodation.

• If an on-the-job accommodation is deemed to be reasonable, it will appear on the Accommodation Verification Letter (AVL) generated by ODR and will be emailed directly to the supervisor.

• The AVL is valid for one year before the employee will need to request a renewal.

Create Universally Accessible Offices • Paperwork • Website • Space • Procedures

Additional Resources: • Office of Disability Resources: www.drexel.edu/odr • Equality and Non-Discrimination Policy (OED-1):

http://www.drexel.edu/hr/resources/policies/dupolicies/

• Reasonable Accommodation of People with Disabilities Policy (OED-2): http://www.drexel.edu/hr/resources/policies/dupolicies/

• Job Accommodation Network: http://askjan.org/ • Office of Disability Employment Policy:

http://dol.gov/odep/

Questions?

Equality and Non-Discrimination

Michele M. Rovinsky-Mayer, J.D. Office of Equality and Diversity

• Let policies be your guide.

• Use your resources and ask for help – as early as possible.

• Impact and effect are key - intent is not.

• When a complaint is filed, any action that could discourage someone from raising a concern or providing information could be considered retaliation.

• Never underestimate the power of an apology or the importance of being authentic.

Questions?

Legal Issues for Managers

JuHwon Lee Associate General Counsel and Chief Litigation Services

Find the Rules and Follow Them • Most lawsuits we face claim that the University did not

follow its policies or procedures and that such failure constitutes a breach of contract

• Courts show great deference to institutions of higher education in making academic decisions, however, they don’t like arbitrary decisions.

• In disciplinary cases, it is even more important to follow University policies

Find the Rules and Follow Them • The first thing plaintiffs do in the discovery phase of a lawsuit

is to request copies of all policies. They will try to show that a policy was not followed and/or that such deviation amounts to discrimination

• The policies or “rules” that we will be held to in litigation can be found in

- Provost’s Policies - HR Policies - Student Handbook - School, College, and Department Handbooks - Handouts, Websites, Memos, and Syllabi

Find the Rules and Follow Them • Make sure that any old policies or procedures

that are out of date are replaced with the current versions

• Websites specifically need to be updated annually or shut down

Modified Miranda Ruling

• Everything you say and everything you write will be used against you in a court of law

• In the early stages of litigation, the plaintiff will want every piece of paper, every communication, and all electronic data that exists

• It is guaranteed that something will surface that is not pretty - it will then become Exhibit A at the trial

Modified Miranda Ruling

• Everything you write down with respect to a dispute should be written down accurately

• Oral statements can be just as damaging as written statements

• For written or oral communications, labeling something as “Confidential,” “just between us,” and “off-the-record” does not protect it

• Everything is discoverable

Modified Miranda Ruling • E-mail is quick and convenient but e-mail never goes

away

• They are saved, forwarded, and they live forever - before you hit the “Send” button, ask yourself, “Should I put this in writing?”

• Be careful about what you say Statements meant to be ironic or funny don’t look that way in black and white

• Learn to “Issue Spot”

• We don’t expect you to know what the law is on any given day. However, you do need to recognize when a legal issue arises

• The idea is that your ears should perk up whenever you see something that looks like it raises legal issues

Learn to “Issue Spot” An allegation of discrimination, based on: • Race/National Origin • Sex • Age • Disability • Sexual Orientation • Religion

Learn to “Issue Spot”

Any serious personnel matter, such as one involving: • Termination • Layoff • Medical Leave • A Whistle blower • Allegations of retaliation • Sexual harassment • Disability accommodations (for students, faculty or

staff

Call for Help • When you think there is a problem

• If you are writing a letter and want someone to

review it

• If you have spotted an issue, or if you just want to bounce something off us, just call

Questions?

Employee Relations

Nadia McCrimmon, Employee Relations Director and HR Partner

The Many Faces of Ageism • Early Retirement

- It is illegal for an employer to terminate, layoff, and/or eliminate an individual’s position because of their age

• Discrimination

- Age discrimination cases rose from 18,279 in1997 to 26,080 in 2011, according to the EEOC

- Settlements rose from $44.3 million to $95.2 million over the same period

• Misconceptions of Older Workers

- Don’t understand technology - Not willing to learn/try new things - Just waiting to retire

Paternity/FMLA Birth or Adoptions of a Child

Fathers have the same rights as mothers during FMLA; may take up to 12 weeks of leave

Discrimination

Can not treat fathers differently from mothers

Retaliation Treating a father difference before, after, or during their FMLA

Performance Improvement Plan (PIP)

Can not place an employee on a PIP because they take FMLA

Employment At Will • “At Will” Employment means

- Employees and employers retain the right to end the employment “at will” at any time and generally for any reason

• Two Weeks Notice

- Accept the notice - Do not treat the employee differently once notice has

been given

• Supervisors Must Supervise - Daily communications; if no progress in performance,

use Drexel’s Performance Improvement Process (PIP)

Communication/Documentation • Don’t Procrastinate

• Be Clear and Consistent

• Be Upfront/Discuss Next Steps

• Keep Notes

• Annual and “Interim” Performance Evaluations

• Performance Improvement Plan (PIP) Form found at: www.drexel.edu/hr/resources/policies/dupolicies/

• Employee Dispute on a PIP Contact Nadia McCrimmon at nm64@drexel.edu

• Introductory Period For Questions or Extensions contact Nadia McCrimmon at nm64@drexel.edu

• Terminations - Position Eliminations - Layoffs - Involuntary Terminations.

• Exit Interviews - Send email to exitinterview@drexel.edu - Include employee name, entity (Drexel or DUCOM), University ID number, last date of employment and email address

Questions?

• Assign a recorder and a reporter

• Review assigned case study

• Come up with a recommendation or proposed solution for the case study

• Panelists will be asked to weigh in and give an overall rating of proposed solution