Dennis J. Walsh, Esq. Attorney

Avoiding the Employment Practices Minefield

The Agenda What are the Employment Practices Minefields?

Has the economic environment affected these claims? Have the type of claims changed over the years? What are the “hot” claims today? Have the methods for avoiding these claims changed? Where are the minefields during the Interactive

Process (IP)? Where are the minefields when you make a decision

about whether to accommodate a disabled employee or not?

Q & A

Sexual Harassment is still alive and well Particularly supervisor harassment

Sexual orientation harassment claims are now more prevalent than ever The impact of Societal changes

Pregnancy Harassment Failure to provide accommodation

Race and Ethnicity Harassment Inappropriate statements in the workplace

and/or dislike issues Not everyone can get along Turning workplace issues into harassment issues

Harassment Claims:Something Old, Something New

Harassment Claims:Something Old, Something NewReal Cases

Sexual orientation and cleanliness Pictures, etc. of the significant other The inconvenient pregnancy? Performance issues are all

race/ethnicity related Can you do anything to prevent

these claims?

Retaliation Rears Its Head

More and more lawsuits including this claim?

What and how is it alleged? The dangerous claim How to avoid it with current

employees

Retaliation Rears Its Head:Real Cases

The March 15th retaliation The request for

accommodation retaliations The work comp offender The allergic to coming on

campus employee What can you do to avoid

these claims?

Failure to Prevent Discrimination/Harassment:

What does it mean? Simple to Avoid?

The New Add On Claim

The “No Win” Scenarios: What to Do?

Consensual Sexual conduct by a supervisor still creates problems

The Work Comp offender that becomes the ADA victim

The employee whistleblower

The Common Law Claims

Claims that arise from case law and not statute per se

Wrongful termination against public agencies

Defamation Invasion of Privacy IIED What can you do to minimize these type

of claims?

Tips for Minimizing these claims:

Documentation is still the key Following your policies and procedures to the

letter Objectivity by the decision makers Using outside investigators when appropriate

Be selective Discipline/Termination with Dignity

Some Things Never Change

Avoiding the Disability Minefields

Still by far the biggest problem issue in employment practices

The Work Comp overlap issue still alive, well and growing

Difficult cases to settle and get rid of The interactive process is fertile

ground for litigation Let’s breakdown the issues and

discuss some situations that illustrate the problems

The Reasonable Accommodation Process

Look At The Job Involved ToDetermine Its Purpose And ItsEssential Functions A Written Job Description Prepared by persons in the know Signed by the Employee

IP Minefields:Agreeing on the essential job duties

The Written Job Description The Frequency and Duration of the duties

Matching up the medical restrictions with the proper essential job duties And agreeing upon it

Get Clarification if Disagreements exist Can’t determine accommodations without

clear understanding by both sides of specifics of the restrictions What specifics do you need?

The Reasonable Accommodation Process Meet With The Employee to Discuss and

Agree on Functional Limitations and Essential Job Duties

IP Minefields:Agreeing on the essential job duties

What if the employee disagrees with the JFA?

Doctor Verification Of Functional Limitations Is Permissible

Discussion of doctor reports re limitations is acceptable

Do not blindly rely upon WC doctor reports What if the employee disagrees with their

doctor What if the doctors disagree about the

condition of the employee?

IP Minefields:What are the Functional Limitations?

Dealing with Workers’ Comp terminology for job restrictions “No Heavy Lifting” “No Repetitive Bending, Stooping, Etc.” “Prophylactic Lifting Restriction” “TTD” “Part-time Work” “Stress free environment”

Need to have clear understanding of these terms Do they impact essential job duties?

IP Minefields:Fitness for Duty Exams

Can be a blessing and a curse Pick and choose the right time to get

one Must be a good reason for doing so

Give definitive instructions on what you need from the FFD Doctor Confirm in writing

Provide FFD Doctor with all information necessary Past medical records, job description

Have HIPPA release from employee

The Reasonable Accommodation Process

After meeting with the employee,identify and list potentialaccommodations and assess howeffective each would be in enablingthe individual to perform essential job functions Determine if they are reasonable or not

i.e. Cause an undue hardship or direct threat to employee or others

Review all alternative vacant positions to go over with the employee

The Reasonable Accommodation Process

Meet with the employee again to discuss & agree or disagree on the R/A’s or why there is no R/A If no R/A available, discuss

alternative vacant available positions the employee is minimally qualified for

Any and ALL vacancies, full or part-time and that may come up in the near future

IP Minefields:Meeting with the Employee

It’s the “Interactive Process” not the “Unilateral Process” Make sure you seek their input or lack

thereof Don’t make any decisions during the last

meeting Even if your mind is all ready made up

Be Prepared Have all docs re vacant positions and

minimum quals at the meeting

The Reasonable Accommodation Process

If accommodations are available, consider preference of employee and select accommodation that best serves the needs of both It is an ongoing process that is the burden of

the employer Offer and discuss available alternatives The evaluation of proposed accommodations

requires ongoing dialogue and an assessment of the effectiveness of each accommodation

IP Minefields:Trying to Accommodate Two steps:

Can I accommodate to existing position? How about alternative vacant positions?

Do you really want to accommodate this employee?

Are you prepared to discuss all possible accommodations? Have you done your homework?

IP Minefields:Temporary/Light Duty Positions Not required under ADA/FEHA

Work Comp related to reduce costs How do they affect your duty to

accommodate? How do you handle the employee that

wants the light duty position to become permanent?

The Reasonable Accommodation Process

Document the Process Including: Analysis Meetings With The Employee The Decision Making Process The Final Determination &

Communication To Employee Methods of Documentation

IP Minefields:Documenting the Process

All or nothing Emails are discoverable!

Be careful what you say Have standardized forms to use

Letters to doctors Meetings with Employee Your thought process re accommodation

The Reasonable Accommodation Process Follow–Up with the employee on any

accommodations offered Changes should be done if necessary and

documented Don’t make a promise you can’t keep!

IP Minefields:Proper Communication

With the employee Even during Worker’s Comp injury

Between Risk Management and HR With the TPA on the Worker’s Comp

Claim They are not advisors on the

ADA/FEHA issues Between WC attorney and

Employment Attorney Be Proactive

IP Minefields:Failure to Engage in IP The New Catch All Claim Reasons:

Ignoring employee request Ignoring employee restrictions Ignoring change in employees restrictions Ignoring employees complaints about

being able to do the job Within the restrictions With the accommodations

IP Minefields:Problems that Arise

The Employee that doesn’t agree with the FFD restrictions or lack thereof

Know ALL of the employee’s qualifications for vacant positions

Denying accommodations that have been given to others

Policies and Practices that violate ADA/FEHA

IP Minefields:Problems that Arise

Allowing employee right to use ALL unpaid leaves available

Having a final IP meeting before placing employee on the 39 month re-hire list Explaining to employee what this means

Not Just in a Letter

Dennis J. Walsh Attorney, Walsh & Associatesdwalsh@walshlawyers.com

www.walshlawyers.com