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What is your organization doing to minimize risk brought about by employment liability? Identify ten areas that can trip up a nonprofit employer over the period of an employee's tenure. Avoid mistakes in the hiring and firing process, recognize and prepare for potential employment law issues, and guide your organization through the potential pitfalls lurking in the employment cycle. Michael Buddendeck, assistant general counsel, AICPA Lance Gibbons, of counsel, Littler Mendelson P.C. James A. Woehlke, Esq. CAE, general counsel, New York State Society of CPAs
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Connecting Great Ideas and Great People
www.asaecenter.org
Content Leaders:Lance Gibbons, Esq., Of Counsel , Littler Mendelson P.C.Michael Buddendeck, Esq., Asst. General Counsel, AICPA
James A. Woehlke, Esq., CAE, Gen’l Counsel, NYSSCPA, Moderator
Navigating the Employment Cycle: Employer Beware
Tuesday, August 18, 200912:45 – 2:00 p.m.
www.asaecenter.orgwww.asaecenter.org
Navigating the Employment Cycle
Setting the Stage
Interviewing and Hiring
During Employment
Termination
Q & A
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Navigating the Employment Cycle
Setting the Stage
Anti-Discrimination
Harassment
Family Medical Leave Act - FMLA Americans with Disabilities Act – ADA &
ADA Amendments Act - ADAAA
www.asaecenter.orgwww.asaecenter.org
Navigating the Employment Cycle
Setting the Stage - Anti-Discrimination –
Federal
Title VII – Civil Rights Act of 1964 (as
amended)
Civil Rights Act of 1991
Age Discrimination in Employment Act - ADEA
Equal Pay Act
www.asaecenter.orgwww.asaecenter.org
Navigating the Employment Cycle
Setting the Stage - Anti-Discrimination – State
California
DC
New York State
Check for other states and localities
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Navigating the Employment Cycle
Setting the Stage - Harassment
Special category of Title VII discriminationCovers not only sexual harassment but harassment of other protected classes, too.
Falls into two categories Quid pro quo Hostile environment
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Navigating the Employment Cycle
Setting the Stage - Harassment – Elements
Employee needs to suffer tangible job action
EEOC - Conduct is unwanted if the employee
Did not solicit or initiate the conduct
Finds the conduct undesirable or
offensive
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Navigating the Employment Cycle
Setting the Stage - Harassment – DefensesNo adverse employment effect on victim, no retaliationAnti-harassment policy (with reporting procedures and periodic re-publication)
Take the policy seriously Be prepared for investigations Investigate promptly / timely wrap-up
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Navigating the Employment Cycle
Setting the Stage - FMLA
Up to 12 weeks unpaid leave
Covers employers with 50 or more employees in 20 or more workweeks during current
or previous calendar year
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Navigating the Employment Cycle
Setting the Stage - FMLA
Eligibility Requirements Work for a covered employer For 12 months Minimum 1,250 hours At location with at least 50 employees within a 75 mile radius
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Navigating the Employment Cycle
Setting the Stage – FMLA
Family and medical reasons, including Birth or adoption Employee’s health Care of a spouse, child or parent with a serious medical condition Military family leave
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Navigating the Employment Cycle
Setting the Stage - FMLA
Intermittent leave
Effect on employee benefits
Interplay with other forms of time off
Be alert for states’ “mini-FMLAs”
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Navigating the Employment Cycle
Setting the Stage – ADA & ADAAA
Prohibits discrimination based on disabilities
Covers employers with 15 or more
employees
What is disability?
Reasonable accommodation
ADAAA reverses several court cases
www.asaecenter.orgwww.asaecenter.org
Navigating the Employment Cycle
Interviewing
Concentrate on ability to perform
Religion – “Are you available to work on weekends?”
Citizenship/Birthplace – “Are you
authorized to work in the U.S.?”
www.asaecenter.orgwww.asaecenter.org
Navigating the Employment Cycle
Interviewing
Concentrate on ability to perform
Age – Only questions that verify not a minor
Address/Residence – “Can you be reached
at this address? If not, would you care to leave another?”
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Navigating the Employment Cycle
Interviewing
Concentrate on ability to perform
Marital Status/Family – “Whom should
we contact in case of an emergency?”
Arrests & Convictions – Check state law!
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Navigating the Employment Cycle
Hiring
Background and reference checks
The Fair Credit Reporting Act (FCRA)
Pre-employment testing
Affirmative Action
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Navigating the Employment Cycle
Hiring
RecommendationsUnderstand the 21st Century workforce
Understand the law of pre-employment screening
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Navigating the Employment Cycle
During Employment
Evaluation and Feedback
Develop Proactive Strategies to Minimize Harassment and Discrimination
Investigations
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Navigating the Employment Cycle
During Employment
Documentation
Immigration issues
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Navigating the Employment Cycle
During Employment
Policies Employee Manual – Good or Bad? “Probationary” v. “Initial Employment” Period Workplace Romance; “Love Contracts” Favoritism
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Navigating the Employment Cycle
During Employment
Policies Use of email, Internet, communication systems
Corrective action – disciplinary options
Gifts and honoraria
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Navigating the Employment Cycle
Termination
Best Practices
Analyzing risk
Preparation
Conducting the meeting
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Navigating the Employment Cycle
Termination
Processing
Confidential information
Severance issues
Final paycheck/accrued unused vacation
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Navigating the Employment Cycle
Termination
Processing
Continuing benefits
Returning company equipment and
recouping money owed
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Navigating the Employment Cycle
Termination
Employment references
Revisiting prior termination decisions
Dealing with an EEOC charge
Decision to litigate
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Contact Information
Lance Gibbons, Esq., Of Counsel , Littler Mendelson [email protected] (202) 789-3423
Michael Buddendeck, Esq., Asst. General Counsel, [email protected] (919) 402-4925
James A. Woehlke, Esq., CAE, General Counsel, [email protected] (212) [email protected] (845) 797-9518
SEE YOU NEXT YEAR!Annual Meeting & Expo
August 21 - 24, 2010Los Angeles, CA