Here is a helpful overview of employment law basics, designed to help employers navigate the waters of employee relations. By Bob Hoffer, DBL Law

1. What Every Employer Should Know
Employment Law Basics
May 14, 2013
Robert Hoffer, Esq.
Dressman Benzinger LaVelle psc
rhoffer@dbllaw.com
(859) 341-1881

2. INTERVIEW - HIRING PROCESS

3. Permissible & Non-Permissible
Interview Questions…
 EDUCATION
- Questions regarding education/training are
acceptable if there is a business reason
- Employer should not require a higher level of
education than necessary

4. Permissible & Non-Permissible
Interview Questions…
 MARITAL STATUS
- Questions regarding marital status, pregnancy, future child
bearing and children are illegal

5. Permissible & Non-Permissible
Interview Questions…
 DISABILITY
- Cannot ask if person has any disability
- Cannot ask about previous workers’ compensation claims
- Can inquire whether applicant can perform essential
functions
- Can inquire whether applicant can meet the requirements of
the employer’s work hours, overtime hours and attendance
policies

6. After the Interview…
 Review application
 Review interview notes
 Follow through with reference checks and confirmation
of educational background
 Be consistent with all applicants
 Retain applications and all notes for one year
 Do not make promises or guarantees for job
 Offers (verbal and in writing) should be consistent
 Do not want to change at-will status

7. DOCUMENTATION TIPS

8. How to Document Correctly
DO NOT PUT ANYTHING IN WRITING THAT YOU
WOULD NOT WANT A JURY OR JUDGE TO SEE

9. Document Poor Performance
 Maintain a cumulative record of ongoing employee
performance
 Tell employees the consequences of failure to improve
 Document employee warnings & assessments
 Document attendance & tardiness
 Document your expectations

10. Personnel Documents
 In legal/administrative proceedings, documents are
discoverable
 Focus on facts, not opinions or conclusions
 Avoid off-hand comments about age, sex, religion, etc.
 Do not send strategy in e-mails

11. Employee Response to Discipline
 Employee should be given opportunity to respond
 Employee should be interviewed and this should be
documented
 Employee should be presented with the facts

12. How to Document Correctly
 Date the document with month, date and year
 List the name and job title of individuals present in a
meeting
 Refer specifically to a policy if applicable
 Avoid personal opinions or beliefs
 Avoid sarcasm
 Preparer need sign and print name
 Complete documents close to time of the event

13. Employee Evaluations
 Evaluations should be done regularly
 Reviewed by employee & supervisor
 Signed by employee
 Signature does not have to signify that employee
agrees, only that it was reviewed by employee &
supervisor
 Allow employee to write a response

14. Tips for Good Evaluations
 Remove subjectivity if possible
 Written statement of performance should be included on
appraisal
 If ranking system is used, give written description to
support ranking
 Results should be reviewed with employee and employee
should sign
 Refusal to sign should be documented with a witness
 Be honest

15. Steps for Termination
 All terminations should go through HR and be pre-
approved
 Employee should be notified of termination in person
with at least 2 company representatives present
 Do not apologize to employee
 Be straightforward, compassionate & sincere
 Tell the employee the basis for the termination
 Say no more than is necessary
 Document the termination including employee’s reaction

16. Giving References
 All references go through HR
 Best Policy - verify dates of employment and give no other
information
 Bad reference could result in defamation action against employer
 No duty to advise of employee’s shortcomings
 Have one person responsible for reference checks (HR)
 Letter of recommendations should not be done
 Be wary of LinkedIn recommendation

17. Discrimination
 Ohio is an employment at-will state
 Discrimination laws and public policy are exceptions to
employment at-will
 Examples of federal and state discrimination laws
 Title VII
 Age Discrimination in Employment Act
 Americans with Disabilities Act
 Family and Medical Leave Act
 State civil rights laws

18. Discrimination
 Cannot discriminate in any terms of employment on
basis of:
- Age (over 40)
- Sex
- Race
- National origin
- Religion
- Disability
- Veterans’ status

19. Title VII of the
Civil Rights Act of 1964
 Applies to employers with more than 15
employees
 Prohibits discrimination on the basis of race,
color, sex, national origin and religion
 Applies to hiring, discipline, discharge,
benefits and other terms and conditions of
employment
 300 day statute of limitations with EEOC for
federal law

20. Religion Discrimination
 The employer may not discriminate as to other terms
and conditions of employment (i.e. salary/benefits)
based on an employee’s religious belief
 Employers must accommodate sincerely held
religious beliefs of an employee
 Title VII protects unconventional as well as
traditional beliefs
 An employer may not coerce employee participation
or non-participation in religious activities

21. The Sick Employee
ADA/FMLA Issues

22. Sick Employees - Beware
 Be knowledgeable of FMLA/ADA issues
 Can terminate sick employees for violating
attendance policies if ADA and FMLA do
not apply

23. Disability
Americans with Disability Act
 Employers may not discriminate against
qualified individuals who, with or without
reasonable accommodation, can perform the
essential functions of the job

24. Disability Discrimination
 Definition of a disability:
 Substantial impairment of a major life activity
 A record of such a disability
 Regarded as having such an impairment
 Major life activities:
 Caring for oneself, performing manual tasks, walking, breathing,
seeing, hearing, speaking, learning, working, eating, sleeping,
bending, reading, concentrating, thinking and communicating
 It is a vague definition that has created a lot of litigation

25. Disability Discrimination
 Reasonable accommodations must be given if
requested
 These may include:
 Modified policies and procedures
 Modified equipment
 Part-time or flexible schedules
 Additional leave
 Transfer to a vacant position
 Reassignment of non-essential functions
 A determination of accommodations should be done
for each disabled employee.
 Must engage in interactive discussion

26. Whose Responsibility is it to
Request/Identify Accommodations?
 It is the employee’s responsibility to request a
reasonable accommodation such as leave time
 Employers should not ask or assume an
employee has a disability or needs an
accommodation unless the need is obvious
 Employers should focus on job performance not
what may be causing poor job performance

27. Protecting Against Disability
Discrimination Claims…
 Once the employee requests an accommodation, the
employer must engage in an interactive process with
the employee
 Purpose of interactive process is to identify precise
limitations resulting from disability and potential
accommodations
 Document requested accommodations and offers made
by the employer
 Ask employee to provide request for accommodation in
writing
 All requests need not be granted but must be considered

28. Family & Medical Leave Act
“FMLA”
 This Act provides eligible employees up to 12 weeks of job-protected
leave annually to use for
 Pregnancy
 Prenatal care
 Serious health conditions of the employee or his/her immediate family
 An employee must physically work:
 1,250* hours (average of 25 hours per week) during the 12 months prior
to the leave
 Work at a location where at least 50 employees are employed within 75
miles
*1250 hours is actual hours worked (exclude vacation, sick time, etc.)

29. Reinstatement
 Employee must be reinstated to same duties, rights,
benefits and pay.
 This includes same shift unless employee agrees to
different start/end time
 Must hold employee’s job

30. Serious Health Condition…
 Inpatient care for any length of time
 Absence greater than 3 days
 Two visits to a health care provider or
 One visit and ongoing treatment
 Pregnancy or prenatal care
 Chronic condition (e.g. asthma)
 Must see provider at least 2 times per year
 Permanent or long-term condition (Alzheimer’s)
 Condition that requires multiple treatments
(cancer/chemotherapy)

31. Military Leave
 Military leave
 Deployment – leave to get family and service member
ready (12 weeks)
 Care for injured service member (26 weeks)

32. Discipline or Terminate
with Caution!
 When, how and under what circumstances may an employer
discharge the employee for absenteeism?
 Cannot include FMLA time in absences or time that should have
been FMLA time
 FMLA protection does not extend to any dishonest acts an employee
might perform in connection with FMLA leave
 Violation of company policy
 Misuse of leave
 Moonlighting

33. Medical Certification
 Employers can request medical certification from a health care
provider
 Always request a certification
 Certification can come from a doctor, chiropractor, midwife,
etc.
 Must notify employee that certification is required
 Once certification is returned, employer must send second notice
confirming leave (Designation Notice)
 If no certification is returned, may count it as an absence

34. Individual Liability & Your Protection
 You can be held personally liable, even if you are doing
your job!
 Use caution in dealing with attendance issues
 Supervisors should consult with HR to get clearance for
any disciplinary action against someone who has taken
or has requested leave

35. HARASSMENT ISSUES

36. Harassment
 Federal and state laws prohibit harassment
on basis of race, color, sex, national origin,
religion, disability and age
 It is more than sexual harassment
 It is a broad definition

37. Two Forms of Harassment
 Quid pro quo (this for that)-some benefit of employment
in exchange for a sexual favor.
 Hostile Environment (most common)
 Conduct that is severe or pervasive to alter the
conditions of employment
 Unwelcome conduct
 Can be on basis of race, sex, disability, age, religion or
any other protected category

38. Hostile Work Environment
Courts consider the totality of circumstances
 How often were the comments and/or touching?
 Was one person in a supervisory capacity over the other?
 How severe or egregious were the comments and/or
touching?
 What is the tenure of the employees?
 Have there been other complaints about the same
person?
 Does either person have a motive to lie?

39. Courts are more likely to find hostile work
environment where there is:
 Pornography
 Vulgarity
 Touching
 Sexual propositioning
 Degrading comments
 Embarrassing or personal
questions
 Sexual jokes
 Terms of endearment

40. Discussions in Workplace
 Employees should not be discussing items of a
sexual nature
 Sexual banter and joking is not proper in the
workplace
 Never assume any discussion is private with
another employee

41. Harassment Policy
 Written procedure for employees, clients or visitors to
file complaints
 Employees should put the complaint in writing
 This writing is for the protection of the employer and to
allow a complete investigation into all allegations
 If employee refuses, second best option is to write down
complaint and have employee sign

42. Harassment Policy
 More than one person should take complaints
 Confidentiality cannot be promised
 However, only those with a need to know should be
involved
 It is very important to confine the investigation as much
as possible
 The fewer people involved, the less liability

43. Reporting Harassment
 When a supervisor or manager receives a complaint,
he/she should immediately notify HR or management
 Once a complaint is stated, it MUST be investigated-no
privacy in complaint
 A company cannot ignore a complaint even upon request
from the employee

44. How a Complaint is Handled
 HR/Management will:
 Obtain a written complaint from the complaining
employee
 Investigate the allegations by reviewing the facts,
interviewing the persons involved and any witnesses
 Ask the person complaining what the preferred
resolution is
 Important to get details: where, when, who
 Obtain any other evidence (notes, e-mails, etc.)

45. Harassment
 Employer’s Responsibility:
 Proper investigation and resolution (even post-
termination)
 Take ALL complaints seriously
 Follow the company’s policy
 Schedule a follow-up meeting with person complaining
 Assure that harassment has stopped
 Assure that no retaliation has occurred

46. Investigation Notes
 The investigation notes are not privileged and
completely discoverable
 Documents may show up later at legal/administrative
proceeding
 Focus on facts, not opinions or conclusions

47. Retaliation
 If an employee makes a complaint of harassment, he/she
has legal protection from retaliation
 Employees cannot suffer an adverse action because of
the harassment complaint
 All witnesses must be told not to discuss the
investigation
 If employees are discussing the complaint, discipline
should occur
 The alleged harasser must be told not to discuss the
complaint

48. E-mails & Text Messages
 E-mails and texts are discoverable in legal proceedings
 Do not use e-mail to report harassment or discuss a
harassment complaint
 Employees should not be using work e-mails to forward
jokes or anything inappropriate
 Employees should not use text messages to send
inappropriate messages
 Counsel employees who are using e-mail or texts
inappropriately

49. Social Media
 Use of Facebook with employees is increasing
 Facebook posts can be problematic
 Postings on Facebook or other sites can be the basis for a
harassment claim
 Public information can be basis for discipline

50. Workplace Etiquette for Employees
 Be Professional
 Consider whether you would want your remarks quoted or your
actions videotaped
 Consider whether you want others to read your e-mails
 If not, reconsider whether your behavior is appropriate
 Be Courteous
 No obscene language
 No dirty jokes
 No terms of endearment
NO TOUCHING!

51. Social Media Issues

52. Twitter, Facebook, MySpace,
LinkedIn and Other Social Media
 Can employers regulate what an employee posts on the
Internet if the posting is done while off-duty?
 Should be some connection between off-duty conduct
and impact on employer
 There are many factors to consider
 It depends on:
 where the information is
 what the information is
 what type of employer you are

53. Laws That May Restrict Use of Social Media
 There are federal and state laws that come into play
 National Labor Relations Act
 Protects the rights of employees to form unions, engage in
collective bargaining, organize strikes and engage in concerted
activities
 If activity is concerted, it is protected.
 To be concerted, it must be related to an ongoing labor dispute
and must not be disloyal, reckless or maliciously untrue
 An example would be employees complaining about wages or
work conditions or attempting to unionize
 Applies to union and non-union employers

54. Thank you!