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Small Employer Worksite Wellness

Small employers need worksite wellness programs too. As a small employer, you care about and want healthy employees don’t you?

Wellness programs have traditionally been the province of the large employer, basically leaving the smaller employer out of today’s explosion in employee health management.

This is unfortunate as the small employer needs wellness programming just as much as the large employer. Small employers make up the majority of US employers and employ a large percentage of today’s workforce. I am defining small employer as being an employer with less than 100 employees.

Traditionally within worksite wellness, each employer creates, for the most part, their own internal, stand-alone program utilizing internal employer based resources, or the resources provided by a contracted vendor, such as the health insurance company or a wellness program vendor. This independent, self-sufficient model is not, in my opinion, either viable nor the best strategy for the small employer to employ.

There is certainly no reason why a small employer cannot, on their own, create their own internal, stand-alone program utilizing internal employer based resources, or the resources provided by a contracted vendor, such as the health insurance company or wellness program vendor.

Another strategy a smaller employer might be to still go it alone by putting together programming based on free or low-cost Internet-based interventions. This strategy, while maybe being a low-cost strategy in terms of dollars actually spent, is a high cost strategy in terms of the time and energy required to put all the various interventions together into a cogent implementation plan and then executing the plan. The smaller employer would probably find this time and energy to be better used though elsewhere in the business.

Five alternative worksite wellness program models a small employer might utilize involve cooperation, collaboration, anchor model, cluster program model and an employer – community partnership model.

Cooperative Model

In the cooperative model, small employers would band together to deliver a wellness program to their collective employees through some type of cooperative agreement. Each employer makes a contribution in the cooperative model, with the nature and size of the contribution potentially varying with each employer. While potentially better than going it alone, the cooperative model presents challenges such as:

• The collective contributions may still fall short of what is needed for the cooperative to institute a successful program on its own

• A cooperative approach would not address any unique needs an individual employer may have based on the uniqueness of their workforce or work environments

• An employer would not necessarily bring its strengths to the cooperative process. What is lost when an individual employer’s strengths are not utilized in the process?

Collaborative Model

In the collaborative model, small employers also band together to deliver a wellness program to their collective employees through some type of collaborative agreement. Through a collaborative arrangement, each employer contributes their strengths to the process. While potentially better than going it alone and a cooperative agreement, the collaborative model also presents such challenges as:

• The collective contributions may still fall short of what is needed for the collaborative members to institute a successful program on their own

• A collaborative approach would also not address any unique needs an individual employer may have

Anchor Model

The anchor model is based on the anchor store concept found in shopping malls. In this model, a larger employer serves as the anchor for a wellness program that includes both the anchor company and the anchor employer’s nearby smaller employers. I see this model as being best suited for a shopping center, or an industrial or commercial park.

Cluster Model

The cluster model could involve either a cooperative or collaborative arrangement between neighboring businesses. I see this model as being best suited for a main street or designated section of a downtown.

Employer – Community Partnership Model

I believe this is a much better model for the small employer to undertake. In this model, the level of employer linkage to community based resources and programs decreases as the employer grows in employee size.

Rescinding Of A Determined Employment

With the right to employment comes another essential related right which is the right to choice of one’s employment. The right to choice of one’s employment gives the freedom to people to undertake work of their own choice and not toil in the field in which they do not wish to put their labor. Laboring against the will of one’s self can be considered to be forced labor which is illegal in UAE and most of the other countries in the world. Employment contract is an agreement between the employer and the employee where the employee agrees to work for the employer for a fixed period of time and for a specific job – role. Employment contracts sometimes do not fix the duration of employment in which case the contract is known as an undetermined contract whereas determined employment contracts are contracts that bind the employee to the employer for a fixed period of time. Employment contracts are not considered as forms of forced labor as both the employee and employer willingly enter into it but in the long run it may be considered as forced labor as the main aim to fix a duration is to ensure that the employee does not leave the employment before that duration even if he wishes to and therefore once the employee signs an employment contract he has to work for the employer for the number of years fixed by the employment contract and the employee loses his right to leave quit the employment before that period. Though this is not considered forced labor it is in reality a different form of forced labor behind the veil of an enforceable contract.

In the United Arab Emirates the right to employment and all related rights enumerated in its rich constitution is only limited to the nationals of the United Arab Emirates whereas the rest of the people who live here as expatriates have to solely depend on employment contracts and therefore become the victims of the veiled forced labor. The present article discusses the regulations enumerated in the labor law1 for ending the employment and the consequences of breach of employment contracts of fixed duration.

According to the labor of the UAE the employer may on grounds enumerated in article 120 of the federal law no.8 of 1980, rescind the employment contract without giving notice. The grounds enumerated for rescinding of the employment without notice are as under:

1. In case the worker assumes a false identity or nationality, or submits false certificates or documents.

2. In case the worker had been appointed under probation, and the dismissal had taken place during or at the end of the probation period.

3. In case the worker commits an error resulting in colossal material losses to the employer. In such cases the Labor Department should be notified of the incident within 48 hours of the knowledge of the occurrence thereof.

4. In case the worker violates the instructions related to the safety at work or in the work place, provided that such instructions were written and posted in a prominent location, and that the said worker is notified thereof if he be an illiterate.

5. In case the worker fails to perform his main duties in accordance with the employment contract, and thereafter fails to remedy such failure despite a written investigation on the matter and a warning that he would be dismissed in case of recidivism.

6. In case the worker divulges any of the secret of the establishment where he works.

7. In case the worker convicted in a final manner by the competent court in a crime relating to honor, honesty or public ethics.

8. In case the worker is found in a state of drunkenness or under the influence of a narcotic during work hours.

9. In case the worker assaults the employer, responsible manager or co – worker during the work hours.

10. In case the worker remains absent without valid cause for more than twenty non – consecutive days in one year, or for more than seven consecutive days.

In case none of the above circumstances described applies to a case yet the employer terminates the employment of the worker without notice before the expiration of the determined employment contract, the employer has to provide compensation to the employee for the same. The compensation amount that is provided to the worker by the employer is in lieu of the damages suffered by the worker due to the premature termination of the employment. The law provides for a limitation to the amount of compensation which is limited to the total wage due for the period of three months or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Therefore this provision is subject to the terms of the contract. Many times the contract has liquidated damages fixed for specific breaches; in such cases the damages awarded do not exceed nor are less than the liquidated amount.

Similar provisions are also provided in case the worker decides to leave the employment before the expiration of the employment contract. The worker may leave the employment before the expiration of the contract without notice if the following circumstances prevail:

1. In case the employer breaches his obligations towards the worker, as set forth in the contract or the law.

2. In case the employer or the legal representative thereof assaults the worker.

In case the two circumstances mentioned above do not prevail and yet the worker leave the employment prior to the expiry of the employment contract, the worker is be bound to compensate the employer for the loss incurred by him due to the rescission of the contract. The compensation amount is limited by the law to not exceed the wage of half a month for the period of three months, or for the remaining period of the contract, whichever is shorter, unless otherwise stipulated in the contract. Thus here too the terms of the contract if any regarding this matter shall be made applicable in a manner similar as it is explained above regarding termination of employment contract by employer.

These provisions mentioned above hold good only to the citizens of UAE, for the rest of 88% of the population the provision stipulated in article 128 of the law2 applies. Article 128 provides that in the event of a non – national worker to leave his work without a valid cause prior to the end of the contract with definite term, he may not get another employment even with the permission of the employer for a year from the date of abandonment of the work. It further provides for a warning for the employers that they may never knowingly recruit the worker or retain in his service during such period. The Non – national workers may be exempt from such penalties if they can secure an authorization of the original employer and after submitting such authorization in the ministry of labor and social affairs, attain the consent of the ministry for the new employment.

What Is Co-Employment and How Can It Benefit Your Business

Employers encounter a wide range of business jargon and terms throughout their day. Some are less common than the next. “Co-employment” is one such term. What exactly is co-employment, and how can it benefit your business?

The term co-employment loosely refers to any relationship in which an employee is employed by more than one employer. While this may sound strange or uncommon, it in fact happens more than one might expect. This relationship typically falls into one of three categories:

  1. Joint-Employer
  2. Employer-of-Record
  3. Professional Employer Outsourcing (or Organization)

1) Joint-Employer

When an employee works for two employers simultaneously, and in the best of interest of both employers, these businesses are known as joint-employers.

An example of this type of relationship made the news recently when a manager for two small regional airlines sued one of his employers for FMLA violations. This employer only had 30 employees and therefor fell below the minimum FMLA threshold of 50 employees. The employer denied the claim on these grounds. However, the litigant simultaneously worked for another airline, which employed over 300 employees – well over the FMLA limit. The courts determined that the employee was co-employed equally by both businesses – both logos appeared on his business card, he represented both companies in negotiations, and his name appeared on both business directories. The court found the employee’s FMLA rights were indeed violated as the co-employer relationship between the businesses pushed their total over the 50 employee limit.

This type of relationship may in fact pose more of a risk to one employer or the other, as their combined employee size may expose them certain employment regulations that only apply to higher employee thresholds. Employers who co-employ workers should weigh the benefits of this type of relationship against some of the increased risks they may face.

2) Employer-of-Record

Another co-employment relationship can found with temporary staffing or contingent workforce relationships. This is also known as Employer-of-Record (EOR).

In these relationships, the staffing or contingent workforce firm acts as the EOR which legally employs their clients’ temporary or contingent workforce. The EOR hires and provides temporary staff to their clients, usually for short-term projects or seasonal work. In so doing, the EOR assumes all the core employment responsibilities typically shouldered by the business. This includes administering much of the IRS and HR regulatory compliance related to employees. The EOR issues their pay-checks, pays the associated payroll taxes, files the relevant quarterly and year-end taxes, covers the employees with workers’ compensation insurance, manages the employee benefits and administers unemployment claims and insurance.

Through this type employment relationship, the EOR protects its clients from a wide range of employment regulations and risks. The EOR manages workers’ compensation claims, hires, on-boards and terminates employees, performs background checks, and handles general employee relations activities for the contingent workforce.

For employers who need short-term staff but don’t want the hassle of recruiting, hiring and managing these employees, the Employer-of-Record route may be the perfect solution.

Termination of Employment in Cyprus

The Employment Law (100(1)/2000) in Cyprus includes both statute and case law. Specifically, Cyprus statute law contains issues related to the termination of employment, paid leave, annual social insurance, maternity leave, equal treatment at work e.t.c. The Labour Disputes Courts deals with issues related to the rights of employees and employers.

The Employment Law applies to every employee who has a contract or employment relationship in the private, public and semi-governmental sector.

The Employment Law does NOT apply to:

· employees whose total period of employment is less than one month;

· employees whose total hours of employment is less than eight hours in a given week;

· employees whose employment is of a casual nature and/or particular nature under the condition that in these cases the non-application of the Law is justified by objective reasons;

In this article, our employment lawyers will present the primary aspects of termination of employment in Cyprus, i.e. notice period, unlawful termination of employment and redundancy.

Under the Termination of Employment Law (24/1967), an employer intending to dismiss an employee, who has completed at least 26 weeks of continuous employment, is obliged to give the employee a minimum period of notice based on the length of his/her service, as illustrated below:

26 -51 weeks work (6 months- 1 year)

One week notice

52 – 103 weeks work (1-2 years)

Two weeks notice

104 – 155 weeks work (2-3 years)

Four weeks notice

156- 207 weeks work (3-4 years)

Five weeks notice

208 – 259 weeks work (4-5 years)

Six weeks notice

260 – 311 weeks work (5-6 years)

Seven weeks notice

More than 312 weeks work (more than 6 years)

Eight weeks notice

Unlawful termination of employment:

Following the Termination of Employment Law, an employee whose employment has been terminated unlawfully after completing 26 weeks of continuous employment with an employer is entitled to receive compensation. In addition, an employee who quit his/her job due to his/her employer’s conduct is also eligible to receive compensation. Second of all, it should be clarified that the amount of compensation is determined by the Labour Disputes Court following an application by the employee.

When assessing the amount of compensation, the Court takes into account the following criteria:

· The remuneration of the employee;

· The duration of employee’s service;

· The restriction of employee’s career prospects;

· The age of the employee;

· The circumstances of employee’s dismissal;

An employee cannot claim compensation if he/she terminated his/her employment for one of the following reasons:

· In case the termination of employment held as an outcome of redundancy, Act of God, war, riots, extreme weather conditions, etc.;

· In case of dismissal due to redundancy;

· In case the employment is terminated at the end of fixed-term contract;

· In case the dismissal is due to employee’s fault;

How to receive compensation for unlawful dismissal:

Submitting an application for unlawful dismissal compensation requires a professional legal support. An employment lawyer will assist you with all the necessary legal and administrative procedures so that to help you to get the compensation you deserve. Therefore, if you wish to receive a customised legal support contact one of our lawyers.

Redundancy:

The amount of redundancy payment is calculated as illustrated below:

Period of continuous employment

Amount of redundancy payment

Up to 4 years

2 Weeks wages for each year of continuous employment

More than 4 and up to 10 years

2.5 Weeks wages for each period of continuous employment

More than 10 and up to 15 years

3 Weeks wages for each year of continuous employment

More than 15 and up to 20 years

3.5 Weeks wages for each year of continuous employment

More than 20 and up to 25 years

4 Weeks wages for each year of continuous employment

How to claim redundancy payment:

In order to get payment from the Redundancy Fund, the employee must make a claim on the prescribed form, that can be found on Social Insurance Offices, Citizen’s Service Centre and the official website of the Ministry of Labour and Social Insurances.

Employment Law Basics for Hawaii Employers

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.” However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I. The Importance of Having an Effective Harassment Policy

A. The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”

The importance of the affirmative defense was significantly increased by a U.S. Supreme Court’s decision in which the Court held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.

B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.

(1) Write in simple English.

(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.

(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.

(6) Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7) State that employees who report prohibited conduct will be protected from retaliation.

(8) State that the employer will promptly investigate the matter in an objective and discrete manner.

(9) Provide the form of disciplinary action to which offenders can expect to be subjected.

(10) State that the employer will also take remedial action.

(11) Train your management employees and line employees on the policy and procedure.

(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.

C. The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D. Problem Areas for Employers

1. Failure to disseminate policy

2. Inadequate complaint procedure

3. Employer on notice of harassment

4. Failure to promptly investigate

5. Failure to take appropriate disciplinary action

6. Failure to apply it even-handedly

7. Failure to review and revise when necessary

8. Failure to provide training

E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In a recent decision, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.

II. The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A. Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law-especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B. Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C. Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D. Training to Reduce Exposure to Punitive Damages

The U.S. Supreme has Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.'” Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Effective Pre-Employment Background

In today’s competitive economic environment, firms cannot afford to be side-tracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers have increasingly turned to pre-employment screening as a critical risk-management tool to try to avid hiring problem employees in the first place.

At the same time, companies are becoming more cost conscious as well. Despite the obvious benefits of pre-employment screening, management often expects security and human resources professionals to produce more results with fewer resources. The challenge facing security and human resources professionals is finding ways to implement an effective pre-employment screening program that is also cost-effective.

Such a program has four goals:

– First, the program must demonstrate that an employer utilizes due diligence in hiring. That means that an employer takes reasonable steps to determine a job applicant is fit for the job. This can protect an employer from claims of “negligent hiring.”

– Second, effective screening obtains factual information about a candidate, to supplement the impressions obtained from an interview alone. It is also a valuable tool for judging the accuracy of a candidate’s resume.

– Third, effective pre-employment serves to discourage applicants with something to hide. An applicant with serious criminal convictions is less likely to apply at a firm that announces it does pre-employment background checks.

– Finally, a background-screening program should encourage applicants to be very honest in their applications and interviews. Since applicants are told there is a background check, they have a motivation to reveal information about themselves they feel may be uncovered with a check.

Many firms view pre-employment screening as a process that starts after an applicant has been selected by a hiring manager or department, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. In a typical screening program the emphasis is on checking for criminal records, as well as other background searches that are commonly available.

An effective background-screening program, however, is much more then just checking criminal records after a candidate has been selected. In fact, an effective background screening program starts even before the first resume is received or the first interview is conducted. It requires a company-wide commitment to a safe hiring by everyone involved with hiring. Recruiters, hiring mangers and interviewers must understand safe hiring practices are not something someone else takes care of after they make a hiring decision. It is part of their responsibilities as well.

The following steps can increase the effectiveness of a screening program. However, they all take place before a hiring decision is made and before a background report is requested. They also take relatively little time and money compared to the benefits a firm receives.

These nine steps rely upon two vital factors. First, they utilize multiple and overlapping tools that approach the task from different directions. There is no one screening tool that all by itself guarantees an effective screening program. Second, they require the department in charge of background screening to recruit and educate everyone in the hiring process to become involved in safe hiring, starting with the person who places ads in the newspaper.

These nine steps are:

1. Job announcements, such as newspaper ads, should clearly indicate the firm requires background checks. This discourages an applicant with something to hide by clearly stating in the public announcement for a job opening that the company does screening. Employers find good applicants are not discouraged from applying at companies that do background screening. Employees are just as anxious as employers to work in a safe environment with qualified and honest people.

2. All applicants must sign consent for a background check, including a specific consent for criminal records at the time they submit an application or resume. This serves two vital functions in the screening process. First, it makes it very clear to a job applicant that criminal records will be searched. An applicant with a criminal record they want to hide may apply instead with a firm that does not perform screening. Second, some individuals may voluntarily disclose a prior difficulty. For some positions, a minor criminal violation honestly disclosed may not necessarily eliminate a person from consideration if the criminal offense is not related to the job.

There are some companies that do not use application forms, but instead hire based upon resumes. In that situation, a company can prepare a supplemental release form for the applicant to complete and sign. Some firms include a supplemental sheet in their applications asking a candidate specifically if they have any concerns about a background screening and whether there is anything they wish to bring to the company’s attention. This is an excellent device to focus applicants on the fact a thorough investigation will be conducted as part of the hiring process.

3. Include language in the consent concerning a release of records from foreign countries. Doing pre-employment screenings and criminal record checks in foreign countries can be difficult and expensive, and in many instances are not even possible. One approach, however, is to add specific language to a background form indicating the release to search for criminal records also applies to any jurisdictions outside the United States. That may cause applicants from abroad to either self-disclose problems or apply elsewhere.

4. Applicants should be asked directly if they have a criminal record in the interview and employment application. It is crucial that applicants be asked directly during the process if they have a criminal conviction or pending case. Ideally, that language should be in the employment application. During oral interviews, part of the standard questioning should be, “If we were to check with the courts, would we discover any criminal convictions or pending cases?”

In asking about criminal records, employers should keep the following in mind:

a. Always ask the broadest question allowed by the law in your state. Some employers are under the mistaken belief they can only ask about felonies. However, misdemeanor convictions can also represent serious crimes, and should be included as allowed by state law.

b. Employers should carefully phrase the question in order to not elicit any information about arrests not resulting in convictions. Employers are generally limited to convictions or pending cases.

c. Ask the applicant to describe any convictions or pending cases and give the specific location. This allows the employer to pull the court file and to determine if the applicant is truthful about the nature of the criminal case. It is also critical to ask for the exact location so the employer or background checking company knows exactly what court to search.

d. In any written application or release asking about criminal convictions or pending cases, the form also should contain the language to ensure compliance with discrimination laws. For example, “This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company, however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

5. The employment application must clearly state that any false or misleading statements or material omissions is grounds to terminate the application process, or to terminate employment if it has begun, regardless of when the information is discovered. This is another critical part of an effective program. Employers generally cannot deny employment automatically because of a criminal conviction without taking certain factors into consideration. However, where a person has lied on their application by not admitting a prior criminal conviction in a response to a direct question, the lack of honesty is a valid reason for a rejection. An applicant needs to clearly understand dishonesty can lead to termination no matter when it is discovered.

6. If the background screening may not be completed before the start date for the position, make sure the applicant understands any employment is conditioned upon the employer’s receipt of a background report that is satisfactory to the employer. Sometimes employment will begin prior to the background report being completed. In those situations, it is important to notify the applicant, preferably in writing, that employment is subject to the employer’s receipt of a background report. It is also important the employer clearly state the background report is subject to the employer’s satisfaction only, so a job applicant cannot debate whether a report is satisfactory or not.

7. Check past employment references. Checking references is an essential part of the screening process. In fact, it can be just as valuable as a criminal records search. It would be difficult, if not impossible, to defend an employer sued for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date and job title, that information is still invaluable. The primary purpose of such a search is to confirm an applicant’s whereabouts for the past five to seven years and to make certain there are no unexplained gaps in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.

It also assists an employer in determining what jurisdictions to search for criminal records. This is important because there is no such thing as a national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look.

Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.

8. Obtain a listing of all past addresses. Another important step is to include on the consent form a listing of all addresses for the past seven years, as well as the approximate time at each address. This not only reinforces in the applicant’s mind that the company is serious about screening, but it assists the employer in determining which jurisdictions to search for criminal records.

9. Include future screenings in the consent language. Every consent form should include language that the consent for a background screening allows for future background checks for purposes of promotion, reassignment or retention, unless otherwise revoked in writing. This serves three important purposes. First, it reinforces the idea the employer is serious about maintaining a safe workplace. An employee is on notice that they are subject to future investigations. Second, this language facilitates future investigations if necessary for claims of harassment, theft, violence or other difficulties. Finally, the language is also important due to recent interpretations of the federal Fair Credit Reporting Act, the federal law that governs pre-employment screening by outside agencies. This language in the release form makes it easier for an employer to utilize the services of an outside agency to conduct future investigations if workplace issues arise.

In addition to these nine steps, an employer also must perform additional checks to satisfy due diligence. The most important of these are courthouse searches for criminal records. There are other checks that can be performed as well. However, these preliminary steps that occur before a person is even hired can dramatically increase the effectiveness of a screening program. These steps also have the advantage of promoting workplace safety with very little additional costs. By enlisting everyone in the hiring process from the beginning, firms can dramatically increase the effectiveness of their screening programs.

Employment And Severance Scenarios

In prior articles I have alluded to the fact that many people think being an entertainment lawyer is a romantic existence. Yet the brass-tacks principles of employment law and the harshness of employee severance and termination scenarios often overtake that romanticism. Being an entertainment lawyer entails a lot more than hanging-out with talent backstage or on the tour bus. In prior articles I have also alluded to the fact that artists often have “day jobs” providing their paying employment to subsidize their artistic ventures. As a New York entertainment attorney who grew up in a show business family in the midst of performers, I’m used to this. Most of these artists intend to abandon these day jobs, with or without an employment severance package, once they get signed to a development deal, record contract, or otherwise “make it”. But what happens in the meantime? What if an artist works for a company that intends to jettison him or her as an employee, rather than the other way around? What if the company counts on using an employment severance package as a hedge against risk of an after-occurring wrongful-termination lawsuit?

These past few years have comprised a particularly bad time in terms of employee and contractor lay-offs and firings. As a working entertainment lawyer in New York I have seen many artists and others downscale and change jobs in recent years. Many situations which used to prompt a severance package to materialize in the prior decade, do not do so any longer. The fact of the matter is, a large proportion of employees and other workers misplay the handling of their job exit, if and when it occurs in the employment law context. In the interests of employee and worker empowerment before the blue-ink dries on the release and settlement agreement or other severance documents, this article follows. Though written by me as a media and entertainment attorney working with entertainers, the same principles apply to employment work in other industries and sectors.

I suppose that the first rule of employee empowerment is fairly pedestrian-sounding, but vitally important. An employee must read and review every employment document pertaining to his or her job and career, carefully – including the following disclaimer. The employee should secure counsel promptly, if he or she sees any legal issue looming on the horizon which may affect the employee’s career or rights – including legal issues relating to employment and severance packages. As an entertainment lawyer friend and entertainment law professor of mine used to say, “every deal is different”. What applies in one employment context may not apply to the next one. The employee must make sure that he or she seeks individualized legal advice as to any important matter pertaining to the employee’s career or rights generally. It is not uncommon that a soon-to-be-terminated worker starts calling attorneys as soon as offered an employment severance package.

There are attorneys, entertainment attorneys and otherwise, who routinely handle “employee-side” legal matters. A number of attorneys may be able to do so affordably for even a modestly-compensated employee, in the context of a severance proposal or otherwise. An employee-side lawyer should be accustomed to representing people who have limited financial resources, and this is a particularly-familiar fact-pattern for an entertainment lawyer handling artist-side work. There are parallels. And, assuming that one is not a lawyer, one should no sooner handle one’s own legal work than handle one’s own dental or medical needs oneself. The severance and employee-exit scenario most often entails some analysis of employment legal issues governing the exit. Given the economic realities faced by those in the artistic world, all entertainment lawyers need to be familiar with these employment legal issues.

The employee should remember that most employers themselves have in-house or outside attorneys. Indeed, the employment, severance, settlement, release, and exit documents are most often drafted by these attorneys. They may be entertainment attorneys, employment attorneys, litigators, or generalists. However monikered, often an employee’s securing of his or her own counsel is the only way to equilibrate the proverbial scales of justice in a severance or other job-related scenario. Exploitative and even abusive treatment of employees is unfortunately rampant in the employment law context, including at the time of worker exit – particularly in highly-competitive cities like New York and Los Angeles, and in highly-competitive industries like entertainment and media as any entertainment attorney will tell you. The good works and lessons taught by historical pro-labor figures like Samuel Gompers should not go for naught. The employee should not look to the employer, or the vicissitudes of chance, to protect the employee and the employee’s own legal rights in the workplace or in the context of a severance or other exit from employment. Rather, the employee should empower himself or herself, and should not be inhibited in seeking out the advice and opinions of those professionals who handle employee-side legal work for a living.

On to the substance and detail.

The lead singer of a rock band about to step onto a live television set is furnished a “release” for signature five minutes before scheduled air time. The entertainment lawyer representing the singer might cry, “No!”. While this could sound like an entertainment attorney observation meant only for the golden days of the Ed Sullivan Show, the rule of not signing on-the-spot is true in the employment context and across all other subject-matter areas and sectors as well. Like the artist, the employee, too, should never sign any document, employment document, severance document, or otherwise, on-the-spot. The employee should not be bullied into signing on the spot, as a product of fear, or the purposeful manipulation of same by oppressive employers or ex-employers. There are very few situations in life where one truly must sign a document on-the-spot, and an employment-related signature is usually not one of them. One of the only valid such situations that I can recall from my own experience is when an attorney must sign a stipulation on-the-spot before a judge, as the only way to preserve the attorney’s client’s rights. This will not likely be a situation that one will ever have to encounter as an employee or terminated employee in an employment severance context or otherwise. Employers typically offer severance to terminated workers out of fear of being sued by them, meaning that the worker often has more leverage in the employment context than he or she initially thinks.

It is astounding, though, as to how many people make this mistake of “on-the-spot” signing, time and time again, in the entertainment law context, and in the employment severance context and in the workplace and business-world generally – even if these signatories know better. The employee should trust his or her own instincts. If it smells bad, it is bad. If anyone, be it a car salesman, a manager or talent agent you’ve never heard of before, or, yes, an employer offering an employment severance package while terminating your employee services, waves a document at you as panaceatic – you should be suspect. The entertainment attorney’s first instinct is that a document waved at you for on-the-spot signing is not worth to you the paper it is printed on. In the employment context, if the employer presents the employee with a severance document or other document and tries to pressure the employee to sign that document on-the-spot, the instinctual reaction should be similar. The odds are better than 99% that the employer is trying to take advantage of the employee in that latter case – and trying to force the employee to thoughtlessly relinquish in haste valid and enforceable legal rights that the employee already and otherwise possesses.

By comparison, what does an entertainment attorney do, when given or forwarded a document intended for signature in the context of a rights deal, for example? The entertainment lawyer will typically indicate to the party who proffers the document for signature: “Thank you – my client and I will review and respond to this document”. Period. If the “proffering” party then says: “Hey entertainment lawyer, aren’t you or your client going to sign it now?”, the entertainment attorney answers with a flat “No”. Although it is possible that the proffering party will thereafter withdraw whatever offer the document contains and take it permanently off-the-table, they typically won’t. And if they do, it probably was not an offer worth taking anyway. This analysis also applies to written employment severance packages, releases, and settlement agreements, just as it does to talent agreements, agent and manager agreements, car purchase agreements, and just about any other form of proposed contract that one might ever be offered. Again, this rule is by no means entertainment attorney-specific, but instead is generalizable to the employment context and across all sectors and industries.

The protocols of professionalism create an expectation that all parties should be given a reasonable opportunity to review a document, including a proposed employment severance document, prior to either: (1) signing it as written (an extremely unlikely occurrence, by the way, if a good attorney reviews it for the employee); or else (2) responding to the proposed document with a fax, letter, red-line comparison draft, or mark-up indicating the receiving party’s proposed changes. This would normally be the way entertainment attorneys would interact with and between each other on a proposed license agreement, for example. The two entertainment lawyers would expect careful reading and deliberation on either end. If a proffering employer-party in the severance context, however, instead threatens to withdraw the document “since it wasn’t signed on-the-spot”, then they are just being ridiculous and overbearing. The odds are, again, better than 99% that their “non-negotiable” document would have been a legal disaster for the employee to sign as initially proposed. Again, this observation applies to employment severance packages, and most all other forms of proposed draft agreements in most all contexts other than employment, too.

Some employers in the media and entertainment industry context and otherwise even have the unmitigated gall these days to ask employees to prospectively waive their right to a jury trial in the context of so-called “non-negotiable” employment agreements including severance or other exit agreements, as but one type of egregious example of the foregoing. It is jungle out there. If one is asked to sign an employment severance agreement with jury trial waiver or other exit document on-the-spot, it is entirely fair and within one’s rights to say that “I will need to review this document with my attorney”, or “I don’t sign documents of a legal nature without attorney review”. And, if the proffering party disputes the employee’s right to legal representation, perhaps this is someone that the employee doesn’t want to accommodate anyway, on principle. This country’s entire legal history was predicated, in substantial part, on the rights of the individual, and the individual’s right to counsel. The framers of the Constitution worked hard. It would be a mistake to let them down now.

The next rule is a corollary to the prohibition on “on-the-spot” signing: The employee should never believe the employer, when the employer offers a “standard” form of employment severance agreement or otherwise. An entertainment attorney will tell you that “standard” is the biggest lie in the entertainment industry. It should be considered comparably fallacious in the employment context. If the employee wants to empower himself or herself in the workplace and in the commercial world, what the employee needs to do is repeat the following phrase repeatedly, like a mantra: “There is no such thing as a ‘standard form’. There is no such thing as a ‘standard form'”. Because, there isn’t, as any entertainment lawyer should tell you.

Rather, “standard form”, after an entertainment attorney on the receiving end translates it, just means “get over on you”. Similarly, a “standard form” employment severance document is synonymous for “oppressive and one-sided form that takes advantage of the employee”. The employee should remember that the draftsperson of a so-called “standard form” is probably a fairly predatory-minded employer-side lawyer handling the company’s employment severance protocols en masse who is under absolutely no obligation to protect – or indeed even acknowledge or accommodate – the employee’s interests. Indeed, the opposite is true. The employer-counsel’s professional obligation as a member of the Bar handling the employer-side severance work is to be a zealous advocate of only his or her own client’s interests – that is, the employer’s interests only. If the employee signs an employment severance document because the other side tells the employee it is a “standard” or “non-negotiable” form, then the employee might as well be walking off the roof of the proverbial building just because the employee was told to do it. The employee should not trust “standard forms” in the employment severance context or otherwise, or those employers who purport to furnish them. Again, this may be an entertainment attorney observation, but it applies to all workplaces and other contracting situations as well.

The employee should make sure to have retained copies of every single scrap of paper pertaining to his or her employment relationship with any company, up to and including the time of the severance communications. The employee should not trust or rely upon the employer to give the employee copies of – or even access to – those employment documents and the employee’s human resources file, if and when the employee’s work honeymoon period with the employer ends, or if and when the employee’s services are, or are about to be, terminated in a severance or other context. Remember that the Japanese model of “employment for life”, and the antiquarian U.S. model of the gold watch after 40 years of service, just simply do not apply anymore. Severance and parachutes – and these days the absence of them too – often replace the old model of dutiful loyalty.

Our United States work-force is more mobile and transient than it ever has been. The workforce I see as an entertainment attorney practicing in New York, is most decidedly such a miasma. People change jobs all the time, with or without accompanying employment severance packages and exit agreements. The motility of the workforce, by the way, greatly empowers employees to seek out their market-value salary and non-abusive working conditions – so it is not necessarily a bad thing. As a practical matter, in New York or elsewhere, entertainment industry or otherwise, the employee should work with the assumption that the employee will one day have to depart every job ever taken with or without severance, no matter how rosy the employment picture of any job looks initially. If the employee stays at that job until retirement, more power to the employee. But the employee should realize that the statistics indicate this would be an extremely unlikely occurrence in this day and age given current job-market employment conditions.

The employee should make sure that, prior to any severance scenario, his or her exhaustive, fully-complete “job file” is kept at the employee’s home – not in an office desk drawer, not in the company’s file cabinet – not anywhere near the employment workplace. It is astonishing as to how many employees fail to do this simple thing. The employee should remember that the old-fashioned paradigm of “two weeks advance notice and severance” is rapidly becoming a vestige of the past, particularly in the media employment context as I see it from my vantage-point as an entertainment attorney. Many media, software, and other types of employers will now think nothing of having an employee escorted out of the workplace by a human resources rep, or even by security personnel, the day and even moment the employee is terminated. Usually when this happens, the employee is not smiling and holding a severance check when led out of the building towards the parking lot or subway.

Why is this happening? Because employers are becoming increasingly afraid of disgruntled employee (or ex-employee) theft of company material, misappropriation of software, and even sabotage and violence in rarer cases. The employment misappropriation threat is felt particularly by media and entertainment companies, and unfortunately workplace violence incidents are on the rise everywhere. Some employers see the promise of severance – carrot-on-a-stick illusory, or not, as finally offered – to be a hedge against these risks as well. The moral of the story – the employee should keep perfect and thorough contemporaneous documentation of his or her employment file, at home, well prior to any severance scenario.

The employee should save copies of everything – offer letters, acceptance letters, employment contracts, “non-compete” documents, non-disclosure or confidentiality agreements, employee handbooks, time cards or time sheets, performance reviews, expense and reimbursement forms and receipts, insurance and COBRA documents, inter-office memos relating to work and performance, and anything else relating to the employment relationship with the company. The only exception would be, the employee should not remove any material from the workplace which is the employer’s or someone else’s property, or which the employee is contractually or otherwise obligated not to remove from the place of work. As an entertainment attorney handling production matters, I expect this issue to arise often, since an employee will usually depart while at least some non-fungible projects are still in development or production at the employer’s premises. This question of property ownership, intellectual property and otherwise, is sometimes a more difficult judgment to make than it sounds. If ever in doubt – you guessed it – the employee should seek an attorney’s advice prior to any such removal and prior to the closure of the employment severance or other exit documents.

Prior to the severance scenario materializing, the employee should be making thoughtful dated written notes to the employee’s own files and keep them at home, anytime any legally-relevant event happens during employ – such as a supervisor expressing either approval or disapproval with one’s work, or a fellow employee making suggestive or harassing comments in one’s presence. These written notes should be reduced to writing privately, immediately after the event occurs, as opposed to a day or more later. These written notes should quote what was said verbatim (yes, using actual quotation marks, and accurately). The employee should not let these notes merely rely on paraphrases, if possible.

These written notes should be taken home to the extent allowed and feasible, by the employee, on the date of the event so recorded, and should be stored securely in the employee’s employment file at home until ever needed. One would be surprised to learn just how many otherwise-valid employee-side severance-related and other legal causes must be wholly abandoned, simply for the employee’s idle failure to make a written verbatim record of important workplace conversations. This overall issue arises in the context of employment attorney and entertainment attorney work, though familiar to most all other legal practitioners as well. For legal purposes, the employee must assume that a re-constructive written record made in retrospect the following week instead, or a non-verbatim note, is near-worthless relative to one taken at the moment. What the employee wants is what is known as a “contemporaneous written record” – that means, “at the same time as the occurrence of the event itself”. And yes, for most forensic purposes in the employment context, that also could include a careful verbatim written record made by the employee five minutes after the event ends. The employment severance dialogues themselves, if and when verbal alone, should be reduced to writing by the employee in this fashion, too.

Finally, the last rule is a corollary to some of the others mentioned immediately above: The employee should bring or forward a complete photocopy (not originals) of the employment file which the employee kept at home, to the attorney or attorneys – entertainment attorney or otherwise – that the employee is considering to represent the employee in the negotiation of any employment exit and severance agreement, or any litigation or proceeding for wrongful termination of the employment or otherwise.

The employee should remember that what he or she discloses to an entertainment lawyer or any other attorney is strictly confidential, even if the employee never ends up retaining that lawyer to handle the employment severance or exit agreement or any other work. This rule of confidentiality is a serious and inviolate rule. That lawyer could lose his or her license to practice law, if he or she ever betrays the employee’s confidences. Accordingly, after first making sure that the lawyer doesn’t also represent the employer on the employment severance matter (or even otherwise), the employee should be totally candid and thorough in terms of the facts brought to that lawyer’s attention. The employee should not “screen out” facts that the employee thinks are irrelevant or that the entertainment or employment attorney “would never be interested in”. After all, if the employee is not an attorney himself or herself, he or she could be well wrong about this type of conclusion. It is the attorney’s job, not the employee’s, to filter out the irrelevant from the relevant. The employee should give the lawyer all the raw data. The matter may be the first employment severance deal which the employee has ever lived through, but probably not the lawyer’s.

The employee should cover any packet furnished to his or her actual or intended lawyer with a transmittal letter bearing the legend “Strictly Confidential”, or words to similar effect. That cover letter should include a typewritten or word-processed narrative in the employee’s own words, of all the facts and chronology of the severance or other employment matter about which the attorney is being contacted. The employee should not rely upon an oral soliloquy to make his or her point. Rather, the employee should write it all down, in legible font or typeface, before contacting the lawyer. Again, the employee should ensure, prior to divulging these facts to any such attorney, that the attorney does not already represent the employer or any other party closely affiliated with the employer on the employment severance matter (or even otherwise). It is a small world, and the entertainment and employment law bar in the employee’s locale may be even smaller.

Employment Law

With all the new information concerning HIPAA, which is scheduled to be fully implemented by April of 2005. you need to be aware of the confidentiality laws that govern your practice. One aspect of confidentiality concerns employment law. There are federal and state guidelines that address employment and discrimination laws.

The common law governs the relationship between employer and employees in terms of tort and contract duties. These rules are a part of agency law and the relationship between Principle (employer) and Agent (employee). In some instances, but not all, this law has been replaced by statutory enactments, principally on the Federal level. The balance and working relationship between employer and employee is greatly affected by government regulations. The terms of employment between management and the employee is regulated by federal statute designed to promote employer management and welfare of the employee. Federal law also controls and prohibits discrimination in employment based upon race, sex, religion, age, handicap or national origin. In addition, Congress has also mandated that employers provide their employees a safe and healthy environment to work in. All states have adopted Worker’s Compensation Acts that provide compensation to employees that have been injured during the course of their duties for the employer.

As I mentioned above, a relationship that is closely related to agency is the employee. and principle-independent contractor. In the employer-employee relationship, also called the (master-servant relationship), the employer has the right to control the physical conduct of the employee. A person who engages an independent contractor to do a specific job does not have the right to control the conduct of the independent contractor in the performance of his or her contract. The contract time to complete the job depends upon the employer’s time frame to complete the desired task(s), or job. Keep in mind that the employer may still be held liable for the torts committed by an employee within the scope of his or her employment. In contrast an employer ordinarily is not liable for torts committed by an independent contractor, but there are instances when the employer can be held liable for the acts of the independent contractor. Know your laws governing hiring a person as an independent contractor.

Labor law is not really applicable to your practice of Chiropractic in a practice setting. We will concentrate on employment and discrimination law. There are a number of Federal Statutes that prohibit discrimination in employment based upon race, sex, religion, national origin, age and handicap. The main framework of Federal employment discrimination law is Title VII of the 1964 Civil Rights Act, but also the Equal Pay Act, Discrimination in Employment Act of 1973, the Rehabilitation Act of 1973, and many Executive Orders. In all cases each state has enacted laws prohibiting the same discriminations as Federal Statutes.

Equal Pay Act: This act prohibits an employer from discriminating between employees on the basis of sex by paying unequal wages for the same work. The act also forbids the employer from paying wages at a rate less than the rate at which he pays for equal work at the same establishment. Once the employee has demonstrated that the employer pays unequal wages for equal work to members of the opposite sex, the burden of proof shifts to the employer to prove that the pay difference is based upon the following:

1. Seniority system
2. Merit system
3. A system that measures earnings by quantity or quality of production
4. Or any factor except sex.

Remedies may include recovery of back pay and enjoining the employer from further unlawful conduct and or sizeable fines.
Civil Rights Act of 1964: Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, sex, religion, or national origin in hiring, firing, compensating, promoting, training or employees. Each of the following could constitute a violation prohibited by the Act:

1. Employer utilizing a proscribed criteria in making an employment decision. Prima Facie evidence would show, if the employee was within a protected class, applied for an open position and was qualified for the position, was denied the job and the employed continued to try to fill the position. Once these criteria’s are established, the burden of proof shifts to the employer to justify a nondiscriminatory reason for the person’s rejection for the job.

2. An employer engages in conduct which appears to be neutral or non-discriminatory, but continues to continue past discriminatory practices.

3. The employer adopts rules, which are adverse to protected classes, which are not justified as being necessary to the practice business. The enforcement agency is the Equal Employment Opportunity Commission (EEOC). It has the right to file legal actions, resolve action through mediation, or other means prior to filing suit. Investigate all charges of discrimination and issue guidelines and regulations concerning the enforcement policy of discrimination law.

The Act provides three defenses: A bona fide seniority or merit system, an occupational qualification or a professionally developed ability test. Violations of this act include: enjoining the employer from engaging in unlawful conduct, or behavior. Affirmative action and reinstatement of employees and back wages from a date not more than two years prior to the filing of the charge with the EEOC.

Age Discrimination in Employment Act of 1976: This Act prohibits discrimination in hiring, firing, salaries, on the basis of age. Under Title VII it address all these areas and ages, but it is especially benefits individuals between the ages of 40-70 years. The language in this act is substantive for individuals between 40-70 years of age. The defenses and remedies are the same as the Civil Rights Act of 1964.

Employee Safety: In 1970 Congress enacted the Occupational Safety and Health Act. This Act ensured that every worker have a safe and healthful working environment. This Act established that OSHA develop standard, conduct inspections, monitor compliance and institute and enforce actions against non-compliance.

The Act makes each employer to provide a work environment that is free from recognized hazards that can cause or likely to cause death or serious physical harm to the employees. In addition, employers are required to comply with specific safety risks outlined by OSHA in their rules and regulations.

The Act also prohibits any employer from discharging or discriminating against an employee who exercises his rights under this Act.
The enforcement of this Act involves inspections and citations for the following:

1. Breach of general duty obligations
2. Breach of specific safety and health standards
3. Failure to keep proper records, make reports or post notices required under this Act

When a violation is discovered, a written citation, proposed penalty, and corrective date are given to the employer. Citations may be contested and heard by an administrative judge at a hearing. The Occupational Safety and Health Review Commission can grant a review of an administrative law judge’s decision. If not, than the decision of the judge becomes final. The affected party may appeal the decision to the US Circuit Court of Appeals.

Penalties for violations are both civil and criminal and may be as high as $1000.00 per violation per day, while criminal penalty be imposed as well for unlawful violations. OSHA may shut down a business for violations that create dangers of death or serious injury.

Worker’s Compensation: Most actions by injured employees against an employer are due to failure of the employer to use reasonable care under the circumstances for the safety of the employee. In such actions the employer has several well-established defenses available to him. They include defenses of the fellow servant rule. This rule does not make an employer liable for injuries sustained by an employee caused by the negligence of a fellow employee. If an employer establishes that the negligence of an employee contributed to the injury he sustained in the course of his employment, in many jurisdictions the employee cannot recover damages from the employer. Voluntary assumption of risk is the third defense. An employer in most jurisdictions is not liable to the employee for harm or injury caused by unsafe conditions of the premises if the employee, with knowledge of the facts and understanding the risks involved, voluntary inters into or continues in the employment of the employer.

Keep in mind that all states have enacted Worker’s Compensation Acts. These statutes create commissions or boards to determine whether an injured worker is entitled to receive compensation. Defenses above are not available in most jurisdictions to employers in proceeding under these statutes. The only requirement is that the employee be injured in the course of his employment.

Fair Labor and Standards Act: This act regulates the employment of child labor outside of agriculture. This act prohibits the employment of anyone less than 14 years of age in non-farm work. Fourteen and Fifteen years old may be employed for a limited number for hours outside of school hours, under specific conditions of non-hazardous occupations. Sixteen and seventeen year olds may work any non-hazardous jobs. Eighteen and older person may work in any job. This Act imposes wage and hour requirements upon covered employers. This act provides for a minimum hourly wage and overtime pay.

Additional Relief For Your Social Security Disability Clients From an Employment

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death. That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies. Therefore, a thorough interview with a potential client should determine:

• Whether that person suffered an injury at the workplace;
• Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
• Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
• Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
• Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
• Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
• Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS
Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness. The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions. The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent. See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability. Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary. That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions. However, these employers will not be required to make accommodations which will cause an undue hardship. Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions. It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations. Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin. U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness. Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

THE PREGNANCY DISCRIMINATION ACT
The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (“FMLA”). An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions. For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options. The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave. In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave. Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA. As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child. One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more. Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age. 29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed. The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it. Consider this protocol if a severance agreement concludes one’s client’s disability matter.

THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off. He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time. Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible. Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability. Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private. Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance. Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses. Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled. The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded. There is a three year statute of limitations from the date of the injury. Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits. However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim. In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process. This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans. Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue. The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process. Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment. Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp, 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland. A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process. UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891). It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974). In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing. Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).
Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA. The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief. Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available. For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits. The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process. It may be far more cost effective for an employer to give these concessions early in the negotiation process. It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

Guide to New Employment Laws

Ban the Box: No Criminal History Inquiries before Making a Conditional Offer (Govt. Code § 12952)
All employers with five (5) or more employees are prohibited from including on any employment application a question that seeks disclosure of the applicant’s criminal history. The employer cannot “inquire” or “consider” an applicant’s conviction history until after a conditional offer of employment has been made.

This also means employers cannot use background checks that reveal criminal conviction history until after an offer is made.

If an employer intends to deny employment to an application because of an applicant’s conviction history, whether in whole or in part, it must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. The employer shall consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought. This assessment may or may not memorialized in writing.

If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. The notification shall contain: (1) notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer; (2) a copy of the conviction history report, if any; and (3) an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has at least five (5) business days to respond to the notice provided to the applicant before the employer may make a final decision. The applicant’s response may dispute the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer. If the applicant states he/she is taking specific steps to obtain evidence supporting his/her dispute, then the applicant has five (5) additional business days to respond with the evidence.

If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing. The notice must include: (1) the final denial or disqualification; (2) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and (3) the right to file a complaint with the Department of Fair Employment and Housing.

Do Not Ask about Salary History (Labor Code § 432.3)
An employer may not seek salary history information about an applicant for employment. “Salary history information” including compensation and benefits.

The new law does not prohibit an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer. If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, the employer may consider or rely on that information in determining the salary for that applicant.

If an applicant asks the pay scale for a position, the employer must provide it.

Job-Protected Parental Leave Law (Govt. Code § 12945.6)
Employers with 20 or more employees must provide eligible employees up to 12 weeks of unpaid leave for new parents to bond with a new child within one (1) year of the child’s birth, adoption, or foster care placement. Unlike the federal Family and Medical Leave Act and the California Family Rights Act, this new law is limited to parental leave; it does not allow for leave due to the employee’s or the employees’ family member’s “serious health condition.”

A covered employer has between 20 and 49 employees with 75 miles of each other.

A covered employee has more than 12 months of service with the employer, and at least 1,250 hours of service with the employer during the previous 12-month period.

While the leave is unpaid, the employee is entitled to use any accrued vacation pay, paid sick time, or other accrued paid time off. In addition, the employer must maintain group health coverage during the leave at the same level and under the same conditions that would have been provided had the employee continued to work.

Immigration: Cooperation with Federal Authorities (Govt. Code §§ 7285.1, 7285.2, 7285.3, and Labor Code § 90.2)
Under current federal immigration law, when federal immigration authorities visit a worksite to perform enforcement activity, the employer may allow authorities to access nonpublic portions of the worksite voluntarily or requiring a warrant. California’s new law removes the employer’s ability to voluntarily allow access to nonpublic portions of the worksite.

The Labor Commissioner or Attorney General have exclusive authority to enforce this new law. Thus, there is no private right of action under the California Labor Code’s Private Attorneys General Act. Civil penalties range from $2,000-5,000 for the first violation and $5,000-10,000 for each subsequent violation.

The new law also prevents employers from voluntarily providing immigration enforcement agents to access employee records without a subpoena or judicial warrant. This section does not apply to I-9 forms for which a Notice of Inspection has been provided to the employer.

If an employer receives of any Notices of inspections of I-9 Employment Eligibility Verification forms or other employment records from an immigration agency, it must provide employees notice of the inspection within 72 hours of receiving notice. The notice must be hand-delivered at the worksite if possible, or by mail or email if hand delivery is not possible.

Retaliation: Labor Commissioner Now Authorized to Obtain a Preliminary Injunction (Labor Code § 98.7)
An employee or the Labor Commissioner may obtain a preliminary injunction order compelling the employer to reinstate an employee pending the resolution of the employee’s retaliation lawsuit. Meaning, an employer may be required to re-hire an employee during the time it takes to litigate the employee’s claim that he/she was subject to unlawful retaliation, which usually takes no less a year or more.

Moreover, the new law drastically reduces the burden of proof for injunctive relief in retaliation cases. The general standard for a temporary restraining order or permanent injunction requires the party to prove (1) irreparable harm if the injunction is not granted, (2) likelihood of the success on the merits of the claim, and (3) these interests outweigh whatever harm the defendant will suffer if an injunction is granted. Now, injunctive relief shall be granted if the individual makes a mere showing that “reasonable cause” exists to believe the employee was unlawfully terminated or subjected to an adverse action.

In addition to handing employees a much lower burden of proof than other forms of injunctive relief, the court must consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.” Thus, the court must consider an entirely new factor that only favors the employees.

Postings and Notices
Benefits
The Employment Development Department made changes to DE 2320 For Your Benefit and the Paid Family Leave pamphlets. DE 2320 must be distributed to an employee upon termination or lay off, or on a leave of absence.

Paid Family Leave no longer has a seven-day waiting period.

Victim’s Rights Pamphlet
All employers must provide new employees with written notice about the rights of victims of domestic violence, sexual assault and stalking to take protected time off for medical treatment or legal proceedings. The Victims of Domestic Abuse pamphlet can be found on the California Department of Industrial Relations Website

Transgender Rights Poster
The Department of Fair Employment and Housing developed a new transgender rights poster. All employers with five (5) or more employees must post this information. If you order the federal and state law employment poster updated annually and published by the California Chamber of Commerce, the information is contained therein. Otherwise, the poster can be found on the Department of Fair Employment and Housing website.

Also, employers should familiarize themselves with California’s new identification documentation. California identification cards, birth certificates and driver’s licenses can include one (1) of three (3) gender options: female, male or nonbinary. They will be phased in beginning September 1, 2018, for birth certificates, and January 1, 2019, for driver’s licenses.

Minimum Wage Increase
For employers with 26 or more employees, the state minimum wage increased to $11/hour. For employers with 25 or fewer employees, the state minimum wage increased to $10.50/hour.

The minimum salary threshold for executive, administrative and professional exemptions increased for 2018. The threshold is based on the state minimum wage, not any local minimum wage. The minimum monthly salary exemption for employers with 26 or more employees is $3,813.33/month ($45,760/year).