• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Due Process
• Equal Pay Act
• Fair Labor Standards Act (FLSA)
• Family and Medical Leave Act (FMLA)
• First Amendment
• Retaliation
• Sexual Harassment
• Violence in the Workplace
• Conducting Investigations of Alleged Civil Rights Violations
• Glossary of Terms

Overview

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age; for filing an age discrimination charge; or for testifying or participating in any way in an investigation, proceeding, or litigation under the ADEA.

Example:

Seventy percent of employees laid off are 40 and older. Younger employees are hired at the same or higher rate of pay than older workers for doing the same work.

Key Points to Remember

1. Employees over the age of 40 are in the protected group.

2. The older you are, the more "protected" you are.

3. Age discrimination may be established within the protected class; e.g. 60-year-olds disadvantaged more than 45 year olds.

4. Examine the length of service to determine if compression is at work versus age discrimination.

Common Management Mistakes

1. Supervisor requests information from an older employee such as, "When are you going to retire?" or employer encourages older employees to retire.

2. Employer eliminates a job to lay off an older worker, then creates a new job that involves the same duties and hires a younger worker.

3. Employer makes comments related to age, such as, "she moves too slow because she is older" or "he can’t keep up because he’s older" or "they lack energy or enthusiasm because they are older."

Your Formula for Success

1. Avoid basing employment actions (hiring, firing, promotion, etc.) on assumptions based on age. Such beliefs include notions that older workers are inflexible, set in their ways, unable to learn new procedures, and likely to soon retire.

2. Make employment decisions regarding older workers based on their individual skills, abilities, and merit, without regard to age.

Corresponds to Policy Statement #51, "Nondiscrimination on the Basis of Disability"

Overview

What is the purpose of the Americans with Disabilities Act (ADA)?

To extend to people with certain disabilities civil rights similar to those now available on the basis of race, color, religion, sex or national origin under the Civil Rights Act of 1964.

What does the ADA prohibit?

The ADA, in part, prohibits discrimination on the basis of a person’s disability in the areas of Employment (Title I) and Public Accommodation (Title III).

Who is considered "disabled" under the ADA?

• A person who has a "physical or mental impairment" that "substantially limits" one or more of his or her major life activities (e.g., one who is blind); or
• A person who has a record of such an impairment (e.g., one who is recovering form cancer); or
• A person who is regarded as having such an impairment (e.g., one who has facial scars).

Who is a "qualified individual with a disability?"

• A person who, with or without reasonable accommodations, can perform the essential functions of the job.
• Note on users of Drugs/Alcohol:

• The fundamental (not marginal) job duties of the employment position.
• A function may be essential if:
• The position exists to perform that function.
• There are a limited number of employees available to perform the function.
• The function is highly specialized so that the incumbent is hired for his/her expertise and ability to perform the function.
• An employee who cannot perform the essential functions of the job with or without reasonable accommodations are not protected under ADA because they are not "qualified."

• Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
• Job restructuring, part-time or modified work schedules.
• Acquisition or modification of equipment or devices used to carry out job duties; does not include personal equipment like wheelchair and eyeglasses.
• Appropriate adjustment or modification of examinations, training materials, or policies.
• Provision of qualified readers or interpreters.
• Managers should engage in an interactive dialogue with employees regarding their reasonable accommodation needs.
• What is the appropriate way to determine which specific reasonable accommodations are important?

2. Don’t make assumptions; ask the employee if he/she can perform the essential functions of the job with or without reasonable accommodations.

Overview

What does Due Process mean?

The Fourteenth Amendment to the U.S. Constitution provides: "No State shall deprive any person of life, liberty, or property, without due process of law."

Most government employees are subject to a probationary period of employment during which they may be terminated with or without cause. Public employees who survive this probationary period have been determined by the courts to have "a reasonable expectation of continued employment." This reasonable expectation creates, essentially, a "property interest" in that the job is the employee’s means of livelihood. Therefore, a government employer must first provide due process if it intends to take action that may have an adverse impact on a public employee’s employment status.

According to the U.S. Supreme Court, due process means that an employee must be given an opportunity for a hearing before he or she is deprived of any significant property interest. In Cleveland Board of Education v. Loudermill, the Court further stated that "this principle requires some kind of hearing prior to the discharge of any employee who has a constitutionally protected property interest in his/her employment."

Key Points to Remember

1. Depending on the employee’s classification and specific terms and conditions of employment, a state employee essentially has a "property interest" in his/her job.

2. Taking adverse action against a public employee that deprives him/her of a "property interest" and requires that the employer provide reasonable notice of the reasons for the adverse action and a reasonable opportunity for the employee to respond to those reasons.

3. The employer should not make a final decision until the employee has had a chance to respond.

Your Formula for Success

1. Remember that not all employees have a "property interest" in the job entitling them to due process. Be sure to understand which category the employee in question falls into before taking action.

2. Document all interactions with the employee on matters related to the issue in question.

3. Resolve the problem at the lowest level, if possible.

4. Give the employee written notice of the reasons for the proposed action, and a fair opportunity to respond to those reasons.

5. Listen carefully and evaluate the employee’s response fully.

6. Take appropriate action based on your evaluation of all the data.

7. Do not disseminate information about adverse employment actions, except those with a need to know.

2. Ensure that any wage differences between men and women in substantially equal jobs are demonstrably justified based upon objective factors, such as seniority, merit, and quantity or quality of production.

Overview

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record keeping, and child labor standards that affect over 100 million full- and part-time workers in the private sector and in federal, state, and local governments.

The Act applies to enterprises that have employees who are engaged in interstate commerce, producing goods for interstate commerce, or handling, selling or working on goods or materials that have been moved in or produced for interstate commerce. For most firms, an annual dollar volume of business test of $500,000 applies (i.e., those enterprises under this dollar amount are not covered). The following are covered by FLSA regardless of their dollar volume of business: hospitals, institutions primarily engaged in the care of the sick, aged, mentally ill, disabled or gifted; preschools, elementary and secondary schools and institutions of higher education; and federal, state and local government agencies.

Key Points to Remember

Coverage for state employees:

1. Determine whether the particular employee is non-exempt (covered by FLSA provisions) or exempt (not covered and not entitled to overtime, etc.). Certain state and local government employees are not covered. These include:

• Elected officials
• Legislative employees
• Bona fide volunteers
• Independent contractors
• Certain trainees
• Prisoners

• Executive exemption.
• Administrative exemption.
• Professional exemption.

4. In addition to meeting the various tests for executive, administrative or professional employees, exempt employees must meet the salary basis test:

• Employee regularly receives each pay period a pre-determined amount. That amount is not subject to reduction because of variations in the quality or quantity of the work performed. There are various allowed salary deductions for absences of more than a day (e.g., if pursuant to a policy, which provides compensation for loss of salary caused by sickness or disability).
• Deductions for less than one full day are allowed for public employees paid according to a pay system established by statute, regulation or policy, established pursuant to principles of public accountability under which the employee accrues personal leave or sick leave, and which requires public employee’s pay to be reduced or that employee to be placed on leave without pay for absences of less than one day when accrued leave is not available.
• There is a "window of correction" in the Department of Labor regulations that allows employees to retain their exempt status, even though certain unauthorized pay deductions have occurred. If the deduction is inadvertent or made for reasons other than lack of work, the employee will not lose his/her exemption if the employer reimburses the employee and promises to comply in the future.
• Disciplinary suspension without pay for less than a full week may destroy the salary basis exemption of an otherwise exempt employee.
• Docking pay on an hour-for-hour basis for partial day absences will destroy an exemption.

1. The Human Resources Office should display the Wage and Hour Divisions Minimum Wage Poster that briefly outlines the requirements of the FLSA.

2. Maintain records for every state employee covered by the FLSA. Any form may be used but must include the following:

• The employee’s full name, social security number, address (including zip code), date of birth (if younger than 19), sex, and occupation.
• The time and weekday when the employee’s work week begins.
• The hours worked each day.
• The total number of hours worked each week.
• The basis on which the employees are paid (hourly rate, weekly rate, piece rate).
• The regular, hourly pay-rate.
• Total overtime earnings for the workweek.
• All additions to, or deductions from, the wages.
• Total wages paid each pay period.
• The date of payment.

4. Do not assume that what is currently in place is correct.

Overview

Employees eligible for FMLA leave must have worked 1,250 hours over the 12-month period prior to the date leave commences. An eligible employee may take up to 12 workweeks of leave during any 12-month period for one or more of the following reasons:

1. Policy Statement #46, "Leaves of Absence for Members of the Faculty."

2. Personnel Information Memorandum #9, "Leave Administration--Family and Medical Leave."

3. Written notice of FMLA rights and obligations to employees requesting leave.

4. Written notice of designation of FMLA.

5. Employee need not specifically state need for "FMLA need" but only give an FMLA qualifying reason.

6. For leaves that are foreseeable, 30 days notice must be given to the employer.

7. For unforeseeable leaves, notice must be given as soon as practicable.

8. Attendance records should distinguish between FMLA absences and other absences, and absences covered under FMLA cannot be considered when evaluating employee performance, attendance records, promotion, etc.

9. Employees must be restored to their same or equivalent position after leave, absent special circumstances.

10. It is only necessary for the employee to provide enough information to put the employer on notice that the leave may be for an FMLA-qualified reason.

11. The employer may initially make the designation orally, but it must be confirmed in writing.

12. Employers are very limited in what information they may seek to validate whether an absence is FMLA. The U.S. Department of Labor has issued an optional form used to make this inquiry; by using this form and keeping within the confines of its questions, you will reduce the risk of violating FMLA.

Common Management Mistakes

1. Failure to notify employees in writing within 2 days of leave that their leave is designated as FMLA.

2. Failure to designate absences covered under the Act as FMLA leave.

3. Counting FMLA leave time against the employee’s 12-week entitlement if they haven’t designated it as such in writing.

4. Failure to separate FMLA leave from other leave.

NB: In 1996, 2,100 FMLA complaints were filed. Sixty percent of the complaints resulting in findings against the employer.

Overview

The First Amendment to the United States Constitution states:

1. State employees have First Amendment rights in the workplace.

2. State employees may express opinions on matters of "public concern," which is defined as those matters of interest to the community as a whole, whether for social, political, or other reasons. However, speech that discloses any evidence of corruption, impropriety, or other malfeasance on the part of government officials clearly involves matters of public concern.

3. In determining whether a matter is of public concern, the content, form, and context of a given statement as revealed by the whole record must be considered.

4. Matters solely of personal interest to employees are not protected by the First Amendment. Matters related to internal personal disputes ordinarily do not involve matters of public concern. Fighting words are not protected by the First Amendment (see, for example, Policy Statement #95, "Fighting Words Harassment in the University Community").

5. The University can set reasonable "time, place, and manner" restrictions regarding the exercise of First Amendment rights in the workplace (see Policy Statement #96, "Conduct at Speech Events").

Your Formula for Success

1. Be aware of when and how employees are exercising First Amendment rights in the workplace.

2. Exercise your management responsibility to set reasonable limits.

6. Document specific reasons for your actions.

Corresponds to University Policy Statement #61, "Sexual Harassment Policy and Grievance Procedures"

Overview

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as follows:

• an employee starts calling in sick to avoid the hostile work environment an employee can’t concentrate because he or she is upset by work environment;
• an employee takes a different route to avoid a co-worker;
• an employee does not volunteer for projects if he or she has to work with an offending co-worker;
• the morale of the office is diminished.

• Frequency of the conduct
• Severity of the conduct
• Whether the conduct was physically threatening or intimidating
• Whether the conduct was unwelcome
• Whether the conduct unreasonably interferes with an employee’s performance or advancement
• Reasonable person standard: Would a reasonable person have reacted to the alleged conduct in the same manner?
• Totality of the circumstances: Consider all the circumstances of the situation

4. Conduct a reasonable, prompt and complete assessment of every harassment allegation.

5. Ensure that appropriate sanctions for improper conduct are taken and applied uniformly as recommended by the administrator.

Overview

Workplace violence falls into one or more of these categories:

• Verbal threats (stated intention to hurt or kill someone).
• Intimidating behavior (excessive phone calls, messages or memos, stalking, angry confrontation).
• Actual physical attack.

According to the Justice Department’s Bureau of Justice Statistics, an estimated 7% of all rapes, 8% of all robberies, and 16% of all assaults occur at work.

A survey by Northwestern Mutual Life Insurance Company revealed 25% of all workers in the U.S. claimed to have been threatened or attacked on the job. Harassment is the leading form of violence in the workplace with 16 million workers being harassed each year.

Key Points to Remember

1. Employers have a general duty to provide their employees with a workplace free from recognized hazards that are causing, or are likely to cause death, serious harm, or injury to the employee.

2. The following are warning signs frequently associated with individuals who later become violent:

• Recent significant decline in performance.
• Serious stress in the employee’s personal life.
• Substance abuse.

• "Loner," with poor interpersonal skills.
• Has trouble dealing with authorities and/or co-workers.
• Usually has a history of violence, substance abuse, or emotional problems.

6. Encourage employees to report threats.

Key Points to Remember

1. Determine who at the University should conduct the investigation by consulting with the University Attorney’s Office or the Human Resources Office.

2. Use your common sense.

3. Err on the side of conducting (or having others conduct) an investigation, rather than ignoring the matter.

4. The level and extent of the investigation will depend upon the particular circumstances.

• The key word here is "reasonable."
• The court is going to look for "prompt remedial action" and a thorough investigation of the facts.
• Sit down and think; map out your strategy.
• Determine what kind of problem you potentially have: race, color, religion, sex, national origin, disability, age, free speech, etc.
• Do not begin an investigation without having a clear idea of where you are headed.
• Write down the names of all persons who might have relevant information.
• Write down the places and locations of all relevant documentary or other evidence.

6. Do not pre-judge the situation.

• Keep an open mind.
• Be objective.
• Be sympathetic to the person making the complaint; but do not take sides, do not make any promises, do not speculate.
• Permit the person making the complaint to fully discuss his or her concerns.
• Ask the person making the complaint to provide you with the names of all persons who might have relevant information concerning the matter and all relevant documentation concerning the matter.
• Ask the person making the complaint what his or her proposed solution or remedy is, and if there is anything he or she would like in the way of an accommodation before the investigation can be completed.
• Even if the person does not request a specific accommodation, apply common sense to the situation to determine whether it would be prudent to take any preliminary action to avoid additional problems.
• Determine whether there are any steps that need to be taken immediately; consider what can wait, and get a second objective opinion (if possible).
• Be careful about retaliation issues.
• Determine whether there is anything of a potentially criminal nature involved; if you think there might be, contact the University Attorney before making any decisions.
• Do not offer any feelings or opinions or conclusions concerning the matter; simply state that you plan on investigating the matter as expeditiously as possible.

• Follow up with both parties and let them know how you handled the concerns raised.

• Your Supervisor
• Affirmative Action/EEO Officer
• Human Resources Department
• Office of Legal Affairs

• Especially for serious and egregious cases that you reasonably expect will result in litigation.
• Maintain the benefit of the attorney-client privilege.
• Maintain the benefit of the attorney work product doctrine.

1. Decide who is the best person or persons to conduct the investigation.

• Consider possible conflicts of interest both real and perceived.
• Turn the matter over to somebody else to investigate and decide if that is appropriate under University guidelines.

• Consider the person making the complaint.
• Consider the person accused of wrongdoing.
• Consider the rest of the office staff and the overall mission of the department.

• Give yourself a reasonable and prompt target date for completing the investigation and making a decision on how to resolve the matter.

• Brainstorm.
• Obtain all memos, letters, e-mail messages, evaluations, reports, etc.
• Review the personnel files of the key players, if reasonable and appropriate.
• Review all relevant department policies, procedures, guidelines, etc.
• Create a chronology of events.

• Take careful notes, but be careful to write down only fact--not feelings, opinions, or conclusions.
• Maintain a running record of the activities of the investigation; keep track of dates and times, etc.

• Think about the most effective and logical order of interviews.
• All of your efforts should be reasonably calculated to yield relevant information necessary to understand the facts and reach a decision. There is no reason to collect information that does not serve that purpose.
• Do not be afraid to interview the most important witnesses twice; this is especially the case where the witness has been contradicted on a relevant fact.
• Remember that unbiased third parties are apt to be the most fruitful sources of useful information.
• Obviously, do not conduct group interviews.
• Give careful consideration to the site of the interview; your office might not be the best location.
• Prepare an outline ahead of time to use as a questioning guide. This will help with consistency and help to insure completeness.
• Be careful what you reveal about the accusations and information learned from others. Be sensitive to the privacy concerns of your employees.
• Advise witnesses that your inquiry is confidential and that they should not discuss the matter with other persons. You do not want to "taint" the evidence.
• Do not make any promises that all information provided by the witness will be kept in strict confidence. Remember that you are ultimately going to need to consider this information in order to make a decision on the matter. The witness should be told that the information will be used by the department only in connection with the investigation at hand, unless it later becomes necessary to produce the evidence in connection with a formal proceeding.
• Express sympathetic appreciation of the witness’s position as appropriate. An appeal should be made to the witness’s sense of right and wrong and the importance of honesty and open communication in the workplace.
• Ask open-ended questions, such as "you telephoned her several times, didn’t you?," rather than, "During this period, did you telephone her? How often?" Do not ask leading questions.
• Make sure your questions are being answered, and follow up.
• Place emphasis on obtaining factual details relevant to the inquiry rather than the feelings, opinions, and conclusions of the witnesses.
• Always ask the witnesses for the names of other persons who might have relevant information concerning the subject of the investigation and for any relevant documents or other information related to the incident. Be sure to follow up!
• Reduce the results of the interviews to written notes to eliminate later arguments regarding what exactly was said and by whom. Such notes will refresh your memory at a later time.

• Prepare a summary of the evidence developed in the course of the investigation; this will force you to make sure that you consider all of the evidence in coming to your conclusions.
• What are you going to do regarding the person making the complaint?
• What are you going to do regarding the person accused of wrongdoing?
• What are you going to do regarding the rest of the office staff?
• Make sure that your decision is supported by and based upon relevant facts.
• If possible, get a second opinion before reaching a conclusion formally. Remember that you are seeking objectivity.