AR HOSPITAL ASSOCIATION Mock Employment Trial May 25, 2016 Mike Moore, Amanda Fray, Dan Herrington

Basic Facts 1.Penny Plaintiff- IT 2.Sam Supervisor- Penny’s manager 3.Holly Roberts- HR

Basic Facts 1.Poor attendance 2.Not clear whether FMLA, ADA or not protected 3.Facebook gripe about supervisor leads to investigation 4.Investigation reveals excessive computer use

Basic Facts 1.Discharged for 2.“Attendance/Tardiness” 3.“Misconduct” 4.“Insubordination” 5.“General Policy Violation” 6.“Other: Multiple Policy Violations”

Legal Claims 1.ADA Failure to Accommodate 2.ADA Discrimination/Retaliation 3.Hostile Work Environment 4.Religious Discrimination/Retaliation 5.FMLA Interference 6.NLRA Interference and Coercion

Verdict Form ADA Failure to Accommodate Has Plaintiff proved all of the following elements? (1)Plaintiff had PTSD and/or anxiety; (2)Such PTSD and/or anxiety substantially limited Plaintiff’s ability to perform a major life activity [sleeping, concentrating, thinking, communicating, working, etc.]; (3)Defendant knew of Plaintiff’s PTSD and/or anxiety; (4)Plaintiff could have performed the essential functions of her job if Defendant had provided Plaintiff an accommodation [in the form of the promotion]; (5)Providing the accommodation would have been reasonable; and (6)Defendant failed to provide the accommodation and failed to provide any other reasonable accommodation?

Verdict Form ADA Discrimination Has Plaintiff proved all of the following elements: (1)Plaintiff had PTSD and/or anxiety; (2)Such PTSD and/or anxiety substantially limited Plaintiff’s ability to perform a major life activity; (3)Defendant terminated or failed to promote Plaintiff; (4)Plaintiff could have performed the essential functions of her job at the time Defendant terminated or failed to promote her; (5)Defendant knew of Plaintiff’s PTSD and/or anxiety and Plaintiff’s PTSD and/or anxiety was a motivating factor in Defendant’s decision to discharge, or refuse to promote, Plaintiff?

Verdict Form ADA Retaliation Has Plaintiff proved all of the following elements: (1)Plaintiff requested an accommodation for her disability; (2)Defendant discharged or failed to promote Plaintiff; (3)Plaintiff’s discharge or denied promotion might well persuade a reasonable person in the same or similar circumstances not to request an accommodation; and (4)Plaintiff’s request for an accommodation was a determining factor in the decision to discharge her or deny her the promotion.

Verdict Form Hostile Work Environment Has Plaintiff proved all of the following elements: (1)She was subjected to unwanted harassing conduct; (2) The conduct was so severe, widespread and pervasive that a reasonable person in Plaintiff’s circumstances would have considered the environment hostile or abusive; (3) Plaintiff considered the work environment hostile or abusive; (4) Defendant knew or should have known about the conduct; (5) Defendant failed to take appropriate corrective action; and (6) The harassing conduct was a substantial factor in causing harm to Plaintiff?

Verdict Form Religious Discrimination/Retaliation Has Plaintiff proved all of the following elements: (1)Plaintiff complained to Defendant that she was being harassed or discriminated against because of her religious beliefs; (2)Plaintiff reasonably believed she was being harassed or discriminated against because of her religious beliefs; (3)Defendant discharged Plaintiff; (4)The discharge might well persuade a reasonable person in the same or similar circumstances not to complain about harassment or discrimination; (5)Plaintiff’s complaint of discrimination or harassment was a determining factor in Defendant’s decision to discharge Plaintiff.

Verdict Form FMLA Interference Has Plaintiff proved all of the following elements: (1)Plaintiff was eligible for FMLA leave; (2)Plaintiff gave Defendant sufficient information so that Defendant knew or should have known that Plaintiff’s absence was for a serious health condition; (3)Defendant interfered with Plaintiff’s FMLA rights when it failed to provide her notice of her FMLA rights and/or when it counted her FMLA protected absences against her.

Verdict Form NLRA Interference and Coercion Section 8(a)(1) of NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of their rights” to self-organize, form, join, assist a labor organization, to bargain collectively through representatives, or engage in other concerted activities for purpose of collective bargaining or other mutual aid or protection. Employer may also violate the Act if employees would reasonably interpret the Employer’s rules as proscribing discussions about the terms and conditions of their employment.

Verdict Form NLRA Interference and Coercion Were Plaintiff’s Facebook comments related to a term or condition of her employment? If so, were they nonetheless sufficiently disloyal to lose protection of the NLRA because they amounted to criticism disconnected from any ongoing labor dispute?

Lessons Learned 1.Use progressive discipline early and often 2.Be consistent 3.Document, Document, Document 4.Be patient and aware of what you don’t know 5.Assume you’re being recorded

Lessons Learned 1.Employees Don’t Ask for FMLA 2.Days off count toward “serious health condition” 3.Multiple Visits for DX = SHC 4.Skepticism of reason is no basis for denying FMLA (without more)

Using Progressive Discipline Early 1.No Good Deed Goes Unpunished 2.Cultivate a Culture Where Discipline is Seen as Correction, Not Punishment 3.Correct Performance, Attendance, Behavior as soon as it becomes a problem.

Be consistent 1.Discrimination means “disparate treatment” 2.Plaintiff’s Favorite Argument 3.Good news = “similarly situated in all relevant respects”

PROGRESSIVE DISCIPLINE Advantages for Employer: Minimizes Risk of Suit if the Policy is Clearly Communicated & Consistently Followed Reduces Liability if a Suit is Filed, As Long As the Policy is Clear & Has Been Followed

PROGRESSIVE DISCIPLINE Advantages for Employee and Employer: Chance to Correct Performance & Behavioral Problems

Consistently Document Performance Problems & Actions Taken Documentation Must Convey Legitimate Business Reasons for Action Taken PROGRESSIVE DISCIPLINE

Document, Document, Document Jury’s Think: “If It Isn’t Written Down, It Didn’t Happen” Plaintiff’s Lawyers Ask: “If It Was So Important, Why Didn’t You Write That Down?”

Be patient and aware of what you don’t know

PRE-TERMINATION RISK Assessment Do we know all the facts? Can we prove the facts? Do they warrant discharge? Is everyone on the same page? Are we aware of her excuse, rationale, etc.? Has the Employee Engaged in “Protected Activity” (FMLA leave, internal or external complaints, PCA)

MOST COMMON MISTAKES SUPERVISORS MAKE WHEN IT COMES TO FMLA LEAVE

MISTAKE NO. 1 THINKING A SERIOUS HEALTH CONDITION IS

FAMILY AND MEDICAL LEAVE ACT Serious Health Condition § Doctor visit + RX + >3 days’ incapacity = Serious Health Condition 2. Doctor visit + Doctor visit = Serious Health Condition 3. Chronic Serious Health Condition

MISTAKE NO. 2 Assuming Employees Will Ask for “FMLA Leave” Employees Don’t Ask For “FMLA Leave” Calling in “Sick” Ask Questions & Follow Up

MISTAKE NO. 3 FAILING TO TELL HR Tell HR When Any Employee Has Been Out More than Three Calendar Days Document reason for every absence Recognize Potential Leave Request Implicates FMLA and/or ADA

PRE-TERMINATION RISK ASSESSMENT Has the Employee engaged in “Protected Concerted Activity”

PROTECTED CONCERTED ACTIVITY EMPLOYEES MAY DISCUSS WAGES, HOURS AND WORKING CONDITIONS WITHOUT REPRISAL Employer may limit this to nonworking times Employer may limit to non-patient care areas

PROTECTED CONCERTED ACTIVITY Must be “concerted” But “concerted” is an expanding concept Must indicate either speaking on behalf of others or seeking to influence others to collective action

SOCIAL MEDIA AND THE NLRB Hispanics United of Buffalo, Inc., 3-CA (9/2/2011) Karl Knauz Motors, Inc., 13 CA (9/28/2011)

PRE-TERMINATION RISK Have Policies or Procedures Been Consistently Applied? Is Termination Appropriate? Have Other Instances Been Tolerated? Was Progressive Discipline Policy Followed? Has Legal Counsel Been Consulted?

TERMINATION DOCUMENTATION Documentation Should Show That: There Was a Policy/Standard Regarding the Behavior/Performance in Question Employee Knew of the Policy and Consequences

TERMINATION DOCUMENTATION Documentation Should Show That: Performance Problems Were Clearly Communicated and EE Given Opportunity to Improve How The Policy Was Violated

Assume you’re being recorded NLRB says cannot prohibit because it’s extension of PCA Happens over and over Can sink the ship

QUESTIONS?

Contact us. Mike Moore Amanda Fray Dan Herrington