Doing More with Fewer People: Avoiding and Surviving the Courtroom Peggy Burns, Esq. Education Compliance Group, Inc Copyright © 2009, Education Compliance Group, Inc. All rights reserved.
The People Part of Budget Cuts Likely changes Staff reductions Re-assignment of staff Multi-tasking Necessity for knowledgeable staff Potential legal issues Past and present adherence to contracts, collective bargaining agreements, policies, laws Documents and decisions that are the “ghosts of the past” Employment discrimination concerns Fair Labor Standards Act
Title VII race, color, religion, sex or national origin; retaliation Have a policy and grievance process Watch your written statements in memos, evaluations, disciplinary write-up’s Watch oral communication: Always be respectful Investigate, analyze and act
Waking up to the ADEA Watch out for stray comments Evaluations should be honest and timely
ADA: Who Is Protected...Now? ADA protects an otherwise qualified applicant or employee with a disability “Qualified” is key: the employee must be able to perform the essential functions of a position, with or without reasonable accommodations
What hasn’t changed: A “disability” is still: A physical or mental impairment that substantially limits one or more major life activities; A record of such an impairment; or Being regarded as having such an impairment. But, it will take less to be “substantially limited.”
What hasn’t changed, contd.: The definition of “reasonable accommodation” A requested change is not reasonable if it poses an undue burden, or fundamentally alters the job It’s not reasonable if it conflicts with an established provision of a collective bargaining agreement Employers do not have to be mind- readers
What’s new? ADA will be interpreted in favor of broad coverage. And, Impairments that are episodic or in remission are “disabilities” if substantially limiting when active No consideration for mitigating measures Focus on employer’s actions, not disability
The interactive process A targeted conversation between the employer and an employee seeking accommodation Good faith effort toward goal of identifying an adjustment that allows the person to perform essential functions Train front-line managers Document, document, document
A scenario: down-sizing staff All departments are to cut budgets by x%. Personnel cuts must be a part of this. You’re thinking, this is your chance to get rid of folks who need to go. Necessary review of pay practices, job functions, re-assignments.
Factors Essential job functions Fair processes, applied uniformly Capture and review of documents Status of performance appraisals Communication to employees Training issues
A scenario: combining functions Scheduler Soonta Suyu must now drive a route. She agrees not to charge you for pre-trip inspections to help out. And driver Howie Greeve will work between runs as a custodian so that he can get benefits. He’s been so helpful, volunteering to do extra activity trips when necessary.
Factors Compensation for “hours worked” Time and a half if non-exempt employee works more than 40 hours in any given week Volunteering under the FLSA