1 What You Don’t Know Can Hurt You Selected Employment Law Topics Gerard Solis Associate General Counsel

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3 Title VII – Civil Rights Act of 1964 Prohibits discrimination on the basis of: Gender Gender Race Race Color Color National Origin National Origin Religion Religion Age (ADEA) Age (ADEA) Disability (ADA) Disability (ADA)

4 Florida Civil Rights Act Prohibits discrimination on the basis of: Title VII’s protected categories Title VII’s protected categories Age Age Handicap Handicap Marital Status Marital Status

5 Title VII – Gender (cont’d) Sexual Orientation Not protected under Title VII or state laws Not protected under Title VII or state laws University does extend protection University does extend protection Same-sex sexual harassment is actionable under Title VII Same-sex sexual harassment is actionable under Title VII

6 Liability Theories 1.Disparate Treatment 2.Disparate Impact

7 Disparate Treatment (cont’d)  Based on intent – employer’s actions must be motivated by discriminatory intent  2 methods of proof “Direct Evidence”“Direct Evidence”

8 Disparate Treatment (cont’d) “Circumstantial Evidence”“Circumstantial Evidence”  Evidence does not directly establish discriminatory motive, but allows a jury to infer discriminatory motive

9 Disparate Impact No discriminatory intent required No discriminatory intent required Employer has neutral policy or practice that adversely impacts one group more than another Employer has neutral policy or practice that adversely impacts one group more than another Available defense – policy or practice is job-related and justified by business necessity Available defense – policy or practice is job-related and justified by business necessity

10 Employment Actions That May Trigger Discrimination Claims Application Application Interviewing Interviewing Hiring Hiring Promotions Promotions Termination Termination “Constructive” discharge “Constructive” discharge Other Other

11 Other Potentially Actionable Employment Actions  Harassment  Discipline  Retaliation

12 Retaliation  Discrimination statutes prohibit retaliating against an employee for engaging in “protected activity,” which is: Complaining about,or filing a charge or lawsuit due to, discrimination Complaining about,or filing a charge or lawsuit due to, discrimination Assisting, cooperating, or testifying in another employee’s charge or lawsuit Assisting, cooperating, or testifying in another employee’s charge or lawsuit

13 Why document evaluations, disciplinary/performance issues and discharges? Employers do not have to rely upon memoriesEmployers do not have to rely upon memories Provides proof of the logic and equity of personnel decisionsProvides proof of the logic and equity of personnel decisions Juries believe if it is not written, it didn’t happenJuries believe if it is not written, it didn’t happen

14  Documentation can be more harm than help unless it is:  Consistent  Authenticated  Timely

15 Evaluations  To refute claims that an employment decision was made for, or based on a discriminatory motive;  To accurately measure an employee’s performance; and  To notify the employee of areas that requirement improvement.

16 An effective employee evaluation will include:  A frank analysis and evaluation based on specific criteria relevant to the position;  Notice to the employee of job standards;  Constructive advice on how to improve performance;

17 Written Warnings Should Include:  Purpose of the warning;  A statement of the problem or the violation;  A statement explaining how the employee’s behavior negatively impacted the employer’s business operations;

18 Written Warnings (cont’d)  A statement of the employer’s policy or customary practice and how this incident was inconsistent with it;  Any prior verbal or written warnings about the same or related problems;  A summary of the agreement with the employee on corrective actions the employee will take; and

19 Written Warnings (cont’d)  Some employers also include a statement about what actions management will take, i.e., additional training. Employers should only make promises they will keep.

20 The Fair Labor Standards Act  The Fair Labor Standards Act (“FLSA”) addresses minimum wage and the payment of overtime.  The Act is administered and enforced by Wage and Hour Division of the Department of Labor

21 The Fair Labor Standards Act  The Act establishes a minimum wage to be paid to all covered employees.  The Act generally requires the payment of overtime wages (time(+) a 1/2) to all covered employees. The Act prohibits use of oppressive child labor.

22 The Act regulates wages and hours of work of those employees in both the private and public sector who are covered by the Act. The Act prohibits employers from discriminating between employees with respect to wages on the basis of sex (EPA) for substantially equal work.* The Act prohibits employers from discriminating between employees with respect to wages on the basis of sex (EPA) for substantially equal work.* The Act requires every covered employer to maintain certain records. The Act requires every covered employer to maintain certain records.

23 Exempt vs. Non-Exempt Employees  Exempt status under the FLSA means that the minimum wage and/or the overtime provisions of the FLSA are not applicable to the particular employee in question. Salary requirement Salary requirement

24 Exemptions Executive exemption Executive exemption Administrative exemption Administrative exemption Professional exemption Professional exemption Outside sales exemption Outside sales exemption Computer-related occupations Computer-related occupations