MASI Mississippi Association of Self-Insurers September 28, 2012 Rogena Barnes, Regional VP of Human Resources, MGM Resorts Intl. Steve Cupp, Esq., Jones Walker SITUATIONAL ETHICS: REAL LIFE STORIES!

CRITICAL REMINDER In the areas of labor and employment law, supervisors, directors, and managers occupy a unique and important status. Your actions can and will bind the Company.

THE SUPREME COURT’S DOCKET Vance v. Ball State University Court will decide the extent of “supervisor liability” under Title VII Does the supervisor only have to direct or oversee the victim’s work?; or Does the supervisor also have to have the power to hire, fire, demote, etc.?

Total Charge Statistics

MISSISSIPPI In 2011, there were 1,844 charges filed in Mississippi, or 1.8% of US total. Race = 50.2% Sex = 26.1% Retaliation = 22.8% Disability = 17.8% Age = 14.3% National Origin = 5.6% Religion = 1.7%

RACE

SEX DISCRIMINATION

SEXUAL HARASSMENT

PREGNANCY DISCRIMINATION

NATIONAL ORIGIN

RELIGION

AGE DISCRIMINATION

ADA

EQUAL PAY ACT

$ RECOVERED BY EEOC

FACTUAL SCENARIO A restaurant has a policy against harassment and the policy gives employees multiple ways of reporting the harassment to management. Sue, a female server, is being sexually harassed by some co-workers and by Joe, her direct supervisor. She complains to Joe about the conduct of the co-workers and of Joe’s conduct, but he does nothing about it. Joe finds it amusing.

She then complains to Steve. Steve is Joe’s supervisor. Steve and Joe are best friends and partners in a side business. Steve does nothing because of his friendship with Joe. The employee does not utilize the other reporting mechanisms under the policy, although several more are available to her. The employee resigns from employment and she then files an EEOC charge and a lawsuit.

FACTUAL SCENARIO Bill suffers a serious on-the-job injury and applies for workers’ compensation. The doctor orders that Bill not return to work until healed. The Company also places Bill on FMLA leave that will run concurrently with his workers’ compensation leave. Three weeks into Bill’s leave, a co-worker brings you a screen print of Bill’s Facebook page …

Bill has posted comments about how much fun he is having on his ski vacation in Vail. The co-worker feels that Bill is gaming the system but the co-worker wants you to keep her “out of it.” Can you ethically and/or legally use the this information provided to you by the co-worker?

FACTUAL SCENARIO Jim owns a temporary worker agency. He has a large contract to provide workers at a shipyard to clean ships under construction. Two of his workers complain that a supervisor at the shipyard company is harassing them. Jim does not believe he can do anything because the supervisor does not work for Jim. Rather, the supervisor works for the shipyard company. Jim is concerned about losing his contract.

The temp job is completed and the two female workers are furloughed. The two female workers then hire an attorney and they file EEOC charges against Jim’s company and the shipyard, alleging they are “joint employers.” In addition, Jim receives a letter from the attorney telling Jim “not to contact his clients.” One week later, the workers start calling Jim, wanting to know if they can come back to work on the next temp job that Jim gets with the shipyard.

Can Jim refuse to rehire the workers because they filed an EEOC charge against the Company? Can Jim even contact the workers? If Jim does rehire them, does he owe any ethical or legal duty to them when they return?

FACTUAL SCENARIO A casino contracts with a bus company to bus in large groups of gamblers. An accident occurs on the way to the casino and there are a few deaths and multiple serious injuries. Litigation ensues. Plaintiffs seek extensive discovery on the issue of whether the bus company is an agent of the casino for liability purposes.

The casino company provides some documents but does not make a good faith search for electronically stored information in their databases. The Judge orders a Special Master to investigate discovery disputes and the Special Master determines that the casino, and the attorneys for the casino, hid documents and did not make good faith searches for documents and/or ESI that was responsive to discovery. Result?