PREVENTIVE LAW WORKSHOP Managing Difficult Personnel Situations Mary Elizabeth Kurz, Vice Chancellor and General Counsel Dianne Sortini, Director, Employee Relations & Training N.C. State University 28 November 2001

Three Case Hypotheticals n Alcohol and Poor Performance n Mental Illness n Uncollegial Behavior

Essential Preliminaries n Be aware of all applicable laws and University policies that may restrict or otherwise influence supervisor action(s) n Formulate a plan of action for dealing with the situation to achieve the employer’s objectives and avoid legal pitfalls

Applicable Laws n Rehabilitation Act of 1973 (Section 504) and The Americans Disabilities Act – prohibits discrimination against qualified persons who have a disability – requires reasonable accommodation to enable person to perform essential job functions – covers persons with disability, persons with a record of disability, or persons regarded as disabled

Applicable Laws n Covers former drug addicts and recovering alcoholics n Does not protect current users of alcohol or illegal drugs n An employer is permitted to consider the effects on job performance of alcoholism or drug addition in making employment decisions

Medical Exams n Current employees: Employer may require medical exams if job related and consistent with business necessity n Must keep medical information confidential (separate from other personnel files) n May be disclosed in limited circumstances to supervisors, first aid and safety personnel

Drug Free Workplace Act n Applies to entities receiving federal funds n Employer required to have and enforce policy that prohibits possession/use of illegal drugs in the workplace n Employer must require employees to report convictions of drug laws and report such convictions to the federal government and impose discipline or rehabilitation program

Common Law n Preventing harm: Employer may be liable to third parties for injuries caused by impaired or emotionally disturbed E’ees n Defamation: unreasonable publication of medical information n Invasion of Privacy and Related Tort claims – inquiry and disclosure of private facts about an employee may lead to employer liability unless communication is privileged (need to know)

Breach of Contract n Promise of confidentiality made in an employee handbook or EAP policy may give rise to claim if promise is breached n Failure to follow progressive discipline policy may give rise to claim

Title VII n In dealing with difficult personnel decisions, the employer must make sure that the application or effect of a personnel decision does not discriminate on other prohibited bases. n For example, uneven handling of employees who violate substance abuse policies may invite disparate treatment claim

Three Hypothetical Cases n Divide into three groups - each group to analyze one case n Groups take 15 minutes to analyze case and identify issues and how they would handle the matter n Discussion n Wrap up with Practical Pointers

Practical Pointers n Deal with unsatisfactory work performance, don’t ignore it (don’t assume disability) n Recommend EAP n Impose discipline where uncorrected n Document problems and effects and progressive discipline n Where disability is claimed, seek medical information and keep separate/confidential

What not to do n Discharge or discipline employee without following proper procedures n Act without sufficient investigation of the performance problems or cause of problems if identified by employee n Ignore the problem in the hopes that it will go away n Breach confidentiality