© 2011 Jackson Lewis LLP

PUBLIC EMPLOYER POLICIES—BEST PRACTICES

Pamela B. LinbergJackson||Lewis LLP 1415 Louisiana Street, Ste. 3325Houston, Texas 77002713.568.7871LinbergP@jacksonlewis.com

Who we areJackson||Lewis LLP is a national law firm dedicated to

representing management exclusively in workplace law and related litigation. With 46 offices and more than 650 attorneys nationwide, the firm has a national perspective and sensitivity to the nuances of regional and local business environments.

Pamela B. Linberg is Of Counsel to the Houston Office, providing advice and counsel on employment litigation, EEOC and other governmental investigations, and a variety of employment practices, including employment contracts, covenants, handbooks, and policies.

What We Do—Representative Practice Areas

• Litigation, including Class Actions, Complex Litigation and e-Discovery

• Affirmative Action and OFCCP Diversity Planning

• Disability, Leave and Health Management

• Employee Benefits, including Complex ERISA Litigation, Workplace Privacy and Executive Compensation

• Global Immigration

• Trade Secrets, Non-Competes and Workplace Technology

• Labor, including Preventive Practices Wage and Hour Compliance

• Workplace Safety Compliance

Where You Can Find UsAlabama

ArizonaCaliforniaColorado

ConnecticutFlorida

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IndianaLouisianaMaryland

MassachusettsMichigan

MinnesotaNebraska

NevadaNew Hampshire

New JerseyNew Mexico

New YorkNorth Carolina

OhioPennsylvania

OregonRhode Island

South CarolinaTennessee

TexasVirginia

WashingtonWashington, DC Region

West Virginia*

Wisconsin*Non-resident office

Offices in 46 locations

PUBLIC EMPLOYER POLICIES—BEST PRACTICES

1. Attendance, Leave and Pay Policies

2. Discrimination Policies

* Texas Labor Code/Title VII/

Sexual Harassment/Pregnancy/Age

3. Accommodation Policies

* Americans with Disabilities Act and ADAAA

4. Special Policies for Public Employers

* Little Hatch Act/Due Process Concerns

5. Other Important Employment Issues

* Recent Developments in Class Action Law

* Retaliation Considerations

6. Other Employment Policies to Consider

7. Employee Acknowledgement of Policies

Purposes of Employment Policy Implementation

• Communicates Expectations to Employees

• Provides Guidelines for Supervisors Who Manage Employees and Resolve Issues

• Supports Uniform Employer Decisions Among All Employee Classes and Depts.

• Provides “Fair” Treatment of Employees

• Enhances Credibility of Employer Decisions and Employer Image

• Provides Defenses to Certain Legal Actions by Employees

ATTENDANCE, LEAVE AND

PAY POLICIES

Attendance Policies

1. Neutral Attendance Policies

* Must be Reasonable

* Must be Uniformly Enforced

* Should be Documented

2. Provides Uniformity

3. Provides Defenses and Barriers to Claims

* Discrimination Claims

* Retaliation Claims

Leave Policies

1. Family and Medical Leave Act• Provides certain employees up to 12 weeks of unpaid leave• Designed to help employees balance work/family

— unable to work because of serious health condition

— birth and care of newborn child

— immediate family member w/ serious health condition

2. Sick and Vacation Leave

3. Disability Leave

4. Military Leave (USERRA)

5. Misc. State Law Requirements• Jury Duty Leave• Leave to Serve as Subpoenaed Witness• Emergency Evacuation Leave

Pay Policies--Best Practices Under the Fair Labor Standards Act

1. Classification as Exempt or Non-Exempt

* Supervisor Should Inform Employee as to Status

* First Responders are NOT Exempt under DOL Regulations

2. Proper Reporting of Time• Record ANY and ALL hours Work

— NEVER Work Without Recording Time

— Employee must Certify and Attest to the Accuracy of Time Records

— “COMP” Time Effectively Does Not Exist

3. Corrections to Time Records• Time to Correct• Mechanism to Correct

4. Falsification of Time Records is a Terminable Offense

Discrimination Policies

Discrimination Policies—Tex. Labor Code Ch. 21

1. Unlawful for Employer to Engage in Certain Actions on the Basis of the following:• Race• Sex• National Origin• Age

2. Prohibited Actions include the following:• Failing to Hire Applicant• Discharging an Employee• Discriminating with Regard to Compensation• Discriminating with Regard to Terms, Conditions, Privileges

of Employment• Segregating Employee in a Way to Deprive Her of an

Employment Opportunity or Adversely Affect Her Rights

Discrimination Policies—Title VII and its Progeny

1. Title VII makes it Unlawful for an Employer to Discriminate on the Basis of any of he following:

• Race• Color• Sex• Religion• National Origin

2. Other Laws Make it Unlawful for an Employer to Discriminate on the Basis of any of the following:

• Pregnancy• Age (Workers over 40)• Disability

3. Sexual Harassment Law• Quid Pro Quo Harassment• Hostile Work Environment

4. Civil Rights Claims Against Public Employers

Discrimination Policies—Best Practices

Your Equal Opportunity (“EEO”) Policy Should Contain:

1. Your business is committed to providing a diverse employee group devoid of harassment and discrimination;

2. You will not discriminate on the basis of the protected classes mentioned by federal and state law;

3. You are committed to providing reasonable accommodations to employees with religious observance needs;

4. You are committed to providing reasonable accommodations to employees with disabilities; and

5. You welcome and require your employees to participate in your reporting policies.

Discrimination Policies—Reporting Procedure

1. Include Anti-Harassment Policy• Define Harassment (e.g., any physical or verbal conduct

demonstrating hostility toward a person because of his or her age, sex, race, color, religion, national origin, disability or other “legally protected status”)

• Commitment to provide Harassment-Free Workplace• Provide Examples of Harassment that Will Not Be Tolerated

2. Create Formal Reporting Channels and Procedures• Requirement that Employees Report Harassment• To whom to report

— Supervisor

— Human Resources or Executive

— Consider Anonymous Channel like email or telephone number

3. Protects Employer from Liability in Certain Situations where Employees Fail to Utilize the Reporting Procedure

Accommodation

Policies

Accommodation Policies—ADA/ADAAA

1. Prohibits discrimination against people with disabilities in employment.

2. The ADA requires a job accommodation in certain situations, which is a “reasonable adjustment to a job or work environment that makes it possible for an individual with a disability to perform job duties. “

3. Involves consideration of the following:• Required job tasks;• Functional limitations of the person doing the job; and• Level of hardship to the employer.

4. Examples of accommodations:• Specialized equipment and facility modifications;• Adjustments to work schedules or job duties; and• Other creative solutions.

5. Considerations regarding accommodation:• Required job tasks;• Functional limitations of the person doing the job; and • Level of hardship to the employer to provide the accommodation

Special Policies for

Public Employers

Public Employer Policies—Little Hatch Act

1. Restricts Political Activities of State and Local Gov. Employees:• Prohibits use of official position to influence a state or local

government election;• Prohibits intimidation of any other officer or employee to

vote for or against any candidate or measure;• Prohibits solicitation of contributions from other employees

or a person who does business with the state or local gov.;• Provides that governmental buildings cannot be used to

display campaign literature, banners, and the like for any political party, candidate or measure; and

• Provides that employees may not campaign on the job.

2. Policies must:• Be clear, narrow and well defined; • Must not affect off-duty conduct; and• Must only apply to government elections on same level.

Public Employer Policies—Due Process

1. Does not apply to “at will” employees

2. “For cause” employees must be given due process:• Notice

— Must be given reasons for termination/demotion/etc…

— Must be given time/place/details for hearing

• Opportunity to be Heard

— Must be by decision-maker

— Must have opportunity to argue decision

3. Procedures for Post-Decision Appeal• Who will hear appeal• Advisory or binding decision• Standard of review: De novo or abuse of discretion

Other Important

Employment Issues

Other Important Issues-Recent Class Action Law

Wal-Mart Stores v. Dukes, No. 10-277 (U. S. June 20, 2011).

1. Supreme Court rejected class action certification of nationwide class of 1.5 million female workers.• “One of the most expansive class actions ever.”

• Allegations of gender discrimination in pay/promotion

• Managers employed own subjective criteria for decisions

2. Holdings• No commonality – No “glue” to hold together the alleged

reasons for all those decisions

— No allegation of specific biased tests, etc…

— Managers using own discretion opposite of uniform policy

• Not capable of class-wide resolution

— different individual awards (for back-pay, etc…)

— different injunctive relief

Other Important Issues—Retaliation Issues

1. Unlawful Retaliation is:• Adverse action taken by an employer;• Against an employee;• Because the employee engaged in;• Protected activity.

2. Examples of Protected Activity include:• Filing a claim for discrimination based on race, sex, national

origin, religion, age, etc…• Reporting discrimination or providing information during an

investigation• Filing a claim for accommodation for disability• Filing a claim for leave, worker’s compensation, etc…• Engaging in protected union activity

Other Important

Employment Policies

Other Employment Policies to Consider

Examples of other policies to consider include:

1. Work Performance

2. Rules of Employee Conduct

3. Social Media Issues

4. Workplace Bullying Rules

5. Drug/Alcohol Testing

6. Smoking

7. Workplace Romance

8. Nepotism

9. Binding dispute Resolution provisions

Acknowledgement of Workplace Policies

1. Employers should ensure that Employees Acknowledge:• Receipt of a copy of the Policies;• Obligation to Read, Understand, and Adhere to

Policies;• Policies DO NOT alter the Employee’s At-Will Status;• Employer has a right to Modify, Supplement, Rescind

or Revise the Policies (without Notice).

2. Acknowledgement should be:• In writing; • Filed and Maintained by the Company; and• Updated when Policies are Updated.

Questions?

Pamela B. LinbergJackson||Lewis LLP 1415 Louisiana Street, Ste. 3325Houston, Texas 77002713.568.7871LinbergP@jacksonlewis.com

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