(1) Red flags for liability in pre-employment, employment, and post employment stages.
(2) Appropriate corporate policies, practices and procedures. Know when to seek assistance.
(3) Appropriate actions in handling applicants, employees, and former employees.
GENERAL DUTY
B. The stated OSHA standard has a parallel in avoiding for common law liability. Various Court decisions have established a duty to act with due care to preclude dangerous acts in the work place. Examples.
1. Negligent hiring or supervision;
2. Assault and battery (e.g., unwanted touching);
3. Sexual harassment (e.g., physical abuse);
4. Premises liability (e.g., where rape, inadequate protection in facilities).
C. Employment-at-Will. A supervisor may address behavior and other manifestations of untrustworthiness, unreliability, or poor judgment, before and after hiring. Job-related behavior is the focus. An employer may act accordingly against a person whose performance or conduct endangers health or safety.
D. Scope of employment. To avoid personal liability, stay within your corporate role. You are not acting for yourself. You are acting for the corporation. Do not act for personal reasons. Act to achieve corporate, business-related reasons and policies. Act consistent with legal and corporate-imposed parameters.
E. Do not worry about worker compensation or similar legal defenses the corporation may, or may not, use in a lawsuit. Worry about staying "between the lines" of your employment and corporate policies. If the policies are well considered, then they should fulfill standards of care and other legal considerations. Consequently, if you stay within them, then you should remain within standards of care and other law.
APPLICANTS FOR EMPLOYMENT
DO
A. Screen, interview. Obtain appropriate consent, and waivers. Check references.
B. Make pre-employment inquiries into the ability of an applicant to do job-related functions, and ask an applicant to describe or show how the applicant can do job-related functions. (Paraphrased from EEOC regulation.)
C. Have a corporate qualification standard that an employee cannot pose a direct threat to the health or safety of himself/ herself or others.
D. If employees need medical examinations to do the job, have written and correct policy to justify such examinations. The ADA prohibits medical examinations or medical inquiries before an offer of employment. Permitted are conditional employment offers pending physical examinations. However, the employer must require the examination of all entering employees in the same job category and relate medical examinations to performance of the job. (From EEOC regulation.)
E. If an applicant volunteers that he or she has a mental disability and requests reasonable accommodation, seek personnel or legal guidance and act consistent with corporate policy. Employers must make such determinations case by case. An applicant volunteers such a disability during pre-employment stages? You may ask about the ability of an applicant to do job-related functions, with or without reasonable accommodation of the disability. (Paraphrased From EEOC regulation.)
Compliance with the disability rules is not a bad way to assess perceived threats nor to avoid common law (and EEOC) liability. Example,
§ 51.5-41, Virginia Code. A. No employer shall discriminate in employment or promotion practices against an otherwise qualified person with a disability solely because of such disability. * * *[An employer also should provide reasonable accommodation]* G. No employer who has hired any person because of the requirements of this section shall be liable for any alleged negligence in such hiring.
E. Determine industry standards, personnel policies, and reasonable care for applicant screening, and consistently follow these standards.
DON'T
F. During the interview, ask whether a person possesses a disability or ask about the nature or severity of a disability.
G. Reject an applicant who requests reasonable accommodation or mentions a mental disability because he or she made the request or may have a mental disability. Ability to do the job is the focus.
H. Ask about arrests. (Waivers may be an option)
I. React to a volunteered disability with supposition or personal opinion that psychological conditions make a person dangerous.
BE CAREFUL WITH
H. Medical examinations. A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. EEOC regulation, 29 C.F.R. section 1630.14. "However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part."
I. Honesty tests. Such tests are not medical examinations and, thus, not covered by the ADA. Psychologists use personality profiles and compare applicant answers to the profiles. Privacy and discrimination (e.g., neutral policy with adverse impact on a protected group) issues may arise. The law is not developed on it. The applicant's consent is important. Even with consent, such tests may bring Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection into the picture. Validation studies and other requirements apply for consistency with EEOC guidelines.
J. Psychological testing. The same concerns as with honesty tests. Psychological testing has resulted in some litigation. Any employment test is unlawful that has a disproportionate disparate impact on groups protected by Title VII, Civil Rights Act of 1964, as amended.
CURRENT EMPLOYEES
Avoid Discrimination Charges While Addressing Problem Employees.
DO
A. Be consistent. Treat similarly situated persons similarly. Written policies help in being consistent.
B. See disabled rules in applicant section -- Essentially the same rules here.
C. Consider a corporate qualification standard such as that an individual will not pose a threat to the health or safety of himself/ herself or others. Like any other qualification standard, such a standard must apply to all applicants or employees and not just to individuals with disabilities.
D. "If an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. If no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire an applicant or may discharge an employee who poses a direct threat." See 29 C.F.R. section 1630.2(r) Direct Threat.
E. Note that "disabled" does not mean common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. From EEOC published guidance. Physical or personality characteristics, and environmental, cultural, and economic disadvantages are not impairments under the ADA. Consequently, even if such factors substantially limit an individual's ability to perform a major life activity, this limitation is not a disability. (Paraphrased from EEOC guidance and regulation.)
F. Base any decision that there exists a high probability of substantial harm to others on valid medical evidence or other objective evidence. This determination must be based on individualized data, not stereotypic or patronizing assumptions and must consider potential reasonable accommodations. From EEOC regulation.
G. Order a stop to any physical, verbal, or sexual harassment. Follow-up on employee complaints. Example. Regular complaints by different employees about an employee could be construed later to have been warning signs to a reasonable manager who should have investigated and, thus, known about the aggravating employee's proclivity for violence.
H. With appropriate legal and personnel advice or assistance, investigate allegations, be consistent, and follow personnel policies.
I. Identify the specific risk posed by any individual. For individuals with mental or emotional disabilities, identify the specific behavior on the part of the individual that would pose the direct threat. For individuals with physical disabilities, identify the aspect of the disability that would pose the direct threat. Consider four factors (paraphrased from EEOC and other guidance):
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
J. Focus on objective, factual evidence--not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes--about the nature or effect of a particular disability, or of disability generally. Relevant evidence? Input from the individual with a disability; The experience of the individual with a disability in previous positions, and; If available, opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved or direct knowledge of the individual with the disability.
K. Have the corporation keep separate, confidential files about any "medical condition or history of any employee," except that: (i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment. (iii) Government officials investigating compliance with this part shall be provided relevant information on request.
L. Recognize that the above is a general outline. Cases differ on facts and situations. Seek legal and personnel guidance. Have policies in place.
M. Have a well-thought out alternative dispute resolution (ADR), mediation, or meaningful grievance system. Use personnel and legal assistance in drafting such a system with twofold objective — (1) Identification and resolution of issues, and; (2) Avoiding liability. Consider making mandatory use of such systems, when consistent with existing case-law.
DON'T
N. Make decisions without guidance or inconsistent with corporate policy.
O. Retaliate. Essentially, an adverse act that is motivated by an employee engaging in a statutorily protected act. Public policy tort suits also are, essentially, retaliation law suits.
P. Treat similarly situated employees differently for the same "offense."
BE CAREFUL, SEEK LEGAL GUIDANCE
Q. Possible Defenses to charges of discrimination because of disability. [From 29 C.F.R. section 1630.15]
(1) Charge of disparate treatment . . . that the challenged action is justified by a legitimate, nondiscriminatory reason."
(2) "It may be a defense . . . that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation, as required in this part."
(3) "It may be a defense to a charge of discrimination that a uniformly applied standard, criterion, or policy has a disparate impact on an individual with a disability or a class of individuals with disabilities that the challenged standard, criterion or policy has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished with reasonable accommodation."
Invasions of Privacy, Other Torts.
DO
A. Maintain the manager "hat" and standard of care -- Stay within the scope of your employment, your role. You are not acting for yourself. You are acting for the corporation.
B. Act reasonably, not off premises or due to personal intent, whim, or opinion.
C. Seek personnel and legal advice.
D. Be consistent -- treat, similarly situated, employees the same. Consistently follow established policy. Understand it.
E. When counseling an employee, choose your words carefully.
DON'T
F. Don't be a "detective." Example. Don't look into windows or follow the employee home to gather evidence of dangerous behavior. An invasion of privacy claim exists for certain behavior intruding into a person's personal space or reputation.
G. Don't physically touch employees, e.g., even if they are verbally abusive. A reasonable force doctrine exists to protect self or others from imminent harm. However, physical encounters are rarely justified, "stories" of what happened vary, and physical touching leads to assault charges and law suits.
H. Don't allow outrageous behavior by your employees. Intentionally inflecting emotional distress, e.g., a "joke" or "prank," following the employee home "to gather evidence," or other behavior which could be construed to be malicious, reckless, or otherwise violating societal norms. Any such act could establish liability.
I. Don't ask if an employee wants to take a polygraph test. 29 U.S.C. §§ 2001-2009.
J. Don't broadcast, publish, or share allegations, negative perceptions, or even facts with co-workers outside the "control group." It could be construed to be defamatory or lead to other liability.
K. Don't Electronically monitor or record employee conversations (or use someone else to do it). Very tricky area (e.g., advance notice, consent, strong, legitimate business purposes, and reduction of privacy expectations considerations). See Federal Wiretap Acts (18 U.S.C. §§ 2510-2520). Don't monitor, or store: (i) A telephone conversation without consent of either of the conversing parties. 18 U.S.C. § 2511(1)(4)(a). (ii) Oral "or other acquisition of the contents of any wire, electronic, or oral communication," 18 U.S.C. § 2511(1)(a); § 2510(4). Some Courts have found exceptions for voice mail, tape recorder retrieval and electronic pager exceptions based on technical readings of "wire communication" and "intercept." Another provision of Act concerns unauthorized access to stored wire or electronic communications.
L. This is a complicated and legally evolving area. Get legal advice if retrieval of electronically communicated information becomes an issue. Have corporate understandings of what can be retrieved, or not. Have the corporation reduce expectations of privacy, see discussion in next section.
M. Don't Use retrieved electronic material to defend against an employee's law suit, after disciplinary action (absent legal advice). § 19.2-65, Virginia Code addresses when intercepted communications and evidence derived from it not to be received in evidence.
BE VERY CAREFUL, ACT WITH LEGAL ADVICE, HAVE INSTITUTIONAL MEASURES -- EXAMPLES,
N. Reduce expectations of privacy.
1. Written consent. Implied consent is problematic and can be fact disputed.
2. Talk — Policy and training concerning searches and monitoring of work place electronic communications.
3. Signed waiver or consent to monitor/search. Individual consent to monitor or search.
4. An employer's business-justified access, storage, and use of employee-generated data banks, e-mails, and other electronic information.
5. The employees know, accept what the employer will normally reach.
O. Electronic System is provided by the employer, not an outside entity.
P. Form waivers signed. Employers retain access and key, and employees know it, to each locker, desk, or vehicle. Employees forbidden to use their own locks. Yet how balance morale against such measures?
Q. Show communications to the addressee or the intended recipient, or an agent of either person. Limit retrieval to business information.
R. Ask for corporate policies and practices on reduction of privacy expectations. You do not want to wait until faced with a situation where the information might be needed, and only then attempt to figure out what can be done, or not.
Employee Privacy
DO
A. Respect legitimate expectations of privacy in interviews (e.g., do not ask about sex life), outside work behavior, and personal belongings. (See above reduction of expectations for other areas, such as private office).
B. Know that other privacy areas are (1) misappropriation of the name and likeness of another (without permission). (2) unreasonable intrusion upon the seclusion of another. (3) unreasonable publicity given to another's private life. (4) publicity that unreasonably places a person in a false light before the public.
C. When facing an issue, act to achieve legitimate business goals and for perception that acts are for legitimate business purposes. For categorized situations (e.g., threats), have predetermined "control groups" that may include personnel, legal, security.
D. Have institutional process for processing allegations, misconduct, and personnel actions. The process should include hearing the employee's side of the story. Strong legal (and security) rationales exist for listening to the employee(s). Legal advice and personnel assistance may be appropriate in some situations. See later discussion on institutional process for dealing with employee complaints, ADR.
DON'T
E. Engage in unwarranted surveillance or searches of places where reasonable expectation of privacy. (See above privacy discussion)
F. Reveal to public, co-workers, or others outside the "control group" private information, even if it is true. Limit disclosures of information.
G. Provide information in response to media probes about alleged or a reported "bad actor" nor the victim, e.g., if reported work place incident. Use professionals (e.g., publicity that unreasonably places a person in a false light before the public, defamation, unreasonable publicity).
H. Don't reveal to the public or persons without a "need to know" even legally accessed electronically stored or other information. Stay within the control group.
SOME POST EMPLOYMENT OBLIGATIONS
DO
A. Have a consistent, well considered, personnel policy for responding to prospective employer or other third-party asks about a former employee.
B. Have a point of contact for inquiries about former employees.
C. Seek advice.
D. Get releases of liability, if possible (consistent with advice, legal mandates, and appropriate monetary consideration).
E. Be careful with perception, misunderstood statements, and inconsistent types of information about different employees. Example. You give the position title and term of employment about one former employee. You say "suspected to be dangerous" about another former employee.
F. Respond to inquiries about an employee by referral to corporate point of contact. Responses, generally, should be limited to certain subjects, such as position title and terms of employment.
G. If a former employee wants you to discuss him with a third-party, and corporate policy allows it, get waivers and releases before any such communications.
DON'T
A. Publish allegations, facts, or other information about an employee to co-workers, the public, or other employers.
B. Give a favorable recommendation to a prospective employer and omit negative information. A negligence suit could be filed if the employee injures someone in the new job.
C. Readily give opinion, allegations, or perceptions may be factually inaccurate. See waiver discussion above. Careful about publishing or sharing adverse information.
E. Insult the employee. Insulting Words statute. Essentially, this is defamation that is not published. It is "fighting words" said to a person, which injures him.
F. Conspire to deny someone job. Conspiracy to interfere with economic benefit requires wrongful intent and acts (of two or more persons) to deny economic benefit. Another reason to restrict distribution of information to "official channels," and to stay within your leader/manager role.
H. Deviate from written and standard policy. Example. The standard of care owed by you to someone may be determined, in a given case, by the corporate policy or industry practice, or both. You deviate, and the former employee argues that the standard of care has been violated to his injury.
J. Retaliate. Essentially, an adverse act that is motivated by an employee engaging in a protected act.
SUMMARY
- Red flags for liability in pre-employment, employment, and post employment stages include (but are not limited to)
Not properly screening applicants or checking references, other background.
Disability-related missteps.
Inconsistency and different treatment of similar situations and similarly situated persons.
Failures to respond to employee complaints, warning signs.
Inappropriate employee behavior, without any action by management.
Deviating from corporate, statutory, or common law standards.
Lack of appropriate corporate standards and training.
Not knowing information that a manager in your situation, who abides by corporate, statutory, or common law standards and acts reasonably, would know or should know. Similar standard for failing to act (knew or should have known).
Acting outside "scope of employment." E.g., outside of the manager/leader's role.
Confusing disabilities or related perceptions with improper employee behavior.
Not having business justified policies, practices, or procedures.
Having excessive employee privacy expectations.
Persons with no need to know, do know about private information, such as medical, supervisor gathered, and other employee.
Lack of business-justified qualification or workplace safety standards.
Have appropriate corporate policies, practices and procedures. Systems. Seek assistance.
Consider a well thought through dispute resolution, grievance, or mediation system. Consider a system for accommodating disabilities, and publication of it to employees. A writing that an employee may grieve a personnel action misses the point. You want to know about problems and potential problems, and resolve them internally, if possible.
Practice Area. Twenty year practice in the employment law area. Advised employees, employers, and attorneys. Wrote personnel handbooks, internal handling/advice on issues. Litigated employment cases before U.S. District Courts, federal appellate courts, the Federal Claims Court, the U.S. Equal Employment Opportunity Commission, state Courts, and the U.S. Merit Systems Protection Board, personnel security boards, among other forums.
Employment Issues on Which Advised or Litigated. Employment contracts; Computer-stored proprietary information, trade secrets; Conflict of interest; Whistle blowing retaliation; USERRA claims; Class actions; Employment property rights under the U.S. Constitution; Pre termination and post termination due process; Defense of Bivens suit; Public policy tort litigation; Work place assault; Implied employment contracts; Sexual harassment; Insulting words statute; Federal reductions in force; Employee benefits (other than retirement) and rights under ERISA; Individual employee misconduct; Federal security clearances; Employment discrimination (e.g., Age Discrimination in Employment Act, American Disabilities Act, Rehabilitation Act of 1973, Title VII of the Civil Rights Act of 1964, as amended, Equal Pay Act).
Bar Admissions Admitted to bar in 1978, South Carolina; 1979 District of Columbia; 1986 Virginia. University of Notre Dame (B.A., 1974) and University of South Carolina (J.D., 1978).
Past Lectures. 1982 - Legal Use of Deadly Force and 1990 -- Conflict of Interest (training for Navy). 1997 — Individual Liability of Federal Managers (training for federal personnel officials). 1998 — Panel member with three-Government officials discussing security clearances and mental disabilities, and Panel member with EEOC official discussing disability law (public and mental disability group).
Articles: "Adjudicating Federal Defense Contractor Employee Security Clearances," Navy Redcom Juris, October 1986; "Legal Developments" column, Regulatory Eye, 1981-1983; "Harlow v. Fitzgerald, U.S. Constitutional Tort Suits," USNR Ex Parte Journal, October 1982. Various lecture handouts, pamphlets, published monthly article(s) for Commands.
Member: Admitted to U.S. District Courts for the Eastern District of Virginia, District of Columbia, and Maryland, the Federal Claims Court, and appellate courts of the Federal, District of Columbia, and Fourth Circuits, and the U.S. Supreme Court. The District of Columbia, Virginia Bar Associations, and South Carolina Bar Association (inactive) . Judge Advocates Association. Military Committee, Bar Assn. of D.C. Naval Reserves, Judge Advocate General Corps, 1982-present. (CAPT. (S), JAGC, USNR).