1. Employment Law Basics
for Manager Training
Robert Hoffer, Esq.
859-426-2105
Dressman Benzinger LaVelle psc
bhoffer@dbllaw.com
Kelly Schoening, Esq.
513-357-5284
Dressman Benzinger LaVelle psc
kschoening@dbllaw.com

2. Objectives of Presentation
 Recognize state and federal laws regarding
employee issues
 Issue spotting
 Promote and maintain a comfortable and
productive work environment

3. Discrimination
 Kentucky is an employment at-will state
 Discrimination laws and public policy are exceptions to
employment at-will
 Examples of federal and state laws:
 Title VII
 Age Discrimination in Employment Act
 Americans with Disabilities Act
 Family and Medical Leave Act
 State civil rights laws

4. Discrimination
 Cannot discriminate in any terms of employment on basis of:
- Age (over 40)
- Sex
- Pregnancy
- Race
- National origin
- Religion
- Disability
- Veterans’ status
- Sexual orientation (Covington)

5. Title VII of The
Civil Rights Act of 1964
 Applies to employers with more than 15 employees (8
per Kentucky law)
 Prohibits discrimination on the basis of race, color, sex,
national origin and religion
 Applies to hiring, discipline, discharge, benefits and
other terms and conditions of employment
 300 day statute of limitations with EEOC for federal law
 Five year statute of limitations under Kentucky law

6. Harassment
 Federal and state laws prohibit harassment on
basis of race, color, sex, national origin, religion,
disability and age
 It is more than sexual harassment
 Policy prohibits all harassment
 Employees must report any instances of
harassment to have it corrected

7. Why Discuss Harassment?
 Ever received an inappropriate joke or email?
 Heard someone make fun of another
employee’s accent, food, style of dress?
 Ever quit a job to get away from a bad situation
with supervisor/coworker?

8. Unwelcome Conduct for Employees to Avoid
 Think before acting or telling a joke
 Imagine how others feel-reasonable person
standard
 Intent is not the issue, perception is
 Common courtesy
 Respect people around you

9. Avoid Certain Discussions in the Workplace
 Employees should not be discussing topics of a
sexual nature
 Sexual banter and joking is not proper in the
workplace
 Never assume any discussion is private with
another employee
 Joking around can cross the line
 Do you know where the line is?

10. Harassment Policy
 More than one person can take complaints
 Retaliation is clearly spelled out in the policy
 Confidentiality cannot be promised
 Once a complaint is stated, it MUST be
investigated

11. Two Types of Harassment
 Quid Pro Quo
 “This for that”
 Benefit in exchange for sexual favor
 Hostile Work Environment
 Frequency of conduct
 Severity
 Physical, threatening or humiliating and unreasonably
interferes with work performance

12. Forms of Hostile Work Environment
 Physical  touching
 Verbal  comments
 Visual  pictures, emails, etc.

13. Reporting Harassment
 When a supervisor or manager receives a
complaint, he/she should immediately
contact the Human Resources Manager
 This is true even when employee says “I
don’t want you to do anything!”

14. How a Complaint is Handled
 HR/Management will:
 Obtain a written complaint from the complaining employee
 Investigate the allegations by reviewing the facts,
interviewing the persons involved and any witnesses
 Ask the complaining employee what the preferred
resolution is
 Important to get details: where, when, who
 Obtain any other evidence (notes, e-mails, etc.)

15. Employer’s Responsibility
 The employer is responsible for proper investigation and
resolution of harassment complaints (even post-termination)
 Take ALL complaints seriously
 Quick, remedial action is key
 Follow the company’s policy
 Schedule a follow-up meeting with the person
complaining
 Assure that harassment has stopped
 Assure that no retaliation has occurred

16. Retaliation
 If an employee makes a complaint of harassment, the
employee has legal protection from retaliation
 Employees cannot suffer an adverse action because of
the harassment complaint
 All witnesses must be told not to discuss the
investigation
 If employees are discussing the complaint, discipline
should occur
 The alleged harasser must be told not to discuss the
complaint

17. Real Life Examples
 Manager rubs against employees at copier
 Is one time actionable?
 What if it occurs frequently?
 Employee is upset with a review and makes a false
allegation of harassment; accused is upset and confronts
employee publicly
 Employee repeatedly asks coworker out
 Leaves notes
 Stalks on Facebook
 Texts repeatedly
 What if employee is a manager?

18. Beware of E-mails &Texts
 E-mails/texts are discoverable in legal proceedings
 Do not use e-mails/texts to report harassment or discuss
a harassment complaint
 Employees should not be using work e-mails or texts to
forward jokes or anything inappropriate
 Counsel employees who are using e-mail/texts
inappropriately
 Computer and all contents belong to the Company

19. Workplace Etiquette For Employees
 Be Professional
 Consider whether you would want your remarks quoted or your
actions videotaped
 Consider whether you want others to read your e-mails
 If not, reconsider whether your behavior is appropriate
 Be Courteous
 No obscene language
 No dirty jokes
 No terms of endearment
 NO TOUCHING!

21. Social Media Issues

22. Social Media
 Use of Facebook, Twitter, Instagram, and
LinkedIn with employees is increasing
 Posts on Facebook, etc. can be problematic
 Postings on social media sites can be the basis
for a harassment claim
 Public information can be the basis for discipline

23. Social Media
 Can employers regulate what an employee
posts online if the posting is done while off-duty?
 There should be some connection between the
off-duty conduct and the impact on the employer
 Many factors to consider:
 Where is the information posted?
 What is the information?
 Type of employer

24. National Labor Relations Act
 Federal law that protects social media activity if
it is “protected, concerted activity.”
 This is a huge landmine
 NLRA protects employee action involving a
group and pertaining to the terms and conditions
of employment
 There are certain things employees may post
online that are protected under this law

25. Examples
 Permitted Under the NLRA:
 Posts about terms and conditions of employment
 Salary, Commissions
 Complaints and criticism of a supervisor’s attitude or
performance – group complaints
 Employee staffing levels
 “My working conditions are terrible at the Bank. Does anyone
else feel the same way?”
 Not Permitted Under the NLRA:
 General gripes about the workplace
 “I hate my boss”

26. Federal Trade Commission
 The Federal Trade Commission requires
disclosures in advertising
 Facebook post or Tweet:
 “The Bank of Kentucky is the best bank in the region
and everyone should be a customer.”
 An employee cannot post an endorsement or
promotion of the Company without disclosing
that they are employed there

27. Practical Tips for Social Media
 If you see that an employee has posted
something online that is questionable, refer the
issue to HR
 Managers are advised not to friend their
employees on social media
 Do not engage with employees via social media

28. Diversity

29. Diversity
 The concept of workplace diversity
encompasses many different traits:
 Age
 Gender
 Race
 Religion
 National Origin

30. Diversity
 Generational diversity has become more of an issue as
employees retire at a later age and young people enter
the workforce
 First time to have four generations together at work
 Knowledge about generations can help employees work
effectively across generational lines
 Generational Groups:
 Traditionalists  1925-1945, 69-89 years old
 Baby Boomers  1946-1964, 50-68 years old
 Gen X  1965-1981, 33-49 years old
 Millennials  1982-2000, 14-32 years old

31. Generational Challenges at Work
 Poor communication
 Misunderstood attitudes, relationships, and working
environments
 Gen Xers and Millennials
 Prefer electronic communication
 Do not like meetings
 Communicate informally and multi-task
 Traditionalists and Boomers
 Prefer face-to-face & more formal communication
 Boomer bosses like to have at least one meeting each week with
employees

32. Generational Challenges at Work
 To bridge the generational gap:
 RESPECT
 Appreciate differences
 Try to find things you have in common with employees of other
generations
 View things from the perspective of those in other generations
 Think before you speak
 Do not discuss age

33. Family & Medical Leave Act
and
Americans With Disabilities Act

34. Family & Medical Leave Act
“FMLA”
 This Act provides eligible employees up to 12 weeks of job-protected
leave annually to use for
 Pregnancy
 Prenatal care
 Serious health conditions of the employee or his/her immediate
family
 An employee must physically work:
 1,250* hours (average of 25 hours per week) during the 12
months prior to the leave
 Work at a location where at least 50 employees are employed
within 75 miles
*1250 hours is actual hours worked (exclude vacation, sick time, etc.)

35. Serious Health Condition…
 Inpatient care for any length of time
 Absence greater than 3 days with
 Two visits to a health care provider or
 One visit and ongoing treatment
 Pregnancy or prenatal care
 Chronic condition (e.g. asthma, migraines, fibromyalgia)
 Must see provider at least 2 times per year
 Permanent or long-term condition (Alzheimer’s)
 Condition that requires multiple treatments (cancer/chemotherapy)

36. Designation of FMLA
 It is employer’s responsibility to determine if leave is
FMLA related
 Employees do not have to ask for FMLA or even mention
the FMLA
 Failure to consider and designate leave properly is a
violation of the law
 Failure to send paperwork timely for FMLA is a violation

37. Intermittent Leave Under FMLA
 FMLA leave can be a block of time or intermittent
 Employees can request hours off work instead of
days or weeks
 Intermittent leave counts toward the 12 week
entitlement
 If intermittent leave is related to FMLA condition, in
most cases, it must be granted

38. Medical Certification
 Employers can request medical certification from a
health care provider
 Always request a certification
 Certification can come from a doctor, chiropractor,
midwife, etc.
 Must notify employee that certification is required
 Once certification is returned, employer must send
second notice confirming leave (Designation Notice)
 If no certification is returned, may count it as an
absence

39. Military Leave Under FMLA
 Deployment:
 Leave to get family and service member
ready
 12 weeks
 Care for injured service member
 26 weeks

40. FMLA
 Employer’s duty to obtain enough information to
determine if absence is covered by FMLA
 Do not counsel or discuss FMLA in any
evaluations, discipline or any other document
 Do not discuss burden due to absence
 Intermittent leave is available if needed

41. FMLA Criteria
 Does the employee qualify for FMLA?
 Been employed longer than 12 months
 Worked more than 1,250 hours in past 12 months
 Does the absence qualify for FMLA?
 Inpatient care
 Pregnancy related or adoption
 Chronic condition
 Absent longer than 3 days
 Receiving any treatment (dialysis, chemo)
 Does the employee have an FMLA form on file?

42. Discipline or Terminate
with Caution!
 When, how and under what circumstances may an employer
discharge the employee for absenteeism?
 Cannot include FMLA time in absences or time that should have
been FMLA time
 FMLA protection does not extend to any dishonest acts an
employee might perform in connection with FMLA leave
 Violation of company policy
 Misuse of leave
 Moonlighting

43. Individual Liability & Your Protection
 You can be held personally liable, even if you are
doing your job!
 Use caution in dealing with attendance issues
 Management should consult with HR to get
clearance for any disciplinary action against
someone who has taken or has requested leave

44. FMLA – ADA - HIPAA
 When should you ask what?
 If employee calls in sick or tells you of need for leave,
ask questions to determine if it is FMLA
 If employee has performance problems, do NOT ask
about possible medical conditions
 Counsel on job performance
 HIPAA requires that any medical information you
receive, you keep confidential
 Do NOT keep medical information in files with personnel
notes

45. Americans with Disabilities Act
(“ADA”)
 Employers may not discriminate against
qualified individuals who, with or without
reasonable accommodation, can perform the
essential functions of the job

46. Disability Discrimination
 Definition of a disability:
 Substantial impairment of a major life activity
 A record of such a disability
 Regarded as having such an impairment
 Major life activities:
 Caring for oneself, performing manual tasks, walking,
breathing, seeing, hearing, speaking, learning,
working, eating, sleeping, bending, reading,
concentrating, thinking and communicating
 It is a vague definition that has created a lot of litigation

47. Disability Discrimination
 Reasonable accommodations must be given if requested
 These may include:
 Modified policies and procedures
 Modified equipment
 Part-time or flexible schedules
 Additional leave (beyond FMLA)
 Transfer to a vacant position
 Reassignment of non-essential functions
 A determination of accommodations should be done for
each disabled employee. (Must engage in interactive
discussion)

48. ADA Questions to Ask Yourself
 Did the employee tell you about a medical condition?
 Did the employee ask for a change in the job?
 Lifting restrictions
 Reduced hours or days
 Modified equipment
 Is it possible to grant the request or modify the job?
 If not, is there an open position for the employee?
 Did you discuss the request with the employee?
 Did you document the discussion?

49. Whose Responsibility is it to
Request/Identify Accommodations?
 It is the employee’s responsibility to request a reasonable
accommodation such as leave time
 Employers should not ask or assume an employee has a
disability or needs an accommodation unless the need is
obvious
 Employers should focus on job performance not what
may be causing poor job performance (This is a mistake
made by lots of employers)

50. Protecting Against Disability
Discrimination Claims…
 Once the employee requests an accommodation,
the employer must engage in an interactive
process with the employee
 Purpose of interactive process is to identify precise
limitations resulting from disability and potential
accommodations

51. Protecting Against Disability
Discrimination Claims
 Document requested accommodations and
offers made by the employer
 Ask employee to provide request for
accommodation in writing
 All requests need not be granted but must be
considered

52. Documentation Tips

53. How to Document Correctly
#1 Rule:
DO THE DOCUMENTATION
#2 Rule:
DO NOT PUT ANYTHING IN WRITING THAT YOU WOULD NOT
WANT A JURY OR JUDGE TO SEE

54. Personnel Documents
 In legal/administrative proceedings, documents
are discoverable
 Avoid off-hand comments about age, sex,
religion, etc.
 Do not send strategy in e-mails
 Focus on facts, not opinions or conclusions

55. What Happened?
Focus on Facts, Not Opinions or Conclusions
 Not: “Bart Simpson is lazy.”
 Instead: “Bart Simpson did not complete the project
by the due date, even after his supervisor reminded
him it was due and offered assistance.”
 Not: “Betty Boop has a bad attitude.”
 Instead: “Betty Boop raised her voice and became
argumentative when asked about the status of the
project.”

56. Document Poor Performance
 Maintain a cumulative record of ongoing employee
performance
 Tell employees the consequences of failure to improve
 Document employee warnings & assessments
 Document attendance & tardiness
 Document your expectations

57. Remember the Good Stuff!
 Document awards and recognition
 Training or certifications completed
 Examples of exceptional performance
 Important for review process
 Important for promotion decisions

58. Employee Response to Discipline
 Employee should be given opportunity to
respond
 Employee should be interviewed and this should
be documented
 Employee should be presented with the facts

59. STAR Model for Giving Feedback
 Situation - describe the situation where behavior occurred
 Task - describe the task the employee performed
 Action - describe the action the employee chose
 Result - describe the outcome that occurred as a result of the action
 If it is constructive feedback, add AA:
 Alternative Action - suggest an alternative action employee could
have chosen
 Alternative Result - describe likely outcome that would have
occurred with alternative action.

60. How to Document Correctly
 Date the document with month, date and year
 List the name and job title of individuals present in a
meeting
 Refer specifically to a policy if applicable
 Avoid personal opinions or beliefs
 Avoid sarcasm
 Preparer needs to sign and print name
 Complete documents close to time of the event

61. Employee Evaluations
 Evaluations should be done regularly
 Reviewed by employee & supervisor
 Printed copy does not need to be sent to HR
 Allow employee to write a response
 HR Online
 In writing

62. Tips for Good Evaluations
 Remove subjectivity if possible
 Written statement of performance should be included on
appraisal
 If ranking system is used, give written description to
support ranking
 Results should be reviewed with employee and
employee can give feedback via HROnline once the
review is completed
 Be honest

63. Communication
 What do employees want from a work
environment?
 Why do people stay?
 What do you want from the work environment?
 Develop action plans specific to your team
 Talk about conflict – do not let it fester

64. Steps for Termination
 All terminations should go through HR and be pre-approved
 Employee should be notified of termination in person,
with HR present
 Do not apologize to the employee
 Be straightforward, compassionate, & sincere
 Tell the employee the basis for the termination
 Say no more than is necessary
 Document the termination, including the employee’s
reaction

65. Giving References
 All references go through HR
 Best Policy  verify dates of employment and give no
other information
 Bad reference could result in defamation action against
employer
 No duty to advise of employee’s shortcomings
 Have one person responsible for reference checks (HR)
 Letter of recommendation should not be done
 Be wary of LinkedIn recommendation

66. EAP
 The Company has an Employee Assistance Program
(“EAP”)
 Employee benefit program that can provide
assessment, support and referrals
 Program helps employees deal with personal problems
that might adversely impact their job performance
 Employees who are struggling in the workplace should
be referred to EAP

67. Ending Quote
“In the end, we’re all members of the same
race, the human race. We all owe each
other charity and dignity. Just a little from all
of us will make the world a great deal better
– at no economic cost.”
Thank you!
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