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					 Overview of Lawful and Effective
Employment Practices of Importance
   to Government Contractors

                                  Breakout Session #410
                     Anthony L. Martin and William J. Daley
                                  Attorneys
                            Lewis and Roca LLP
                                          Date 04/12/06
                                       Time 2:25 pm – 3:25 pm


NCMA World Congress 2006                                                                    April 10–12, 2006
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                  PURPOSE OF TRAINING

              • Educate you about law and policy
              • Enable you to avoid the legal pitfalls
                of the employment process
              • Maintain a safe, fun and productive
                workplace
              • Protect the company and yourself
                from costly, time consuming legal
                proceedings



NCMA World Congress 2006                                                                    April 10–12, 2006
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                                   DISCRIMINATE
                                        According to
                                          Webster:




     To make distinctions in treatment.

NCMA World Congress 2006                                                                    April 10–12, 2006
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     IS ALL DISCRIMINATION BAD?

           • Sometimes it is OK to make
             distinctions between people
             Example: The person with greater
             experience gets the promotion
           • The law prohibits distinctions made
             based on protected characteristics
             Example: The male gets the
             promotion over female just because
             of his gender.

NCMA World Congress 2006                                                                    April 10–12, 2006
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                                               HARASS

                                           According to
                                             Webster:




                 To trouble, worry or torment
NCMA World Congress 2006                                                                    April 10–12, 2006
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    HARASSMENT-ALWAYS WRONG,
       SOMETIMES UNLAWFUL
          • Harassment can become
            unlawful when someone is
            tormented because of a
            protected characteristic such
            as race or gender
          • All other harassment is against
            company policy


NCMA World Congress 2006                                                                    April 10–12, 2006
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                                          RETALIATE

                                        According to
                                          Webster:




                              To return like for like.
NCMA World Congress 2006                                                                    April 10–12, 2006
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                                     RETALIATION


      • A retaliation claim is the
        victim’s best friend:

      • The plaintiff in a retaliation
        case does NOT NEED A
        VALID UNDERLYING CLAIM


NCMA World Congress 2006                                                                    April 10–12, 2006
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                                  RETALIATION

        Retaliation is prohibited by most
          discrimination statutes as well as
          public policy:
        • Whistleblowing
        • Making a Workers Comp claim
        • Refusal to lie under oath
        • Refusing to violate the law
NCMA World Congress 2006                                                                    April 10–12, 2006
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    OBLIGATIONS OF THE COMPANY
    • Make the workplace free of unlawful
      discrimination, harassment and
      retaliation
    • Promptly and confidentially investigate
      complaints of discrimination,
      harassment and retaliation
    • Where discrimination, harassment
      and retaliation may have occurred,
      take prompt and appropriate remedial
      action (i.e., discipline commensurate
      with the offense)
NCMA World Congress 2006                                                                    April 10–12, 2006
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           KEY QUESTIONS TO ALWAYS ASK
              YOURSELF WHEN MAKING
               PERSONNEL DECISIONS


      • Am I using job related criteria in
        making this decision?
      • Am I treating this person the
        same as I treat other similarly
        situated individuals?


NCMA World Congress 2006                                                                    April 10–12, 2006
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                            HISTORTY OF
                          EMPLOYMENT LAW


                    Prior to 1964, pursuant to
                    the Civil Rights Act of 1866,
                    the only protected class
                    was race



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                                    1964-Title VII
                                   Civil Rights Act
         In addition to the creation of the
         EEOC, Title VII made it illegal for
         employers to treat individuals
         differently based on the following
         protected characteristics:
    •    Race
    •    Religion
    •    National Origin (ethnic background)
    •    Sex (gender)
NCMA World Congress 2006                                                                    April 10–12, 2006
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                                               TITLE VII
              Discrimination prohibited as to:
              • Hiring
              • Promotion
              • Discipline
              • Termination
              • Wages
              • All other terms and conditions of
                employment
              • Retaliation prohibited
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                                Damages in 1964



                • Back wages
                • Injunctions
                • Attorneys fees




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                                                         1967
              AGE DISCRIMINATION IN
              EMPLOYMENT ACT (ADEA)
            • Age added as a protected
              characteristic (40 and over)
            • Liquidated damages also
              available
            • BEWARE: Stray remarks and
              skewed policies

NCMA World Congress 2006                                                                    April 10–12, 2006
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                                                   1980
                          EEOC GUIDELINES
      EEOC interprets Title VII to prohibit:
    “unwelcome sexual advances, request
    for sexual favors and other verbal and
    physical conduct of a sexual nature
    that has the interfering with an
    individual’s work performance or
    creating an intimidating, hostile or
    offensive working environment”
NCMA World Congress 2006                                                                    April 10–12, 2006
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                  1986 - Vinson vs. Meritor



            • Facts

            • New Law



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    1990 Americans with Disabilities
              Act (ADA)
             • Disability is a protected
               characteristic
             • Definition of disability: physical
               or mental impairment which
               substantially limits a major life
               activity
             • In addition to prohibition of
               discrimination, reasonable
               accommodation is required
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                                             ADA cont.
      • A modification need not eliminate an
        essential function of the job
      • Production standards need NOT be
        lowered
      • A modification need not be made if it
        creates an unreasonable hardship
        for the company
      • Beware: record or regarded as
        disabled
      • REQUIRED: Interactive Process
NCMA World Congress 2006                                                                    April 10–12, 2006
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                         1991-Civil Rights Act

                  • Amends Title VII and the
                    ADA, adding additional
                    damages:
                    – Compensatory
                       damages
                    – Punitive damages
                    – Jury trials
NCMA World Congress 2006                                                                    April 10–12, 2006
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                           Other Federal Laws
        • Pregnancy Discrimination Act
          of 1978 (PDA)
        • Equal Pay Act of 1963 (EPA)
        • Uniformed Services
          Employment and
          Reemployment Rights Act of
          1994 (USERRA)
        • Family and Medical Leave Act
          of 1993 (FMLA)
NCMA World Congress 2006                                                                    April 10–12, 2006
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          WHEN CAN AN INDIVIDUAL
        SUPERVISOR OR COWORKER BE
                 LIABLE?
                             • State law torts
                               – Assault
                               – Battery
                               – Infliction of
                                  emotional
                                  distress
                               – DEFAMATION
NCMA World Congress 2006                                                                    April 10–12, 2006
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           HOW TO AVOID THE LEGAL
               PITFALLS OF THE
            EMPLOYMENT PROCESS




NCMA World Congress 2006                                                                    April 10–12, 2006
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              DON'T HIRE THE WALKING
                      LAWSUIT
    Effective Tools for Avoiding a Potential
      Problem Employee:
    • Application
    • Interview Effectively
    • Thorough Reference Checks
    • Drug Screening
    • Criminal Background Checks
    • Comprehensive Orientation Training
    • Introductory Periods
NCMA World Congress 2006                                                                    April 10–12, 2006
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                       Employment Applications
• Require every applicant to complete an
  application.
• Do not accept resumes in place of a
  completed application.
• Ensure that each application is completed and
  signed.
• Include questions relating to criminal history.
• Include an arbitration provision.
• Request comprehensive employment history.

 NCMA World Congress 2006                                                                    April 10–12, 2006
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 Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             27
                Employment Applications
• Evaluate completed applications carefully.
  Be on the look-out for:
  – Unexplained gaps in employment history.
  – Excuse making or victim mentality with
    respect to leaving of prior employment.
  – Incomplete applications or failure to sign
    the application.
  – Inconsistencies.
  – Vague description of past duties.
NCMA World Congress 2006                                                                    April 10–12, 2006
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                       Effective Interviewing
    • Let the applicant do the majority of the
      talking.
    • Ask open-ended questions.
    • Pose hypothetical situations.
    • Ask about past experiences.
    • Don’t settle for generalized answers – ask
      for details or examples.

         Document the interview, but be careful
        where you write comments. Never write
          directly on the employee’s application.
NCMA World Congress 2006                                                                    April 10–12, 2006
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                      Effective Interviewing
                      Questions NOT To Ask



•   Age                                                     •     Sexual Orientation
•   Marital Status                                          •     Health Issues
•   Religion                                                •     Union Philosophy
•   National Origin                                         •     Children/Pregnancy


NCMA World Congress 2006                                                                    April 10–12, 2006
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                           Verifying References

• Contact former employers.
• Inquire about rehire status.
• Speak with former supervisors.

    Recognize that many former employers
      will only be willing to give a “neutral”
 reference verifying only dates of employment.

  NCMA World Congress 2006                                                                    April 10–12, 2006
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             Drug and Alcohol Screening
Drug and alcohol abusers:
• Have a higher incidence of workplace
  accidents.
• Have a higher overall absentee rate.
• Are less productive when they are at work.

            Nevada, in contrast to a growing
        number of states, permits pre-employment
           screening – take advantage of it.
  NCMA World Congress 2006                                                                    April 10–12, 2006
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          Criminal Background Checks

• Limit instances of workplace violence.
• Ensure the safety of employees, customers
   and clients.
• Limit exposure for claims of negligent hiring,
   retention and supervision.
• Especially important for small companies.
• Internet sex offender registries.
If your company doesn’t currently do background
      checks, yesterday is a great time to start.
  NCMA World Congress 2006                                                                    April 10–12, 2006
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            Comprehensive Orientation
                   Training

• Thoroughly explain company policies
  and procedures.
• Review Benefits.
• Obtain signed employee
  acknowledgement upon completion.
• Clearly set out performance
  expectations.

NCMA World Congress 2006                                                                    April 10–12, 2006
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                         Introductory Periods


               • Gives the employer
                 an “out.”
               • Easier to explain.
               • Lower risk of legal
                 action.

NCMA World Congress 2006                                                                    April 10–12, 2006
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REDUCING EXPOSURE TO LIABLITY
   THROUGH DOCUMENTATION,
    POLICIES AND EFFECTIVE
     EMPLOYEE RELATIONS




 NCMA World Congress 2006                                                                    April 10–12, 2006
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 Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             36
               Comprehensive Employee
                     Handbooks


        • Identify employer
          expectations.
        • Preserve employer’s rights.
        • Limit exposure during
          litigation.

NCMA World Congress 2006                                                                    April 10–12, 2006
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                     The Importance of
                  Accurate Record-Keeping
• Wage and Hour Records.
• I-9 Compliance.
• FMLA and Other Leave or Accommodation
  Requests.
• Attendance Records.
• Disciplines and Employee Counseling.

      Consistent and accurate record-keeping
           makes your lawyers happy.
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                                             Agreements
•       Confidentiality
•       Non-solicitation
•       Non-competition
•       Compelling Arbitration in lieu of
        Litigation

        Take steps to ensure that nothing in these
          agreements alters or destroys the at-will
           nature of the employment relationship.
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                    Maintain Open Channels
                      of Communications
• Identify problems before they become a
  problem.
• Reduce discrimination, harassment and
  retaliation claims.
• Keep employee morale and productivity high.
• Avoid union organizing activity.
• Retain good employees and reduce turnover.

             Employees are often a great source of
              information for improving efficiency or
                     increasing productivity.
NCMA World Congress 2006                                                                    April 10–12, 2006
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                    DISCIPLINE,
                 EVALUATIONS, AND
               DISCHARGE UNLAWFUL
                  CONSIDERATIONS




NCMA World Congress 2006                                                                    April 10–12, 2006
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    Discipline, Evaluations, and Discharge
           Unlawful Considerations
•   Race                                                             • Veteran/Military
•   Gender                                                             Status
•   National Origin                                                  • Union Activity
•   Religion                                                         • Disability
•   Age                                                              • Worker’s Comp.
•   Sexual Preference                                                  Claims
•   Whistleblowing                                                   • Refusal to Engage in
                                                                       Unlawful Acts

     NCMA World Congress 2006                                                                    April 10–12, 2006
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     Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             42
         Common Methods of Discipline

•   Verbal Warning
•   Written Warning
•   Suspension
•   Discharge

               Document, Document, Document
                  (even the Verbal Warning)
               And remember – BE PROACTIVE.
    NCMA World Congress 2006                                                                    April 10–12, 2006
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                               Appropriate Discipline
• Investigate thoroughly.
• Discipline with respect.
• Explain purpose of discipline.
• Provide expectation and/or assistance.
• Offer opportunity for comment.
• Obtain signed acknowledgement.
• Apply discipline consistently.
• Ensure policies/discipline do not disproportionately
  impact those of a particular protected class.
• Document, Document, Document.
    NCMA World Congress 2006                                                                    April 10–12, 2006
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    Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             44
               Proper Performance Appraisals
• Base appraisal on:
   – Entire evaluation period (not just recent events).
   – Accurate data.
   – Actual performance - not on length of service.
   – Objective criteria – not personal feelings.
• Provide reasons for ratings.
• Provide expectation and/or assistance where needed.
• Offer opportunity for comment.
• Obtain signed evaluation.
• Be consistent – but not routine.


   NCMA World Congress 2006                                                                    April 10–12, 2006
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                                                 Discharge
• Prior to effectuation, consider:
   – Decision’s conformance with disciplinary procedures.
   – Impact of discharge on morale.
   – Effect on business-related matters.
   – Timing of effectuation (e.g., late in week, end of shift)
   – Legal implications (e.g., temporal proximity).
• Discharge with dignity.
• During termination meetings:
   – Have a witness present.
   – Be firm, but do not react emotionally.
   – Allow for comment.
   – Present the employee’s final paycheck - if possible.
• Remember – BE CONSISTENT
    NCMA World Congress 2006                                                                    April 10–12, 2006
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    Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             46
                         CASE STUDIES




NCMA World Congress 2006                                                                    April 10–12, 2006
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        The Swearing, Pious Employee
   An employee in your
 department is very vocal
about his religious beliefs.
 Other workers tease him
about his religion because
    he uses very foul
 language and talks very
  graphically about sex.

      Is this violation of
            policy?
  NCMA World Congress 2006                                                                    April 10–12, 2006
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                                      Mr. Meanhead
    Your manager is
 sometimes very rude to
you and raises his voice
unnecessarily. It makes
you so upset you want to
 quit. Other employees
      say it’s just his
  “management style.”

    Is this illegal harassment?
NCMA World Congress 2006                                                                    April 10–12, 2006
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Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             49
                         I Was Only Joking!!!!
 You told a sexual joke to
your co-workers and your
supervisor overheard you.
  You received a written
    warning. No one
  complained about your
        behavior.

Should you have received a
    written warning?

NCMA World Congress 2006                                                                    April 10–12, 2006
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                          Don’t Tell Anyone . . .
                      I Just Want You to Know . . .

   You tell your supervisor
about a co-worker’s offensive
  behavior, but you ask the
supervisor to keep the matter
    confidential – you just
  thought he should know.

     Can your supervisor do
             this?
 NCMA World Congress 2006                                                                    April 10–12, 2006
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 Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             51
                                       Touchy Feely
 One of your co-workers
 stands very close to you
when he talks to you and
touches you on the arm a
    lot. He treats other
 employees this way, too,
but no one else seems to
           care.

    What should you do?
NCMA World Congress 2006                                                                    April 10–12, 2006
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                               I’m Taking the 5th!
You are asked questions about
       two of your co-workers.
    Apparently, one of them has
    brought a complaint against
     the other under the Policy
     Against Harassment. You
    certainly don’t want to get in
   the middle of this dispute and
  tell the GM you won’t give any
             information.
Is this permissible under the
               policy?
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 Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             53
            More Harassment Scenarios
• Mary frequently gives a shoulder massage to John
  at his desk. She and John are good friends and
  both seem to enjoy each other’s company. Is this a
  problem?
• Two employees of the same gender are talking
  about sexual experiences. Both seem equally
  interested in the stories. No one else is present,
  and they are speaking in quiet voices. Is this
  okay?
• Two Hispanic employees refer to each other by
  using a racial term. Is this okay? If not, why?

 NCMA World Congress 2006                                                                    April 10–12, 2006
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 Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             54
                                    Playing Hard to Get
•   A male employee overheard loudly saying to
    one of the female employees, “Hey, don’t be
    so sensitive! Most women would like to have
    somebody tell them how good they look!”
    There are several other employees watching
    this scene.

•   Upon questioning about what happened, the
    male says, “Nothing happened. She’s just
    playing hard-to-get!” The female employee
    turns, looks at him, and stomps off.

•   In private the male employee says that he
    complimented the female employee on how
    she looked. After being told that it is unlikely
    the woman would get upset about such an
    innocent comment, the male employee admits
    that he made a couple of comments about
    how good a couple of specific areas of her
    body looked.

         NCMA World Congress 2006                                                                    April 10–12, 2006
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         Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             55
                              Playing Hard to Get


• Is the male employee’s conduct a
  violation of company policy?
• Is the male employee’s conduct
  unlawful sexual harassment?
• What should be done?


   NCMA World Congress 2006                                                                    April 10–12, 2006
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   Achieving High Performance in Global Business: Leadership, Outsourcing, & Risk Management   Atlanta, GA             56

				
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