Employment Law Update: Employment Law Update: Hiring to Separation - PDF document

Employment Law Update: Employment Law Update: Hiring to Separation Hiring to Separation T Texas City Attorney’s Association Semi-Annual Texas City Attorney’s Association Semi T Cit Cit Att Att ’ ’ A A i ti i ti S S i A i A Annual l l Meeting Meeting South Padre Island, Texas South Padre Island, Texas June 6 – June 6 – 9, 2012 9, 2012 ELIZABETH M. PROVENCIO ELIZABETH M. PROVENCIO Presentation Roadmap Presentation Roadmap  Regulatory & case law (post Jan. 2011): Regulatory & case law (post Jan. 2011): guidance on employment decisions & guidance on employment decisions & terms of employment terms of employment  Discipline  Discipline Discipline Discipline  Accommodation Accommodation  Separation Separation  Enforcement of Settlement/Release Enforcement of Settlement/Release Agreements Agreements EEOC: Enforcement Guidance on EEOC: Enforcement Guidance on Use of Arrest and Conviction Records Use of Arrest and Conviction Records  April 25, 2012 April 25, 2012  Disparate Treatment: used differently Disparate Treatment: used differently for different individuals for different individuals for different individuals for different individuals  Disparate Impact: neutral policy has Disparate Impact: neutral policy has adverse impact without sufficient job adverse impact without sufficient job relatedness and business necessity relatedness and business necessity www.eeoc.gov www.eeoc.gov 1

EEOC: Enforcement Guidance (cont.) EEOC: Enforcement Guidance (cont.)  Disparate Impact Disparate Impact  Two circumstances where EEOC Two circumstances where EEOC believes it meets job relatedness and believes it meets job relatedness and believes it meets job relatedness and believes it meets job relatedness and business necessity business necessity Validity study Validity study 1. 1. EEOC: Enforcement Guidance (cont.) EEOC: Enforcement Guidance (cont.) 2. . Targeted Targeted screen screen: : considering considering at at least least the the nature nature of of the the crime, crime, the the time time elapsed, elapsed, and and the the nature nature of of the the job ( job ( Green Green v v. . Missouri Missouri Pacific Pacific Railroad Railroad , 549 549 F F. .2 2d d 1158 1158 ( (8 8th th Cir Cir. . 1977 1977)) )). . Th Th The employer’s The employer’s policy l l ’ ’ policy then li li th then provides th provides an id id an opportunity opportunity for t t it f it for an an individualized individualized assessment assessment for for those those people people identified identified by by the the screen, screen, to to determine determine if if the the policy policy as as applied applied is is job job related related and and consistent consistent with with business business necessity necessity. . (Although (Although not not required required in in all all circumstances, circumstances, regs regs caution caution the the use use of of a a screen screen that that does does not not include include individualized individualized assessment assessment is is more more likely to likely to violate violate Title Title VII VII. .) ). . EEOC: Enforcement Guidance (cont.) EEOC: Enforcement Guidance (cont.)  Compliance with other federal Compliance with other federal laws/regulations that conflict with Title laws/regulations that conflict with Title VII is a defense to a charge of VII is a defense to a charge of discrimination under Title VII discrimination under Title VII discrimination under Title VII discrimination under Title VII  State and local laws or regulations are State and local laws or regulations are preempted by Title VII preempted by Title VII 2

EEOC: Enforcement Guidance (cont.) EEOC: Enforcement Guidance (cont.) Best Practices Best Practices  Ask about convictions for select Ask about convictions for select positions (may come later in process positions (may come later in process depending on the position) depending on the position)  Record evaluation of process for which Record evaluation of process for which conviction record used and justification conviction record used and justification  Narrowly tailored interview questions Narrowly tailored interview questions  Effective training Effective training  Ensure confidentiality Ensure confidentiality Unemployment Benefit Unemployment Benefit Determination Determination  Appeal considerations (shaping your Appeal considerations (shaping your case on the front end) case on the front end) case on the front end) case on the front end)  TWC Appeals Policy and Precedent TWC Appeals Policy and Precedent Manual Manual www.texasworkforce.org www.texasworkforce.org  Resources for preparation (questioning Resources for preparation (questioning by TWC Hearing Officer) by TWC Hearing Officer) Crystal City v. Palacios Crystal City v. Palacios (Tex. App. (Tex. App. – – San Antonio 2012) San Antonio 2012) Revisits Revisits City City of of Houston Houston v v. . Williams Williams in in which which Tex Tex. . S. .C C. . held held unilateral unilateral employment employment contract contract created created when when an an employer employer promises promises an an employee certain employee certain benefits benefits in in exchange exchange for for the the employee s employee s employee’s employee’s performance performance performance performance and and and and the the the the employee employee employee employee performs performs Palacios Palacios: : 4 th th Ct Ct. . held held that that City City Charter Charter and and personnel personnel manual manual were were not not sufficient sufficient in in detail detail in in compensation in compensation in return return for for specified specified services services (no (no specific specific persons, persons, no no specific specific dollar dollar amounts)-- amounts) --no no contract contract was was formed formed 3

Workers Compensation Act Workers Compensation Act Retaliation Retaliation  Tex Tex. . S S. .C C. . decided decided Norman Norman v v. . Travis Travis Central Central Appraisal Appraisal District District (Tex (Tex. . 2011 2011) )  No  No No waiver No waiver waiver of waiver of of immunity of immunity immunity for immunity for for retaliation for retaliation retaliation retaliation claims claims  Entity Entity must must meet meet definition definition of of political political subdivision subdivision Political Subdivisions Political Subdivisions  County County  Municipality Municipality  Special District Special District  School District School District  Junio College District Junio College District  Housing Authority Housing Authority  Community center for MHMR Community center for MHMR  Or “any other legally constituted political Or “any other legally constituted political subdivision of the state” subdivision of the state” Tex. Labor Code 504.001 Tex. Labor Code 504.001 ADAAA ADAAA Colutta Colutta v v. . Sodexo Sodexo : fear fear of of traveling traveling over over water water not not a a disability disability but but may may be be protected protected because because employer employer “regarded” “regarded” her her as as impaired impaired impaired impaired which which which which prevented prevented prevented prevented her her her her from from from from working offshore working offshore 4

ADAAA ADAAA Garner Garner v v. . Chevron Chevron (S (S. .D D. . Tex Tex. . 2011 2011) ): : Court Court dismissed failure dismissed failure to to accommodate accommodate claim claim because because Plaintiff Plaintiff did did not not request request an an accommodation accommodation accommodation accommodation even even even even though though though though employer employer employer employer knew knew about about anxiety anxiety disorder disorder Court found fact issue with disability Court found fact issue with disability discrimination based on “regarded as” discrimination based on “regarded as” prong prong ADAAA ADAAA  SECHLER V. Modular Space Corp. SECHLER V. Modular Space Corp. (S.D. (S.D. Tex. 2012): alcohol dependence Tex. 2012): alcohol dependence accommodation claim defeated because accommodation claim defeated because employer afforded Plaintiff time off he employer afforded Plaintiff time off he employer afforded Plaintiff time off he employer afforded Plaintiff time off he requested requested Title VII Title VII  Bazile Bazile v. City of Houston v. City of Houston (S.D. Tex. 2012): (S.D. Tex. 2012): Court approved proposed consent decree Court approved proposed consent decree in part because remedies tailored to in part because remedies tailored to address adverse impact show to exist for address adverse impact show to exist for address adverse impact show to exist for address adverse impact show to exist for Captain and Sr. Captain promotional Captain and Sr. Captain promotional exams under 143 and the CBA exams under 143 and the CBA  Scoring and weighting components Scoring and weighting components required to be bargained between the required to be bargained between the Association and City Association and City 5