By A.J. Heightman, MPA, EMT-P, Editor-in-Chief of JEMS
The American Ambulance Association offered anÂ Employment Law Basics WebinarÂ on October 12 that presented valuable information on the employment relationship, the greatest legal exposure to every employer.
This session was designed for front-line supervisors and managers and provided a practical understanding of the basic principles of employment law associated with managing employees. At-will, employment discrimination, retaliation, reasonable accommodation, and wage laws were discussed along with common pitfalls that can trip up even the most seasoned of supervisors. The Webinar was approved for one (1) Professional Development Credit by the Society for Human Resources Management (SHRM).
Presenter: Scott Moore, an attorney and Human Relations expert with decades of EMS experience, Scott is Principal Advisor for EMS Resource Advisors, LLC, and a CAAS Reviewer. (See a detailed description of Scottâ€™s background and qualifications at the end of this report)
Some key points made during the Webinar
EMPLOYMENT & SUPERVISORY RELATIONSHIP
Scott pointed out that an agencyâ€™s relationship actually begins when they become a candidate for employment with your organization.
He explained that â€œAt will Employmentâ€ means that an employee can be terminated for any reason that is not illegal. But he pointed out that an employer cannot fire someone in retaliation for doing something that they are legally entitled to do, like file a complaint with a regulatory or oversight agency.
He also noted that many state laws recognize exceptions to the At-Will employment relationship and that employers need to be aware what is required in their state. Often employers unknowingly and unintentionally create a â€œJust Causeâ€ or an implied contractual termination standard by statements made in a company handbook.
TOP EMPLOYMENT LAWS REFERENCED
Fair Labor Standards Act (Changes coming December 1, 2016)
Scott noted that, in general, time worked over 40 hours is considered to be overtime (There are a few states, like California, provide more restrictive overtime pay requirements (i.e. In California, if you work more than 8 hours you need to be compensated at an overtime rate)
He pointed out that, on December 1, 2016, amendments to the overtime exemptions salary thresholds increase from $455 per week to $913/week or just over $47,000 annually. He also noted that while many of the employees in our industry are hourly paid, it is important that ambulance services examine their exempt positions now to determine if they need to make adjustments to be in compliance.
Discrimination (Title VII of the Civil Rights Act of 1964)
This law applies to employers that have 15 or more employees
Title VII of the Civil Rights Act of 1964 is a United States federal law that prohibits employment discrimination based on race, color, religion, sex or national origin. After the Supreme Court ruling, the Civil Rights Act of 1991 (Pub. L. 102-166) amended several sections of Title VII in an effort to strengthen discrimination protections for protected individuals.
Title VII prohibits employment discrimination from an employerâ€™s intentional act, also called disparate treatment or from an employer practice or policy that is non-discriminatory on its face but results in a disparate impact on a protected group.
Scott provided the example from Massachusetts that previously required State Troopers be a minimum of 6 feet tall. This neutral practice resulted in a disparate impact women as it is uncommon for women to be that tall.
He cited the McDonald Douglas case (McDonnell Douglas Corp. v. Green, 411 U.S. 792 – 1973), a United States Supreme Court case that set the framework regarding the burdens and nature of proof that courts utilize in a Title VII discrimination case.
This law provides protections to older worker and prohibits discrimination on the basis of age in in employment. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).
Scott noted that, for the purposes of this Act, employees under 40 (i.e. Millennials) are not covered by this Act. However, he noted that employers are best advised to consider candidates and employees based upon their ability to perform the essential functions of a position rather than other irrelevant factors like age.
Protection and Accommodations for Pregnant Employees
Scott pointed out that an employer cannot discriminate against a woman because she is pregnant and cited Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”).
The Pregnancy Discrimination Act of 1978 is a United States federal statute. It amended Title VII of the Civil Rights Act of 1964 to “prohibit sex discrimination on the basis of pregnancy.” The Act covers discrimination “on the basis of pregnancy, childbirth, or related medical conditions.
Read more on this act here: https://www.eeoc.gov/eeoc/publications/fs-preg.cfm
Scott noted that this is an area commonly faced by EMS agencies and that a recent case, Young vs. UPS, had implications for an employerâ€™s obligation to pregnant workers when they are restricted from normal job duties due to their pregnancy.
Facts about Young vs. UPS
Peggy Young was employed as a delivery driver for the United Parcel Service (UPS). In 2006, she requested a leave of absence in order to undergo in vitro fertilization. The procedure was successful and Young became pregnant.
During her pregnancy, Young’s medical practitioners advised her to not lift more than twenty pounds while working. UPS’s employee policy requires their employees to be able to lift up to seventy pounds.
Due to Young’s inability to fulfill this work requirement, as well as the fact that she had used all her available family/medical leave, UPS forced Young to take an extended, unpaid leave of absence. During this time, she eventually lost her medical coverage. Young gave birth in April 2007 and resumed working at UPS thereafter.
Young sued UPS and claimed she had been the victim of gender-and disability-based discrimination under the Americans with Disabilities Act and the Pregnancy Discrimination Act.
UPS moved for summary judgment and argued that Young could not show that UPS’s decision was based on her pregnancy or that she was treated differently than a similarly situated co-worker. Furthermore, UPS argued it had no obligation to offer Young accommodations under the Americans with Disabilities Act because Young’s pregnancy did not constitute a disability.
The district court dismissed Young’s claim. The U.S. Court of Appeals for the Fourth Circuit affirmed.
Supreme Court Action on Young vs. UPS
On March 25, 2015, the U.S. Supreme Court issued its much-anticipated decision in Young v. UPS, which employer and employee groups alike hoped would clarify whether employers must provide light duty and other workplace accommodations to pregnant employees in the same manner they provide accommodations to employees who are injured on the job.
While the majority opinion did not answer this question directly, the Supreme Court provided a framework for pregnant employees challenging workplace accommodation policies and practices under Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”).
In this 6-3 decision, the Court held that a pregnant employee can establish a prima facie case of disparate treatment by showing, under the familiar McDonnell Douglas burden-shifting framework, that: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others “similar in their ability or inability to work.”
If these elements are established, an employer has the burden of production to proffer a legitimate, nondiscriminatory reason for denying the accommodation. The Court noted, however, that this reason must be more than an employer’s claim that it is more expensive or less convenient to add pregnant women to the categories of those whom the employer accommodates. Once the employer proffers a legitimate, nondiscriminatory reason, the employee must establish that the employer’s reason is pretextual. The Court provided examples of how this could be done in the PDA context.
Read more here: https://www.littler.com/heavy-burden-light-duty-young-v-ups
GINA (Genetic Information Nondiscrimination Act of 2008)
This is an act that prohibits employment discrimination on the basis of genetic information. The essence of this is that employers cannot purchase and use genetic information (family medical history, etc.) as the basis on influencing factor in employment relate decisions.
NLRA â€“ National Labor Relations Act:
Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to guarantee the right of employees to organize and bargain collectively with their employers, and to engage in other â€œconcerted protected activityâ€ for the purposes of mutual aid and protection.
In essence, employees can organize to try to negotiate wages, benefits, and working conditions. If an employer has a unionized workforce, it will be required to participate in the collective bargaining process to attempt reach agreeable employment terms with the represented employees.
Scott stated that labor relations and union legal practice are a sub-specialty in employment law and suggested that EMS agencies engage counsel from attorneys or firms who specialize in this area.
For more on the NLRA, go to: https://www.nlrb.gov/resources/national-labor-relations-act
The Americans with Disabilities Act prohibits employment discrimination on the basis of a candidate or employeeâ€™s disability or perceived disability. A â€œdisabilityâ€ under the ADA is defined as physical or mental impairment that substantially limits one or more major life activities. The Act requires that employer engage in the â€œinteractive processâ€ with the disabled individual to determine if the employer can provide a â€œreasonable accommodationâ€ that allows the person to perform the essential functions of the job. Employers are not required to provide accommodations to the disabled employee if they would create an undue hardship upon the employer. The EEOC, which enforces the Act provides compliance guidance for employers on their website.
Scott noted that EMS is often a very emotionally charged environment and that coworkers and supervisors often become overly casual or friendly in their professional relationships. For this reason and also because many state laws require initial and annual harassment training, Scott felt it was critical that all ambulance services provide a minimum of one hour of sexual harassment training for line employees and two hours of training for leadership staff.
In addition, Scott encouraged employers to communicate with employees and management about acceptable workplace behavior and professionalism. Scott recommended companies utilize access controls at their ambulance stations to restrict internet access to inappropriate sites. However, employers should understand that most employees hold mobile devices that cannot be controlled and that clearly drafted policies should address expectations.
Lastly, Scott quickly covered the Uniformed Service Employment and Reemployment Rights Act (USERRA). USERRA establishes rights and responsibilities for military service members and their private employers. This Federal law provides protections to those who leave their jobs to serve our Country and ensures their rights to reemployment after their service is completed. Employers are prohibited from discriminating against employees based upon their past, present, or future military service.
- All complaints need to be investigated. Start it immediately.
- Do detailed investigatory reports and document, document, document.
- Follow-up and do not let complaints or incidents fall through the cracks.
- You cannot take a negative action against an employee based upon an action an employee took against you.
- He noted that he felt it is likely that Paid Family Medical Leave Act will probably be in all agencyâ€™s futures.
Â About Scott Moore
Scott Moore grew up twenty minutes north of Boston, MA and has been in EMS for 26 years still works as a Call Fire-Fighter in his town for the last 11 years. He holds a bachelorâ€™s degree in psychology and a Juris Doctor from Suffolk University Law School.
- He is a Principal Advisor with EMS Resource Advisors, LLC, where he provides consulting services on all aspects of ambulance service operations, with a focus on Human Resources, employee relations, regulatory compliance, and leadership development/education. Additionally, he provides assistance with general system design, operational oversight, patient billing services, and Accreditation preparation.
- He previously served as Director of Human Resources at Cataldo Ambulance Service Inc., CEO of Armstrong Ambulance Service, Inc., Vice President of Northeast Regional Ambulance Service, Inc., and Director of Human Resources & Reimbursement for Action Ambulance Service, Inc.
- He was Co-Chair of the Education & Membership Committee at AAA
- He serves as a Site Reviewer for the Commission on the Accreditation of Ambulances
- Prior to his administrative career in EMS, Scott serves as a Benefits Advisor with the United States Department of Labor where he advised employers and employees on their rights under the Employee Retirement Income Security Act (ERISA) including COBRA and HIPAA. Investigated complaints from employees against pension and welfare plan issues.
For more on the American Ambulance Association and future Webinar offerings, go to https://the-aaa.org/
JEMS is the Official Media Partner of the American Ambulance Association