EmPloymENT PRaCTICEs loss PREvENTIoN …

1 chubb Group of Insurance Companies | document is advisory in nature. It is offered as a resource to be used together with your professional insurance and legal advisors in developing a loss control program. This guide is necessarily general in content and intended to serve as an overview of the risks and legal exposures discussed herein. It should not be relied upon as legal advice or a definitive statement of law in any jurisdiction. For such advice, an applicant, insured, or other reader should consult their own legal counsel. No liability is assumed by reason of the information this document promotional purposes, chubb refers to the member insurers of the chubb Group of Insurance Companies underwriting 14-01-0061 (Rev.)

2 1/14) Printed on recycled paperEmPloymENT PRaCTICEs loss PREvENTIoN GuIdElINEs A Practical Guide from ChubbEMPLOYMENT PRaCTICEs LIABILITY loss PREvENTIoN A Practical Guide from ChubbPrepared by Seyfarth Shaw LLPfor the chubb Group of Insurance CompaniesThis booklet addresses a broad range of topics about acts of workplace violence and threats of violence directed toward people associated with your organization. It is advisory in nature and offered as a resource to use in conjunction with specialized training and consultation conducted by qualified experts and tailored to the particular needs of your organization.

3 No liability is assumed by reason of the information in this : The views expressed in this handbook are those of Seyfarth Shaw LLP and may or may not reflect the views of any members of the chubb Group of Insurance ..7 OVERVIEW: FEDERAL LAWS THAT GOVERN THE EmPloymENT RELATIONSHIP ..8 Title VII of the Civil Rights Act of 1964 ..8 Section 1981 of the Civil Rights Act of 1866 ..9 Age Discrimination in EmPloymENT Act (ADEA) ..10 Equal Pay Act (EPA) ..11 Executive Order 11246 (Affirmative Action Plans and the Office of Federal Contract Compliance Programs [OFCCP] ..12 The Americans with Disabilities Act (ADA), Americans with Disabilities Act Amendments Act (ADAAA) and the Rehabilitation Act of 1973.)

4 13 Lilly Ledbetter Fair Pay Act of 2009 (LLFPA) ..16 The Family and Medical Leave Act (FMLA) ..16 Uniformed Services EmPloymENT and Reemployment Rights Act of 1994 (USERRA) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 ..17 Labor Laws and Union Representation ..18 Wage and Hour Laws ..19 Employee Benefit Laws ..20 Genetic Information Nondiscrimination Act (GINA) ..21 Other Federal Laws ..22 STATE STATUTES AND LOCAL ORDINANCES REGULATING EmPloymENT ..23 STATE COMMON LAW EmPloymENT CLAIMS ..242 Wrongful Discharge or Discharge in Violation of Public Policy.

5 24 Breach of Contract ..25 Tort Claims ..26 Promissory Interference with Contract ..26 Invasion of Privacy ..26 Assault and Battery ..27 False Imprisonment ..27 Negligence Claims ..28 Intentional Infliction of Emotional Distress .. and Misrepresentation ..30 RECRUITING AND HIRING EMPLOYEES ..31 Before You Begin the Hiring Process ..31 EmPloymENT Applications ..33 Job Interviews ..36 Investigating Candidates for EmPloymENT : References, Credit and Background Checks ..40 Hiring an Applicant ..43 Immigration Considerations ..44 EMPLOYEE AND APPLICANT TESTING ..46 Medical Testing (ADA Limitations).

6 46 Drug and Alcohol Testing ..47 Psychological and Personality Tests ..483 Lie Detector or Polygraph Tests ..49 HIV Testing ..50 Performance and Aptitude Tests ..51 Fingerprinting ..51 Genetic Testing ..51 THE PROHIBITION OF WORKPLACE HARASSMENT ..53 Rules for Claims of Sexual Harrassment ..54 Conduct Prohibited ..55 Protected Groups ..56 Employer Liability ..56 The Importance of an Appropriate, Well-Publicized Policy Against Harassment ..56 Responding to Reports of Harassment ..59 Additional Considerations ..62 Claims by the Accused Harasser ..62 Off-Premises Harassment.

7 62 Liability for Harassment by Nonemployees ..62 Customer Discrimination and Equal Access Claims ..63 PERSONNEL POLICIES AND EMPLOYEE Tips ..64 Disclaim Any Promise of Job Security ..64 Avoid Making Contractual Obligations ..65 Use Clear and Concise Language ..65 Specifically Allow for Flexibility and Modification ..654 Good Policies to Include in an Employee Handbook ..66 Policies That Give Rise to Claims ..67 EMPLOYEE EVALUATIONS ..70 General Guidelines ..70 Instructions for ..72 Job-Related Appraisals ..72 Objective and Independent Review ..73 Meaningful Evaluations.

8 74 Employee Acknowledgement ..74 Limited Access to Evaluations ..75 Record Keeping ..75 Forced Rankings ..75 DISCIPLINE AND CORRECTIVE ACTION ..76 General Considerations ..76 Discipline Should Be Documented ..78 Workplace Investigations ..79 TERMINATING THE EmPloymENT RELATIONSHIP ..80 The Basics ..80 Establish Termination Procedures ..80 Making the Termination Decision ..81 Communicating the Termination Decision ..82 Responding to Post-Termination Issues ..83 Severance Agreements ..855 Pros and Cons of Severance and Release Agreements ..85 Legal Requirements ..86 Summary of Common Contents of Severance and Release Agreements.

9 86 LAYOFFS AND REDUCTIONS IN FORCE ..88 Worker Adjustment and Retraining Notification Act (WARN) ..88 The Decision-Making Process ..88 Preparation for RIF-Related Interviews ..89 Other Considerations ..90 SINGLE-PLAINTIFF AND MULTIPARTY EmPloymENT LITIGATION, INCLUDING CLASS AND COLLECTIVE ACTIONS; THE ALTERNATIVE DISPUTE RESOLUTION OPTION; AND OTHER ISSUES ..92 Types of Claims ..92 Arbitration and Other Types of Alternative Dispute of Pre-Dispute ADR Programs ..94 Advantages of Post-Dispute ADR Programs ..95 Disadvantages of ADR ..96 The Use of Personnel Records in EmPloymENT Litigation.

10 97 Assume All Documents Are Available to Your Opponent ..97 The Benefits of Properly Prepared Documents ..99 Problematic Documents ..100 Document Retention ..101 CONCLUSION ..102 INFORMATION ABOUT THE AUTHORS ..1037 INTRODUCTIONE mployers face increasing legal obligations in managing their workforces. The federal government and the states continually impose new EmPloymENT regulations on employers, designed to protect employees from a lengthening list of discriminatory PRaCTICEs . In addition, large, high-visibility verdicts and settlements encourage some employees who think they have been treated unfairly to sue over EmPloymENT actions.