Chris- Managers' Legal Training

Managers'Legal Training

Chris BrumbackSen. Corporate CounselLabor & Employment Law Michelin North America

INDEX

FMLA (medical leave)

ADA (Disability accommodation)

Harassment

Discrimination

Joint employment

Reasonable suspicion & drug testing

Rules of documentation

SECTION 1

11 Rules of Documentation

Take good notes!

rules

Document

Only Facts

Date/Time

Conclusions

Statement

5 Ws

Take good notes!

rules

Contract?

Explanation

Ultimatum

Elements

Rebuttal

SECTION 2

Family Medical Leave Act (FMLA)

Case Study

Darryl

• In September 2022, Darryl called his manager, Angela, to let her know that he was at the ER with his granddaughter, Hayley, who was being admitted overnight.
• Darryl later told Angela that Hayley had been diagnosed with Leukemia and he will need to be out on leave to take care of her while at the hospital and probably after release for chemo treatments.

QUESTIONS

• Is Darryl entitled to FMLA?
• Are you under a duty to offer FMLA although he has not mentioned FMLA at all?

• Darryl told Angela that he will need to be out 2-3 days a month to take Hayley for chemo treatment.

• Darryl started by being out 3 days a month but two months into treatments, Darryl began being out 5 days a month.
• He used to go for only 4 hours at a time and now he takes the whole day.

• Angela asked Darryl for clarification – how many days per month does he really need? And could he schedule these treatments on days when he is off work?

• Darryl was upset that Angela was asking him such intrusive questions. He stated he needed additional time to take care of Hayley due to the side effects caused by chemo.

• He also added, that it was the doctor, not him, in charge of scheduling.

Darryl

questions

• Does Darryl have to prove how many days or hours a month/week he needs to take off?

• Does Darryl have to make an effort to schedule treatment outside of working hours in an effort to not disrupt operations?

• How much notice does Darryl have to provide Angela before he takes FMLA days off?

• Can Angela ask for a doctor's note?

• What if someone saw Darryl at the downtown market shopping instead of with Hayley on the day of her chemo treatment?

DARRYL PHILBIN

• Angela asked Darryl to consider taking the whole 12 weeks off in block to take care of Hayley.

• Anglea said Darryl’s erratic schedule was too unpredictable, and it was putting a strain on the business – no one knew when he was going to be absent and they could not find a replacement in time.

• Darryl refused, so Angela said that it was best to move Darryl from his current position as a tire builder to a reroll liner position. That position would be best to accommodate such an unpredictable schedule.

• Pay and benefits would stay the same but not job duties.

• Darryl refused. This position was not the same as the one he held and he asked Angela if she could modify his current job, instead, to accommodate his schedule.

QUESTIONS

• Can you force Darryl to take more leave than what he asked for or than is necessary?
• Can you transfer Darryl to a different position that has the same pay and benefits but not the same duties to accomodate Hayley's treatment schedule?
• Are you under an obligation to modify his job?
• What about when he has exhausted FMLA- Do we need to put him back in his original role or a similar one?

SECTION 3

Americans With Disabilities Act (ADA)

"I served in Vietnam in 68'-69' with the 101st airborne division. I returned home functionally deaf (I read lips) and wearing hearing aids. I suffered a traumatic brain injury and was poisoned by Agent Orange. The price I paid, and still am paying by serving, pales compared to the reason that I chose to serve."

Richard Pimentel sponsored the ADA which was signed into law by President Bush on July 26, 1990

MUSIC WITHIN

Case Study

ERIN

• Erin was hired on January 15, 2022 as an RGEP for US1. Erin was also hired to cover US2 – where she would travel to twice a week, at a minimum.
• She started her job strong, but two months into her job Erin suffered a serious injury while on a personal trip with friends.
• A distracted driver did not see her biking on the side of the road and hit her seriously injuring her back.
• On March 11, 2022, Erin was admitted to the ER for emergency spine surgery. Her husband, John, called her Manager, Angela, to let her know what happened and that they did not know when she could return to work.
• Erin’s surgery was successful, but, unfortunately, she had a long road to recovery in front of her. She had a prognosis of at least 1 to 2 months of no work, physical therapy, and potentially another spine surgery.

questions

• Does Erin have to take PTO to cover her absences?
• Does Erin qualify for medical leave? If so, what kind?
• Can Angela replace Erin while she is out?
• What happens to her replacement when Erin returns?

• Erin was cleared to return to work on May 11, 2022 with restrictions.

• Restriction #1 – She could only work for 4 hours a day for the first 3 months.
• Restriction #2 – She could not walk for extensive periods of time. Walking could not extend to more than 2 hours each day for the next 3 months.

• The 4-hour-a-day restriction was easy to accommodate, but her restriction on extensive walking was trickier as being an RGEP for a site required extensive walking on a daily basis.

• Inspecting the site on a daily basis was essential to maintain high levels of compliance and performance.

ERIN

questions

• Does Angela have to accomodate the 4-hour per day restriction?
• How about the 2-hour per day walking restriction?
• Is walking for extended periods of time one of Erin's essential job functions? If so, what evidence would Angela use to prove it?

erin

• Angela, in consultation with Erin, agreed that, for a time, she should abide by her doctor’s orders while she continued to work.

• Angela also offered Erin the use of a motorized scooter to ease the strain on her back during site inspections.

• Erin declined the use of the motorized scooter and in spite of her pain, Erin insisted that she “didn’t need one and she would have never asked for one.”

• Although she complied with her light-work schedule most of the time, she did not always find herself able to follow her doctor’s orders.

• Erin arranged for some of her colleagues to drive her to and from the two sites so that Erin would have an opportunity to lay down in the back seat.

questions

• Was it important for Angela and Erin to sit down and discuss Erin's restrictions?
• Does Angela have to document this process? What is this process called?
• Can Erin refuse Angela's offer of a motorized scooter while refusing to inspect the sites and fulfill the essential functions of her job?
• Could Erin craft her own accomodations by asking her colleagues to drive her to and from different sites?

erin

• Shortly after renewing these accommodations, Angela learned that Erin requested that Security issue a permanent disabled parking permit.
• Contacting Erin’s doctor, Michelin’s nurse inquired whether Erin’s restrictions would be permanent.
• The doctor replied in the affirmative: “I recommend these be permanent restrictions.”

• In response to this development, Angela and the FPM had several conversations with Erin. The purpose of these conversations was to chart a mutually agreeable course forward.

erin

• Although Erin would not be able to remain in her present position, Angela and the FPM spoke with her about other potential career opportunities at Michelin, agreeing to look for another open comparable position she qualified for or help shift her to a less physically demanding role.

• Displeased at the prospect of stepping down into a lower paying position, Erin applied to two other same-level positions.

• Her applications were considered and rejected under Michelin’s best-qualified hiring policies.

• Erin, meanwhile, accepted Michelin’s offer of a severance package.

questions

• Does Angela have a duty to find Erin another job?
• Any job? Same level? Same pay? Same terms and conditions of employment?
• Can Erin refuse that offer?
• Can Erin push Angela to permanently modify her RGEP position v. accepting another job at a lower pay?

And here comes the lawsuit...

erin

• Erin sued the company for violation of the Americans with Disabilities Act.
• She argued that the company had violated its obligations under the ADA by removing her from the RGEP role and by refusing to reassign her to either of the positions she applied for.

• She also argued that walking extensively was not an essential function of her job and that she could perform the essential functions of her job with the original accommodations the company offered (4-hour working days + motorized scooter).

• She further argued that the company could have hired or assigned another employee to drive her to and from different sites.

Elledge v. Lowe's Home Centers, LLC, No. 19-1069

(4th Cir. 2020)

owe’s attempted a number of accommodations, some of which were ignored by the plaintiff. The company eventually concluded that he was unable to perform the essential functions of his position even with available accommodations, and it offered him reassignment to a lower paying job. The plaintiff rejected this offer. The Fourth Circuit’s decision recognizes that while employers must provide adequate reasonable accommodations, it need not change the essential functions of a job or require other employees to share in those tasks. In addition, where there is more than one accommodation that would address the issue, it is the employer who makes the determination as to which will apply. Where, as here, the employee rejects a reasonable accommodation the employer is under no obligation to present or adhere to another – including reassignment.

NO DUTY TO

Discuss restrictions

Interactive Process

DO NOT make assumptions

DO NOT FORGET TO DOCUMENT THE INTERACTIVE PROCESS

Ask for suggestions

Meet with EE

Explore alternatives

ReasonableAccommodations

1. Work Schedule & Time Adjustments Changes to when or how long someone works. 2. Work Location Flexibility Adjustments to where the work is performed (e.g., remote, hybrid, different site). 3. Physical Workspace & Accessibility Changes to the work environment to improve access, mobility, or comfort. 4. Tools, Equipment & Technology Providing or modifying devices, software, or equipment to support job performance. 5. Job Duties & Work Structure Adjustments to how work is organized or assigned (without removing essential functions). 6. Communication & Supervision Methods Changes in how information, instructions, or feedback are delivered. 7. Workplace Policies & Procedures Modifying rules or standard practices to accommodate a disability. 8. Leave & Time Off Allowing time away from work for medical needs or recovery. 9. Reassignment to Another Position Moving the employee to a vacant role they can perform. 10. Support Services & Assistance Providing additional help or services that enable the employee to work effectively.

Unreasonable Accommodations

1. Elimination of Essential Job Functions Removing core duties that define the role. 2. Creation of a New Position Making a job that doesn’t already exist. 3. Indefinite or Open-Ended Leave Time off with no clear return date or ability to resume work. 4. Lowering Performance or Productivity Standards Excusing failure to meet basic job requirements that apply to everyone. 5. Displacing Other Employees Bumping another employee out of a role to create a position. 6. Promotions as an Accommodation Moving an employee into a higher-level role they are not currently in. 7. Personal Use Items Providing items primarily for personal, off-the-job use (e.g., general mobility aids used outside work). 8. Excessive Cost or Operational Disruption Accommodations that create undue hardship (significant difficulty, expense, or impact on operations). 9. Permanent Light-Duty Assignments (when not part of standard practice) Turning temporary or transitional roles into permanent positions if they don’t exist that way in the business. 10. Accommodations That Violate Safety or Legal Requirements Requests that would create a direct threat or break laws/regulations.

SECTION 4

Discrimination

Title VIITitle VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act of 1991

michelin's policy

• It is the policy of Michelin to prohibit unlawful discrimination (including harassment) or intimidation of any employee by a supervisor, other employee, client, customer or visitor on the basis of a person’s race, color, religion, disability, national origin, military or veteran status, sex (including pregnancy), sexual orientation, gender, gender identity, gender expression, marital status, age, citizenship, genetic information, political belief, or any other characteristic protected by applicable law.

Michelin will not tolerate harassment of any kind. Michelin expects all employees to report any harassment they experience or witness. Michelin commits to investigating all reports and taking the appropriate actions.

What are the protected classes?

Coats

FEDERAL LAW

• Race
• Color
• Religion
• National Origin
• Gender/Sex (including pregnancy, sexual orientation and gender identity*)
• Age (40+)
• Disability (mental or physical)
• Veteran Status

STATE/LOCAL LAWS

• Sexual Orientation
• Gender
• Gender Identity
• Marital status
• Age (with lower age limit)
• Family relationships
• Injured workers
• Worker’s Compensation
• Domestic Violence leave
• Political Belief

Making an employment decision based on an employee or applicant’s protected class

DISCRIMINATION

• Hiring
• Firing
• Compensation
• Assignments
• Transfers
• Promotions
• Demotions
• Layoff

• Evaluations
• Discipline
• Training
• Benefits
• Resources
• Other terms and conditions

Case Study

STANLEY

• Jim, a Caucasian manager, supervised Stanley, an African American truck driver, from the time Stanley was hired in 2006 until his termination in October 2015. Stanley’s job involved driving a large truck to pickup tires from company customers.

• On October 7, 2015, Stanley arrived at work around midnight, approximately two hours before his scheduled start time. He told his coworker he wanted to leave early so he could play basketball.

• When mechanics informed Stanley that his regular truck was unavailable but that a replacement would be ready shortly, Stanley became frustrated and left the premises before his shift began.

• About 45 minutes before his scheduled start time, Stanley texted Jim stating that he was sick with a stomach virus and would not be able to work that day. Jim did not see the text until later that morning and had difficulty finding coverage, resulting in missed customer pickups. Stanley called Jim later that afternoon to report he was feeling better and would return to work the next day.

STANLEY

• Before receiving Stanley’s call, Jim spoke with company mechanics, who reported that Stanley appeared upset about the truck issue and said "F this!" before leaving. Jim then met with management and decided to terminate Stanley’s employment. On October 8, 2015, Stanley was informed that he was being terminated for “job abandonment.”

• Although “job abandonment” was the only reason given at the time of termination, the company later cited prior performance issues as justification. These included a forgotten fuel pump removal, a minor truck accident for which Stanley was not cited, and a Drive Cam incident involving cellphone use while stopped at a red light. Despite these issues, Stanley had received bonuses and was told shortly before the termination that his performance “looked good.”

questions

• Do the prior infractions change the way you feel about this termination?

• Does it make a difference if these infractions were not documented?

• He was terminated for job abandonment not performance. What!?
• Can Stanley claim racial discrimination?
• What if the races were reversed?

And here comes the lawsuit...

STANLEY

• Stanley presented evidence that a white driver supervised by Jim committed multiple safety infractions, including cellphone use while driving, became angry and yelled at Jim, yet was allowed to return to his job after quitting. Stanley, who had fewer infractions and did not engage in similar behavior, was terminated.
• Stanley sued under Title VII, alleging race discrimination. He argued that the company’s stated reason for termination shifted over time and that the “job abandonment” explanation conflicted with company policy, which defined job abandonment as three consecutive days of no call/no show.

Jimmy A. HAYNES v. WASTE CONNECTIONS, INC. (of South Carolina)

Jimmy haynes

Takeaways

1. Most managers think they could fire an employee for anything because of the at-will doctrine and insubordination/walking out.
2. It matters what reason you give- you can’t change it later.
3. It shows how easy it is to establish a comparator based on inconsistent discipline practices. It ties your hands in terms of ability to terminate for infractions if you don’t consistently enforce policies for all.
4. Nothing here suggests a discriminatory motive, but the employee can go to trial just because of an inference of discrimination from the change in explanation about the reason for the action. It shows how easy it is to make a claim.
5. And he was pro se!

SECTION 5

Harassment

Case Study

Holly

• Your fellow manager, Pam, steps into your office today and asks if she can have an “off the record" conversation. She tells you that she is considering quitting because of how uncomfortable she feels around her manager, Holly.
• She confides that over the past year, Holly has been giving her “extra attention.” She said that it started with presents for her birthday, tickets to concerts, special assignments at work, compliments on her looks and clothes.
• Pam liked all the extra attention at first. However, at some point Pam started fending off Holly's extra attention.
• Pam told Holly that it made her uncomfortable and asked her to stop. Holly stated that she did not know what Pam was talking about and that she just wanted to be her friend.
• Holly did not stop.

Holly

• At first Pam thought she could maintain a professional relationship with Holly, but now she feels uncomfortable working with her.
• Pam doesn’t want to officially report anything. She says "What is there exactly to report?" "Holly has not done anything strictly inappropriate" And if she decided to report it, Pam is afraid Holly would retaliate against her.
• Pam says she’ll just quietly look for a new job and move on.

holly flax

• Do you think this is harassment?
• If so, what kind of harassment?
• Do you think it will matter that Pam waited so long to report this to anyone?
• How should you handle an “off-the-record” complaint?
• Is there anything you can do about her fear of retaliation?

SECTION 7

JOINT EMPLOYMENT

When two or more businesses share control and responsibility for an employee

Who is the boss?

In situations where joint employment exists, both employers can be liable under the law for all employment-related issues under various laws (e.g., pay, benefits, discrimination , harassment, OSHA, etc.)

Tests

EEOC

NATIONAL LABOR RELATIONS BOARD

DEPARTMENT OF LABOR

• Control over terms and conditions of employment
• Whether or not it exercises that right

• Control over terms and conditions of employment
• That is not limited or routine

• Hiring and Firing
• Supervision and Control
• Rate of Pay and Payment
• Employment Records

Good Facts vs. Bad Facts

test

• There is onsite supervision by contract company

• You communicate at supervisor-level about expectations

• You interview or give frequent feedback to independent contractor

• You give the independent contractor our employee handbook
• The contractor has worked in your facility for 5 years

• You decide pay, working hours, etc.
• You control the independent contractor's work
• The duties of the independent contractor an integral part of our business
• You train the independent contractor
• You simply remove the independent contractor from your site if something is not working
• You call the independent contractor's employer for all discipline or SP matter

a scale...

25%

75%

bad facts

good facts

Case Study

kevin malone

• Kevin is a contractor working for Good Temps, a staffing agency. Kevin has been assigned to your site to work as a maintenance operator.
• You gave him a badge to enter and exit the facilities. Good Temps gave him steel toe boots, a uniform, a safety vest and goggles.
• When Kevin comes in, he scans his badge, goes to the kitchen to put his food in the refrigerator, and promptly goes to his morning team meeting to discuss his work for the day. Joe, one of your planners, has his name along with the other teammates up on the board.
• While his assignments are given onsite, Kevin’s paycheck comes from Good Temps, his employer. Good temps has been giving him employment and safety training, the necessary equipment and materials he needs to do his job. They also provide worker’s compensation insurance as well as all his other benefits such as health insurance.
• Further, a Good Temps manager is always onsite to direct, assist, and handle all issues related to Kevin and the other contractors assigned to your site.

questions

• Now assume that Kevin has only been assigned to your site. He does not provide services to any company other than yours.

Does your answer change?

• What if Kevin was a tire inspector?

Does your answer change?

• What if Kevin was a janitor?

Does your answer change?

• Who is Kevin’s employer?
• What made you reach your conclusion?

• Assume that you have the same sets of facts as before, but this time you know that Kevin has been assigned to your site for the past 4 years.

Does your answer change?

SECTION 8

Reasonable Suspicion & Drug Testing

What is Reasonable Suspicion?

• Your Role as a Manager you are responsible for:

• Observing specific behaviors or physical signs
• Documenting what you observe
• Reporting concerns to SP
• Not diagnosing or accusing the employee
• ✅ You identify concerns
• ❌ You do NOT determine test results or what substance is involved

• Reasonable suspicion means you observe signs that suggest an employee may be under the influence of drugs or alcohol at work.
• It is based on what you see, hear, or smell — not rumors, guesses, or personal opinions.
• The goal is safety, not punishment.

What To Do If You Suspect Substance Use

Step 1: Observe and Document • Write down specific behaviors you observe • Include what happened, when, and where • Stick to facts (avoid opinions like “seemed drunk”) Step 2: Contact SP • Share your documented observations • SP makes the final decision on testing Step 3: Follow Instructions • If testing is required, ensure the employee is: o Transported to and from the testing site o Not allowed to drive themselves

Timing Is Critical • Alcohol test: Must be done within 8 hours • Drug test: Must be done within 32 hours • If both tests are required: o Alcohol test is done first Delays can invalidate the test.

Proper Documentation Example (Good vs Poor) ❌ Poor Documentation: “Employee seemed drunk.” ✅ Good Documentation: “Employee had slurred speech, smelled strongly of alcohol, and stumbled twice while walking from workstation at 2:15 PM.”

Document facts, not conclusions!

Do's and Don'ts

• Accuse or argue with the employee
• Diagnose drug or alcohol use
• Act on rumors alone
• Delay reporting concerns

• Focus on safety & behavior
• Be respectful & professional
• Maintain confidentiality
• Follow company procedures exactly

DONT

DO

Thanks!