Navigate Today’s Changing Employment Landscape Successfully Come to ASCA 2020 to learn how not to get sued by disgruntled employees BY SALVATORE PUCCIO

Say five years ago, your ASC went online or con- sulted with a human re- sources company or even hired an attorney and cre-

ated an employee manual for your staff. That manual has provisions for drug testing, anti-harassment poli- cies, arbitration provisions and ben- efits. Your ASC is feeling pretty safe. Yet, after you recently discharged an employee, they sued you for violating their rights. You are shocked because you have this handbook in place that should protect you. How could this happen? The answer is quite simple: the law is changing.

During my presentation “HR Updates: Sex, Drugs and Wage and Hour” at the ASCA 2020 Expo & Conference in Orlando, Florida, May 13–16, I will discuss those changes and the major shifts in societal norms and practices that have resulted in vast changes to the employer-employee relationship. As an employer, it is your duty and obligation to adapt to these changes. For example, several states have

changed their laws on medical or rec- reational marijuana. Federal and state laws are at odds in many places regard- ing legal use of marijuana. Understand- ing that dynamic and what it means for your employment policies could be the difference between you successfully defending a disability discrimination lawsuit and having to pay six figures to the former employee. Certain states have updated their

laws to require your ASC to provide employees with a reasonable accom- modation for their medical condition that legally allows covered individu- als to use medical marijuana. That accommodation, however, might be in conflict with your zero-tolerance



“HR Updates: Sex, Drugs and Wage and Hour” is scheduled for Friday, May 15, from 10:30 am–12:00 pm. Learn more about this session and see the complete schedule on the ASCA 2020 Conference & Expo website. annualconference/schedule

drug policy. If you are opening a satel- lite location in a state where marijuana use is legal recreationally, should you have a company-wide carve-out for marijuana use in that state? The answer might surprise you. In short, employ- ers need to give careful consideration to disability laws, federal and state laws, and their internal policies when making these types of employment decisions. In addition, in response to nation-

wide sexual harassment allegations and the #metoo movement, many

states have made sweeping changes to their anti-harassment policies. As a result, the reason the above-refer- enced disgruntled employee may be able to sue you in court, versus go to arbitration, is that certain states have now precluded the use of arbitration to address sexual harassment claims. Also, certain states are lowering the standards to successfully maintain sexual harassment claims. What does this mean for how you investigate these allegations and respond to the findings of your investigation? Suppose further that the employee who sued you also is asserting you misclassified them as an exempt employee and they are entitled to over- time pay, not only for themselves, but for all other employees in similar roles. You say to yourself: “But I paid you a decent salary, your job title is assistant supervisor and you received benefits. This can’t possibly be correct.” Well, just paying a salary alone or calling someone “supervisor” does not mean

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