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A Day at the MoviesLabor & Employment Seminar

Susan D iM icke le

E M P L O Y M E N T L A W

YEAR IN REVIEW

1

Susan DiMickele

Partner, Columbus

Co-leader of Global L&E Practice Group

[email protected]

Kris Woliver

Associate, Columbus

[email protected]

Executive Developments

Major Judicial

Decisions

Major Legislation

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Major Judicial

Decisions

Holding: the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples and to recognize same-sex marriages performed out-of-state.

The right to marry is an “interest[ ] of the person so fundamental that the State must accord [it] its respect.”

Obergefell v. Hodges

June 26: SCOTUS ruled on that same-sex marriage is fundamental right nationwide

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Obergefell v. Hodges

Takeaway: Employment implications are generally related to benefits, leaves and immigration. Now that same-sex marriage has been ruled lawful, employers would be well-served to review their policies, particularly with respect to benefits and leaves of absence.

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Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (U.S. 2014)

SCOTUS held on Dec. 9, 2014Time spent waiting to undergo, and walking through, the security screenings was not compensable as it constituted a postliminaryactivity under a bona fide collective bargaining agreement

TAKEAWAYSecurity screenings for employees not necessarily “integral and indispensable” to job duties, and therefore employees need not always be compensated for such time

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (U.S. 2015)

SCOTUS held on June 1A job applicant alleging disparate treatment by a hiring employer only must s how “that his need for an accommodation was a motivating factor in the employer’s decision,” and not that the em ployer had actual knowledge of the applicant’s need for a religious accommodation.

TAKEAWAY: Supreme court increasingly becoming more sympathetic to religions accommodationsAn employer can violate Title VII by rejecting an applicant out of a desire to avoid making a reasonable religious accommodation, even if the employer has only an “unsubstantiated suspicion” that an applicant may, in the future, request one.

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Young v. UPS, 135 S. Ct. 1338 (U.S. 2015)

SCOTUS held on March 25Factual dispute as to whether UPS provided more favorable treatment to employees whose situation “cannot reasonably be distinguished” from pregnant employee

More detail with Ryan Sobel in ADA / FMLA session

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (U.S. 2015)

SCOTUS held on April 29The statutory requirement that the EEOC attempt conciliation before filing suit is subject to limited judicial review

TAKEAWAYAlthough courts may review whether the EEOC actually tried to conciliate, an EEOC affidavit that the conciliation requirement has been met is generally sufficient absent employers factual challenge.

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Cases that employersare watching

Further information in whitepaper

What is the Supreme Court going to review next year?

Bouaphakeo v. Tyson Foods, Inc., 593 Fed. Appx. 578 (8th Cir. 2014)

Fair Labor Standards Act: What are the boundaries of a certifiable class in a wage case?

Friedrichs v. Cal. Teachers Ass'n, 2014 U.S. App. LEXIS 24935 (9th Cir. Nov. 18, 2014)

Whether nonunion workers in union-represented bargaining units must pay union fees

Zaborowski v. MHN Gov't Servs., 601 Fed. Appx. 461 (9th Cir. 2014)

Severability of arbitration agreements in light of unc onscionable provisions and the Federal Arbitration Act

Green v. Donahoe, (Brennan) 760 F.3d 1135 (10th Cir. 2014)When does the filing period for a constructive discharge claim begin running?

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Interesting cases and major developments at the circuit court level

Expanding Definition of Protected Activity

EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. Tenn. 2015)

Ruling: a verbal demand that a supervisor cease his/her harassingconduct constitutes protected activity covered by Title VII

Practical impact: an employee’s complaints to anyone at thecompany about a supervisor’s harassment could constitute protectedactivity for the purposes of a Title VII claim

• Employees now face a fairly low bar in proving they engaged inprotected activity.

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Telecommuting not automatically a reasonable accommodation

EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. Mich. 2015)

April 10, 2015 Ruling: regularly attending work on-site is essential to mostjobs, especially interactive ones, so telecommuting request need not begranted under ADA

Court cited plaintiff’s poor performance and past failed attempts attelecommuting

Practical Impact: Despite overall trend favoring telecommuting inemployment, employers need not automatically grant a telecommutingaccommodation, especially when there are teamwork and communication-related job requirements.

Credit checks not necessarily discriminatory

EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. Ohio 2014)

April 2014 Ruling: Kaplan articulated a legitimate business justificationfor running credit checks for particular positions

• Court noted fact that EEOC itself runs credit checks for 85% of itspositions

Practical Impact: If credit checks not prohibited under state law, federalcourts likely to permit tailored use for particular positions even if largerpercentage of non-white applicants screened out

See also EEOC v. Freeman (4th Cir. 2015)

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Ruling: Essential inquiries in determining whether an action isretaliatory are whether the employer’s action is materially adverse,and, if so, whether that action “would dissuade a reasonable workerfrom making or supporting a charge of discrimination”

Practical Impact: Retaliation claim may survive even if pay is restoredafter unpaid leave and even if the employees continues to lodgecomplaints after alleged retaliation

Retaliation continues to be subjective and fact-specific

Green v. Donahoe, 760 F.3d 1135 (10th Cir. Colo. 2014)

Ruling: No reasonable jury could have found that ADHD substantiallylimited the plaintiff’s ability to work or interact with others.

• The department found that the employee created a “tyrannical” hostile workenvironment and was vindictive, arrogant, threatening, intimidating, anddemeaning lacked the emotional intelligence to work in a team environment,and fired the police officer

Practical Impact: Although ADA trends suggest mental health issues maylead to increased disability discrimination liability, mere trouble gettingalong with coworkers “is not sufficient to show a substantial limitation”

ADA doesn’t excuse workplace tyrants

Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. Or. 2014)

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Major Legislation

Employer Mandate takes effect Employers with at least 50 FT or FTE employees

subject to the Employer Shared Responsibilityprovisions of the ACA

Average 30 hours/week is “full-time”

Careful to count part-time employees in FTEcalculation

Forms and paperwork must be distributed by 2016

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Penalties in effect: ACA Play or Pay Penalties already in effect for companies with at

least 100 employees

Companies with 50 to 99 employees have until2016 without penalties for noncompliance

Political Considerations ACA survived Supreme Court challenge in June 2015

GOP challenges

• Repeal and replace ACA in its entirety if GOP candidate elected topresidency in 2016

• Delay employer mandate penalties

Immigration Proposals

Republican-backed bills promoting bordersecurity

Democrat-backed bills promoting a path tolegalization for immigrants already in theU.S.

Middle-ground/narrowly tailored billsfocus on specific sub-issues withinimmigration

Increasing visas for highly-skilled workers

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A couple proposals at national level, but no real action.

Trend: state and local legislators are very active.

Detail on multi-state issues with in

Jill Kirila’s session

Details on the politics of employment law in

Tim Cosgrove’s session

MAJOR STATE STATE & LOCAL LEGISLATION

“BAN THE BOX”

7 states have ban the box lawsimplicating private employers

SOCIAL MEDIA

States continue to enact social media privacy laws

Maine: effective 10/15/15, employersprohibited from requestingapplicants/employees to disclose theirpersonal social media accountinformation

PAID SICK LEAVE

OR, CA, CT and MA have paid sickleave laws in place

Ohio: no paid sick leave law, latestattempt was 2008 push

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Executive Developments

EXECUTIVE DEVELOPMENTS

Legislative gridlock has led to an increase in activity among executive agencies to affect change

Department of Labor

NLRB EEOC

SEC DOJPresident Obama Executive Orders

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Department of Labor

Details on executive developments at the Department of Labor

in Meghan Hill’s session

NLRB

Ambush Election

Rules • Texas suit dismissed

Election rules in effect as of April 2015

Change how private sector US employees exercise their right to vote on whether to be represented by a labor union

Guidance memorandum released by NLRB General Counsel – 36 single-spaced pages clarifying responsibilities of regional directors, hearing officers, and parties in representative elections

Election rules survived court challengesElection rules survived court challenges

• D.C. suit

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NLRB

Problem: decisions made while unconstitutional appointments in effect

Chairman Pearce: the Board will resolve all of the cases returned to the Board within one year of the Supreme Court Decision.

Most of these contested cases have been resolved; either by new decision, settlement, withdrawal or remand.

Cases still in process: those that are either in compliance or were returned to the Board on parties’ motions for recall/reconsideration

NLRB

“Joint employer” definition expanded in Browning-Ferris Industries decision• Decision removes long-standing requirement that a putative joint

employer must not only possess, but also exercise, authority to controlterms and conditions of employment of employees alleged to be jointlyemployed with another employer. Under the standard, an employer mustonly possess that authority, even if it chooses not to exercise it.

• Likely lead to more findings of joint employer status by NLRB

Aggressive stance on employment handbook policies• NLRB has issued somewhat contradictory rulings on employment

policies addressing social media and the boundaries of protectedcommunications.

• March 18: NLRB General Counsel releases memorandum providingmodel policies

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EEOC

President Obama increased funding to EEOC in FY 2016 proposed budget (2.3% increase from FY 2015)

Funding

Backlog of 73,134 private sector discrimination charges by the end of FY 2014

• Increased funding aimed atreducing backlog and targeting

EEOC

Pursuit of Discrimination

Cases

Focus on systemic discrimination

Focus on class actions based on “facially discriminatory” employment policies

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EEOC

DOJ I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.

“ “

Focus on Gender Identity and Transgender Discrimination


Cases

Previous U.S. Attorney General Eric Holder in December 2014 Memorandum

EEOC Position

• In 2006, EEOC found that Title VII did not prohibitdiscrimination based on gender identity or transgender status

• In 2012, the agency issued a decision finding that adiscrimination claim based on gender identity, change of sex,or transgender status can be pursued under Title VII

• In 2014, filed first two lawsuits based on gender identity

OSHA

• In June 2015 OSHA guidance: “All employees, includingtransgender employees, should have access to restroomsthat correspond to their gender identity.”

Focus on Gender Identity and Transgender DiscriminationEEOC

DOJ


Cases

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EEOCEmployee Wellness Plans & ADA Issues• April 2015: EEOC released proposed guidance establishing its

interpretation of the term “voluntary” as to the disability-relatedinquiries and medical examination provisions of the American withDisabilities Act.

Sexual Orientation Discrimination & Title VII• EEOC July 15, 2015 decision: sexual orientation is inherently an

unlawful “sex-based consideration”

• Sexual orientation discrimination “necessarily entails treating anemployee less favorably because of the employee’s sex” andconstitutes “associational discrimination on the basis of sex.


Cases

EEOC

SEC

Attack on Confidentiality Agreements &

Policy

April 1, 2015: SEC issued a cease-and-desist order regarding a company’s use of a confidentiality agreement prohibiting employees from discussing the substance of their interviews during an internal investigation without prior clearance from Legal

Key areas of SEC targeting:

separation/ release/ severance agreements

stand-alone confidentiality agreements

internal policies on complaints about

unethical practices

internal investigation protocols

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Trac i Mar t inez

B E Y O N D S O C I A L M E D I A

MANAGING EMPLOYEE TECHNOLOGY USE AND ABUSE

Traci Martinez

Partner, Columbus

[email protected]

614 365 2807

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Read more at http://www.jeffbullas.com/2015/04/08/33-social-media-facts-and-statistics-you-should-know-in-2015/#FlOQymDqr5D4ydrI.99

TOTAL POPULATION

7.210BILLION

ACTIVE INTERNET USERS

3.010BILLION

ACTIVE SOCIAL MEDIA ACCOUNTS

2.078BILLION

UNIQUE MOBILE USERS

3.649BILLION

ACTIVE MOBILE SOCIAL ACCOUNTS

1.685BILLION

Social Media By the Numbers

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MOBILE SOCIAL MEDIA FACTS

The mobile phone has made the web accessible for almost everyone.

• India: mobile devices account for 72% of allweb site traffic

• 1.65 billion active mobile social accountsglobally

• 561 million active mobile social accounts arelocated in East Asia

Employers may dislike Facebook, but it can’t be ignored:

• 1.4 billion Facebook users

• 47% of all Internet users are on Facebook

• 4.5 billion likes are generated daily

• Nearly 75% of Facebook’s revenue comesfrom mobile advertising

• Direct uploads of user videos toFacebook now exceed YouTube


FACEBOOK FACTS

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• Twitter is an accidental social network but don’t be fooled. It’s a great brand awareness facilitator.

• 284 million active users at last count

• 88% of Twitter users are on mobile• 500 million tweets per day

TWITTERFACTS

This network is owned by Facebook. They saw that social and mobile was a powerful intersection of synergies. They were right!

• Instagram has 300 million users

• 70 million photos and videos are sent daily

• 53% of internet users aged 18-29 useInstagram


INSTAGRAM FACTS

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Pinterest has made the pinboard a virtual activity. It’s female centric and very visual.

• 80% of Internet users on Pinterest arefemale

• 70 million users are on Pinterest

• 88% purchase a product they pinned


PINTERESTFACTS

LinkedIn dominates the professional social network segment. It is one of the oldest having started in 2002. Almost the grandfather of social networks.

• LinkedIn has 347 million registeredmembers

• Total revenue at the end of 2014 was$643 million (a growth rate of 44% overthe previous period)

• There are over 39 million students andrecent college graduates on LinkedIn


LINKEDIN FACTS

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Employment Issues and Social Media

• Liability concerns depending on how social media is used and monitored

• Mobile devices allow easy access to social media while at work

• Employees blur work and private content

• Postings can be spontaneous and tough to retract

• Social media can consume work time

Liability Concerns

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Liability Concerns:Can an Employer Access Employee Social Media?Is the information already public?

Are there any reasonable expectations of privacy?

• Social media during thehiring process

• Disciplining due toemployee conduct

2014 Jobvite Study• 93% of employers will use social

media to recruit

• 17% of recruiters view politicalaffiliation negatively

2013 SHRM Study• 77% of employers use social media to recruit

• 51% found information which caused them to not hire– Inappropriate photos

– Poor communication skills

– Indication of drinking/drug use 2014 CareerBuilder Survey• Increase of social media use has lead

to increased privacy measures byusers

– 47% share only with friends and family

– 18% maintain separate personalaccounts

Liability Concerns and the Hiring Process

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Except…

2014 OnDevice Study• One in 10 candidates from the ages

of 16-24 are not hired due to socialmedia content

• 75% of those same users are not atall concerned

S.D.N.Y in Mark v. Gawker Media LLC:

• court approved use of social media asmechanism to notify potential class members inwage and hour dispute

Courts now defining the boundaries of using social media as notice

• Using hashtags like “fairpay” or “livingwage”

• Adding potential plaintiffs as friends

#

Social Media Class Notice and Privacy Laws

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Mobile Devices

Steps to consider

• At will employee?

• Union concerns?

• Violation of any policy?

Social Media Policy

BYOD Policy

Electronic Communications Policy

• Is the content dealing with wage, hours or conditions of employment?

• Would you discipline the employee if the same was said at work?

• Have you dealt with this situation before?

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Texts and such on work

time

Disciplining Employees for Text Messages

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Review Your Social Media Policies, including BYOD

• Internet use on company devices/networks is subjectto monitoring

• Confidentiality and non-disclosure requirements apply

• Harassment and discrimination policies apply

• No employees may speak as companyrepresentatives without authorization

But Be Careful…

The NLRB has taken an aggressive position when employers take action against employees for discussing terms and conditions of employment.

• Employee called employer an “F-ing MF” and an “F-ing crook,” and said if theemployer fired him, he would regret it. NLRB said that speech was protected.Plaza Auto, 360 NLRB No. 117 (May 28, 2014)

• Off-duty Starbucks employee (at a Starbucks store) told an off-duty managerto go F himself. NLRB initially found the speech was protected. When a courtoverturned that, NLRB reinstated employee based on anti-union animus.Starbucks , 360 NLRB 134 (June 16, 2014)

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Unlawful Restrictions on Employee Speech

• Employees have the right to use employer’s computers/email systems forprotected activities during non-work time. Purple Communications, Inc.,21-CA-09515, 21-RC-091531, 21-RC-091584 (Dec. 11, 2014)

• Statement that the at-will relationship can’t be changed or can only bechanged by agreement between employee and VP or COO discouragedprotected activities, according to the NLRB. Red Cross Arizona, 28-CA-23443 (Feb. 1, 2012)

• Employees have the right to discuss salaries/wages; a confidentialityagreement that prohibits disclosure of terms of employment to third parties isunlawful. Northeastern Land Services, Ltd. v. NLRB, 560 F. 3d 36 (1stCir. 1999)

Employee Tips for Email and Social Media

Don’t assume “private” communications/postings will stay private

Do understand that email/social media can create a permanent record and can get circulated beyond the intended audience

Don’t assume that you cannot face consequences at work for “personal” communications/postings

Don’t assume that a private-sector employer can take any action it wants in response to an employee’s “personal” communications/postings

Do consult OA/HR and/or Legal when in doubt

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Social Media Complaints – Open Door Policy

Most social media complaintscome from friends of theoffender.

When an employee comes toyou with a concern, listen andrespond appropriately.

Have more than one avenue toair a concern.

Final Thoughts

Take-aways:

• Know your organization’s socialmedia policies and encourageall employees to review it

• Be attuned to possiblediscrimination, harassment, andprivacy issues

• Use common sense

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Lew C la r k , Phoen i x

C O N D U C T I N G E F F E C T I V E

INTERNAL INVESTIGATIONS

Lew Clark

Partner, Phoenix

[email protected]

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Objectives: Know how to…

1) Prepare

2) Conduct

3) Document

4) Reinforce policy

Investigation Considerations

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Rule Number 1

There is no “one way”to investigate allegations of workplace misconduct

Each investigation is unique and must be tailored to the specific allegations

and context of the complaint

Investigate allegations that are violations of:

• Ethics/Conflict of InterestGuidelines

• Harassment/DiscriminationPolicies

• Workplace Violence Policy,among others

Company Policy

• OSHA

• Sarbanes-Oxley, among others

Federal, State, or Local Law

Other Unfairness(unless allegations expressly rule out scenarios that legally require investigation)

• Favoritism

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Decide how to deal with employees by considering…

the seriousness of the alleged misconduct

how much disruption is occurring in

the workplace

whether further harm is likely to occur

the possibility that someone might be

terminated

the possibility that retaliation

could occur

the possibility of litigation related to complaint and/or

investigation

whether Accused should be temporarily

removed from the workplace (with or

without pay)

When deciding whether to temporarily remove accused from the workplace, ask…

Would alleged conduct warrant termination if true?

Will removal minimize general workplace disruption?

Will retaliation prevention otherwise be difficult?

Does alleged misconduct call for minimized contact between Accused and Complainant?

Is there a likelihood of witness intimidation?

Is there a heightened risk that Accused may tamper with evidence?

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Preparing to Investigate

Who should conduct the investigation?

Who should be the decision-maker?

What is the scope of the investigation?

What are the goals of the investigation?

When should the investigation begin?

What are the responsibilities of the investigator?

What are the responsibilities of the decision-maker?

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credible

unbiasedknowledgeable


• HR

• In-House Counsel may waive attorney-client privilege

• Senior Manager or Officer

In-House Investigator Outside Investigator

• Private Investigator

• Outside Counsel makes outside counsel a witness,

so will not be able to represent if allegations become lawsuit

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When deciding between in-house and outside investigator consider…

The severity of the allegations

The position of Accused within the company

The availability of skilled and credible in-house investigator

• Less costly

• Less disruptive

• Presumably has morefamiliarity withwitnesses, businessprocedures, policies andcompany

In-House Outside

• Underscores seriousness

• Appearance of greaterobjectivity/impartiality

• Potentially enhancedexperience/credibility

• Does not re-purpose existingemployee who has otherresponsibilities

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Who should be thedecision-maker?

• Senior manager

• Someone with line authority overAccused

• Not a witness or party to underlyingallegations

• Someone perceived as (and whoactually is) objective, fair, and neutral

What is the

Scope?Determine with Decision-Maker

exactly what is being investigated (and what, if anything, is not)

Investigation is not a legal proceeding, so if violation of law is alleged,

investigate violation of underlying policy

Frame scope of investigation by articulating the question Decision-Maker wants answered (i.e., “Is there sufficient credible evidence to support the

allegation that X violated the company’s anti-harassment policy?”)

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What is thegoal?

Determine the facts and document them

Communicate company’s support for appropriate workplace conduct

Demonstrate company response commensurate with seriousness of complaint

Deter employees considering engaging in conduct similar to conduct underlying complaint

Address and resolve complaint

Comply with legal obligation and reduce risk of legal exposure

What are the investigator’s responsibilities?

Promptlyand

thoroughlyinvestigate complaint

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Complainant• If no longer employed at company, ask to interview anyway

Witnesses identified by Complainant

Accused

Witnesses identified by Accused• Prepare an outline or detailed written interview questions for all

interviewees prior to interview (but be prepared to go ‘off script’)

Interview…


Review relevant documents and/or other physical evidence• Include reminder in interview

outline to ask interviewees fordocuments or other physicalevidence that corroboratestheir version of the events inquestion

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Document facts learned during investigation

Do not reach legal conclusion (investigation is not judicial process)

Report factual findings to Decision-Maker

What are the Decision Maker’s responsibilities?

Review facts presented by Investigator• Determine whether additional information is needed

• Determine if information obtained requires more comprehensivedocumentation

Determine whether remedial action/discipline is appropriate

If remedial action is needed, determine the appropriate disciplinary action to take.

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When should the investigation be started?

As soon as reasonably possible!Once company is “on notice” of complaint, any delay can be perceived as:

• Ambivalence (i.e., company just doesn’t care)• Ratification of alleged wrongdoing• Non-compliance (where legal obligation exists to conduct

investigations “promptly”)

If investigation is impossible to be started quickly, articulate and document reason why.

Conducting the Investigation

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Notify parties and witnesses of

investigation in writing

Interview Complainant

and witnesses

Interview Accused and

witnesses

Conduct follow-up interviews as

necessary

After selecting Investigator, Decision-Maker and confirming scope of investigation…

Notify Complainant Of Investigation In Writing

Advise Complainant in writing that investigation has commenced

• Thank Complainant for bringing matter tocompany’s attention

• Confirm that company takes these mattersseriously

• If not already obtained, ask Complainant fordescription of misconduct in writing

• Introduce Investigator

• Set expectation of confidentiality to protectinvestigation

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Notify Complainant Of Investigation In Writing

Advise Complainant in writing that investigation has commenced (cont.)

• Do not guarantee confidentiality to Complainantregarding complaint as investigation will requirediscussion with others

• Where appropriate, assure Complainant of no retaliationfor making good-faith complaint, such as the following:

Harassment/discrimination complaints based on legally protected characteristic

Sarbanes-Oxley complaints

Request that Complainant contact you immediately if they experience retaliation

Notify Witnesses Of Investigation In Writing

Advise third-party witnesses in writing that the company needs their help investigating a complaint of misconduct


• Assure witnesses that complaint is not directed atthem and does not relate to their conduct

• Provide brief summary of allegations

• Apologize for inconvenience, but advise that thecompany takes these matters seriously

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Notify Witnesses Of Investigation In Writing

Advise third-party witnesses in writing that the company needs their help investigating a complaint of misconduct

• Set expectation of confidentiality to protectinvestigation

• Where appropriate, assure witnesses of prohibitionagainst retaliation for participating in investigation,such as:

Harassment/discrimination/Sarbanes-Oxley complaints

Request witnesses contact you if they experience retaliation

Notify Accused Of Investigation In Writing

Advise Accused of investigation into allegation that he/she engaged in workplace misconduct


• Provide brief summary of allegations so Accused has full opportunity toprepare and respond

• Advise that the company ta kes these matters seriously

• Set expectation for full cooperation with investigation

• Set expectation for confidentiality to protect integrity of investigation

• Caution against engaging in retaliation against Complainant orwitnesses

• Direct to minimize contact with Complainant during investigation

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InterviewingGenerally

• Conduct interviews in private

• Whenever possible, have two companyrepresentatives present

• Do not prevent Witness from leaving Explain that it is important for you to get all facts

Preventing leaving risks claim for false imprisonment

• If Witness is unwilling to talk, ask “why?”

• Do not characterize alleged misconduct forWitness

• Consider credibility of interviewees

• Focus on facts/avoid unsupportedconclusions

• Take thorough notes/get “sign off”

Interview Complainant• Schedule interview to take place promptly

• Utilize tailored, detailed written interview questions

Leave ample space in pre-drafted interview questions to insertresponses and additional follow-up questions that arise during interview

• Use open-ended, non-judgmental questions before narrowing downwith more focused questions

• Do not be wed to pre-drafted interview questions — go ‘off script’ to bethorough

• Expressly ask for corroborating evidence (i.e., witnesses, emails,documents, other physical evidence)

• Reassure that company takes these issues seriously

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• Reconfirm company’s commitment to no retaliation and advise tocontact you if any occurs

• Remind Complainant of expectation to keep confidential

• Request Complainant contact you with any additional information

• Thank Complainant for time and for raising the issue to company’sattention

• Inform Complainant that you will advise as to the results of investigationwhen completed

Interview Complainant (cont)

Follow similar format as above for all interviews

Interview Accused

• Expressly ask for exonerating evidence (i.e., witnesses, emails,documents, other physical evidence)

• Present Accused with evidence of misconduct and provideopportunity to respond

• Remind about company’s policy prohibiting retaliation againstComplainant/witnesses

• Direct Accused to minimize contact with Complainant

• Inform that you will advise Complainant and Accused of resultsof investigation

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Special Issues Arising During Interviews

Emotional Complainant or Accused

• Empathize, but rememberyou are neutral and shouldnot “take sides”

Complainant refuses interview

• If employed, compassionatelypersuade to participate

• If no longer employed,document efforts to obtaincooperation and inform thatinvestigation will go forwardwithout their input

Special Issues Arising During Interviews

Accused Categorically Denies Allegations

• Whenever facts are in dispute,credibility of intervieweesbecomes key and should bedocumented

• If interviewees contradict eachother, pay extra attention toobjective evidence (i.e., email,other physical evidence)

Accused refuses interview• If employed, advise employee

that refusal to participate isinsubordination and may subjectthem to discipline/termination

• If no longer employed, documentefforts to obtain cooperation andinform that investigation will goforward without their input andconclusions will be placed inpersonnel file

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Document the Investigation

Finalizing Interview Notes

At end of each interview, review notes to make sure they are complete. Let person interviewed verify the accuracy of your notes and “sign off”

After “sign off,” make and document any credibility assessments that are appropriate for the interview

Assess credibility and reasons for your impressions

Conduct any additional interviews that you believe are likely to be helpful to the Decision-Maker even if no one identifies additional witnesses

Conduct follow-up interviews with those already interviewed if additional information comes to your attention that would trigger need for a 2nd interview

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Presentation to Decision-Maker

Determine with Decision-Maker if investigation file is sufficient or if a report summarizing the file should be generated

• If summary is requested, avoidelaborating beyond source material

• Focus summary on key testimonyand key evidence gathered

• Provide entire file to Decision-Maker,not just summary

Review the allegations and facts obtained during investigation

• Advise Decision-Maker ofcredibility assessments anddiscuss basis for same

• Confirm that Decision-Makerneeds no additional information

Reinforce Company Policy

Decision-Maker determines whether there is sufficient evidence to support the allegations of employee misconduct

• Breach of company policy

• Potential legal issues (discuss with counsel)

Harassment/discriminationWorkplace violenceSarbanes-Oxley

• Other unfair treatment that should be addressed

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Taking Corrective Action: Accused

If corrective action seems warranted, consider the following:

Is there a policy against the conduct?

Was Accused aware of the policy?

Has Accused admitted or denied the misconduct?

Was any law potentially violated?

Has Accused committed policy violations before?

How long has Accused been employed?

Taking Corrective Action: Accused

If corrective action seems warranted, consider the following:

Verbal/ Written Warning

Probation Suspension

Demotion Transfer Termination

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Taking Corrective Action: Victim of Misconduct

Where there is a “victim” of misconduct (i.e., harassment or discrimination), consider appropriate options:

Leave With Pay

Offer Paid Counseling

Apology Transfer (if requested)

Reinstatement (if employee

quit)

Communicating Investigation Results: Complainant

Both complainant and accused are entitled to know the investigation results

Thank Complainant for raising issue

Advise Complainant and inform that corrective action has been taken

If Misconduct Confirmed

Advise Complainant that there was insufficient evidence to corroborate complaint

If Misconduct not Confirmed

Either way: Reassure Complainant

that no retaliation will be tolerated

Instruct to advise company immediately if

retaliation occurs

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Communicating Investigation Results: Accused

Both complainant and accused are entitled to know the investigation results

Advise Accused and inform what corrective action will be taken. If corrective action is less than termination:

• Advise Accused that retaliation willnot be tolerated

• Advise Accused that futuremisconduct risks termination

If Misconduct Confirmed

Advise Accused that there was insufficient evidence to corroborate complaint

• Counsel Accused – go over policy atissue and advise on how to avoidproblem in the future

• Advise Accused that no retaliation willbe tolerated

If Misconduct not Confirmed

Thank accused for cooperation.

Follow Up After Investigation

Preserve Documentation!

• Keep investigation file together in secure location different from personnel files

• However, any disciplinary memo to Accused will also be placed in their personnel file

Follow up with Complainant

• Periodically follow up withComplainant to ensure thatmisconduct is not ongoing and thatno retaliation is occurring

• Document that follow-up occurred

Follow up with Accused

• Monitor behavior of Accused toensure no further misconduct orretaliation against Complainant orwitnesses

56

Meghan H i l l , Co lumbus

WAGE AND HOUR UPDATE

Meghan Hill

Principal, Columbus & New York

[email protected]

57

Agenda

1. Independent Contractor

2. Federal ContractorMinimum Wage

3. Interns

4. Technology & HoursWorked

Upcoming Exemption Changes

FLSA Exemption Refresher

Hot Topics

Background & Refresher

Fair Labor Standards Act (“FLSA”)

Requires employers to pay:

Minimum wage

Overtime (1.5 times regular rate for all hours over 40per week)

Exemptions from these requirements if certaintests are met

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FLSA Exemptions Refresher

Salary (at least $455/week) PLUS

Executive Exemption

managing enterprise or

department/subdivision

Primary Duty

customarily and

regularly direct work of

2+ full-time employees

(or their equivalent)

Supervision

authority to hire or fire

or advice on hiring,

firing, promotion or

other change of

status is given weight

Authority

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Administrative Exemption

perform office or non-manual

work directly related to the

management or general business

operations of the employer or the

employer’s clients or customers

Primary Duty

must exercise discretion and

independent judgment regarding

matters of significance

Discretion and independent judgement

Professional Exemption


Exception: Lawyers, physicians and teachers

Advanced knowledge

In a field of science orlearning

Long course ofspecialized study (usually4+ years)

Primary Duty

Consistently exercise discretion and independent judgment

Discretion

Performs work that is predominantly intellectual

Intellectual

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Creative Professional Exemption

performing work requiring

invention, imagination, originality

or talent in a recognized field of

artistic or creative endeavor

Primary Duty

Salary (at least $455/week)

Total annual compensation of at least $100,000

Highly Compensated Exemption

must customarily and regularly

perform at least ONE of the duties of

an exempt executive, administrative

or professional employee

Duties

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Computer Exemption

Salary (at least $455/week) OR hourly (at least $27.63/hour) PLUS

Duties: Must be employed as a computer systems analyst,computer programmer, software engi neer or other similarly skilledworker in the computer field

• Systems analysis, including consulting with users, to determinehardware, software or system functional specifications or

• Designing, creating, testing or modifying computer systems orprograms based upon user or system specifications or

• A combination of these duties

Primary Duty

Outside Sales

Making sales / orders

Primary Duty

No salary requirement

Customarily and regularly away from employer’splace of business

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Upcoming Rule

Changes

Proposed Changes

Raising the minimum salary threshold for overtime exemption to the 40th percentile of all full-time salaried employees

First Quarter 2015 = $951 per week ($49,452 annually)

Anticipated 2016 = $970 per week ($50,440 annually)

Proposed annual adjustments

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Raise the threshold for the Highly Compensated Exemption

90th percentile of weekly wages of all full-time salaried employees

Proposed Changes

Proposed update

annually

currently

$130,364 per year

(may increase in final rules)

Changes in Duties Test?

64

Proposed New Rule – Duties Test

DOL is considering revisions to the duties test Possible revisions include:

Requiring exempt employees to spend a

specific amount of time performing their primary

duty (e.g., 50% primary duty requirement as under CA

state law)

Otherwise limiting the amount of

nonexempt work an exempt employee

may perform

Reinstating long/short duties

tests structure

Adding to the regulations additional examples illustrating

how the exemption may apply to particular

occupations

Proposed New Rule – Other changes?

Other changes being considered:

• Whether to allow nondiscretionary bonuses tosatisfy some portion of the standard salary testrequirement (currently included in calculatingtotal annual compensation under HCE test)

• Computer related occupations

– DOL is requesting suggestions fromstakeholders on whether to includeadditional examples of the application of theexemptions to computer-related fields.

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Impact of Proposed Changes

Direct costs to employers of around $250 million per year (more in year 1 for familiarization with new rules) as well as a transfer of income from employers to employees in the form of higher earnings, to the tune of ~$1.2 billion per year.

Approximately 21.4 million currently-exempt workers may be affected (i.e., may become non-exempt)

DOLestimates:

Timeline for Implementation

Comment period ended September 4

DOL will hear testimony and may have another comment period regarding the proposed changes before issuing a final version to the Office of Information and Regulatory Affairs ("OIRA")

OIRA will then conduct a review of the proposed regulations and publish the final text of the regulation in the Federal Register

DOL drafts final regulation, taking into account public comments

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Preparing for Rule Changes

Impact of Proposed Changes – Where?

Industries• manufacturing

• wholesale and retail trades

• financial activities

• professional and businessservices

• education and health services

Occupations• management

• business and financial,professional and related

• sales and related

think low-level managers, clerks

Most likely to be affected:

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Impact of Proposed Changes - Who?

• Pay overtime premium based oncurrent regular rate of pay

• Reduce regular rate of pay so thattotal earnings remain the same

• Eliminate overtime hours

• Increase salary to new proposedsalary level

• Some combination of the above

State laws

• Meals and rest periods

• Differing overtimerequirements

Non-Exempt Employee Considerations

Time-tracking: all working time must be tracked

• travel time

• mobile devices

Overtime pay

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Get Creative

Fluctuating hours method?

YES

Independent contractors?

NO

HotTopics

69

Department of Labor

Misclassification Initiative

dol.gov/whd/workers/misclassification/

Department of Labor


June 2015: FedEx Corp. reaches $228 million settlement to resolve misclassification class action brought by CA FedEx Ground drivers

2,300 truck drivers who worked for FedEx in California from 2000-2007, claiming they should have been classified as employees rather than independent contractors

Settlement followed 2014 Ninth Circuit ruling overturning summary judgment in favor of FedEx

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Department of Labor


June 2015: California Labor Commission ruled that an Uber Technologies, Inc. driver was an employee, ordering Uber to reimburse the driver for $4,000 in incurred expenses

September 2015: California federal judge grants class-action certification to a group of Uber drivers claiming they were improperly classified as independent contractors

Independent Contractors

Variety of different tests IRS (20 factor “right-to-control” test)

DOL (6 part “economic realities” test)

State or common law tests used by state agencies, courts

Under any test, it is a highly fact-specific inquiry

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Department of Labor

Administrator’s Interpretation

1. Extent to which work performed is integral toemployer’s business

2. Whether worker’s managerial skills affect his/heropportunity for profit and loss

3. Relative investments in facilities/equipment by workerand employer

4. Worker’s skill and initiative

5. Permanency of worker’s relationship with employer

6. Nature and degree of control exercised by employer

DOL 6 Factor Test

Federal Contractor Minimum Wage

Minimum Wage $10.15 effective January 1, 2016

($0.05 increase)

$5.85 for tipped employees

Paid Sick Leave for federal contracts and subcontracts entered after January 1, 2017

72

Interns

HELLOmy name is

INTERN

Top 7 Class Action Settlements in 2014-2015 = Total Approximately$26 million

Largest Settlement = $7.2 million to unpaid interns

Targets of lawsuits have largely been news, entertainment, andhigh-end fashion industries

Interns: DOL 6 Factor Test for “Trainees”

1. The training, even though it includes actual operation of the facilities of theemployer, is similar to that which would be given in a vocational school;

2. The training is for the benefit of the trainees or students;

3. The trainees or students do not displace regular employees, but work underclose supervision;

4. The employer that provides the training receives no immediate advantagefrom the activities of the trainees or students and, on occasion, hisoperations may even be impeded;

5. The trainees or students are not necessarily entitled to a job at theconclusion of the training period; and

6. The employer and the trainees or students understand that the trainees orstudents are not entitled to wages for the time spent in training.

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Glatt v. Fox Searchlight Pictures, Inc., et al., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015)

Approach adopted and followed by 11th Circuit Court of Appeals (Schumannv. Collier, 2015 U.S. App. Lexis (Sept. 11, 2015))

“Primary beneficiary” test: whether the intern or the employer is the primarybeneficiary of the relationship.

• The more benefit to the intern, especially educationally and academically, the lesslikely the intern is an employee.

New, more flexible test for determining whether intern can be unpaid orshould be considered a paid employee

• Rejected DOL 6 factor test – too rigid. All 6 factors had to be met.

Interns

Interns: 2nd Circuit 7 nonexclusive factors

Intern’s understanding of no

compensation

Internship provides training similar to what is given in educational environment – clinical and hands-on training

Internship tied to intern’s formal

education through courses or credit

Corresponds to the academic calendar

Duration limited

Work complements, rather than displaces,

the work of paid employees and

provides significant educational benefits to

intern

No promise of paid job when internship

concludes

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Any time spent performing activities that areprimarily for the employer’s benefit arecompensable hours worked

All time spent in physical or mental exertionprimarily for the benefit of the employer iscompensable hours worked

Employer must compensate for all compensablehours worked if the empl oyer knew or shouldhave known the employee was workingregardless of if the hours were recorded

Hours Worked Refresher

Portal-to-Portal Act

Amended FLSA and relievesemployers of the obligation tocompensate an employee for“activities [that] are preliminary to orpostliminary to [the] principal activityor activities” of employment. 29U.S.C. § 245(a)(2).

In general, “checking in and out andwaiting in line to do so, changingclothes, washing up or showering,and waiting in line to receive paychecks” are not compensable underthe FLSA. 29 C.F.R. § 790.7(g).

75

Portal-to-Portal Act did not change definitionof “workday”

The “workday” is generally defined as “theperiod between the commencement andcompletion on the same workday of anemployee’s principal activity or activities.”

Activities that take place between the first andlast principal activities of the day are generallycompensable.

The Supreme Court has interpreted “principalactivity or activities” to include “‘all activitieswhich are an integral and indispensable part ofthe principal activities.’”

Workday

3 Factors to Determine if Work is “De Minimis”

De Minimis Time

Regularity of the additional work

Practical administrative difficulty of recording the additional time;

Aggregate amount of compensable time; and

76

Technology and Hours Worked

Admin works for ABC Co. and is eager is to move up in the company and please her boss. Every morning before going in to the office, she checks her boss’s schedule and texts her boss.

What should the boss do?

The Admin also checks her voicemail on her way in to work every morning. She gets to the office 15 minutes early to boot up her computer, get her coffee, and check her email. Every night after she puts her kids to bed, she logs on to her work email and follows up on any outstanding issues and finalizes any documents for the next day.

Sometimes the boss knows about these things, but not always.


77

On her annual evaluation, the boss gives the Admin a glowing review..


What should HR do?

Annual Performance Evaluation

Name: Ann SmithJob title: Administrative Assistant

Overall Performance Review: Exceeds Expectations

Detailed Feedback: Ann is a real go-getter. Any time – no matter how early in the morning or late at night – there is a change in my schedule, she always makes the time to take care of it. Ann goes out of her way to keep me up-to-date on my schedule.

Areas for improvement: None


Will be more problematic when the salary threshold for exemptions is raised. More employees will be non-exempt and subject to overtime.

New rule coming?

DOL: issuing request for information on the use of portable electronic devices and other technology by employees away from the workplace and outside of regularly scheduled work hours

78


What to do? Avoid sending emails, texts, or making calls to non-

exempt employees outside work hours

If you notice non-exempt employees consistentlyemailing or texting you outside work hours, makesure time is recorded and instruct employee to stopworking outside work hours

If you notice employees consistently at work prior to scheduled start times, make surethey are not performing any work (logging on to computer, paperwork, etc.) and ensurethat time is recorded

Smartphone and cell phone policies and policies recording work time

Telecommuting policies

Monitoring

Limit remote access to exempt employees

79

Trac i Mar t inez

Ryan Sobe l

L I T I G A T I O N S T R AT E G I E S

AVOIDING DEPOSITION BLUNDERS

Why do depositions matter?

Discover information

Lock witness into story

Gather impeachment

evidence

Gauge credibility of

witness

Encourage settlement

Prepare for summary judgment

Preserve testimony

for trial

80

• Non-compete/Non-Solicitation Lawsuit

• Deponent Mr. Gentile is Company’s 30(b)(5) witness

• Mr. Gentile’s Company (the plaintiff) is suing former employee Ms. Black(the defendant) for working for a competitor and soliciting its clients

• Former employee’s new company is defending Ms. Black in the lawsuit

• Ms. Black’s attorney is taking the deposition

Mock Deposition Background

SPB’s Top 10 List of Deposition Blunders

81

#10 Wear the

Appropriate Attire

First impressionappear credible

Colornot bold patters or colors

#9 Be Prepared

• Understand why theother party wants to takethe deposition

• Know the key legaltheories in the case

• Know what documentshave been produced

82

#8 Don’t Get Mad

Don’t Be SarcasticBe Humble

• Eluding the answer doesnot help you

• Your job is to answeronly the question that isasked by the lawyer

#7 Answer the

Question that is Asked

83

#6 Do Not Ask The Lawyer Questions

“Do you mean before or after I got there?”

“Are you asking generally or specifically?”

“Are you asking did I personally do that?”

Ask the lawyer to rephrase, or answer the question with a limitation. “I did not personally do that.” “I did not do that”

#5 Do Not Volunteer

Additional Information

• Your deposition is not yourtime to tell your story

• Q: What time did you leave?

• A: 5 p.m.

• NOT: Well, I think it wasabout 5:00, but I had justspoke to Jane in the office.

84

The lawyer asks you about something that happened 5 years ago. If you never knew the answer to the question, “I don’t know.” If you knew the answer 5 years ago but have since forgotten it, “I don’t recall.” The distinction can be significant.

#4 Know the Difference

Between Not Knowing and Not

Recalling

#3 Don’t Be in a Hurry

The deposition will not end early. Watch out: “Just so we don’t have to spend all day reviewing all these documents, you had a number of employees complain about this supervisor from 2008 to present.”

85

Evading an answer or stretching the truth can be the most damaging flaw of a case

#2 Don’t Lie

hire#1

Know the Lawyers that you’re Hiring

86

T im Cosgrove , C leve land

THE POLITICS OF THE WORK PLACE

The Impact of Politics on the Labor/Employment Relationship

Federal Overview• Congressional approval at all-time low -10%

• Obama approval at 45% with more than 50%disapproval

• Legislative Statement

– 114th Congress have enacted 71 issues

– Previous Congress set a new low of 300

87

Obama Administration Pushes Agenda Aggressively – Beating the Clock

National Labor Relationship Board– Browning-Ferris “joint employer” case

– Impacting unions with efforts to organize bargaincollectives

– Union membership at 11.1%, ½% of 1983; PublicSector is nearly 36%

– FSLA minimum wage and overtime rules extendingovertime protections to nearly 5 million white collarworkers in first year

• Department of Labor proposing toautomatically update the Salary Standardsand total compensation requirements

• Proposed rule change regularly retirementadvisors and the “fiduciary standard”

Obama Administration Pushes Agenda Aggressively – Beating the Clock (continued)

88

Presidential Race

• Candidates set the tone both at federal and state level

• Winner will alter the tone of the labor and employment conversation

State of Presidential Race

Democrat race at critical juncture

Republican early turmoil

89

The Politics of Ohio

• Different dynamic of one party rule

• Impact of Kasich candidacy

• Ohio is a microcosm of national politics

35

40

45

50

55

Bush Dole Bush Bush McCain Romney

1992 1996 2000 2004 2008 2012

Ohio

National

Republican Presidential Results – Ohio Vs. National

90

Ohio Dominated by Republicans

Record majorities in House and Senate

This disconnect impacts State policy agenda

18 members of Congress –14 Republicans

and 4 Democrats

5 statewide offices

Two Labor Initiatives Lurk in theRepublican Memory

2011 SB 5 petition Repealing Collective Bargaining Reform

defeated 61.6% - 38.4%

1958 Right to Work

defeated 63% - 36%

91

Ohio Labor and Employment Issues

HB 377 – Right to Workprohibit any requirement that employees of private employers join or pay dues to any employee organization and to establish civil and criminal penalties against employers who violate that prohibition

– Recently introduced by Rep. Tom Brinkman

– Not likely to go anywhere

State Issue 3– Legalization of Marijuana

Ohio Labor and Employment Issues (continued)

SB 5 – Post Traumatic Stress Disorder and Workers Compensation

• Passed Senate, but will likely face obstacles in the House

HB 180 & SB 152 – Local Hiring provision legislation to eliminate the requirement that a certain percentage of employees be from the municipality.

• Each of these companion bills have passed their respectivechambers. HB 180 has had 1 hearing. SB 152 has had 2 hearings.

92

Ohio Labor and Employment Issues (continued)

HB 282 – Repeal prevailing wage law• Introduced by Rep. Ron Hood and Rep. Kristina Roegner

Potential Constitutional amendments in 2016.

The Role of the Ohio Supreme CourtHistorical Background and Role of Court on Labor Issues

• BWC

• Tort Reform

Changing Face of Supreme Court: 7 Member Court

• 6 – 1 Republicans: 4 Replacementswithin next 3 years

• 2 Mandatory Retirements in 2016:Pfeifer and Lanzinger

• 2 Mandatory Retirements in 2018:O’Donnell and O’Neill

93

It is very early and Presidential Race may be the most important indicator of what’s to come

DeWine early leader

2018 State Races

The process is underway

94

J i l l K i r i l a , Co lumbus

G R O W I N G I S S U E S F O R

MULTI-STATE EMPLOYERS

Jill Kirila

Partner, Columbus

[email protected]

95

Companies with employees in multiple states or employees who travel out of state have to stay abreast of laws in multiple jurisdictions

States have laws regulating a multitude of employment-related issues:

Travel time issues

Termination of

employment

Expense reimbursement

96

States have laws regulating a multitude of employment-related issues:

Voting

Jury Duty

Witness

Victim of crime

School visitation

Blood, bone marrow or organ donation

Town Meeting (VT)

Emancipation Day (DC)

Leave Laws Examples

Timing

Manner and method of payment

Wage deductions

Wage Payment Laws

Overtime

Minimum wage

Meal and rest breaks

Exemptions

Wage and Hour

Access to personnel files

Reporting Pay

Accommodation laws (pregnancy, domestic violence)

Drug testing

Others

New employment-related laws are being enacted by states, cities, counties and townships across the U.S.

FamilyLeave

Paid sick leave

Minimum wage

Ban the Box

97

Paid Sick Leave

Some states have passed laws to prevent local paid sick leave laws: AL, AZ, FL, GA, IN, KS, LA, MI, MS, NC, OK, TN, WI

HOT TOPIC

Paid sick leave laws are springing up around the country

4 states19 cities/townships/countiesPuerto Rico

Employees working under federal contracts

98

Cities / Counties / Townships

Emeryville, CAOakland, CASan Francisco, CAWashington, DCMontgomery Cty, MDBloomfield, NJEast Orange, NJJersey City, NJMontclair, NJPassaic, NJPaterson, NJTrenton, NJNew York, NYEugene, ORPittsburgh, PAPortland, ORPhiladelphia, PASeattle, WATacoma, WA

States

CaliforniaConnecticutMassachusettsOregon

TerritoriesPuerto Rico

1) Laws differ as to application:

a) Employee hours worked in jurisdiction

b) Employer size

c) Type of employee (i.e., Connecticut, only serviceworkers)

• NOTE: Sick leave laws apply to exempt employees

• Considered to work 40 hours per week foraccrual purposes, unless they regularly work adifferent amount

2) Laws differ as to notice requirements

a) Provide details on available sick leave on paystubs

b) Post specific notice

Compliance is complicated…

99

3) Laws differ as to accrual/carry-over:

a) Accrual rate varies

• 1 hour for every 30, 35, or 40 worked

b) Can front-load leave, which avoids need to track accrual,but still have to meet other requirements of the laws

c) Laws differ as to whether paid sick leave accrual can becapped and/or carried over, and if so, the amount of the capand/or carryover

Compliance is complicated…

Compliance is complicated…4) Laws dictate (and differ as to):

a) What leave can be used for

• domestic violence-related reasons

• closure of business/school due to public health emergency

• bereavement

• leave to care for guide or service dog

b) Who is considered a family member

c) Type and amount of notice employee must provide

d) When employer can request documentation of leave

100

Compliance is complicated…Especially for traveling employees!

• Some laws provide that leave earned in that jurisdiction may only be usedfor hours worked in that jurisdiction; others are silent on the issue

• Notice to employees required, but each jurisdiction has a differentnotice/posting requirements

• Importance of time tracking

• Know the law where the employee is traveling!

EXAMPLE

Employer is based in Ohio, has 55 employees in Ohio.

• George travels to D.C. 4 times/year, for 3 days each trip.

• 4 x 3 = 12 days x 8 hours = 96 hours.

• D.C. Sick and Safe Leave law applies to all employeeswho work in D.C., even on temporary basis

• Accrues 1 hour of sick leave for every 87 hours worked

• George would have one hour of paid sick leave to use.

• Accrued leave carries over from year to year.

101

While in D.C. on one of those trips, he pops over to Montgomery County, MD for a week.

• There, sick time accrues at the rate of one hour for every30 hours worked.

• Assuming he worked 40 hours in that week, he accruesanother hour of sick leave, which can be rolled over to thenext year.

EXAMPLE

Review existing paid sick leave and/or PTO policies

Ensure compliance with existing laws that may apply

Consider tailoring policies so paid sick leave and PTO run concurrently (be careful not to impose greater restrictions!)

To Do:

102

what snext

?

New sick leave laws are popping up everywhere

Next in line:

• Minneapolis?

• Tempe? (although likely legalchallenge due to state pre-emption)

• Federal?

Federal contractors/subcontractors

Recent Executive Order requires employers to provide sick leave for employees working under federal contracts

• Secretary of Labor to promulgate regulationsby September 30, 2016

• Federal agencies to ensure that contractsentered into after January 1, 2017 complywith the Order’s requirements

what snext

?

103

Other Trending Topics

Ban the Box Laws

Have you ever been convicted of a crime?

Stops employers from asking about criminal history on job application

Momentum Growing • Oregon is most recent

to regulate privateemployers

• Several other statesand cities

EEOC already considers best practice to remove such questions

104

Minimum Wage Hikes

Federal minimum wage has been at $7.25 since 2009

States, cities, counties taking it upon themselves to raise minimum wage

Multi-state employers = constant monitoring• Most changes come

with change to CPI atthe end of the year,but not all!

• States are legalizing or decriminalizing marijuana use• Marijuana currently legal in 23 states for medical purposes• On the ballot in Ohio next month

• Upshot for drug testing policies?

Marijuana Laws

• Risk of lawsuits• May be unnecessary if good

employee, not in safetysensitive position, etc.

• Courts could change views;outcome will depend on statelaw

EXAMPLE: Employee prescribed marijuana, is not intoxicated while at work, but tests positive for marijuana

Marijuana still illegal under federal law, so courts have found employers safe to prohibit, even for medical use

105

• Around half of states have them, others adding (most recently, ME,VA, CT)

• Prohibit employers from requiring, requesting or coercing employeesand job applicants to disclose their personal social media accountpasswords or other account information

• Anti-retaliation provision—protected activity is the refusal to providepassword and account information

• Okay to look at public social media profiles (but BE CAREFUL ofdiscrimination!)

• Review policies and practices, consider including in training for thoseinvolved in the hiring process

Social Media Privacy Laws

106

Ryan Sobe l

E M P L O YM E N T L A W

ADA AND FMLA UPDATES

Ryan Sobel

Senior Associate, Cleveland

[email protected]

107

ADA UpdatesLatest cases, including what qualifies as a reasonable accommodation

Agenda

FMLA Updates On:Eligibility requirements, latest cases, definition of “serious health condition”

Hot Topics in FMLA and ADA Law

Americans with

Disabilities Act

108

Overview/Refresher of the Law

Protects otherwise qualified individuals from discrimination based on disabilities

Enacted 1990, amended 2009 (mostly to broaden definition of “disability”).

Enforced by Equal Employment Opportunity Commission.

Applies to employers with at least 15 employees.

Main inquiry now is whether reasonable accommodation is available. (“disability” is so broad now it is frequently assumed)

Requires individualized assessment

Definition of Disability

Physical or mental impairment that substantially limits one or more major life activities (“actual disability”)1Having a “record” of such an impairment2Being “regarded as” having such an impairment.

“Substantially limits” construed broadly in favor of expansive coverage.

Requires lower degree of functional limitation than was required prior tothe 2009 amendments.

3

109

Weaving v. City of Hillsboro (9th Cir. 2014): Reversed jury verdict for employee, held that ADHD did not substantially limit ability to work or to interact with coworkers

Plaintiff had ADHD as a child but thought he had outgrown it. He disclosed priorinterpersonal problems to his employer along with history of ADHD but said he didnot believe it still affected him.

Plaintiff had personality conflicts with co-workers and was placed on administrativeleave pending an investigation.

While on leave, Plaintiff was re-diagnosed with ADHD and requested reasonableaccommodations, including reinstatement.

Accommodation was denied, Plaintiff was terminated for interpersonal problems.

Recent Disability Cases

Employers do not have to accommodate an employeewho just doesn’t get along well with others.

Take-away

Anderson v. National Grid, PLC (E.D.N.Y. 2015)

Plaintiff claimed to have preexisting spinal cord condition that caused back pain,which he claimed gave him difficulty sitting – only proof of Plaintiff’s present inabilityto sit was his own testimony and that of coworker.

More than 10 years after his diagnosis, he was transferred to a location farther fromhis home. He requested transfer back to the old location but the employer deniedhis request.

Plaintiff started working from home without permission and the employer terminatedhim.


Take-aways

(1) It is not enough to claim to have a disability, whendisability isn’t apparent; and

(2) Disability does not shield employee fromconsequences of misconduct.

110

Manon v. 878 Educ., LLC (S.D.N.Y. 2015)

School receptionist sued for associational discrimination after being fired forabsences/tardies due to infant daughter’s repeated hospitalization for respiratory issues

Issue only raised twice with employee before termination

Said at termination meeting: Company needs “someone who does not have kids who can be at the front desk at all times”

“How can you guarantee me that [ ] two weeks from now your daughter is not going to be sickagain?”

“So, what is it, your job or your daughter?”


Take-away

need to be proactive about interactive process; when it comes time for discipline, focus on the performance issue, not on what is going on in personal life to cause the performance issue

EEOC v. Ford Motor Co. (6th Cir. 2015)

Plaintiff was a resale buyer, a position that required on-site attendance, but she hadIrritable Bowel Syndrome and frequently missed work. She asked to work fromhome four days a week, but the employer would only agree to 1-2 days.

Ford gave Plaintiff three tries at telecommuting, but her work performance did notimprove.

Plaintiff rejected all offered alternative accommodations.

Holding: On-site attendance was an essential function of the job and anaccommodation that eliminates an essential function of the job is not a reasonableone.

Recent Accommodation Cases

Maintain job descriptions and consistently enforceclear telecommuting policies.

Take-away

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Noll v. International Business Machines Corp. (2d Cir. 2015)

Plaintiff was a deaf employee. The employer provided transcripts and sign languageinterpreters for viewing company intranet videos, but Plaintiff wanted on-screencaptioning and audio files.

Court found employer’s accommodations were perfectly reasonable; did not have toprovide any additional options.


Employer need not provide employee with a “perfect” or preferred accommodation, but simply an accommodation that is reasonable.

Take-away

Gleed v. AT&T Mobility Services, LLC (6th Cir. 2015)

Plaintiff had leg condition and had an increased risk of skin infections if hestood for prolonged periods of time. When AT&T bought his company’s retailstore, they refused to let him use a stool during the day instead of standing.

Supervisor would not let Plaintiff sit on a chair even though a pregnantcoworker was allowed to use a chair.

Plaintiff went to ER with a skin infection and had to go back every day for sixweeks for hour-long treatments.


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Gleed v. AT&T Mobility Services, LLC (6th Cir. 2015) cont.

Plaintiff requested an adjustment to his schedule to accommodate thosetreatments. Supervisor refused. AT&T HR said Plaintiff’s only option wasto take unpaid leave and apply for back-pay later, but Plaintiff never askedHR for a schedule adjustment.

Holding: Allowing plaintiff to sit was a reasonable accommodation andshould’ve been allowed. Court found for AT&T on failure to adjustschedule because Plaintiff never asked corporate HR for an adjustment.


Don’t distinguish between similarly-disabled individuals (here, pregnant workers and others who might have difficulty standing); use common sense when considering potential accommodations.

Take-away

Other ADA Cases of Note

Mobley v. Miami Valley Hosp., 603 Fed. App’x 405 (6th Cir. 2015)

informal accommodation requests

• ADA gives employees flexibility inhow they “request” accommodation

• Informal requests can be sufficient

• Doctor’s notes are sufficientrequests

Banks v. Bosch Rexroth Corp., No. 14-5486 (6th Cir. May 6, 2015)

unfettered leave

• Production line worker’s doctor proposed anunfettered right to leave for migraines

• No standard of evaluation or limitations onability to leave work

• Not reasonable; might be reasonable in somecircumstances, but not on production line

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Family & Medical Leave

Act

Eligibility

Worked for the employer for at least 12 months;

Does not need to be consecutive

Worked at least 1,250 hours over the past 12 months; AND

Work at a location where the company employees 50 or more employees within 75 miles

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Qualifying Reasons for Leave

12 workweeks of leave available for:

• Birth and care of newborn child

• Placement of a child for adoption or foster care

• Care for employee’s spouse, child or parent with serious health condition(does not apply to in-laws)

• Employee’s inability to perform essential functions of position because ofown serious health condition

• Qualifying exigency (situation arising from military deployment ofemployee’s spouse, child or parent to a foreign country)

26 workweeks available for:

• Military caregiver leave

Prior forms expired Feb. 28, 2015

Updated FMLA forms

New forms published May 2015: • Medical certification forms have been updated to

clarify providers should not disclose informationabout genetics/related services to employers.

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Former rule: Based on where marriage was entered into (i.e. whetherstate recognized same-sex marriages).

New rule: All marriages (same-sex or not) count to create a “spouse”under FMLA, regardless of where the employee lives or was married.

U.S. v. Windsor (2013): Supreme Court held that federal refusal to recognizesame-sex marriages and treat them the same as opposite-sex marriagesviolated the 5th Amendment’s equal protection guarantee.

DOL Regulation (Feb. 2015): Updated definition of “spouse” under FMLA toinclude same-sex spouse even in states that did not recognize same-sexmarriages.

Obergefell v. Hodges (June 2015): Supreme Court held that any distinctionbetween same-sex and opposite-sex marriages was unconstitutional (therebylegalizing same-sex marriage in all states).

Definition of Spouse

Eligible employees in legal same-sex and common law marriages can take FMLAleave to care for spouse or family member, regardless of where they live.

Anderson v. McIntosh Constr., LLC (6th Cir. 2015): Held – Working from home is still working, not a request for leave under the FMLA. Plaintiff did not get along with one of her coworkers. The stress caused Plaintiff’s health to

deteriorate. Plaintiff was already working from home one day a week, but requested additional work-from-home time. Her boss approved it but said that should not be “a regular thing.”

Employer decided to replace Plaintiff, at least in part due to excessive absences (some of whichwere for medical appointments). Plaintiff found out, quit, and sued for FMLA interference.

Held:

Employer didn’t have to offer leave; burden was on Plaintiff to request it.

No FMLA interference in considering Plaintiff’s absences because she was not yet eligiblefor FMLA.

FMLA Recent Cases

A request to work from home is not a request for FMLAleave. In order to invoke FMLA protections, employees must indicate the need for time off of work for qualifying reasons.

Take-away

116

Tilley v. Kalamazoo Cnty. Road Commission (6th Cir. 2015)

Plaintiff needed medical leave. Employer’s manual said employee would be eligible forFMLA if he worked 1,250 hours in the past 12 months. It did not mention working for aworksite within 75 miles of at least 50 other employees.

Plaintiff did not work within 75 miles of at least 50 other employees.

Employer sent Plaintiff FMLA forms, then shortly after sent a letter saying he wasterminated for not showing up to work.

Holding: Employer was equitably estopped from denying Plaintiff’s eligibility for leavebecause employee reasonably and detrimentally relied on employer’s erroneousstatements about eligibility.

FMLA Recent Cases

Make sure company FMLA policies and employeehandbooks contain accurate and complete information.

Take-away

Bonkowski v. Oberg Industries, Inc. (3d Cir. 2015)

Employee experienced shortness of breath and dizziness while meeting with hissupervisors about a recent suspension for falling asleep on the job. Wife picked him upfrom work and took him to the hospital (November 14).

Arrived at the hospital just before midnight, but was not admitted until November 15.Employee was released early in the evening on November 15.

Employer terminated Plaintiff because it considered his Nov. 15 absence to have beenequivalent to walking off the job.

Holding: No FMLA protection because there was no overnight stay. (Requires asubstantial period of time and to be admitted on one calendar day and discharged onthe next.)

FMLA Recent Cases

Good result for employer in this case, but be carefulabout hanging your hat on such technicalities.

Take-away

117

Michaels v. Norton Healthcare (W.D. Ken. 2014)

Plaintiff’s daughter got sick and Plaintiff thought it was swine flu. The child wasdiagnosed with strep throat.

Plaintiff kept her daughter out of school for one week and stayed home with her.Employer counted that absences against Plaintiff and terminated her.

Holding: Strep throat is not a “serious medical condition” and is therefore not protectedunder FMLA.

FMLA Recent Cases

An employee’s belief that a condition is serious is notenough to qualify them for FMLA.

Take-away

Festerman v. Cnty. of Wayne, No. 14-1950 (6th Cir. May 8, 2015)

“Constructive” Notice

• Entirety of circumstances canbe sufficient to give employernotice of potential FMLA-qualifying event

• Although doctor’s note did notdisclose condition, butsurrounding circumstancesprovided additional context foremployer

Other FMLA Cases of Note

Cundiff v. Lenawee Stamping Corp., 597 Fed. App’x 299 (6th Cir. 2015)

Call-Out Procedures

• Employer policy required 30-minute advance call forabsences/tardiness

• Employee missed work forthree days without calling-in,did not cite unusualcircumstances to justifyfailure to call-in

• Forfeited FMLA rights

Judge v. Landscape Forms, Inc., 592 Fed. App’x 403 (6th Cir. 2014)

LTD Application as Notice

• LTD request not sufficientnotice of need for FMLAleave

• Request made to TPA;employer only knew requestwas approved, could notreceive further informationabout basis for request

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FMLA Abuse

Main culprit is intermittent leave

Employer can – and should – require physician to respond to requests forinformation or have employee submit to medical examination. Also, requestrecertifications periodically.

Employers may require second or third medical opinion if they have good faithreasons to doubt the certifications presented.

Patterns: Look for employees tending to take off Mondays, Fridays and/ordays before or after holidays. Inform employee’s doctor about the pattern.

FMLA Abuse

1 in 4 employers has caught employeeslying about being sick by checking

social media

119

FMLA Abuse

Employee cannot establish the necessary pretext to win a discrimination claim, even if the employer’s reason is ultimately found to be mistaken.

Job protection can be denied based on an “honest belief/suspicion” that an employee was abusing leave.

FMLA Abuse

Employers should conduct thorough investigation into suspected abuse before taking action against the employee.

120

FMLA Abuse

Dalpiaz v. Carbon County Utah Rose Barnes (10th Cir. 2014)

April

HR employee had positive job reviews.

July 13

Employee out of work. Returned with limitations.

Boss asked employee to complete FMLA paperwork and sent her a form.

Employee did not respond and did not return paperwork. Also did not respond to email regarding FMLA.

Boss finally told employee she had to return paperwork by July 10 to get FMLA.

July 22

Employee returned

FMLApaperwork

at 4:22 p.m.

FMLA Abuse

Dalpiaz v. Carbon County Utah Rose Barnes (10th Cir. 2014) cont.

Employee returned to work July 13 with limitations. Boss started to hearemployee was doing things inconsistent with a spinal condition (playingfootball, doing yard work, etc.). Eight of the employee’s coworkerssigned statements about things they’d seen her doing that wereinconsistent with spinal restrictions.

Employee never replied to request for independent medical exam andshe was ultimately terminated.

Holding: No proof of FMLA interference. Employer had good faithquestions about scope of employee’s injuries and she failed to complywith FMLA rules (timely paperwork, independent exams).

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Hot Topics in FMLA

& ADA Law

Pregnancy DiscriminationPregnancy Discrimination now applies to current and past pregnancies, potential and intention to become pregnant, and new fathers.

EEOC issued new guidance (not law, but indicates whatagency will consider discriminatory)

Pregnancy, childbirth and related medical conditionsmust be treated in the same manner as similarabilities/limitations.

Employee can’t be fired, demoted or denied a promotiondue to pregnancy/possible pregnancy.

Employer can’t single out pregnancy-related conditions fordifferent treatment.

Employer can’t force employee to take pregnancy leave.

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Pregnancy DiscriminationNote the new guidance includes coverage for:

Potential or intention to become pregnant: Cannot penalize employee for missing work to undergo fertility

treatments.

Cannot exclude female employee from a position because it mightharm her fertility while allowing fertile males to do the same job.

Health insurance plans must include contraception coverage andemployees may not be discriminated against for use ofcontraception.

Fathers: Must receive equal parental leave for bonding/providing care for newborn as new mothers receive.

Employers may still distinguish betweenfathers/non-birth mothers in providing additionalleave related to physical limitations/recoveryfrom childbirth.

Pregnancy Discrimination

Note the new guidance includes coverage for:

ADA required accommodations:

Lactation and breastfeeding: Now considered pregnancy-related conditionsthat must be accommodated.

Other pregnancy-related impairments that might qualify a person as disabledunder ADA: Carpal tunnel syndrome, sciatica, mandatory bed rest,depression, nausea, painful swelling, and conditions that limit walking.

Light duty: If employer provides light duty assignments to employees who are temporarily unable to perform full duties, then same accommodations must be equally provided to pregnant employees who are temporarily unable to perform full duties.

Young v. UPS (U.S. 2015): SCOTUS found against employer where itoffered light duty accommodations to employees with certain conditions butnot to a pregnant employee.

123

Family Leave

U.S. does not currently mandate maternity/paternity leave, but a billin Congress would expand FMLA to provide 12 weeks of partialincome to covered employees in all companies no matter what size. Most U.S. employers offer some paid leave for women who give birth.

Only 17 percent of employers provide paid paternity leave or leave forparents who adopt.

At least three states have mandatoryfamily leave laws and about 15-20more are considering similarlegislation. (Ohio does not have sucha law yet.)

Family Leave

Some large private companies are expanding their family leave options.

Netflix: Will allow unlimited maternity/paternity leave, at full pay, during first year after child’s birth/adoption.

Twitter: Birth moms can get up to 20 weeks of full pay; other new parents get up to 10 weeks for bonding time.

124

Paid Sick Leave

No federal law requires employers to provide paid sick leave. At least 43 million U.S. workers don’t even have the option to earn paid

sick days.

Sept. 7, 2015: President Obama signed executive order requiring any company that contracts with the federal government to issue paid sick leave to employees. Mandates a minimum of about 7 days (56 hours) each year of paid sick

leave.

Paid Sick Leave

Some states and cities require sick leave

Some require paid, some allow unpaid.

Nowhere in Ohio

Companies with employees in those places should ensure they arecompliant, including in handbook provisions that give notice ofemployees’ rights.

125

HORRIBLE BOSSES

MANAGER

Good wages 1

Job security 2

Growth opportunity 3

Good working conditions 4

Interesting work 5

Personal loyalty to workers 6

Tactful disciplining 7

Full appreciation for work done 8

Sympathetic to personal issues 9

Feeling “in” on things 10

EMPLOYEE

Full appreciation for work done

Feeling “in” on things

Sympathetic to personal issues

Job security

Good wages

Interesting work

Growth opportunity

Personal loyalty to workers

Good working conditions

Tactful disciplining

126

We can give you legal advice… but what’s happening on the ground floor?

Clueless and

Offensive

127

Bias isn’t always obvious.

What’s the best way to address office bias

when it’s not obvious?

Unexamined Bias Training

Implicit Association Test

Tool to help managers identify and consider effects of unexamined bias

Link: https://implicit.harvard.edu/implicit/takeatest.html

128

Harasser

129

How do you address it

practically?Expansive

standards of retaliation

Disengaged

130

Taken from actual employee performance evaluations at a large US Corporation…

“He would be out of his depth in a parking lot puddle.”

“Works well when under constant supervision and

cornered like a rat in a trap”

“This young lady has delusions of adequacy.”

“He brings a lot of joy whenever he leaves the room.”

“Takes him 2 hours to watch 60 minutes.”

43% highly engaged employeesreceive feedback at least once a week

18%of employees with lowengagement

compared to only

131

What about underperforming or

unengaged employees?

Source: 2014 Salary.com Survey

89%of employees surveyed

report wasting timeat work each day.

132

Don’t feel challenged

enough

1Work too

many hours

2Company doesn’t

give sufficient incentive to work

harder

3

Unsatisfied with their

career

4Just bored

5

Reasons for wasting time?

133

The Bully

Bullying in US?not against the law

Is it coming?

Hot topic in schools

134

US Bullying in Workplace Legislation

• At least 26 states haveintroduced anti-bullyinglegislation. Tennessee only stateto pass as to state employers.

• No current law recognizingprivate company employee rights

• Dedicated Website/NationalGroup Supporting Movement

Intentional Infliction of emotional distress

Global laws: Australia, UK—“stress” laws

135

New anti-bullying laws (2014) Australia

• Last month, Fair Work Commission made first formalbullying finding

• Two employees of a small real estate business subjectedto repeated unreasonable behavior by a property manager

• Employer ordered to address the organization’s cultureand “broader conduct within” by establishing andimplementing anti-bullying policies, procedure and training.

• When bullying occurs, immediate steps should be taken toaddress it and to ensure that it does not continue,including undertaking a robust investigation whereappropriate

EUROPE Last year, new rules governing the prevention of psychosocial risks in the workplace.

Belgian employers now required to take measures to prevent psychosocial risks at work (violence, stress, bullying and sexual harassment, etc.) and to protect employees from damage caused by such risks.

• Rules for hours of work, including night work restrictions

• No work on Sundays (exemptions may apply)

• Various leave entitlements

• Part-time employees have same rights as full-time employees (on pro-rata basis)

• Protection against dismissal extended and a possible fixed indemnity of threemonths’ gross salary can be awarded to employees who are the victim ofviolence, harassment or sexual harassment at work

136

Greedy Boss

Thank you!

137

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