mid-year legal review: is your company doing all it can to ... · –time management, including...

Mid-Year Legal Review: Is

Your Company Doing All It Can

To Prevent Employment-

Related Claims?Presented by: Alison B. Crane and Jody Kahn Mason

Nothing in this document is legal advice, nor does anything in this document create an attorney-client relationship

between the viewer or recipient and Jackson Lewis P.C.

THE MIDDLE OF 2018 IS ALREADY UPON US

• The legal landscape for employers is constantly changing

• The Trump Administration remains hard to read

• Several new laws have become effective in 2017 & 2018

• Several old laws are gaining attention like never before

• The #MeToo revolution is sweeping the nation, empowering victims of harassment and discrimination to speak out

• Courts and legislatures are responding to an increased number of lawsuits involving claims filed by sick or injured employees

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TODAY’S GOALS

• Take a wide survey across employment law

• Learn a little bit about old and new laws

• Leave with a to-do list

– Low-hanging fruit – things you can do right now to put your company in a better position to prevent employment-related claims

– (Keep a list as we go!)• Minimize the chances of a claim or lawsuit being filed

• If inevitable, maximize the chances of being in a position of strength

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HOUSEKEEPING

• About Alison and Jody and about Jackson Lewis P.C.

• Questions, during and after

• Slides/handouts

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A JOURNEY THROUGH THE EMPLOYEE

RELATIONSHIP

• We’ll follow the life-cycle of an employee’s relationship with your company, paying particular attention to danger zones, recent trends and new laws:

• The beginning:

1. Recruiting and hiring safely

2. Onboarding new employees

3. Setting and calculating pay correctly

4. Fixing your employee handbook

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A JOURNEY THROUGH THE EMPLOYEE

RELATIONSHIP

• The middle:

5. Handling disabilities and leaves of absence in light of recent leave management trends and sick leave laws

6. Responding appropriately to complaints, particularly in the #MeToo era

• The end:

7. Making good disciplinary and termination decisions

• Note that terminations are just one of the seven. Danger lurks in many other places!

INTERVIEWING AND HIRING

SAFELY

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INTERVIEWING BASICS

• Why Do We Interview?

• General Rule: Is The Inquiry Necessary To Evaluate Suitability For Job

• Applicants, Employees, Government Agencies, & Juries Presume Use Of All Information Solicited

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INTERVIEWING BASICS

• Think about the tools that you use to vet and screen candidates. The law restricts many of them.

• We’ll cover:

– Salary history

– Criminal background checks• Special note on arrest records

– Credit history

– Social media

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PAY HISTORY BANS

• Pay History Bans: The Newest Tool to “Attack the Gap”

– Massachusetts – first jurisdiction to ban pay history inquiries – effective July 1, 2018.

– California – quickly amended its law to say salary history cannot be “sole basis to explain pay disparity.”

• Many see this as a salary history ban, through the “side-door” – less clear than MA, but may have the same effect.

• But, what’s unclear may soon be made clear: the CA law likely will be amended this year to ban inquiry outright.

Passed Salary History Ban

• Delaware

• Massachusetts

• New York City

• Oregon

• Puerto Rico

• Philadelphia

• San Francisco

Proposed Salary History Ban

• California –Assembly passed

– LA, too

• DC

• Georgia

• Illinois

• Iowa

• Maryland

• New York

• North Carolina

• Pennsylvania

• Rhode Island

• Texas

• Vermont

• Virginia

• Washington

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Other Jurisdictions That Have Passed or Proposed

Similar Bans on Asking for Salary History

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PAY HISTORY BANS

• Pay History Bans: What Is a Multi-State Employer To Do?

– Prediction: many additional states and municipalities will enact salary history bans.

– Employers must decide whether to create different processes and systems.

– Or decide on corporate consistency by developing uniform practices.

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PAY HISTORY BANS

• Pay History Bans: What Is a Multi-State Employer To Do?

– Emerging best practice: stop asking for salary history and instead:

• Ask for salary “expectations.”

• Provide applicants a salary range for the position.

• Set a fixed starting salary or a set of salaries by position.

• Data driven “predicted starting salary” approach – use statistical tools to determine job offer amount based on salaries of incumbent employees in the position.

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CRIMINAL BACKGROUND CHECKS

– “Ban the box”

• Over 150 cities and counties have adopted “ban-the-box” laws

• In IL, most employers cannot ask until candidate deemed otherwise qualified, and selected for interview

– Ensure FCRA compliance

• Follow the FCRA’s pre-procurement requirements

• If the report may or will cause a candidate to be rejected, follow FCRA’s pre-adverse action requirements

• After rejecting a candidate, follow FCRA’s post-adverse action requirements

– No blanket rules on what is disqualifying

• An EEOC priority, due to “disparate impact”

• What does this conviction say about suitability for this job?

• Give candidate a chance to explain

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ARREST HISTORY

• Special note on arrests:

– Many states proscribe an employer’s ability to rely on an individual’s criminal record when hiring to some degree.

– In Illinois, “arrest record” is a protected class – cannot be basis for employment decision

– Best practice: tell your vendor not to even give you this information

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CREDIT CHECKS

• 11 states (including Illinois) have laws to limit employers’ use of credit checks and credit-related information in employment

• Generally illegal in Illinois to run a credit history or to use it in employment decision.

• Exceptions for certain industries (banking, etc.)

• Exceptions for certain positions (access to $2,500 or more, access to confidential information, etc.)

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USE OF SOCIAL MEDIA IN HIRING

Social Media and Other Internet Checks – Potential Drawbacks

• Learning of a protected characteristic.

– E.g., simple Google search may reveal an applicant’s disability, religion or sexual orientation.

– Possible immediate and long-term consequences:

• Knowledge = great evidence for applicant (or employee) turned litigant.

• Knowledge of disability may saddle organization with responsibilities under the Americans with Disabilities Act

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USE OF SOCIAL MEDIA IN HIRING

Social Media and Other Internet Checks – Potential Drawbacks

• Learning a personal detail that causes discomfort or is otherwise stigmatized, but may not be considered. For example:

– Individual (lawfully) owns / uses firearms – perhaps several.

– Individual is a smoker.

– Individual clearly enjoys drinking (on their own time only).

• Learning information that is untrue or inaccurate:

– Jody Mason ≠ Very common name

– “Jody Mason” ≈ 4,950 search results on Google.

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TO DO: INTERVIEWING AND HIRING SAFELY

• To Do List:

– Review your employment applications and practices, particularly if you are requesting or considering information about:

• Convictions

• Arrests

• Credit

• Social media

– Ensure your background check process is compliant with the FCRA

– Consider changing your hiring process to ban inquiries regarding salary history

ONBOARDING NEW EMPLOYEES

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Ilinois Biometric Information Privacy Act

• Although this has been the law since 2008, it received relatively little scrutiny until recently

• Over the past year, dozens of class action lawsuits have been filed in Illinois state and federal court alleging violations of the Act

• Five key features of the law, which applies to companies that collect and use biometric data:

– Informed consent prior to collection

– Permits a limited right of disclosure

– Mandates protection obligations and retention guidelines

– Prohibits profiting from biometric data

– Creates a private right of action for individuals harmed by violations of the Act

Illinois Biometric Information Privacy Act

What is biometrics?

• Biometrics is the measurement and statistical analysis of an individual’s physical and behavior characteristics.

• The technology associated with biometrics has many uses but frequently is used to verify personal identity.

• Examples of physiological characteristics include: DNA, fingerprints, face, hand, retina or ear features, and odor.

• Examples of behavioral characteristics include gestures, voice, typing rhythm, and gait.

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How are biometrics used in business?

• Common uses include:

– Time management, including biometric time clocks

– Security access, including access to laptops, keyboards/mice, USB and portable storage devices, and physical access to buildings and spaces within

– Safety, including training, certification, use of company information, issuing credentials

– Health plans, including employee wellness programs

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Biometrics Best Practices

• Only collect the biometric information you need

• Retain biometric information only for as long as needed

• Establish a plan for accessing, storing, and safeguarding biometric information

• Obtain written consent from the individual

• Implement appropriate safeguards

• Prepare to handle a breach of biometric information

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Illinois Freedom to Work Act

• The Illinois Freedom to Work Act prohibits private sector employers in Illinois from

entering into non-compete restrictions with “low-wage employees” which are defined

as employees whose earnings do not exceed the greater of the applicable wage or $13.00/hour.

• The Act prohibits an employer from entering into an agreement that restricts the

“low-wage employee” from performing:

– any work for another employer for a specified period of time;

– any work in a specified geographical area; or

– work for another employer that is similar to such low-wage employee’s work for the

employer included as a party to the agreement.

• =

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Immigration Update

• Uncertain status of DACA recipients

• Revised I-9 Form for employers effective September 18, 2017

• New E-Verify poster released in September 2017

• In May 2017, the Trump administration proposed to make E-Verify mandatory for all employers within 3 years (9 states – not Illinois --currently mandate for most employers)

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TO DO: Onboarding New Employees

• To Do List:

– Review your practices related to the use of biometric data

– Ensure you are not utilizing non-compete agreements with low-wage workers

– Review immigration-related practices and ensure you are using the most recent I-9 form

SETTING AND CALCULATING PAY

CORRECTLY

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Quick Overview of the FLSA

• Covers almost 90% of workers in the United States

• Requires the payment of minimum wage and overtime

– Subject to exemptions

• Very broad “suffer or permit” standard

• Goals of the FLSA

– Reduce unemployment – overtime pay for workers encourages employers to spread the work and increase hiring

– Provide “Fair day’s pay for a fair day’s work.”

– Reduce overwork and detrimental effect on health and well-being

• And, don’t forget about state laws . . .

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Why Wage-Hour Issues Are So Scary

• Wage and hour class/collective actions are a nationwide epidemic

• There are now more wage and hour class/collective actions filed than discrimination class actions

• Wage and hour claims represent more than 90% of the employment class actions filed every year

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Why You Must Set and Calculate Pay Correctly

• So . . . why the explosion of wage-hour litigation?

• Archaic, counterintuitive laws

• Metastasizing liability

• Potential for “bet the company” jury verdicts and crippling settlements

– Big penalties and mandatory fee-shifting

– Back pay, liquidated damages, attorneys’ fees

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Off-the-clock Work

• Work that employees perform for which they do not receive payment

• Remember the FLSA has a very board “suffer or permit” standard

• Can trigger violations of numerous laws, including the FLSA, state and local

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When Are Your Employees Working?

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Off-the-clock

• Common causes:

– Misconceptions regarding what constitutes compensable time

– Inadequate or improper record keeping

– Manager or employee misconduct

• Risk can be exacerbated by managers who demand non-exempt employees go “above and beyond”

– “Be sure to arrive 15 minutes before the start of your shift.”

– Disciplining those who do not

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Off-the-clock Work – Is it Compensable?

• It depends . . .

– “Requiring” early arrivals and/or “warm up” tasks• “engaged to wait” versus “waiting to be engaged”

– De Minimis time

– Pre- and postliminary work

– Donning and doffing

– Travel time

• If time is compensable and is not counted, can trigger minimum wage violations and overtime violations.

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Off-the-clock Work – Record Keeping

• It is crucial that employees keep their time correctly and that you monitor this as much as you are able.– A special note about timekeeping for exempt employees

• A small mistake can be repeated every day, across a large number of employees.

• It’s equally important that mistakes are promptly corrected.

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Off-the-clock Work– Record Keeping

• Use of time clocks

• Rounding

• Be very careful with automatic deductions

• Best practice: have established time keeping policy and have employees review time records and sign off on hours worked

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Off-the-clock Work – Managerial or Employee

Misconduct

• The most conscientious managers and employees are often the worst offenders

– Changing time cards to stay within budget

– Taking “extra” work home to get a jump on projects

• Do NOT confuse payment and punishment

– Make sure employees are aware there is a clear policy against off-the-clock work

– All hours “suffered or permitted” must be paid

– Progressive discipline should be employed

– Think payment, then punishment

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Exempt vs. Non-Exempt

• Everyone gets overtime pay – unless employer can prove an exemption

– Covering the three most common – executive, administrative, and professional

– Basics of exemptions

– Common traps

• Remember, state laws may differ here!

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SCOTUS Rejects “Narrow Construction” of

Exemptions• Encino Motorcars, LLC v. Navarro, 2018 U.S. LEXIS 2065 (April 2,

2018)

– Put to rest the “narrow construction” principle, which put a thumb on the scale in favor of employees in exemption cases

• Old rule: exemptions should be “narrowly construed” against the employer and applied only “plainly and unmistakably”

– In many decisions over the years, courts had relied on this canon

• New rule: there is no reason to give them anything other than a “fair” (rather than a narrow) interpretation

• Likely to have a significant impact on misclassification cases


“White-Collar” Exemptions

• The three most common – executive, administrative, and professional – have two big parts:

– Duties

– Salary basis (including a minimum salary level)


Pop Quiz!

• Can these jobs be classified as exempt?

– Manager of 10-employee operation in factory

– Assistant manager of a large retail store

– Insurance claims adjuster

– Accounts payable manager

– Accountant at “Big 4” firm with 3 years’ exp.

• MAYBE.

• Not one is a slam dunk to be exempt. Many are the subject of massive collective actions.


Executive Exemption

• Primary duty is the management of the company or of a customarily recognized department or subdivision of the company.

• Customarily and regularly directs the work of (i.e., supervises) two or more full-time employees.

• Has power to hire and fire employees, or recommendations about hiring, firing, and other changes of status for other employees are given particular weight.

• Customarily and regularly exercises discretionary powers.


Executive Exemption

• Common problems:

– Management is a duty, but not the primary one

– Employee’s hiring and firing power is purely theoretical

– Employee does not really have much discretion (more on this in a bit)


Executive Exemption

• Jobs commonly misclassified as exempt here:

– Foreman

– Crew Leader or Line Leader

– Assistant Manager

– Shift Manager

– [insert name of department here] Manager

– [insert verb or noun here] Supervisor


Administrative Exemption

• Primary duty is performing office or non-manual work directly related to management policies or general business operations of the company or the company’s customers.

• Customarily and regularly exercises discretion and independent judgment.

• Does one of the following things:

– Regularly and directly assists the proprietor of the company or another “executive” or “administrative” employee;

– Performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or

– Executes under only general supervision special assignments and tasks.




– Bachelor’s degree + office job ≠ exempt

– Not “directly related to” management or general operations; production, not management

– Independent judgment and discretion!

• Evaluating and choosing among different courses of action

• Not mere application of skill, even great skill



• Jobs commonly misclassified as exempt:

– People who report to someone who fits this exemption, such as low-level HR, accounting, IT

– Administrative assistants


Professional Exemption

• Primary duty is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction

or• Primary duty is the performance of work requiring invention,

imagination, originality or talent in a recognized field of artistic or creative endeavor.

• And:• Consistent exercise of discretion and judgment• Work predominantly intellectual and varied in character


Professional Exemption


– Degree not “advanced” enough

– Discretion and judgment (again)


“Salary Basis”

• “Salary basis”: a portion of compensation must be a fixed weekly amount that is not subject to reduction based on quantity or quality of work.

• So, no docking the employee for being late, leaving early, or doing poor work.

• Salary must be at least $455/week ($23,660/year) – but, President Trump’s DOL expected to engage in the rule making process again, likely in 2018 . . .

DOL Opinion Letters are Back!

• Under the Obama Administration, the DOL discontinued its longstanding practice of issuing opinion letters, choosing instead to issue less frequent “Administrator Interpretations” with wider applicability and scope, but less specificity.

• Two AIs withdrawn: Independent Contractors and Joint Employers

• Great for “grey areas:” provides an affirmative defense for any employer who can demonstrate that it reasonably relied on it

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Pay Employees Correctly

• Mistakes in calculating overtime pay for non-exempt employees

• Three common mistakes in omitting from “regular rate”:

– Bonuses (non-discretionary)

– Commissions

– Shift differentials

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The Three “Big Ps” of Pay Equity

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They Said What?

• Pope Francis: “Why is it taken for granted that women must earn less than men? No! The discrepancy is a pure scandal.”

• President Obama: “Women deserve equal pay. It’s 2016. It’s time.”

• Patricia Arquette: “It’s our time to have wage equality once and for all.”

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Pressure on Employers to Achieve

and Announce “Pay Equality”

• Pressure from activist investors to achieve pay equality and transparency

• IT Sector and other Fortune 500 companies feel increasing pressure to conduct pay equity analyses

• … and publish the results

– “I'm proud to share that at Facebook, men and women earn the same” - Lori Matloff Goler, Facebook, Inc.

– Black employees earn $1.003; Hispanic employees earn 99.9 cents; and Asian employees earn $1.006 for every $1 earned by White employees - Kathleen Hogan, Microsoft Corp.

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Steps in Conducting a Pay Equity Analysis

1. Establish privilege

2. Decide groupings for analysis

3. Gather data

4. Conduct EEO pay analyses: the “funnel approach”

5. If necessary, make equity adjustments

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Use of Independent Contractors

• Pop quiz!

• Is this person an independent contractor?

– Highly skilled/experienced professional

– Approached company seeking “contract work”

– Negotiated and signed “Independent Contractor Agreement”

– Both company and worker always intended for this to be a contractor relationship

– Paid on a 1099

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• Answer: who knows?

• And that’s the problem. Parties’ intent and agreement is only one factor out of many.

• What matters is whether worker meets any statutory definition of “employee.” If he/she does, it doesn’t matter what was intended or agreed.

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• Many different tests:

– IRS

– DOL

– EEOC

– Unemployment

• But they are mostly the same. And common sense does actually help here.

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• Four key questions:

– Does this person have a meaningful opportunity for profit or loss?

– Does this person have a legit business?

– Is this person’s function ancillary to your business, rather than primary?

– How much control does company exercise over the performance of the work?

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• Bad signs:

– You are contractor’s only customer

– Contract is with a person, rather than with a business entity

– You provide training

– You provide tools, equipment, office space

– Contractor does same type of work as employees

– Contractor used to be your employee, before you “outsourced” the position

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• Why you need to get this right:

– IRS withholdings

– Worker’s compensation

– Overtime

– Minimum wage

– Unemployment taxes

• Two special notes about unemployment:

– Contract with person or with entity?

– Very often the genesis of a dispute . . . and an audit

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TO DO: Setting and Calculating Pay Correctly

• TO DO LIST:

– Know what constitutes “work” and track “work” time accurately

– Consider conducting an exemption audit

– Review how overtime is calculated – watch for “regular rate”mistakes

– Conduct a pay equity analysis

– Review your company’s relationships with “independent contractors”

FIXING YOUR EMPLOYEE

HANDBOOK

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FIX YOUR EMPLOYEE HANDBOOK

• This is one of your first acts toward a new employee. We should make sure it’s a lawful one!

• Accept this: there is something in your current handbook that is flatly illegal.

• And there are many things in your handbook that could be better, stronger, clearer – and less abusable.

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Common Mistakes Employers Make

• One size does not fit all

– Using other companies’ handbooks

– No guarantee the handbook is up-to-date and legally compliant

– Could be including policies you don’t need if you’re borrowing from a larger company

– Could be excluding policies you must have if you are borrowing from a smaller company

– Size does matter here!

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• Including an FMLA-type Policy when you don’t need one

– FMLA covers you if you employ 50 or more employees within a 75 mile radius for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year

• Potentially creates a contractual and legal obligation for you to provide the leave offered within the handbook

• Provides employees rights to return to the same or substantially similar work

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• “Overtime must be approved in advance. Overtime that is not approved will not be paid.”

• “Employees are prohibited from discussing their wages with other employees.”

• Don’t use terms such as “the organization shall” or the “organization will”

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• Don’t include strict progressive discipline procedures

• Don’t have a vacation/PTO policy and not know how to properly pay the monetary equivalent upon separation

– “Earn as you go” versus “earn in arrears”

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EEO Policy

• A “must have”

• A nondiscrimination provision

• Classes protected by federal law

• Classes protected by state/local law

• Catch-all language

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EEO Policy Mistakes

• Most common mistake is to include/exclude protected classes

• Different states have defined protected classes differently

– Religious Accommodations Under the IHRA• Effective August 11, 2017, the IHRA was amended to expand workplace protections for

employees with respect to their religious beliefs

• A violation to require any person to forgo a sincerely held practice or his or her religion, including wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, unless it causes an undue hardship on the employer

• Exemption for workplace safety or food sanitation

• Make an informed decision about what to include/exclude

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Anti-Harassment/Anti-Discrimination Policies

• Understandable language

• Defines prohibited conduct (includes conduct that doesn’t rise to the level of “sexual harassment” and prohibits more than just sexual conduct)

• Prohibits retaliation

• “Need to know” confidentiality

• Will investigate

• Do not claim “zero tolerance” policy

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Anti-Harassment/Anti-Discrimination Policies

• Will take prompt action to stop inappropriate conduct

• No indemnification/defense of harassers

• No guarantees that accuser will be advised of specific outcome

• Have all employees sign a separate policy

• Review policy complaint procedure with all new hires

• Consider having leadership recirculate these policies in light of current climate

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Harassment Policy Mistakes

• Requiring the complaint “be formal” or “in writing”

• Promises of confidentiality

• Giving employees only one avenue to lodge complaints

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TO DO: FIX YOUR EMPLOYEE HANDBOOK

TO DO LIST:

– Review and update key policies at least, and ideally the whole handbook

– Consider an email recirculating EEO, Anti-Harassment, Anti-Discrimination and Anti-Retaliation policies

LEAVE MANAGEMENT TRENDS

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Leave Management: The Problem

Growth of ADA Claims

– In 1997, there were 18,108 charges filed with the EEOC involving disability claims

– In 2017, there were 26,838 charges filed with the EEOC involving disability claims

• 31.9% of all charges filed, resulting in $135.2 million in monetary benefits paid by employers

Prevalence of FMLA Leave

– A recent report found that more than 10 percent of the U.S. workforce is on FMLA leave at any given time

Leave Management: The Problem

– Sick, injured and disabled employees = one of the most challenging areas of employment law

– “The Bermuda Triangle”

• FMLA

• ADA

• Workers’ compensation

– And now…. Paid Sick Leave

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Leave Management: Common Mistakes

• The worker’s comp box: there is no such thing as a “worker’s comp leave”

• Failing to engage with employees who are “out on STD”

• Maximum leave policies

• Disciplining employees for attendance reasons which are related to medical conditions of an employee or his/her family member

• Not considering ADA leave after FMLA leave exhausted

• Denying ADA accommodations because:– We’ve never done it that way

– Then all the other employees will want it

– It will cost too much

Leave Management: Three Questions

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Extended Leaves

• On September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant opinion for employers in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017)

• In Severson, the plaintiff requested an additional 2-3 months of leave following the expiration of his FMLA entitlement to recover from surgery, but his employer denied his request

• The Seventh Circuit upheld a grant of summary judgment to the employer, holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”

• Left open the possibility of short-term leave as a reasonable accommodation, or reassignment to a vacant position

• Decision reaffirmed in an unpublished decision on October 17, 2017, Golden v. Indianapolis Housing Agency, No. 17-1359 reiterating that “[a]n employee who needs long-term medical

leave…is not a ‘qualified individual’ under the ADA.”

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Recent 7th Circuit Decisions – Extended LOA

• How do recent Seventh Circuit decisions change the management of requests for extended medical leaves of absence?

• Beware of possible disparate impact claims

• Subsequent case law from the district courts

Paid Sick Leave

• Paid sick leave laws currently in effect in 8 states and more than 30 municipalities

• Local laws requiring paid sick leave continue to grow

– Chicago and Cook County effective July 1, 2017

• House Republicans introduced the “Workflex” Bill on November 2, 2017, which would allow employers who provide employees with between 12-20 days of paid leave per year and offers voluntary “workflex” options (e.g., telecommuting, job sharing, etc.), to be exempt from the growing patchwork of state and local paid leave obligations

Illinois Employee Sick Leave Act

• Effective January 1, 2017

• Dubbed the “Caregiver Act” or “Kincare Act”

• Requires Illinois employers who provide personal sick leave benefits to their employees to allow employees to take such leave for absences due to the illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Illinois Employee Sick Leave Act

• Is my company a covered employer?

– All Illinois employers who provide personal sick leave benefits to their employees.

• “Personal sick leave” benefits are defined to include time accrued and available to employees to be used for absences related to personal illness, injury, or medical appointments.

• Look to your policies – what policies do you currently have in place which allow employees to take time off for absences related to their own illnesses, injuries or medical appointments?

Chicago and Cook County Paid Sick Leave

Ordinances

• Chicago Paid Sick Leave Ordinance Passed as an amendment to the Chicago Minimum Wage Ordinance on June 22, 2016

• Cook County Paid Sick Leave Ordinance Passed on October 5, 2016 (municipal opt-outs top 80%)

• Effective date: July 1, 2017

• Mandate that employers in the City of Chicago/Cook County provide eligible employees up to 40 hours of paid sick leave in each 12-month period of their employment

To Do:

• Illinois Employee Sick Leave Act

– Check your existing policies – do you have a policy which provides employees with personal sick leave benefits?

– Revise existing policies to explicitly limit the amount of sick leave benefits employees can use for the care of covered family members.

– Determine how you will track the reasons for leave.

To Do:

• Chicago and Cook County Paid Sick Leave Ordinances

– Determine whether your company is a covered employer

– Check existing policies and procedures to determine whether they comply with the requirements of the new laws

– Consider modifying existing policies. Provide separate paid sick leave bank? Modify general PTO/vacation policy?

– For employers with unionized workforces, bargain for a waiver of the Ordinances

– Post required notices

To Do:

• Engage with employees on long-term leaves of absence

• Revise attendance policies; avoid automatic, inflexible leave and attendance policies (particularly points-based attendance policies)

• Coordinate with third-party payroll or FMLA administrators to track the reasons for which leave is taken and to ensure that employees are properly paid for the use of paid sick leave

• Train managers and human resources professionals

• Hold employees accountable for “shared” responsibilities

• Check job descriptions to ensure essential job functions – including regular and predictable attendance – are identified

• Eliminate silos!

THE #METOO ERA & RESPONDING

TO COMPLAINTS

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The Birth of the #MeToo Movement

• On October 15, 2017, in response to the growing tide of allegations being made in Hollywood, actress Alyssa Milano encouraged her Twitter followers to reply “me too” if they had experienced sexual harassment or assault

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• Since then, the #MeToo movement has spread through Hollywood, the media, government, and private business

• The “Silence Breakers” named Time Magazine Person of the Year

• “Time’s Up” trend at the Golden Globes

• The number of sexual harassment complaints in the private sector are skyrocketing; EEOC charges are increasing

• The movement focuses not only on sexual harassment, but pay equity

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Proactively Managing the Effects of the #MeToo

Movement – the “Four M’s”

• Leaders must MODEL expected behavior

• Employers must MESSAGE expectations and tailor the message to its various constituencies

• Employers must MANAGE situations

• Employers must MONITOR the workplace

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Best Practices in Responding to the #MeToo

Movement

• Conduct Training!!

– Employees

– Managers

– HR Professionals

– C-Suite/Senior Management

– Board

• Format?

– Webinar, Classroom Style, Simulation

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Best Practices in Responding to the #MeToo

Movement

• Create a Workplace Culture Devoid of Harassment

– Start at the top

– Make sure HR regularly interacts with the workforce

– Establish and enforce open door policies

– Hold offenders accountable

– Consider employee opinion surveys/ 360 reviews

– Hold roundtable discussions with employees

– Audit hiring, promotion and compensation practices

– Monitor emails (make sure your policies provide for this)

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A Word About Sexual Harassment Settlements

• Effective January 1, 2018, employers may no longer take a business tax deduction for any settlement or payment related to sexual harassment or sexual abuse (or attorneys’ fees related to the same) if the settlement or payment is subject to a nondisclosure agreement

• Increased willingness by employees to violate terms of nondisclosure or confidentiality agreements

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Responding to Complaints

• Promptly address any complaints of discrimination, harassment, wage disputes

• Ensure that the investigator is impartial (internal versus external)

• Consider whether immediate action is necessary even when investigation is pending

• Listen for “me too” evidence

• Hold offenders accountable

• Be consistent

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• Common mistakes/excuses:

– Comes from a third party

– Victim/witness won’t put it in writing

– Lack of cooperation from victim

– Suspicious timing or motivation behind complaint

• None of these excuse a full investigation!

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Why Are Investigations Important?

• Failing to conduct proper investigations has negative practical and legal effects:

– Exposure to liability with limited, if any, defense

– Significant costs

– Adverse affects on workplace morale and productivity

– Possible media attention

– Chills employees’ communications with the company and drives them to outside, third parties

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When Should Investigations Take Place?

• Immediately!!!???

• Sounds ridiculous? Not to a jury.

• Completed as soon as reasonably possible – no excuses

– Make it a priority!

• Delays undermine conclusions, call into question the company’s commitment.

• You will have to explain any “delay” in commencing and concluding the investigation.

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– Investigate thoroughly, every time. Make your actions immune to second-guessing.

– Reach a definite conclusion if at all possible. Sometimes you have to make credibility judgments.

– Tell the victim as much as you can about the conclusion and remedy.

– Whatever the result, follow up with the victim later for any other issues or possible retaliation. (And document it!)

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TO DO: Responding to Complaints

• To Do: follow this list every time.

MAKING GOOD DISCIPLINARY AND

TERMINATION DECISIONS

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GOOD DISCIPLINARY AND TERMINATION

DECISIONS

• Common – and bad – reasons for discipline and termination:

– At-will employment

– Probationary / introductory period

– “Sweet nothings” – not a good fit, going a different direction, etc.

Purposes of Corrective Action

– To Remedy:

• Unsatisfactory Performance

• Attendance Issues (not related to disability or medical condition)

• Violations of Company policies

Basics of Corrective Action

– Advance Notice

– Documentation

– Investigation

– Timeliness

– Consistency

– Fair and Impartial


• Two Questions

1. Should we engage in corrective action?

2. If so, at what level?


• Should we engage in corrective action?

– Is there a known policy or standard?

– Is it reasonable?

– What is the past practice?

– Have we investigated (if necessary)?


• If so, at what level?

– What is the past practice?

– What is the employee’s prior record?

– How serious is the offense?

– Employee discussion form?

– Written warning?


• All corrective action should:

– Clearly identify the issue(s)

– Identify the corrective action given

– Indicate the next step of discipline

– Summarize the employee’s version of the incident

– Be written, dated and signed

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Making Defensible Decisions

• Three keys to defensible decisions:

– Concrete, specific, provable business reasons why you made the decision

– Documentation

– Comparables

• To do: apply this rubric to every decision.

• And train your managers to do it!

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A Word About Separation Agreements

• Beware of frequent changes in the law which may affect “standard” or “form” agreements, e.g., class action waiver

• Ensure proper process followed for release of age claims

• Think twice before releasing wage claims

• EEOC position regarding no re-hire clauses

• Special provisions for publicly-traded companies

• If more than one employee being terminated, consider WARN issues

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GOT YOUR TO-DO LIST?

• Go back and work on it. Any one of these things will put your company in a better position to prevent (or defend) employment-related claims

• And cultivate a strong relationship with a good employment lawyer (whoever it is!)

• Sound advice, policy reviews and training sessions are much cheaper than defending a claim or lawsuit.

QUESTIONS? THANK YOU!

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