Post on 21-Mar-2017
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in 2016
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Workplace Policy Institute Report
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In the last 8 years the NLRB has:
1 Overturned 4,500 years of legal precedent
2 Overturned 91 precedent cases
3 Averaging over 45 years’ precedent per decision
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Joint Employers
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Employment Policies UNDER ATTACK1 Emasculation of Social Media policies
2 Invalidation of Confidentiality + Non-Disparagement Agreements
3 Invalidation of certain Non-Competition Agreements
4 Invalidation of common at-will employment statements
5 Invalidation of policies regulating conduct, profanity, and abusive behaviors
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in 2017
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Wage Hour in 2016
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Wage Hour in 2017
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in 2017
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EEO-1Reporting Forms
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LGBTRIGHTS
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in 2016
Recordkeeping
Retaliation
Safety Incentives
Drug Testing
Increased Penalties
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What Else Can We EXPECT?
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Possible State + Local Initiatives
Minimum wage levelsSalary level for overtime exemptionsRestriction of Non-Compete Agreements
Paid sick leave
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Possible State + Local Initiatives
Medical marijuana
Sexual orientation and LGBT protections
Predictive scheduling
Concealed carry laws
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Lawrence FeheleyKegler Brown Hill + Ritterlfeheley@keglerbrown.comkeglerbrown.com/lawrencefeheley614-462-5432
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I’VE FALLEN + I Can’t Get
Comp!
Presented by Dave McCartyMarch 7, 2017
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GONE ON A BENDER Young man attends fraternity
reunion, drinks heavily all weekend
Reports for work, hungover, Monday morning at a call center
Feels nauseous at his desk job, stands up…
That’s the last thing he remembers until he is taken to the ER
Case Study #1
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GONE ON A BENDER
INJURY:Broken cervical spine, months in the hospital/rehab facility, permanent loss of some arm
function
Case Study #1
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GONE ON A BENDER Case Study #1
Compensable?1. Yes2. No
100
50%50%
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SHOULD’VE HAD A SPOTTER
Young man falls 5 feet off ladder while working on construction job
Lands on and sprains his shoulder
Goes off work…14 months later and he still has not returned
Bends over backward to resist employer’s efforts to get him back to
light duty work
Case Study #2
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SHOULD’VE HAD A SPOTTERCase Study #2
INJURY:Initial injury – sprained
shoulder; Requests additional allowance of rotator cuff tear, authorization of surgery and
payment of compensation
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SHOULD’VE HAD A SPOTTERCase Study #2
Additional Allowance?1. Yes2. No
100
50%50%
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SHOULD’VE HAD A SPOTTERCase Study #2
Surgery?1. Yes2. No
100
50%50%
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SHOULD’VE HAD A SPOTTERCase Study #2
Compensation?1. Yes2. No
100
50%50%
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TOO LITTLE, TOO LATE?New employee: good employee’s
brother-in-law, hired as a favor to employee at a construction company
Sometimes actually shows up for work, often hungover
Claims he fell off a step ladder while hanging sheetrock, badly injured his
knee in February 2015
Several witnesses on site - no one saw or heard anything, all deny he
reported any injury or incident
Case Study #3
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TOO LITTLE, TOO LATE?Employee does not seek treatment
until May 2015, more than 2 months after he is fired
Unemployment compensation application denied
Files workers’ comp claim June 2015
Goes to hearing in late 2015, employer chooses not to hire counsel
Case Study #3
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TOO LITTLE, TOO LATE?Case Study #3
OUTCOME:Industrial Commission allows
claim for (among other things) aggravation of pre-existing
arthritis and authorizes total knee replacement
Employee STILL off work – has collected compensation for
nearly 2 years
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TOO LITTLE, TOO LATE?Case Study #3
Outcome after jury trial?1. Yes2. No
100
50%50%
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Takeaways?
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Often best to make small investment of time, up front, to
run the situation by your counsel
1
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Workers’ comp is a very narrow field, but it has a vast array of
complex legal subtlety
2
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EXAMPLESParking
Lot CasesIdiopathic
CausesSubstance
Abuse/Drug Use
VoluntaryAbandonmentof Employment
SubstantialAggravation
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CROSS EXAMINATION
often critical to defense
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Dave McCartyKegler Brown Hill + Ritterdmccarty@keglerbrown.comkeglerbrown.com/mccarty614-462-5469
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INSPECTION
How to Survive an
Presented by Timothy A. KelleyMarch 7, 2017
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Who isOSHA?
What is anOSHA
Inspection?
Why DoesIt Matter?
How Do ISurvive theInspection?
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Who isOSHA?
What is anOSHA
Inspection?
Why DoesIt Matter?
How Do ISurvive theInspection?
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to assure safe and healthful working
conditions for working men and women by setting and enforcing
standards and by providing training,
outreach, education and assistance”
“
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FRIENDInspector is NOT your
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Who isOSHA?
What is anOSHA
Inspection?
Why DoesIt Matter?
How Do ISurvive theInspection?
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GovernmentIntrusion on
PrivateProperty
Subject toProtections
of 4thamendment
RequiresEmployer
Consent ora Warrant
What is anOSHA
Inspection?
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Imminent Danger
Severe Injury/Illness
Employee Complaints
Referrals
Programmed
Follow-up
TYPES
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Who isOSHA?
What is anOSHA
Inspection?
Why DoesIt Matter?
How Do ISurvive theInspection?
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“What Do We Know?
New Regulations for 2017
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50
INJURYReporting
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Hours to Report8Old Rule+ all work-related fatalities, and+ in-patient hospitalizations of
3 or more employees
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Hours to Report8New Rule+ all work-related fatalities that
occur within 30 days or a work-related incident
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Hours to Report24New Rule + all work-related in-patient
hospitalizations of one or more employees for “care or treatment”
+ all work-related amputations+ all work-related losses of an eye+ (if they occur within 24 hours of
work-related incident)
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Electronic Reporting + PUBLIC ACCESS
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January 1,
2017250+ employees Submit OSHA Form 300A by 7/1/17
Certain industry employees of
20-249 employeesSubmit OSHA Form 300A by 7/1/17
January 1,
2018250+ employees Submit Forms 300A, 300 and 301 by 7/1/18
Certain industry employees of
20-249 employeesSubmit Form 300A by 7/1/18
January 1,
2019 All employers Submit all forms by 3/2/19
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Why Public Shaming?
Since high injury rates are a sign of poor
management, no employer wants to be
seen publicly as operating a dangerous workplace.”
“
Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to
investors, job seekers, customers and the public that they operate safe and well-
managed facilities.”
“
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PENALTIES
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Type of Violation
Former Maximum
Penalty
New Maximum
Penalty
Other than Serious $7,000 $12,471
Serious $7,000 $12,471
Repeat $70,000 $124,709
Type of Violation
Former Maximum
Penalty
New Maximum
Penalty
Willful $70,000 $124,709
Failure to Abate $7,000 $12,471 per day
Posting Violation $7,000 $12,471
Penalty Schedule
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Who isOSHA?
What is anOSHA
Inspection?
Why DoesIt Matter?
How Do ISurvive theInspection?
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What Should You Do
BEFOREan Inspection?
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TRAINyour supervisors
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Prepare them for what to do during an OSHA inspection
Ensure they know safety/ compliance issues specific to their department
Make sure they inform their employees of their rights, duties and obligations during an OSHA inspection
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FRIENDInspector is NOT your
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IMPLEMENTand Enforce a Disciplinary Program
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Existence of program
Communication to employees
Steps to discover violations
Enforcement
to preserve the employee misconduct defense
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Secretary v. Skanska Koch, Inc.“ground inspection” of tie-
off rule insufficient
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Secretary v. CB&I Constructors, Inc.
employees lied about compliance=insufficient
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What to do When OSHA
KNOCKSon your Door?
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Call your attorney
Why is OSHA here?
Let in without warrant?
Be proactive during inspection
Seek immediate resolution
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Call Your Attorney
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Can assert your rights during an OSHA inspection
Can help you decide if/when/where you will allow
the inspection to proceed
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Ask for credentials
Determinereason forinspection
Determinescope of
inspection
Designateemployer
representative
Why is OSHA Here?
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Will You Let OSHA Inspect Without a Warrant?
OSHA cannot conduct a warrantless search without employer consent
OSHA should be able to get the warrant, but it will take time
Factors to consider: possibility of a repeat violation (i.e. bigger fine), more thorough/detailed inspection once warrant is procured
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Employer representative should accompany C.O.
at all times -control the route
C.O. may speak to employees privately, but
employees may be informed that they are
not required to talk
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Make Sure Your Employees Know Their Rights
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Decline to be
interviewedTerminate the
interviewRefuse to sign
statement
Refuse to be recorded or
photographed
Request employer
rep/attorney present at interview
Request interpreter
during interview
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FRIENDInspector is NOT your
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DO NOT offer superfluous information“I don’t know” is ok except for obvious answers
DO NOT admit to violationsask why inspector believes there is a violation, and what actions should be taken to correct it
You ARE NOT obligated to run a machine that isn’t currently operating
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Enforce facility rules restricting
photography when possible
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DO NOTConcede anything
to the C.O.
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IMMEDIATERESOLUTION
If possible, correct alleged
violations immediately
Do not ADMIT to the violation
Use the closing conference to
your advantage
Seek information -do not engage in speculation
Clarify any mistaken
impressions
Demonstrate willingness to comply with
standards
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What are YourGOALS?
Show your good-faith commitment to employee safety + OSHA compliance
Determine strength or weakness of any alleged violation
Begin to decide if you want to contest the citation(s)
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Timothy A. KelleyKegler Brown Hill + Rittertkelley@keglerbrown.comkeglerbrown.com/kelley614-462-5407
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FLSA
That Employers Often Make
Presented by Timothy J. GallagherMarch 7, 2017
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LET’SDiscuss
GeneralFLSA
Overview
RecentFLSA
Changes
7 CommonFollies
RecommendedFixes
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“Engaged in interstate
commerce”
Fair Labor Standards Act
Applies to All Covered
Employers
Ohio Equivalent(OMFWSA)
Engaged in Interstate
Commerce
Same as FLSA except revenue
threshold is $150,000 annual
sales
Annual sales greater than
$500,000
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FLSAEstablishes
MinimumWage
OvertimePay +
Eligibility
Record-KeepingDuties
Child LaborRestrictions
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Seems
Enough, Right?
MinimumWage
OvertimePay +
Eligibility
Record-KeepingDuties
Child LaborRestrictions
EASYPay at LeastMinimum
Wage
PayApprovedOvertime
RecordTime
ExerciseCaution WhenHiring People
Under 18
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Made sense in 1938…
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Makes less sense today
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But Enforcement has Turned into a
GAME
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Consequences for Violations +
Non-Compliance
Class Action Lawsuits Attorney Fees
Back Wages + Liquidated Damages
Penalties
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Most Common
AREAS
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1(MIS)CLASSIFICATION
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Employee IndependentContractor
VS
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FOLLY
Hiring as or switching to 1099 to keep costs down.
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RULE
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6 Factor Economic Realities Test
Integral? Profit/Loss?
Comparative Investment? Special Skill?
Permanent/Indefinite? Control?
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Internal audit of 1099 workers + err on side of
employee
FIX
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Exempt Non-Exempt
VS
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FOLLY
Everyone who earns a salary is exempt from
overtime
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RULE
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What is an “Exempt” Employee?
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EXEMPT IF:Paid minimum salary of
$________/week (*proposed to be $________/week*)
Duties performed are exempt.Only exempt if duties are:
_______________, _______________, _______________, _______________,
_______________
AND
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EXEMPT DUTY MEANSMANAGEMENTSupervises at least two full-time employees, and has discretionary authority to hire/fire
E
_______________, _______________, _______________, _______________, _______________
OFFICE/NON-MANUALDiscretionary authority to make important decisions, exercise independent judgment
ADOCTORS, LAWYERS, SCIENTISTS, ENGINEERSLots of school
P
CREATIVERequires artistic endeavor – two people would end up with different results
P+SALESAnd engaged AWAY from employer’s place of businessOSSYSTEMS ANALYST, PROGRAMMER, SOFTWARE ENGINEERCreates systems or applies systems
C
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FIX
Have your employees prepare job descriptions +
know how many hours they are working
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2OVERTIME CALCULATION
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FOLLY
Not knowing employee’s “regular rate” / not paying
for “unauthorized” overtime
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RULE
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All overtime MUST be paid
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Week 1
38hours
Week 7
42hours
Week 22
46hours
Week 12
41hours
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FIX
Make bonuses discretionary/fluctuate and know your rates
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FIX
Discipline for unauthorized overtime (but pay it anyways)
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3OFF-THE-CLOCKWORK
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FOLLY
Permitting non-exempt employees to work off the clock or worse – requiring
off the clock work
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RULE
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FIX
Make sure supervisors and managers know the rules
and enforce them
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4TRAVEL TIME
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FOLLY
We only pay for work, not travel
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RULE
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Travel time from work to home and home to work ______compensable time.
Travel time from one workplace to another ______compensable time.
What about travel to central location before going to worksite? One-day assignment?
Travel time ______ be paid.
If employee does not first report to normal work place then ___________________________.
Overnight travel?Travel time ______ be paid if during
__________________________________________.
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FIX
Err on the side of paying
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5UNIFORMS
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FOLLY
Requiring all employees to buy uniforms
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RULE
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RULE
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FIX
Make uniforms wash and wear and provide
reasonable number of uniforms
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6DEDUCTIONS
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FOLLY
“You break it, you bought it!”
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RULE
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FIX
Have employees sign a written policy permitting
deductions from pay – but don’t deduct below
minimum wage
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7RECORD KEEPING
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FOLLY
Not realizing that daily recordkeeping is required
by Ohio Constitution
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RULE
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Ohio ConstitutionArticle II
Section 34a
An Employer Shall Maintain a Record of the
for a period of not less than three years following last date of
employment
Such information shall be provided without charge to an employee or
person acting on behalf of an employee upon request
Name + Address Occupation + Pay Rate
Hours worked each day
Each amount paid to employee
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FIX
Keep good records for at least three years.
Outsource? Digitize?
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Timothy J. GallagherKegler Brown Hill + Rittertgallagher@keglerbrown.comkeglerbrown.com/gallagher614-462-5476216-586-6784
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Presented by Brendan FeheleyMarch 7, 2017
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2002 DOL reports that 13% of employees surveyed indicated they used FMLA leave
at some point in the last year
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of the U.S. workforce is on FMLA leave at any given time
10.7%
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Government
36%Call Centers
33%Manufacturing
23%Casinos
49%Health Care
39%
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“Widespread”PROBLEMS3
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PROBLEM SOLUTION
Not recognizing workers’ need
for leave
Make sure all medical leave requests are as
centralized as possible
Get supervisors out of the discussion
Have absence notice policies match up with request communication lines
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PROBLEM SOLUTIONFailing to meet
the notice deadlines
under FMLA regulations
Put General Notice poster up and have it in your
handbook
Must provide Eligibility Notice within 5 business
days of initial request
Rights + Responsibilities has to be given each time
Eligibility Notice is provided
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PROBLEM SOLUTIONFailing to properly
administer medical
certification
For conditions lasting less than six months - longer of: the duration listed on the
FMLA form or 30 days
For conditions lasting longer than six months –
every six months
Indefinite duration -every six months
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EXCEPT
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Recertification can be done inside of days if:30
Employee requests an extension of
leave
Circumstances described by
previous certification
have changed significantly
Employer receives information that creates doubt in
employee’s stated reason for absence or validity of certification
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Too Much PAPERWORK!!!
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You forget to give Tammy this form
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Too Much PAPERWORK!!!
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Does Tammy have a case?
1. Yes2. No
100
0%
0%
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ANSWER
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Weekend Warrior
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Do you have knowledge of an FMLA condition?
1. Yes2. No
0
0%
0%
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ANSWER
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WeekendWarrior
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Did Wendy give adequate notice of her need for
leave by calling her supervisor after she fell?
1. Yes2. No
0
0%
0%
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Can Wendy’s leave request be denied on
the basis that it exceeds the maximum allowed
by the FMLA?
1. Yes2. No
0
0%
0%
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ANSWERS
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TIPS of the Trade
1Don’t get bogged down by the foreseeable/unforeseeable designation, think fairness and practicality
2 Probability is not a guarantee, wait until the leave is actually expired
3Employees don’t choose if something is FMLA – if it qualifies it should be designated as FMLA
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Lazy Leonard
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LazyLeonard
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Does Leonard have a case?
1. Yes2. No
0
0%
0%
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ANSWER
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LazyLeonard
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Does Leonard have FMLA time available?
1. Yes2. No
100
0%
0%
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ANSWER
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Barry NoBonus
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Barry does not receive his bonus. Does Barry have an FMLA claim?
1. Yes2. No
100
0%
0%
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BarryNoBonus
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Does Barry have an FMLA claim?
1. Yes2. No
100
0%
0%
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ANSWERS
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What if, instead of being based on a sales threshold, Barry’s bonus was
based on having perfect attendance.
If, other than his FMLA absence, Barry had perfect attendance, could
Barry be denied his bonus because of his leave?
1. Yes2. No
100
0%
0%
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ANSWER
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TIPS of the Trade
1 Be careful how your bonuses are worded – check your handbook
2 Be careful to make sure your rules are applied evenly
3 Pro-rating a bonus may be better than denying it entirely
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Amy Absence
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If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or
immediate supervisor as soon as possible by telephone. . . .If you are not at work during your regular hours, you must be on
authorized leave. This means that your supervisor knows of and has approved your absence. In accordance with the law and rules, job
abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays
following the expiration of any authorized leave.
company Call-In
POLICY
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Does Amy have a claim for FMLA interference?
1. Yes2. No
100
0%
0%
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ANSWER
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The Bat Phone
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Does Jeff have a claim?
1. Yes2. No
0
0%
0%
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ANSWER
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TIPS of the Trade
1Include notice procedures in letters approving leave
2Get written acknowledgement of notice procedures
3Submit requests for foreseeable leave in writing
4Use a designated call-in number to notify the employer of an unforeseeable absence
5Report unforeseeable absences within a certain window of time
6Submit requests for leave to a designated individual
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RandyRehab
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Can you require Randy to provide you with the hours of the clinic he is
being treated at?
1. Yes2. No
100
0%
0%
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Assuming you get the schedule, can you
require Randy to modify his treatment times to
times that are more convenient for you?
1. Yes2. No
100
0%
0%
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ANSWERS
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Brendan FeheleyKegler Brown Hill + Ritterbfeheley@keglerbrown.comkeglerbrown.com/brendanfeheley614-462-5482
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