2017 managing labor + employee relations seminar

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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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Employment Policies
UNDER ATTACK
1 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 2016
Recordkeeping
Retaliation
Safety Incentives
Drug Testing
Increased Penalties

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Possible State +
Local Initiatives
Minimum wage levels
Salary level for overtime
exemptions
Restriction 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 Feheley
Kegler Brown Hill + Ritter
lfeheley@keglerbrown.com
keglerbrown.com/lawrencefeheley
614-462-5432

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I’VE FALLEN
+ I Can’t Get
Comp!
Presented by Dave McCarty
March 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 BENDERCase
Study #1
Compensable?
1. Yes
2. 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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Study #2
Additional Allowance?
1. Yes
2. No
100
50%
50%

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Study #2
Surgery?
1. Yes
2. No
100
50%
50%

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Study #2
Compensation?
1. Yes
2. 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. Yes
2. No
100
50%
50%

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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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EXAMPLES
Parking
Lot Cases
Idiopathic
Causes
Substance
Abuse/
Drug Use
Voluntary
Abandonment
of Employment
Substantial
Aggravation

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CROSSEXAMINATION
often critical to defense

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Dave McCarty
dmccarty@keglerbrown.com
keglerbrown.com/mccarty
614-462-5469

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INSPECTION
How to Survive an
Presented by Timothy A. Kelley
March 7, 2017

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Who is
OSHA?
What is an
OSHA
Inspection?
Why Does
It Matter?
How Do I
Survive the
Inspection?

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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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FRIEND
Inspector is NOT your

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Government
Intrusion on
Private
Property
Subject to
Protections
of 4th
amendment
Requires
Employer
Consent or
a Warrant
What is an
OSHA
Inspection?

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Imminent Danger
Severe Injury/Illness
Employee Complaints
Referrals
Programmed
Follow-up
TYPES

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“
What Do We Know?
New Regulations for 2017

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Hours to Report
8Old Rule + all work-related fatalities, and
+ in-patient hospitalizations of
3 or more employees

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Hours to Report
8New Rule + all work-related fatalities that
occur within 30 days or a
work-related incident

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Hours to Report
24
New 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,
2017
250+ employees Submit OSHA Form 300A by 7/1/17
Certain industry
employees of
20-249 employees
Submit OSHA Form 300A by 7/1/17
January 1,
2018
250+ employees Submit Forms 300A, 300 and 301 by 7/1/18
Certain industry
employees of
20-249 employees
Submit 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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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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What Should
You Do
BEFORE
an Inspection?

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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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IMPLEMENT
and 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
KNOCKS
on 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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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
Determine
reason for
inspection
Determine
scope of
inspection
Designate
employer
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
interviewed
Terminate the
interview
Refuse to sign
statement
Refuse to be
recorded or
photographed
Request
employer
rep/attorney
present at
interview
Request
interpreter
during
interview

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DO NOT offer superfluous information
“I don’t know” is ok except for obvious answers
DO NOT admit to violations
ask 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 NOT
Concede anything
to the C.O.

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IMMEDIATE
RESOLUTION
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 Your
GOALS?
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. Kelley
tkelley@keglerbrown.com
keglerbrown.com/kelley
614-462-5407

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FLSA
That Employers
Often Make
Presented by Timothy J. Gallagher
March 7, 2017

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LET’S
Discuss
General
FLSA
Overview
Recent
FLSA
Changes
7 Common
Follies
Recommended
Fixes

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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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FLSA
Establishes
Minimum
Wage
Overtime
Pay +
Eligibility
Record-
Keeping
Duties
Child Labor
Restrictions

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Seems
Enough, Right?
Minimum
Wage
Overtime
Pay +
Eligibility
Record-
Keeping
Duties
Child Labor
Restrictions
EASY
Pay at Least
Minimum
Wage
Pay
Approved
Overtime
Record
Time
Exercise
Caution When
Hiring People
Under 18

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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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Employee Independent
Contractor
VS

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FOLLY
Hiring as or switching to
1099 to keep costs down.

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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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FOLLY
Everyone who earns a
salary is exempt from
overtime

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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 MEANS
MANAGEMENT
Supervises at least two full-time
employees, and has discretionary
authority to hire/fire
E
_______________, _______________, _______________, _______________, _______________
OFFICE/NON-MANUAL
Discretionary authority to make
important decisions, exercise
independent judgment
A
DOCTORS, LAWYERS,
SCIENTISTS, ENGINEERS
Lots of school
P
CREATIVE
Requires artistic endeavor – two
people would end up with different
results
P+
SALES
And engaged AWAY from employer’s
place of business
OS
SYSTEMS ANALYST,
PROGRAMMER,
SOFTWARE ENGINEER
Creates 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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FOLLY
Not knowing employee’s
“regular rate” / not paying
for “unauthorized”
overtime

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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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FOLLY
Permitting non-exempt
employees to work off the
clock or worse – requiring
off the clock work

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FIX
Make sure supervisors and
managers know the rules
and enforce them

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FOLLY
We only pay for work,
not travel

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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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FOLLY
Requiring all employees to
buy uniforms

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FIX
Make uniforms wash and
wear and provide
reasonable number of
uniforms

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FOLLY
“You break it, you
bought it!”

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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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FOLLY
Not realizing that daily
recordkeeping is required
by Ohio Constitution

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Ohio Constitution
Article 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. Gallagher
tgallagher@keglerbrown.com
keglerbrown.com/gallagher
614-462-5476
216-586-6784

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Presented by Brendan Feheley
March 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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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 SOLUTION
Failing 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 SOLUTION
Failing 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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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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You forget to give
Tammy this form

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Does Tammy
have a case?
1. Yes
2. No
100
0%
0%

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Do you have
knowledge of an
FMLA condition?
1. Yes
2. No
0
0%
0%

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Did Wendy give adequate
notice of her need for
leave by calling her
supervisor after she fell?
1. Yes
2. 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. Yes
2. No
0
0%
0%

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TIPSof the Trade
1
Don’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
3
Employees don’t choose if something is
FMLA – if it qualifies it should be
designated as FMLA

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Does Leonard
have a case?
1. Yes
2. No
0
0%
0%

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Does Leonard have
FMLA time available?
1. Yes
2. No
100
0%
0%

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Barry does not receive
his bonus. Does Barry
have an FMLA claim?
1. Yes
2. No
100
0%
0%

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Does Barry have an
FMLA claim?
1. Yes
2. No
100
0%
0%

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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. Yes
2. No
100
0%
0%

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TIPSof 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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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. Yes
2. No
100
0%
0%

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Does Jeff have
a claim?
1. Yes
2. No
0
0%
0%

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TIPSof the Trade
1
Include notice
procedures in letters
approving leave
2
Get written
acknowledgement of
notice procedures
3
Submit requests for
foreseeable leave in
writing
4
Use a designated call-
in number to notify the
employer of an
unforeseeable absence
5
Report unforeseeable
absences within a
certain window of time
6
Submit requests for
leave to a designated
individual

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Can you require Randy
to provide you with the
hours of the clinic he is
being treated at?
1. Yes
2. 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. Yes
2. No
100
0%
0%

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Brendan Feheley
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482

2017 managing labor + employee relations seminar

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