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Loss Prevention Seminar  3.10.09
 

Loss Prevention Seminar 3.10.09

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Tuesday March 10, 2009 12:00PM Presentation presented by:

Tuesday March 10, 2009 12:00PM Presentation presented by:
Matthew A. Steinberg & Richard Greenberg attorneys with the New York Office of Jackson Lewis LLP.

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    Loss Prevention Seminar  3.10.09 Loss Prevention Seminar 3.10.09 Presentation Transcript

    • How Recent Legislative Developments Will Impact Your Company’s Employee Relations March 10, 2009 Presented By: Richard I. Greenberg, Esq. Matthew A. Steinberg, Esq.
    • About the Firm
      • Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation
      • 50 years of experience; founded in 1958 in New York City.
      • Over 500 attorneys in 39 offices nationwide
      • National perspective and sensitivity to the nuances of regional business environments
      • Represents over 7,500 clients in every state in the U.S.
      • Since 2000, the firm has litigated more than 6,000 employment law cases
    • Strategically Located Throughout the Nation to Serve Employer’s Needs
      • Albany
      • Albuquerque
      • Atlanta
      • Birmingham
      • Boston
      • Chicago
      • Cleveland
      • Dallas
      • Denver
      • Detroit
      • Greenville
      • Hartford
      • Houston
      • Jacksonville
      • Las Vegas
      • Long Island
      • Los Angeles
      • Memphis
      • Miami
      • Minneapolis
      • Morristown
      • New Orleans
      • New York
      • Orange County
      • Orlando
      • Philadelphia
      • Phoenix
      • Pittsburgh
      • Portland
      • Portsmouth
      • Providence
      • Raleigh-Durham
      • Richmond
      • Sacramento
      • San Francisco
      • Seattle
      • Stamford
      • Washington, DC Region
      • White Plains
    • Practice Areas
      • Affirmative Action / OFCCP Diversity Planning
      • Alternative Dispute Resolution
      • Class Action and Complex Litigation
      • Corporate Governance and Internal Investigations
      • Disability Leave and Health Management
      • Drug Testing and Substance Abuse Management
      • Employee Benefits Counseling, Executive Compensation, Benefits Litigation and Workplace Privacy
      • Employment Litigation and E-Discovery
      • Immigration
      • International Employment Issues
      • Labor Relations, including Preventive Practices
      • Management Training, including E-Based Training
      • Public Sector
      • Reductions in Force and WARN
      • Trade Secrets, Non-Competes and Workplace Technology
      • Wage and Hour Compliance
      • Workplace Safety Compliance
    • Industries Represented Jackson Lewis represents a wide range of companies in a variety of industries including, but not limited to:
      • Automotive
      • Banking
      • Construction
      • Education
      • Energy
      • Financial Services
      • Government
      • Healthcare
      • Hospitality
      • Insurance
      • Manufacturing
      • Non-profit
      • Pharmaceuticals
      • Real Estate
      • Retail
      • Transportation
    • Overview of Seminar
      • 2008-2009 Enacted and Pending Federal Legislation and EEOC Guidances
      • 2008 New York Legislative Term – focus on protecting those with criminal histories
      • Lawful Techniques for Theft Investigations
      • Other Noteworthy Issues for New York Employers
      • General 2008 National Trends and Hot Topics
    • 2008 FEDERAL LEGISLATION
    • Federal Minimum Wage
      • In May 2007, President Bush signed legislation raising the federal minimum wage, in 3 phases , to $7.25 an hour by 2009
      • July 24, 2008 - Phase 2 became effective raising federal minimum wage to $6.55 per hour
      • July 27, 2009 - Phase 3 takes effect - $7.25 per hour
      • Many states simultaneously raised their minimum wage to meet the new federal minimum wage - including N.C., N.D., OK, P.R., S.D., TX, UT, and VA
    • Consumer Product Safety Improvement Act
      • In August 2008, President Bush signed a comprehensive overhaul of consumer product safety laws ( Consumer Product Safety Improvement Act )
      • Prompted by substantial 2007 product recalls including a significant number of children’s products recalls
      • Imposes civil and criminal penalties in connection with manufacturing process (such as for use of lead paint, etc.)
      • Contains whistleblower provision which prohibits discrimination or discharge against public/private sector employees who:
        • Provide information related to violation
        • Testified/about to testify regarding violation
        • Assisted or participated in (or was about to assist/participate in) adjudicatory proceeding
        • Objected/refused to participate in work they reasonably believed to be a violation
    • Genetic Information Non-Discrimination Act
      • Prohibits employers with more than 15 employees, and health insurers, from making employment decisions or adjusting health benefits based on an individual’s genetic information
      • Broad definition of “genetic information” which includes: (a) information from own or individual family members’ tests; or (b) occurrence of a disease in the individual’s family
      • Effectively eliminates genetic discrimination nation-wide
    • ADA Amendments Act of 2008 (“ADAAA”)
      • Major expansion of the Americans with Disabilities Act
      • Overturns judicial precedent and redefines/broadens the term “disability”
      • Broadens the definition of “major life activities”
      • Broadens the definition of “substantially limits”
      • Prohibits courts and employers from considering mitigating measure when determining disability
      • Shifts burden of proof on whether individual is qualified to perform a job
    • ADA Amendments Act of 2008 (“ADAAA”) (Cont’d.)
      • While Act will have enormous impact in various parts of the country – and will turn the focus to the accommodation process – in states with expansive state disability laws such as New York and New Jersey, much less of an impact is expected
    • Lilly Ledbetter Fair Pay Act
      • Extends time to sue from initial 180 days to an additional 180 days each time a person is affected by alleged discriminatory pay practices
        • Impacts go beyond Title VII (applicable in ADEA, ADA and Rehabilitation Act cases)
        • Definition of “person” could be construed broadly and may include non-employees, such as spouses of deceased workers, so long as the individuals claim they were affected by the discriminatory practice
      • Designed to overturn controversial United States Supreme Court Ledbetter decision
      • Law is retroactive to May 28, 2007, the day before the Ledbetter decision was issued
      • What Remains Unchanged
        • General Concepts of FMLA Remain Unchanged
        • Up to 12 Weeks Of Leave In Set 12 Month Period For Covered Reasons
        • To Be Eligible Must Meet The 12 Months Of Service And 1,250 Hours Requirement And Be 1 of 50 Employees Within A 75 Mile Radius
        • Health Insurance Must Be Continued During Leave
        • Reinstatement Generally Guaranteed
        • Need To Document Leave Entitlement Unlike Title VII, punitive and compensatory damages available without proof of discriminatory intent
      Family Medical Leave Act (Modified Regulations)
      • General Notice Obligations Enhanced
        • Covered employers must post a general FMLA notice even when they have no FMLA-eligible employees
        • Each employee entitled to general FMLA notice unless employer publishes handbook or other summaries of leave rights – put FMLA policy in handbook
        • Posting requirements may now be satisfied through electronic posting – rare recommendation
      Family Medical Leave Act (Modified Regulations con’t. )
      • Employees must explain reasons for leave so as to allow an employer to determine whether the leave qualifies under the Act
      • “ Calling in sick” – Insufficient to trigger FMLA obilgations
      • Leave may be denied if employee fails to adequately explain
      • For further FMLA leave, employees must specifically reference the qualifying reason or need for FMLA leave
      • Employees can be required to comply with customary notice and procedural requirements for requesting leave, absent unusual circumstances
      Family Medical Leave Act (Notice Requirements)
    • 2009 PENDING FEDERAL LEGISLATION
    • Employee Free Choice Act
      • Employee Free Choice Act: amendments to the NLRA
        • Employers must recognize unions based on card checks
        • Mandatory mediation and arbitration in first contract negotiations
        • Increased penalties on employers for violations during organizing campaigns and first contract efforts
      • Passed House of Representatives in 2007, but stalled in Senate
      • Previously stated priority for Obama Administration but EFCA is being temporarily pushed aside so a focus can be placed on economic stimulus legislation
      • Preventive Tips – even if EFCA does not pass:
        • Evaluate your organization’s labor/employment philosophy
        • Develop a preventive action plan, including discussion at all levels (management and employees), appropriate training, etc.
    • Employment Non-Discrimination Act (ENDA)
      • Included protection from discrimination in the workplace on basis of sexual orientation and gender identity (bisexual, transgender, etc.)
      • Currently, 13 states (and D.C.) have laws which prohibit discrimination on the basis of sexual orientation and gender identity
      • 7 states, including New York State protect sexual orientation only. New York City protects gender identity.
      • Obama supports ENDA
            • Civil Rights Election National Review 7/9/08
    • EEOC GUIDANCE REGARDING RELIGIOUS DISCRIMINATION
      • In August 2008, EEOC issued guidance regarding employers’ obligation to make religious accommodations
      • Broad definition of “religion”
      • The law “protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of [the law], religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under [the law] even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. [The law]’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” EEOC’s Questions and Answers: Religious Discrimination in the Workplace
      Religion
    • Hypothetical
      • Each December, the president of XYZ corporation directs that several wreaths be placed around the office building and a tree be displayed in the lobby.  Several employees complain that to accommodate their non-Christian religious beliefs, the employer should take down the wreaths and tree, or alternatively should add holiday decorations associated with other religions. 
      • Title VII does not require that XYZ corporation remove the wreaths and tree or add holiday decorations associated with other religions.
      • Note that many states, including New York, also have expansive religious accommodation statutes with specific definitions of undue hardship
      • In New York, undue hardship means “significant expense or difficulty” based upon size, scope and overall operating costs of the enterprise.
    • EEOC Guidance Regarding Disability Discrimination
      • In September 2008, the EEOC issued guidance REITERATING employers’ application of performance and misconduct standards to employees with disabilities
      • Reinforces employers’ right to enforce policies and job-related requirements
      • Employer may apply the same quantitative and qualitative requirements regarding essential functions for an employee with a disability than it applies to employees without disabilities
        • Lowering or changing a production standard is not a reasonable accommodation
        • Reasonable accommodation may be required to assist employee in meeting production standard
      • Supervisor may not be able to require that employee with a disability perform an essential job function in the same manner as a non-disabled employee; alternative methods of performance may be a reasonable accommodation provided it is not an undue hardship
      • EEOC Guidance reinforces that requests for disability-related accommodations are only prospective , not retroactive
        • For example, if an employer gives a lower performance rating to an employee and the employee responds by revealing he or she has a disability that is allegedly causing the performance problem, the employer may still give the lower rating
      • Passage of ADAAA generally will not affect guidance
      EEOC Guidance Regarding Disability Discrimination (Cont’d)
    • 2008 NEW YORK LEGISLATIVE TERM
    • New York Mini-Warn Act
      • Effective February 2009
      • Significant differences with federal Warn Statute
        • Federal WARN : Employers of 100 or more covered employees must provide 60 days notice of plant closings or mass layoff (generally must be 50 or more affected employees)
        • NY Mini-WARN : Applies to NY employers with 50 or more full-time employees and requires at least 90 days notice of mass layoffs (generally must be only 25 affected employees)
        • NY Mini-WARN also imposes a 90-day advance written notice requirement in event of a 50 mile relocation of all or substantially all of operations
        • NY Mini-Warn otherwise generally tracks federal WARN
        • Many unanswered questions
    • Heightened Personal Information Protection and Responsibilities
      • Existing January 2008 New York law prohibits: (a) the intentional communications of Social Security numbers to the public; (b) making the access of services, benefits, and products contingent on the use of access cards or tags that contain SSN; (c) unsecured or unencrypted transmission and use of numbers over the Internet; and (d) mailing materials that contain an individual’s SSN for PSI
      • Effective January 2009, in an effort to further heighten protection and to prevent fraudulent use of New Yorkers’ personal information, further legislation specific to employers prohibits:
          • Posting or displaying an employee’s social security number
          • Visibly printing a social security number as an identification badge or card
          • Placing social security numbers in files with open access
          • Communicating an employee’s “personal identifying information” to the general public including social security numbers, home address or telephone number, personal e-mail address, internet identification name or password, last name prior to marriage and driver’s license number.
          • Filing documents that are available for public inspection that contain social security numbers of other persons- including a government agency (except as permitted by law)
      • New York employers should comply with both laws and focus on privacy protocols and document retention/destruction
      Heightened Personal Information Protection and Responsibilities (Cont’d)
      • LAWFUL TECHNIQUES
      • FOR THEFT INVESTIGATIONS
    • Lawful Techniques for Theft Investigations
      • Types of Employee Theft
        • Theft from co-workers
        • Theft of office supplies
        • Theft of equipment
        • Theft of inventory
        • Embezzlement and fraud
        • Theft of intellectual property
    • Lawful Techniques for Theft Investigations (Cont’d.)
      • Effective Methods to Prevent Theft
        • Establish a specific policy
        • Educate your employees
        • Establish anonymous reporting option
        • Periodically inform employees of their successes in helping prevent theft
        • Conduct background checks – verify employment dates, interview references
        • Segregate duties to ensure oversight/checks and balances
    • Lawful Techniques for Theft Investigations (Cont’d.)
      • Components of Anti-Theft Policies
        • Policy objectives
        • Security and control measures
        • Investigative procedures
        • Require employee cooperation in investigation
        • Disciplinary outcomes
    • Lawful Techniques for Theft Investigations (Cont’d.)
      • Investigation Pitfalls
        • Invasion of privacy issues – audiotaping, invasive surveillance
        • Investigators making allegations/accusations versus gathering facts
        • Restricting an employee’s ability to leave
        • Forcefully inspecting personal property
        • Failing to thoroughly document interviews and other aspects of investigation
        • Lack of confidentiality
    • Lawful Techniques for Theft Investigations (Cont’d.)
      • Ten Steps To Doing It Right
      • Defeat any expectation of privacy through your policy
      • Train investigators in proper investigatory techniques
      • Request access to personal belongings before searching
      • Notify employee of consequences for failure to cooperate if request is denied
      • Avoid public humiliation of suspected thief
    • Lawful Techniques for Theft Investigations (Cont’d.)
      • Ten Steps To Doing It Right
      • Conduct all investigations in a fair, non-discriminatory manner.
      • Provide for basic due process
      • Ensure confidentiality
      • In absence of an admission or catching employees red-handed, rely upon a provable rationale for termination
      • Consider involving law enforcement, if appropriate
    • USMA National Retail Theft Database
      • USMA database provides names of individuals who have been charged with theft.
      • No current federal or state laws, or administrative agency opinions regarding the use of this database.
      • A company can persuasively argue that it has job-related reasons for denying employment to someone who appears on the list.
      • The only potential (albeit minor) risk the Company faces is if it denies employment to an individual appearing in the USMA database who is ultimately acquitted of the charges contained in the report.
      • STATUTES FOCUSED ON PROTECTING
      • THOSE WITH CRIMINAL PASTS
    • Background
      • New York State/City law - Detailed statutory scheme requiring individualized, fact-specific inquiries before acting on individual’s conviction history
      • Factors include: the specific duties and responsibilities necessarily related to the employment sought; the bearing, if any, which the criminal offense(s) for which the person was convicted will have on fitness or ability to perform one or more of the job duties or responsibilities; the amount of time which has elapsed since the commission of the criminal offense(s); the age of the person at the time of the offense(s); any information produced either by the individual, or on his behalf, regarding rehabilitation and good conduct; and the employer’s legitimate interest in protecting property, and the safety and welfare of specific or the general public.
    • New Posting Requirement
      • Effective February 2009, employers must post these specific requirements so employees/applicants can know their rights
    • New Distribution Requirement
      • Effective February 2009, New York employers must provide a copy of these specific requirements to any individual on whom a criminal background check is conducted by a consumer reporting agency
    • Protection From Negligent Hiring Claims
      • Effective September 2008, New York State anti-discrimination law was amended to provide that if an employer properly balances an applicant’s criminal background prior to his or her hire, and the employee engages in problematic conduct, there is a rebuttable presumption that the employee’s prior criminal background cannot support a negligent hiring claim
    • Conclusion
      • Highlights this emerging area of law
      • Take criminal background check process seriously - have discussion before disqualifying-document!!
      • No per se disqualification language should be in any background check policy
    • New York Legislature Again Fails to Pass Paid Family Leave
      • Proposed legislation ( Working Families Time to Care Act ) would have expanded New York’s Temporary Disability Insurance Program to include paid family leave of up to twelve weeks, equal to half wages up to a maximum of $170 per week, to care for: (a) new baby or a newly adopted child; or (b) severely ill family member
    • OTHER NOTEWORTHY ISSUES FOR NEW YORK EMPLOYERS
    • Still No Final “No Match” Letter Regulations
      • Base obligation of employers is to properly and fully complete Form I-9 within 72 hours of employees’ start of employment
      • Social Security Administration (SSA) cross-references employer-submitted reports with SSA records, and, if there is a discrepancy, sends a “no match” letter
      • Prior to proposed regulations, employers had no clear guidance regarding how to respond to “no match” letters
      • Proposed Regulations : Requires that upon receipt of a “no match” letter, employer must take specific action or it will be deemed to have constructive knowledge that it is employing an unauthorized individual
      • A decision on the Regulation’s implementation is expected in March 2009 at the earliest
    • E-Verify
      • In June 2008, President Bush signed an executive order requiring federal contractors to use E-Verify
      • E-Verify is the Internet-based system that allows employers to verify the employment eligibility of new hires and existing employees
      • Certain federal contractors are to confirm the identity and work authorization of all employees working on federal contracts beginning May 21, 2009
      • While some states require employers to use E-Verify (Arizona), and other states are seeking to prohibit employers from using E-Verify (Illinois), this is the first time that the federal government has mandated private employer participation in the program
      • OTHER NATIONAL
      • TRENDS/HOT TOPICS
    • Guns In The Workplace
      • In June 2008, the United States Supreme Court held in District of Columbia v. Heller that individual citizens have the right to keep handguns at home
      • The Heller case struck down the District of Columbia’s handgun ban which was the strictest in the nation. Justice Scalia in a 5-4 majority opinion ruled that the second amendment clearly intended for citizens to be able to buy and keep guns
      • Nine states have passed legislation allowing employees to bring guns and firearms to workplace parking lots
      • Florida- in April 2008, Florida passed the preservation and protection of the Right to Bear Arms in Motor Vehicle Act of 2008 barring public and private employers from prohibiting a customer, employee or invitee from possessing a legally owned firearm kept inside a locked, privately owned vehicle in a parking lot, even on an employer’s private property
      • Florida law requires that employees who wish to keep a firearm in their car have a valid concealed weapons permit
      • The Law does not apply to schools, correction facilities, homeland securities operations and defense contractors
      • The Law also addresses employer’s liability concerns providing immunity for liability for employers who comply with the new requirements
      • Other states with similar gun statutes:
        • Georgia
        • Louisiana
        • Oklahoma
        • Kansas
        • Kentucky
        • Minnesota
      • States considering similar legislation:
        • Alabama
        • Montana
        • Tennessee
        • Utah
      Guns In The Workplace (Cont’d)
    • Workplace Bullying
      • Workplace bullying remains emerging form of employers’ liability (traditionally has been an international concept)
      • Bullying is typically a combination of verbal and non-verbal behavior which could affect the victim’s mental, physical health
      • Examples of workplace bullying include: flaunting status; ignoring target employees; continuous, excessive or unwarranted criticism; interrupting and preventing expression of opinions; failing to respond to calls/memos; excluding target employee from meetings, etc.; the “silent treatment”; shouting; verbal attacks; foul language; mean pranks
      • No specific statutory protection but significant grass-roots movements to prohibit workplace bullying as a matter of law
      • In addition to legal concerns, workplace bullying can result in poor morale, absenteeism, high turnover and generally reduced productivity
      • THE MATERIAL CONTAINED IN THIS PRESENTATION WAS PREPARED BY THE LAW FIRM OF JACKSON LEWIS LLP FOR THE ATTENDEES’ OWN REFERENCE IN CONNECTION WITH THIS SEMINAR. SINCE THE MATERIAL AND RELATED DISCUSSIONS ARE INFORMATIONAL AND EDUCATIONAL IN NATURE AND REPRESENT THE SPEAKER’S OWN VIEWS, ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR RELATED DISCUSSIONS TO BE LEGAL OR OTHER ADVICE. PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE ATTEMPTING TO ADDRESS ANY LEGAL SITUATION OR PROBLEM.
    • THE END
      • THANKS FOR COMING!
      • ANY QUESTIONS?