How can you keep your EPLI claims exposure down and achieve early resolution to employee disputes before they become claims? What factors do the insurance carriers consider when rating your EPLI program? How can you manage your claims to mitigate risk and improve your EPLI program? This webinar will answer these and other questions regarding managing your EPLI program and deploying effective risk mitigation techniques. Presented by AlphaStaff VP of Employment Relations, Carrie Cherveny, Esq.

1. 800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com
2013 Webinar Series
PREVENTING EPLI CLAIMS:
Strategies and ADR
July 18, 2013
Presented by:
Carrie Cherveny, Esq.
V.P. of Employment Practices
AlphaStaff

2. Simplifying business. Benefiting people. 2
Today’s Featured Speaker
Carrie Cherveny, Esq.
Vice President
Employment Practices

3. Key Laws and basic Don’t and Do’s
(No problem, no claim)

4. Simplifying business. Benefiting people.
Don’t Do
Fail to pay an employee for overtime
worked whether supervisor knew or
should have known.
Require prior authorization to work
overtime and discipline employees who fail
to obtain prior authorization.
Fail to pay an employee for time worked.
Pay employees for time spent in meetings,
on rest breaks, and other compensable
time.
Retaliate against an employee for reporting
non-payment of overtime.
Work with Payroll to correct and treat
employee the same as before the report.
Fair Labor Standards Act (FLSA)
Dos and Don’ts

5. Simplifying business. Benefiting people.
Family Medical Leave Act (FMLA)
Dos and Don’ts
Don’t Do
Prevent an employee from taking leave Notify HR, accommodate leave
Deny intermittent leave Accommodate need for intermittent leave
Refuse to reinstate a returning worker Ensure jobs are adequately covered
Deny job restoration
Provide job restoration rights during the 12
week leave period
Share confidential medical information
Request leave certifications and ensure
that they are complete and sufficient
Don’t forget FMLA may apply to workers’
compensation leave
Ensure that an employee’s FMLA, WC, and
ADA rights are addressed and protected

6. Simplifying business. Benefiting people.
Civil Rights Act of 1964 (Title VII)
Dos and Don’ts
Don’t Do
Apply policies inconsistently from one
employee to the next.
Treat all similar offenses the same way.
Make employment decisions based on
appearance, accent, religion, ethnic
origin, or other characteristics of
protected classes.
Use objective, job-related criteria for
all employment decisions.
Provide special opportunities or
bonuses to an employee just because
you like them.
Make sure all employees have equal
opportunities.
Retaliate, in any way, against an
employee who called HR to claim
unfair treatment.
Treat the employee the same as you
did before they made the claim.

7. Simplifying business. Benefiting people. 7
Sexual Harassment / Sex-Based Harassment
Dos and Don’ts
Don’t Do
Allow employees to make unwelcome
sexual advances to co-workers.
Enforce the anti-harassment policy and
maintain an environment free of
harassment.
Tolerate environment in which employees
feel threatened or abused.
Require employees to treat one another
with respect.
Ignore harassment or complaints.
Encourage employees to come to you with
harassment complaints, report complaints
to HR immediately.
Operate without a no-harassment policy
with a clear complaint procedure
All companies (especially those with 15 or
more employees) should have an anti-
harassment policy with a clear complaint
procedure (Faragher/Ellerth)

8. Simplifying business. Benefiting people. 8
Age Discrimination in Employment Act (ADEA)
Dos and Don’ts
Don’t Do
Promote an employee to a supervisor
position because he/she is young enough
to make the job his/her career.
Provide equal opportunity to all employees
and select the most qualified employee for
the promotion.
Terminate an older employee because
he/she is set in his/her ways and you think
a younger employee would be easier to
develop.
Create a culture that embraces change and
set clear expectations for all employees on
how to adapt to change. Provide coaching
and feedback to employees who are
unable to adapt to change.

9. Simplifying business. Benefiting people. 9
Don’t Do
Ask about disabilities at job interview or
make assumptions about people’s abilities.
Define a job’s essential functions and ask
all applicants if they can perform the
essential functions of the job.
Deny employment opportunities because
of disabilities.
Provide reasonable accommodation.
Tell an employee you have to let them go
because they can’t perform a function of
their job for a medical reason.
Notify HR of the employee’s limitations
and begin the interactive process.
Americans with Disabilities Act (ADA)
Dos and Don’ts

10. Simplifying business. Benefiting people. 10
Don’t Do
• Interfere with union-related activities
• Question employees about
union sympathies or activities
• Discriminate or retaliate for grievances or
union activities
• Meet with groups of employees to
discuss their concerns about working
conditions or terms of employment
• Allow engagement in appropriate union
activities
• Respect the right of workers to join
together in “concerted activity”
• Allow union representation
• When discussing terms of employment,
meet with employees individually
National Labor Relations Act (NLRA)
Dos and Don’ts

11. Why should HR become
involved in mediation?
(The world we live in)

12. Simplifying business. Benefiting people.
Unemployment Rate and EEOC Charges
Bureau of Labor Statistics
Equal Employment Opportunity Commission 2012

13. Simplifying business. Benefiting people.
Unemployment Demographics
Bureau of Labor Statistics

14. Simplifying business. Benefiting people.
EEOC Aggressive & Effective
EEOC Performance – 2012:
• Private sector workplace discrimination charges totaled 99,412
• Historic monetary recovery $365.4 million
• Pending inventory of charges reduced by 10% from fiscal year 2011
• Filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits and
10 systemic suits
• Resolved 254 lawsuits for a total monetary recovery of $44.2 million
• Completed 240 systemic investigations and secured $36.2 million
Equal Employment Opportunity Commission 2012

15. Simplifying business. Benefiting people.
Aggressive EEOC
EEOC filings: 3rd Consecutive Year approaching 100,000
Florida Charges of Discrimination
Equal Employment Opportunity Commission
2009 2010 2011 2012
TOTAL
CHARGES
7,043 7,779 8,088 7,940

16. Simplifying business. Benefiting people.
Aggressive EEOC
Retaliation charges lead the way
Equal Employment Opportunity Commission

17. Simplifying business. Benefiting people.
Aggressive EEOC
ADA Amendments Act passed in 2008 (Final Reg. 2011)
Equal Employment Opportunity Commission
Disability Charges on the Rise – as we expected

18. Simplifying business. Benefiting people.
EEOC Strategic Plan 2012 - 2016
The EEOC has identified three emerging or developing issues:
1. Americans with Disabilities Act (“ADA”), including coverage,
reasonable accommodation, qualification standards, undue
hardship, and direct threat.
2. Accommodating pregnancy-related limitations under the
Americans with Disabilities Act Amendments Act (“ADAAA”)
and the Pregnancy Discrimination Act (“PDA”).
3. Coverage of lesbian, gay, bisexual, and transgender
individuals under Title VII’s sex discrimination provisions, as
they may apply.
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19. Simplifying business. Benefiting people.
EEOC Aggressive & Effective
EEOC Strategic Plan
• Strategic law enforcement
• Education and outreach
• Efficiently serving the public
Key EEOC focus areas that will drive future charges:
• Systemic Discrimination Initiative
• ADEA “Reasonable Factors Other than Age” (RFOA Final Rule 2012)
• Background Checks (Arrest & Conviction Records Enforcement Guidance
2012 / Fair Credit Reporting)
• Aggressive pursuit of ADA systemic matters
• Transgender EEOC Commission Opinion (2012)
• Youth@work Initiative

20. Simplifying business. Benefiting people.
State vs. Federal Median Awards - (2004-2010)
Jury Verdict Reporter 2011

21. Simplifying business. Benefiting people.
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Resolutions
7,858 7,990 8,086 7,900 8,202 8,649 8,840 8,498 9,362 9,831 8,714
Mediations
Conducted 11,457 11,595 11,658 11,278 11,314 11,956 12,254 11,692 12,755 13,002 11,376
EEOC Mediation Program – 2002 - 2012
0
2,000
4,000
6,000
8,000
10,000
12,000
14,000
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Resolutions
Mediations Conducted
Equal Employment Opportunity Commission

22. Simplifying business. Benefiting people.
Employment Practices Claims
Jury Award vs. Settlement 2004 - 2010
22
Liability Jury Award
Mean
Settlement
Mean
Discrimination $600,690 $144,817
Retaliation $722,179 $222,077
Wrongful Termination $789,184 $684,469
Employment Cases, overall $631,589 $515,816
Jury Verdict Reporter 2011

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Certified Mediators

24. Simplifying business. Benefiting people.
State/Local
Mediator Certification Requirements
Basic Requirements - certification as a county court, family, circuit court, or
dependency mediator:
• at least 21 years of age and be of good moral character
• Each certification requires a total of 100 points across three point categories:
mediation training, education/mediation experience and mentorship from other
mediators.
County Court Mediator - County Civil mediations encompass both Small Claims
cases ($5,000 or less) and County Civil cases (less than $15,000).
• Obtain a high school diploma or GED = 10 points
• Complete a training program certified by the Florida Supreme Court = 30
points
• Complete a mentorship program under the supervision of a court-certified
mediator = 60 points

25. Simplifying business. Benefiting people.
Mediator Certification Requirements, cont.
Circuit Court Mediator - Circuit Civil mediation includes civil cases (other than
family law cases) with damages of $15,000 or greater.
• Obtain a bachelor's degree = 25 points
• Complete a training program certified by the Florida Supreme Court = 30
points
• Complete a mentorship program under the supervision of a certified
mediator = 30 points
• Complete additional mentorship hours or education training classes to
obtain the additional points necessary to meet the 100-point requirement.
** In addition, each renewal cycle a mediator must complete 16 hours of
continuing mediator education (CME) credits.

26. Simplifying business. Benefiting people.
Private Mediation Certifications
For example:
• inAccord program – HR Mediation certification program
– www.mediatorswithoutborders.com
– HRCI credits available
• Mediation Training.Org – a repository of information regarding
mediation training – identifies mediation trainers across the US
– http://www.mediationtrainings.org/
• Mediation Training Institute International
– http://www.mediationworks.com/mti/certconf/hrd.htm
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27. ADR Programs/Example

28. Simplifying business. Benefiting people.
Early and Internal Mediation – the Value
• Opportunity for more creative solutions
• Avoids EPLI claim – protects EPLI program
– Hardening EPLI market
– Increasing premiums
• Opportunity to save employment relationship
• Learning opportunity for all involved
• Cost savings
– Attorneys
– EPLI premiums
– Settlement amounts
– Turnover (hiring, training, lost productivity)
– Outside mediators (attorneys) can be as much as $350 an hour
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29. Simplifying business. Benefiting people.
Mediation and ADR – Internal Policies
• Most ADR programs include:
– Hotline
– Ombudsman
– Mediation
– Arbitration
• Must assure confidentiality
– Consider the benefit of inadmissible settlement communications
• Human Resources has a unique opportunity to serve as
mediator before:
– Attorneys or government agencies
– The employment relationship becomes irreparable
– Time, money, and energy is spent defending the employer
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30. Simplifying business. Benefiting people.
What is an Ombudsman?
• Designated neutral party
• Sometimes high-ranking in an organization, but not part of executive
management.
• Functions independently from all regular line and staff management
• Usually reports to the CEO or Board of Directors.
• Can provide:
– options to whistleblowers or employees and managers with ethical concerns;
provide coaching,
– generic solutions (meaning a solution which protects the identity of one individual
by applying to a class of people, rather than just for the one individual) and
– mediation for conflicts;
– track problem areas;
– make recommendations for changes to policies or procedures in support of orderly
systems change.

31. Simplifying business. Benefiting people. 31
ADR Program Flowchart
800
HelpLine
Open Door
(Internal)
Mediation
Voluntary
Arbitration
Mandatory
Employee
Complaint
Harassment
Complaint
Procedure
Internal
Measures OR
OR OR
Overview

32. Simplifying business. Benefiting people.
800 HelpLine
Report HRRegularly
Follow-up with
Employee
Regularly
Follow-up with
HR
Intake Interview
Open Door
Voluntary
Mediation
Voluntary
Arbitration
Mandatory
OR OR
Related
Investigation(s)?

33. Simplifying business. Benefiting people.
Mediation
Mediation Fails
HR Follows-up
with Employee
HR Follows-up with
Employer
Resolves
Differences
Employee Signs
Release
Employee
Remains
Employed
Employee
Remains
Employed
Employee
Terminates
Employee
Terminates
Employee
Elects
Arbitration
Employee
Does
Nothing
OR
Related
Investigation(s)?

34. Simplifying business. Benefiting people.
Arbitration
HR Follows-up
with Employee –
Regular Intervals
HR Follows-up
with Employer –
Regular Intervals
Employee
Remains
Employed
Employee
Terminates

35. Wrap-Up
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36. Simplifying business. Benefiting people.
QUESTIONS?

37. Simplifying business. Benefiting people.
Need Help? Contact Us !
• .
Copies of the presentation
hrsc@alphstaff.com
(888)335-9545 (Option 8)
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38. Upcoming AlphaStaff Webinar
Please mark your calendars !!!
Date: Thursday: August 15, 2013
Topic: Social Media in the Workplace:
Social NOT Working
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39. Simplifying business. Benefiting people.
Thank you for your participation!
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