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2018 Managing Labor+ Employee Relations Seminar

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Kegler Brown's Employee Relations team spoke alongside guest speaker Dianne Grote Adams of Safex to present this year's Managing Labor + Employee Relations Seminar.

This year’s seminar discussed the following topics: What to Expect in 2018 - Trumping the Obama Legacy; Maintaining Safety in Your Workplace; Analysis of Ohio’s Newly Passed Workers’ Compensation Legislation; The #MeToo Era; Privacy and Data Security Risk in a World of Flexible Workplaces; and Losing My Religion.

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2018 Managing Labor+ Employee Relations Seminar

  1. 1. z
  2. 2. z
  3. 3. z
  4. 4. z Harvey Weinstein Kevin Spacey Louis CK Bill O’Reilly Roger Ailes Charlie Rose Mother Theresa Al Franken Roy Moore Garrison Keiler Russell Simmons Pete Rose Bill Cosby Oprah Winfrey
  5. 5. z Possible Reactions to Harassment Complaint 1 Uncritical acceptance 2 Passive isolationism
  6. 6. z Broader Horizons Minimum Wage Levels Domestic Violence + Stalking Victim Protection Maternity Leave with Pay Expanded Protection for Pregnant Workers Renewed Focus on Equal Pay for Equal Work
  7. 7. z December 2017 NLRB Rulings 1 Employee Handbooks 2 Joint Employers 3 Micro-Bargaining Units
  8. 8. z Demise of the Quickie Election Regulations?
  9. 9. z
  10. 10. z Deductions for Employee Awards Taxation of Reimbursement for Employee Moving Expenses Elimination of Deductions for Employee Meal Expenses Elimination of Deductions for Parking + Paid Transportation Elimination of Deductions for On-Site Gyms New Provisions:
  11. 11. z Tax Credit for Paid Family Leave
  12. 12. z Sexual Harassment Settlement Payments
  13. 13. z Sexual Orientation and the Discrimination Laws
  14. 14. z The Disability Law
  15. 15. z The Overtime Rules
  16. 16. z Increased State + Local Government Attention to Employment Issues
  17. 17. 17 Safety 101 Maintaining Safety in Your Workplace WELCOME
  18. 18. 18 Key Points • 1910 or 1926 Compliance –Top 10 OSHA Violations FY17 • Hazard Recognition –JHA –Safety Inspections • Employee & Management Engagement –Safety Committees –Safety Meetings –Hazard Reporting
  19. 19. 19 Top 10 OSHA Violations FY17 • Fall Protection • Hazard Communication • Scaffolding • Respiratory Protection • LOTO • Ladders • PIV • Guarding • Fall Protection, Training • Electrical
  20. 20. 20 Fall Protection – General Requirements (1926.501) • #1 OSHA violation of 2017 – 6,887 violations • The most common violation requirements come from: – Unprotected edges and open sides – Failure to provide fall protection on low slope roofs
  21. 21. 21 Hazard Communication (1910.1200) Hazard Communication Program Not having or maintaining a hazard communication program– 1520 citations. 1910.1200(e)(1) SDS Making SDS’s available at each shift– 459 citation. 1910.1200(g)(8) Training Improper information and training given to employees– 1,230 citations 1910.1200(h)(1) Keeping Up To Date Keeping SDS book up to date with incoming and produced hazards– 337 citations 1910.1200 (g)(1) 4,652 violations in the 2017 year
  22. 22. 22 Scaffolding (1926.451) • Most common citations result from: 3,697 Violations Improper platforms Improper access to surfaces Lack of fall protection
  23. 23. 23 Scaffolding (1926.451) Proper Set Up Falling Access Platforms Employees on a scaffold 10+ feet above a lower level shall be protected from falling to that lower level Support On scaffold platforms more than 2 feet above or below a point of access, Crossbraces shall not be used as a means of access Each platform on all working levels shall be fully planked or decked between the front uprights and guardrail supported Supported scaffold poles, legs, posts, frames and uprights shall bear on base plates, mud sills, or other adequate firm foundation
  24. 24. 24 Respiratory Protection (1910.134) • Providing medical evaluation – 605 citations • Written respiratory protection program – 494 citations • Fit testing – 277 citations • Providing respirators – 239 citations 3,381 Violations
  25. 25. 25 Lockout/Tagout (1910.147) Procedures Inspections Training Programs
  26. 26. 26 Ladders (1926.1053) 2,567 Violations Improper use 01 Damaged ladders 02 Using the top step 03
  27. 27. 27 Powered Industrial Trucks (1910.178) • OSHA statistics indicate there are roughly 85 forklift fatalities and ~35,000 serious injuries. • OSHA’s most common findings and most cited sections of the standard are: – Inadequate training of employees – Lack of truck inspections 2,349 Violations
  28. 28. 28 PIV Best Practices
  29. 29. 29 Machine Guarding (1910.212) • The exposure to unguarded or poorly guarded machines is prevalent in many workplaces. • Moving machine parts have to potential to cause injuries such as – Crushed fingers or hands – Amputations – Burns – Blindness 2,109 Violations
  30. 30. 30 Electrical – Wiring Methods (1910.305) 1,530 Violations
  31. 31. 31 Electrical Facility Concerns
  32. 32. 32 Hazard Recognition
  33. 33. 33 Key Points • 1910 or 1926 Compliance –Top 10 OSHA Violations FY17 • Hazard Recognition –JHA –Safety Inspections • Employee & Management Engagement –Safety Committees –Safety Meetings –Hazard Reporting
  34. 34. 34 This image cannot currently be displayed. Hazard Assessments/ Job Hazard Analysis
  35. 35. 35 – Egress – Emergency Lighting – Clearances – Machine guarding – Housekeeping Hazard Assessment –Safety Inspections 3rd parties Safety Committees Department walkthroughs/ checklists
  36. 36. 36
  37. 37. 37
  38. 38. 38 Employee Engagement
  39. 39. 39 Key Points • 1910 or 1926 Compliance –Top 10 OSHA Violations FY17 • Hazard Recognition –JHA –Safety Inspections • Employee & Management Engagement –Safety Committees –Safety Meetings –Hazard Reporting
  40. 40. 40 Employee & Management Engagement Safety Committees Objectives Training Meaningful activities Safety Meetings Company Wide Departments Lines Periodic Daily Hazard Reporting Informal Formal Corrective action
  41. 41. 41 Safety 101 Written Safety Programs Communication is key Ongoing training Routine hazard recognition Positive Culture
  42. 42. 42 Contact us Central Ohio’s Business Health, Safety and Environmental Consultants since 1992. 140 N. Otterbein Ave. Westerville, Ohio 43081 614.890.0800 facebook.com/safex.us Linkedin.com/company/safex-inc dgroteadams@safex.us
  43. 43. z Recent Changes to Injury Claims
  44. 44. z HIGHLIGHTS The
  45. 45. z OLD RULE NEW RULE The statute of limitations to file a Workers’ Compensation claim was 2 years The statute of limitations was reduced to 1 year
  46. 46. z CAVEAT Occupational disease claims unchanged 2 years from last of diagnosis, treatment or date “quit” work
  47. 47. z OLD RULE NEW RULE Parties had 60 days to file an appeal into Court on “right to participate” issues If the parties agree, there is a mechanism to extend the deadline from 60 days to 150 days before an appeal is due so that the matter can be settled
  48. 48. z REMEMBER 30 days to file Notice of Intent to Settle Other party has 14 days to file Objection to Notice of Intent If no Objection, then 150 days to file appeal into Court
  49. 49. z OLD RULE NEW RULE Statute listed various drugs + levels of intoxication for purposes of the “rebuttable presumption” (that drug use caused the injury) to apply List is eliminated and in its place, general Federal Guidelines now apply with regard to intoxication levels
  50. 50. z REMEMBER Still need to have “reasonable suspicion” to use rebuttable presumption Ohio’s new Medical Marijuana laws don’t change things related to employment or workers’ comp
  51. 51. z OLD RULE NEW RULE In the case of incarceration, compensation was denied only to an incarcerated claimant Neither an incarcerated claimant nor an incarcerated dependent is entitled to compensation
  52. 52. z OLD RULE NEW RULE If a claimant was successful in Court on a “right to participate” issue, his/her attorney was entitled to attorneys’ fees, capped at $4,200 The cap has been increased to $5,000
  53. 53. z OLD RULE NEW RULE Firefighters are not entitled to “wage loss” compensation in a cancer claim Firefighters, who previously were not entitled to “wage loss” compensation in an allowed cancer claim, are now eligible for such compensation
  54. 54. z Fewer claims being filed across the state of Ohio
  55. 55. z 12%decrease in private employer premiums
  56. 56. z 7.8%rate cut for state agencies + public universities
  57. 57. z Notable CASES
  58. 58. z State, ex rel. Presbyterian Retirement Services v. Indus. Comm. 2017-Ohio- 7577 Claimant receiving permanent total disability compensation (PTD) cannot also be granted awards for permanent partial disability (PPD or C-92)
  59. 59. z Clendenin v. Girl Scouts of Western Ohio 2017-Ohio- 2830 No “regular” court appeal – must pursue Writ of Mandamus in Court of Appeals Industrial Commission decision that a substantially aggravated pre-existing condition has returned to “preinjury baseline status” is an “extent of disability” issue
  60. 60. z Ferguson v. State 2017-Ohio- 7844 Court of Appeals agreed but Ohio Supreme Court upheld the law Claimant cannot dismiss an employer’s court appeal without the employer’s stipulated consent Plaintiff argued the 2006 legislation violated Ohio Constitution
  61. 61. z Dave McCarty Kegler Brown Hill + Ritter dmccarty@keglerbrown.com keglerbrown.com/mccarty 614-462-5469
  62. 62. z Preventing Unethical Behavior presented by Jane Gleaves March 6, 2018
  63. 63. z NYT investigation revealed sexual harassment allegations against Harvey Weinstein October 5
  64. 64. z New Yorker published an investigation into sexual assault by Weinstein October 10
  65. 65. z Alyssa Milano invites women to #metoo October 15
  66. 66. z 1.7 million tweets with the #metoo; 12 million posts on Facebook November 31
  67. 67. z “Silence breakers” named Time Person of the Year December 6
  68. 68. z Time’s Up founded January 1
  69. 69. z 25-75% of women had been victims of sexual harassment
  70. 70. z 75%of those women never report it
  71. 71. z 30 million women have a voice
  72. 72. z
  73. 73. z
  74. 74. z
  75. 75. z Report to HR Report on Social Media
  76. 76. z Complaint won’t be taken seriously Retaliation Consequences
  77. 77. z How do we change the culture?
  78. 78. z The culture change + support has to be top-down 1
  79. 79. z There have to be safe, multiple outlets for filing complaints 2
  80. 80. z Tap into the women’s based groups at the company 3
  81. 81. z What if you get a complaint?
  82. 82. z Don’t ignore it – address early! 1
  83. 83. z Some complaints can be brought directly to the board 2
  84. 84. z HR sends complaints directly to legal counsel 3
  85. 85. z
  86. 86. z EEOC is updating its sexual harassment guidelines for the first time in 20 years
  87. 87. z There is now administrative interest with this issue
  88. 88. z
  89. 89. z Jane Gleaves Kegler Brown Hill + Ritter jgleaves@keglerbrown.com keglerbrown.com/gleaves 614-462-5484
  90. 90. z
  91. 91. z PRIVACY + DATA SECURITY for Employers Risk in a World of Flexible Workspaces
  92. 92. z CURRENT Threats
  93. 93. z CURRENT Threats
  94. 94. z Understand the Risks Mitigate the Risks What to Do, if the Risks Become Reality
  95. 95. z This is not just the IT/IS team’s problem!
  96. 96. z for Employers Practical EXAMPLES
  97. 97. z #1 Tax + W-2 Theft Use of social engineering coupled with spear fishing is increasing Impacts employers each year, and this is the peak season W-2s are information rich documents
  98. 98. z #1 Tax + W-2 Theft Bad actors may use the information to submit fraudulent tax returns in the hope of defrauding the IRS into sending funds for a false tax refund or sell on dark web to identity thieves KEY RISK
  99. 99. z of hacking attacks begin with a phishing email 91%
  100. 100. z
  101. 101. z Encrypt sensitive information before sending “Out of Network” notifications for inbound emails Track rate of tax fraud reported to HR
  102. 102. z Think twice before clicking Use common sense + be aware When in doubt, use phone to verify “Show details” on emails
  103. 103. z #2 Payroll Vendor Spoofing Message sent to employees spoofing a trusted vendor + prompts to click Directs employee to “confirm identity” by providing credentials Some even have reply feature to email the employee
  104. 104. z #2 Payroll Vendor Spoofing Bad actors may use the information to divert payments to divert funds - to the extent credentials are similar or the same, bad actor may gain access to company systems KEY RISK
  105. 105. z Alert workforce of scam Consider implementing training Direct employees to forward suspicious requests to IT
  106. 106. z Instruct employees not to supply login credentials Do not publicly post information your employees need to access tax information Enable 2-factor authentication
  107. 107. z #3 Remote Workforce Use of unapproved apps and devices Accessing unsecure Wi-Fi networks Ignoring security updates
  108. 108. z #3 Remote Workforce Bad actors may gain access to information, devices and systems KEY RISK
  109. 109. z Review agreements to ensure they include reasonable security requirements Limit access rights Proactively manage updates + patches Backup data
  110. 110. z Enforce an effective password policy Save data to offline storage Use 2-factor authentication Employ/require encryption on devices
  111. 111. z Utilize remote wipe services on devices Identify security levels + apply appropriate security measures Maintain device records
  112. 112. z #4 Biometrics Less focus on security + more on privacy Google Arts + Culture app
  113. 113. z #4 Biometrics Investing capital or other resources in biometric projects, that may be later restricted by legislation KEY RISK
  114. 114. z Keep in mind dynamic nature of this landscape as you develop policies + procedures
  115. 115. z #5 GDPR for Employers New EU data protection regulation as of 5/25/18 Applies to any organization that offers goods or services to EU data subjects Personal data is defined broadly
  116. 116. z #5 GDPR for Employers Processing information requires a legal basis Employees should receive effective information about monitoring Adequate protection for any international transfer of employee data
  117. 117. z Common Practices that May Be Restricted Under the GDPR Use of information on social media profiles for recruitment purposes Storing HR and other employee data in the cloud Wishing employees happy birthday on an intranet Monitoring electronic communications in the workplace Monitoring remote working Scanning private devices as part of a BYOD policy Monitoring company vehicles
  118. 118. z #5 GDPR for Employers Companies may be fined up to €20 million or 4% of global turnover (whichever is greater) for non- compliance with GDPR KEY RISK
  119. 119. z Determine your organization’s obligations
  120. 120. z David Wilson Kegler Brown Hill + Ritter dwilson@keglerbrown.com keglerbrown.com/wilson 614-462-5406
  121. 121. z Losing My RELIGION An Update on Religious Discrimination and Accommodations
  122. 122. z What are We Going to Talk About? Title VII Proof Paradigms Breaking Down Elements Modern Day Religious Issues Future Problems
  123. 123. z RELIGION = all aspects of religious observance and practice, as well as belief
  124. 124. z UNLESS an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business
  125. 125. z Discrimination based on religion has 3 components
  126. 126. z Can’t treat people differently because of religion
  127. 127. z Can’t harass people because of religion
  128. 128. z Have to accommodate religion if you can do so without undue hardship to your business
  129. 129. z THE EASY ONES
  130. 130. z Can’t treat someone differently because you know, or suspect, they are a certain religion and may require an accommodation
  131. 131. z Can’t require employees to follow company’s professed faith
  132. 132. z Can’t tell employees they have to read the Bible to get promoted
  133. 133. z Employee says they have to wear a religious button or sign at work?
  134. 134. z After work, employees rub olive oil near entry way of absent co-workers cubicle to rid the absent co-worker of her demons?
  135. 135. z Employee says part of their religion is to try and convert others which includes constantly discussing their beliefs with other employees and denouncing other faiths?
  136. 136. z The ACCOMMODATION Question
  137. 137. z What Constitutes a Religion?
  138. 138. z Traditional, organized religions such as Christianity, Judaism, Islam, Hinduism + Buddhism Beliefs that are new, uncommon
  139. 139. z RELIGION CAN BE Beliefs that are not part of a formal church or sect Beliefs that are only subscribed to by a small number of people Beliefs that seem illogical or unreasonable to others
  140. 140. z Is this a religion? Believe in a deity called the Flying Spaghetti Monster (FSM) Does not require literal belief in order to provide spiritual enlightenment Believe FSM Heaven has a beer volcano and a stripper factory Wear a pasta strainer on their head for religious photos
  141. 141. z Is this a religion? Religion founded in 1988 – the founder is religion’s current Pharaoh Basis in Egyptian religion but founded in Joliet IIIinois Has a goddess who is a force that keeps world balanced Followers keep personal religious shrine in their home
  142. 142. z What’s the Question?
  143. 143. z How Do I Determine Undue Hardship?
  144. 144. z Is it more than a minimal burden on the operation of business?
  145. 145. z Violating a seniority system Causing a lack of necessary staffing Jeopardizing security or health Costing employer more than a minimal amount Infrequent payment of overtime to employees who substitute shifts Customer preference or co-worker disgruntlement
  146. 146. z The Basic Problems Scheduling Dress Code + Grooming Prayer During Work
  147. 147. z Scheduling ISSUES Scheduling modifications are usually a reasonable accommodation Important to understand specifics of employee’s religious obligations Is voluntary shift trading enough?
  148. 148. z Dress Code + Grooming ISSUES Hotel says employee has to cut his dreadlocks to comply with dress code Employee says dress dreadlocks are required by Rastafarian religion Can employer refuse to accommodate?
  149. 149. z Prayer During Work ISSUES Many cases involve Muslim requests to pray during the work day EEOC almost always says a break is a reasonable accommodation If you’re going to refuse, you need solid data on either production or safety concern
  150. 150. z New Problems Hand Scanners Flu Shots Customer Complaints Religious Objections
  151. 151. z Hand Scanner ISSUES Scans right hand Great tool for monitoring attendance and keeping track of time, right? What if employee says scanning right hand violates his religious beliefs?
  152. 152. z It’s OK - only a $580,000 mistake
  153. 153. z Flu Shot ISSUES Hospital requires all employees to get flu shot Says safety precaution justifies requirement Employee says ingesting foreign medicine in her body violates religious beliefs
  154. 154. z Flu Shot ISSUES Employee says will wear a mask while working Employer offers nasal spray Employee says that won’t work
  155. 155. z Customer Complaint ISSUES Receptionist has a religious sign he displays directly over his left shoulder Can company terminate him if he doesn’t take it down? What about a cubicle instead of the lobby? He is in the lobby, so when customers enter, they see it Company asks him to remove it, he says it is required by his religion
  156. 156. z Religious Objection ISSUES You own a small bakery – employee says she recently found religion and believes gay marriage is a sin She says she will refuse any gay customers who request wedding cakes What do you do?
  157. 157. z Religious Objection ISSUES Now employee says she has no problem selling pre-made products but she won’t bake a cake herself that she knows is a wedding cake for a gay wedding Same result?
  158. 158. z the TAKEAWAY Don’t fight over whether it’s a religion or not Avoid fighting over sincerity of belief Don’t modify rules for someone else for a different reason Undue hardship is case by case analysis
  159. 159. z Look at whether granting accommodation would result in denial of product or service, or delay
  160. 160. z If there is a potential solution try it
  161. 161. z Keep an eye on the news
  162. 162. z Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482
  163. 163. z

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