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2019 Managing Labor + Employee Seminar

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This year we were privileged to have the Chief Executive Officer of Safe Passage Consulting, Tony Casper, presenting alongside our Employment team. Also joining the seminar, we had members of Kegler Brown’s Workers' Compensation and Medical Marijuana practice areas.

Topics are as follows:

"Surviving Your Worst Fear: Documentation + Employment Litigation"; Jane Gleaves
This presentation will outline best practices for accurate and thorough record-keeping with an eye toward litigation. Jane will discuss the ways employers should document any problematic employees or work-place incidents so that their records can be helpful, rather than harmful, in future litigation. She will give examples of both good and bad documentation practices and illustrate how each can affect an employer’s position against a former employee in a lawsuit.

"Closing the Pay Gap: Case Law + Best Practices for Equal Pay"; Erin Cleary Herbst
Erin will identify and explore the gender gap in employment. She will provide an overview of relevant case law, plus tips and strategies for best practices in dealing with the gender pay gap.

"The Cost of Workplace Violence"; Tony Casper
During this presentation you will learn the effects of violence in the workplace on productivity and your staff. Tony will discuss steps to preventing and mitigating violence in the workplace. Also, he will discuss the importance of having proper policy, a threat assessment team, Physical Security Assessments and quality training.

"A Legal Outlook of Medical Marijuana: What’s On the Horizon?"; Lloyd Pierre-Louis + Randy Mikes
Lloyd + Randy will analyze the potential impact of the legalization of medical marijuana in Ohio. Lloyd will cover issues related to the legal challenges and trends in the medical marijuana industry, discuss the Ohio regulatory environment and statutes, and touch on Ohio court cases. Then, Randy will talk about issues including allowance of claims, return to work, and extent of disability. They will also look at what to expect in terms of regulations and the practical impact legalization may have on employment areas including but not limited to workers’ compensation.

"My Mind’s Playing Tricks on Me!"; Brendan Feheley
Brendan will focus on the intersection between FMLA and the ADA with a special emphasis on mental health conditions. This presentation will examine recent developments regarding certification of and reasonable accommodations for mental health conditions.





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2019 Managing Labor + Employee Seminar

  1. 1. Presented by Jane Gleaves Surviving Your Worst Fear DOCUMENTATION + EMPLOYMENT LITIGATION
  2. 2. How to BUILD that paper story
  3. 3. 2,392total charges filed with the EEOC for workplace discrimination
  4. 4. Retaliation Disability Race
  5. 5. 6,098total charges filed with the Ohio Civil Rights Commission for workplace discrimination 35%closed for no probable cause
  6. 6. Litigation following the termination of an employee is likely.
  7. 7. Employment AT-WILL
  8. 8. What you CAN’T do is terminate an employee for an illegal reason Race Retaliation Disability Sex Pregnancy Age Religion Familial Status Military Status
  9. 9. Employees who have an employment agreement with a provision that they can be terminated for cause
  10. 10. How to handle termination with an eye toward litigation.
  11. 11. Burden of PROOF
  12. 12. Initially the burden is on the plaintiff to prove he: Is a member of a protected class Was qualified for the job Suffered an adverse employment decision Was replaced by a person outside the protected class or treated differently
  13. 13. Burden on plaintiff to establish prima facie case Burden shifts to defendant to show legitimate, nondiscriminatory reason Burden shifts back to plaintiff to show reason is pretext
  14. 14. Instances in which persons outside the protected class were treated better for offenses of comparable seriousness The manner in which the employee was treated by the employer while employed The employer’s reaction to “legitimate civil rights activities” Statistics concerning employer’s employment policy and practice with respect to minority employment Evidence of PRETEXT
  15. 15. Ways to Defend Yourself + Prove Your Nondiscriminatory Reasons
  16. 16. 1Develop and consistently apply appropriate policies, procedures + handbooks
  17. 17. 1 Have policies in writing Document employee acknowledgement of the policy Buy-in from supervisors and management Achieve good policies with an employee handbook
  18. 18. 2Violations of policies + performance problems – you have the policies, now you have to apply them
  19. 19. 2 Document performance and disciplinary issues fully and objectively Consistency is key! Employees subject to inconsistent and unduly harsh consequences can allege that the employer followed the policy in a discriminatory manner or that the employer should not be believed when claiming that a particular practice was standard operating procedure
  20. 20. 3Decide if it’s the right time to terminate employment
  21. 21. 3 Do you have documentation that you properly communicated expected standards of conduct? Do you have documentation of a thorough investigation of the misconduct? Do you have documentation that you’ve discussed the issue with the employee and offer the employee the opportunity to be heard? Do you have documentation that you consistently applied this policy in the past? Timing is key – do not delay excessively before making and communicating a termination decision
  22. 22. 4Choose your language carefully
  23. 23. 4 Using labels without providing behavioral examples Generic labels don’t help your employee improve and will not help your defense. Jane is usually late for work Jane misses too much work April 1: Jane called in sick and missed eight hours of work. April 4: Jane arrived at work at 10 a.m., two hours late from his scheduled start time. April 6: Jane scheduled a doctor's appointment and then, stayed home to have a new furnace installed. April 12: Jane called in sick and missed eight hours of work.
  24. 24. 4 Using words that sound like “proxies” for bias or retaliation Avoid terms that suggest you have an underlying discriminatory motive. Lack of commitment Employee never volunteers, must be persuaded to accept assignments and complains incessantly about how things were better before the bar was raised
  25. 25. 4 Focusing on employee’s intent (as opposed to results) Focus on what happened and stay away from what your employee may have intended. “You didn’t try,” “You don’t care” and “You weren’t applying yourself.” Your sales numbers were (X), and they were supposed to be (X). Historically, your district has performed at these levels and your performance is below expectations.
  26. 26. 4 Using absolutes that are not credible There is no easier way to attack credibility than to test an absolute statement. One deviation from the absolute can make your documentation look unreliable. Jane is always late Jane was late to work 6 out of the 7 days she was scheduled to work this week
  27. 27. 4 Hedging too much “You don’t seem to understand the new computer software” “You have made three major mistakes with the new computer software that have…” Use specific and definitive language that shows you are documenting known deficiencies.
  28. 28. 4 Failing to make clear the consequences of lack of improvement Employee may be disciplined if this conduct continues “Employee will be subject to more severe discipline up to and including immediate discharge.” Don’t give employees an excuse to say they were surprised
  29. 29. 4 Making evaluations you’re not qualified to make Jane is withdrawn and seems depressed Jane did not speak up or contribute at Monday or Tuesday’s group meetings You aren’t doctors and can’t make medical diagnoses.
  30. 30. 4 Writing like a lawyer Our legitimate, non-discriminatory reason for firing Jane is theft of company property. We terminated Jane because she stole money from the cash register. Just report what happened honestly and genuinely. If you throw this up in front of a jury and it looks like your lawyer has written everything, you look like you’re covering something up and juries are suspicious of that
  31. 31. 5Economic downturn
  32. 32. 5 Well-documented basis for the job elimination or reduction in force based on legitimate business related reasons Used objective criteria to select the employees for job elimination Conducted a disparate impact analysis to make sure no protected class is disproportionately affected Name Attendance Record Seniority 2018 Sales Total Jane 10 2 9 21 Brendan 2 10 4 16 Erin 8 5 3 16
  33. 33. 6Delivering the message
  34. 34. 6 Hold a termination meeting where you are prepared + well-rehearsed Have a witness Ensure that all resources relevant to the termination have been assembled + assessed Document the termination Documents to bring Focus the message on your legitimate, non- discriminatory business reason for termination decision
  35. 35. 7Other documentation
  36. 36. 7 Signed assurance that he has or will return all company property Social media Clearly communicate to the employee any limitations to his right to: post on employer- owned social media accounts, use contacts developed through employer-owned social media accounts, use social media to solicit clients or employees
  37. 37. 8Conduct an exit interview
  38. 38. 8 Discover problems in the workplace Assess litigation risks Discover risks related to confidential or trade secret info Manage the departing employee’s expectations
  39. 39. 9Respond to employee reference checks
  40. 40. 9Implement a policy of verifying only job title, dates of employment + compensation in response to a request for references Direct all requests for references to one employer representative Provide a written reference letter to the employee for future use Document who called, when, who spoke with them, and what was said If it’s a written request, retain it
  41. 41. Nero v. Industrial Molding Corp
  42. 42. Vaughn v. The Boeing Company
  43. 43. Employee is chronically late + repeatedly insubordinate You have delayed terminating him Hypothetical Scenario 1 He has a heart attack and becomes disabled
  44. 44. Hypothetical Scenario 1 POLICIES Written policy about how many times you can come in late before being disciplined TIMING Impose discipline upon the first violation LANGUAGE Document more than “he is always late” - find the dates that he was late and by how much
  45. 45. From: Mr. Manager To: Jane Subject: Tardiness Jane, You clocked in 15 minutes later for your shift today, February 18, 2019. This is your first warning. Sincerely, Mr. Manager
  46. 46. From: Mr. Manager To: Jane Subject: Tardiness Jane, This is your second written warning for tardiness. According to your schedule, you were supposed to clock in at 7:30. Instead, you clocked in at 7:54. According to section 5.1 of the Employee Handbook, tardiness two times within a quarter will result in termination. Sincerely, Mr. Manager
  47. 47. Delivering the MESSAGE Hold a termination meeting where the message is very clear to the employee that the reason for his termination is his repeated tardiness and insubordination
  48. 48. Female salesperson claims that she was discriminated against because she was pregnant Really, she was terminated because she consistently failed to meet her sales quotas Hypothetical Scenario 2
  49. 49. Hypothetical Scenario 2 POLICIES Do you have a clear policy that indicates what her quotas were? TIMING Do you have documentation that you properly communicated expected sales quotas? LANGUAGE Jane’s numbers aren’t where they should be – this is not specific enough
  50. 50. Delivering the MESSAGE Hold a termination meeting where the employee is shown his already-documented underperformance – stay on message that the termination is due to sales performance
  51. 51. Think about your documentation trail like a hot stove
  52. 52. Documents should reflect that your policies are: Foreseeable Immediate Uniform Impersonal
  53. 53. Jane Gleaves Kegler Brown Hill + Ritter jgleaves@keglerbrown.com keglerbrown.com/gleaves 614-462-5484
  54. 54. CLOSING THE PAY GAP Case Law + Best Practices for Equal Pay Presented by Erin Cleary Herbst
  55. 55. OVERVIEW Wage Gap Data Statutory Summary Case Law Updates Case Study: Law Firms! Best Practice Tips + Strategies
  56. 56. Wage Gap Data + BACKGROUND
  57. 57. National Committee on Pay Equity A Tuesday in April is selected in advance symbolically Census statistics not available until August or September
  58. 58. Source: equalpaytoday.org Demographic Date Wage Discrepancy All full time women, compared to all full time men April 2, 2019 $0.80 Women by race, compared to white, non-Hispanic men: Asian-American women March 5, 2019 $0.85 White women April 19, 2019 $0.77 African-American / Black women August 22, 2019 $0.61 Native American women September 23, 2019 $0.58 Latinas November 20, 2019 $0.53 All mothers compared with all fathers June 10, 2019 $0.69
  59. 59. 78% 89% 69%
  60. 60. Geographic-Based FACTORS Predominant Industries Demographics Cultural Differences State Law + Policy Differences
  61. 61. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap Financial Managers 554,104 100,575 $65,237 65% 19,581,000,000 Physicians + Surgeons 274,511 243,072 171,880 71% 19,543,000,000 Accountants + Auditors 1,014,827 77,320 60,280 78% 17,293,000,000 First-line supervisors of retail sales workers 1,177,835 47,774 35,217 74% 14,790,000,000 Registered nurses 2,092,489 71,590 65,612 92% 12,509,000,000 Marketing + Sales Managers 383,998 100,288 71,066 71% 11,221,000,000 Lawyers 320,159 140,270 106,837 76% 10,704,000,000 Chief Executives 266,890 148,867 111,236 75% 10,043,000,000 Medical + Health Services Managers 456,984 87,451 67,129 77% 9,287,000,000 Education Administrators 500,325 83,383 67,989 78% 9,203,000,000
  62. 62. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap Registered Nurses 2,092,489 71,590 65,612 92% 12,509,000,000 Secretaries + Administrative Assistants 2,060,289 42,566 38,470 90% 8,439,000,000 Elementary + Middle School Teachers 1,933,074 55,197 50,766 92% 8,565,000,000 Customer Service Representatives 1,196,513 37,623 32,893 87% 5,660,000,000 First-Line Supervisors of Retail Sales Workers 1,177,835 47,774 35,217 74% 14,790,000,000 Nursing, Psychiatric + Home Health Aides 1,071,789 30,125 26,816 89% 3,547,000,000 Accountants + Auditors 1,014,827 77,320 60,280 78% 17,293,000,000 Office Clerks, General 734,622 39,160 35,226 90% 2,890,000,000 First-Line Supervisors of Office + Administrative Support Workers 729,985 57,466 46,555 81% 7,965,000,000 Bookkeeping, Accounting + Auditing Clerks 723,342 45,254 39,939 88% 3,845,000,000
  63. 63. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap Securities, Commodities + Financial Services Sales Agents 60,572 $101,423 61,936 61% 2,392,000,000 Financial Managers 554,104 $100,575 65,237 65% 19,581,000,000 Personal Financial Advisors 109,105 108,575 71,154 66% 4,042,000,000 Production, Planning + Expediting Clerks 162,744 60,836 41,040 67% 3,222,000,000 Credit Counselors + Loan Officers 150,841 77,214 52,257 68% 3,765,000,000 Inspectors, Testers, Sorters, Samplers + Weighers 242,910 46,955 32,280 69% 3,565,000,000 Retail Salespersons 644,453 40,182 27,800 69% 7,980,000,000 First-Line Supervisors of Housekeeping + Janitorial Workers 71,736 43,968 30,461 69% 969,000,000 Insurance Sales Agents 212,096 61,768 42,951 70% 3,991,000,000 Sales + Related Workers, All Other 83,106 67,634 47,543 70% 1,670,000,000
  64. 64. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap Wholesale + Retail Buyers, Except Farm Products 65,395 41,903 45,496 109% -235,000,000 Combined Food Preparation + Serving Workers 87,640 20,886 20,592 99% 26,000,000 Writers + Authors 78,568 56,059 55,092 98% 76,000,000 Pharmacists 111,516 122,441 120,173 98% $253,000,000 Counselors 416,330 47,207 46,104 98% 459,000,000 Social Workers 586,871 46,906 45,644 98% 741,000,000 Clinical Laboratory Technologists + Technicians 179,012 50,108 48,241 96% 334,000,000 Receptionists + Information Clerks 617,205 30,319 28,919 95% 864,000,000 Computer Occupations, All Other 137,341 73,301 68,923 94% 601,000,000 Security Guards + Gaming Surveillance Officers 156,280 32,003 30,072 94% 302,000,000
  65. 65. TAKE-AWAYS Exists to some extent in most industries Gender gap tends to be exacerbated in occupations that are either male- dominated or highly compensated
  66. 66. Questioning the STATISTICS Education Years of Experience Hours Worked Choice of Industry or Specialty
  67. 67. TAKE-AWAYS Unadjusted wage gap steadily improving “Unexplained” wage gap hovered at around 8% overall since 1989
  68. 68. OVERVIEW Wage Gap Data Statutory Summary Case Law Updates Case Study: Law Firms! Best Practice Tips + Strategies
  69. 69. Statutory FRAMEWORK Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964 Lilly Ledbetter Fair Pay Act of 2009 Paycheck Fairness Act (not passed) State Laws
  70. 70. No employer shall discriminate, within any establishment, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to a (1) seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. 29 USC §206(d)
  71. 71. Title VII of the Civil Rights Act of 1964 It is an unlawful employment practice for an employer to … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 USC §2000e-2(a)(1)
  72. 72. Lilly Ledbetter Fair Pay Act Amends Title VII of the Civil Rights Act of 1964, which has a statute of limitations of 180 days to bring a discrimination claim Each new paycheck resets the clock with respect to the statute of limitations for pay discrimination
  73. 73. Would limit permissible discriminatory factors to education, training, experience Change defense burdens for company Provide additional remedies + penalties Prohibit retaliation against workers who inquire about their employers’ wage practices or disclose their own wages Directs DOL to collect wage-related data Proposed LEGISLATION
  74. 74. Employees can be compared outside of the same “establishment” Employees can be compared if they engage in “substantially similar work” Employers cannot prohibit employees from disclosing or discussing their wages or inquiring about others’ wages Employer defenses more limited Bona fide factor other than sex, such as education, training, or experience Bona fide factor cannot be derived from a sex-based differential Extends statute of limitation; expands remedies
  75. 75. Other More Aggressive States Ohio follows the federal Equal Pay Act 6th Circ – Prior pay ok if there is good reason to rely on it
  76. 76. OVERVIEW Wage Gap Data Statutory Summary Case Law Updates Case Study: Law Firms! Best Practice Tips + Strategies
  77. 77. Case Law UPDATES
  78. 78. Hastings v. First Community Mortgage HR manager alleges another female executive was paid at lower rates than male counterparts Plaintiff alleged that her bonus structure was taken away, and she personally was the only director who was not eligible for a bonus Plaintiff alleged that she was promoted without receiving any change in compensation Two allegations didn’t establish gender discrimination
  79. 79. Rizo v. Yovino Fresno County School System gender pay discrimination lawsuit Female math consultant brought suit when she learned a male colleague had been brought on at a higher pay grade for same work Plaintiff was told the man was paid more due to both of their prior salaries at other workplaces Federal district court found for Fresno County
  80. 80. Rizo v. Yovino 9th Circuit en banc interpreted Equal Pay Act to say prior salary history is NOT an acceptable differential based on any other factor other than sex Reversed previous decision Reliance on past wages, either alone or in conjunction with less invidious factors, perpetuated the pervasive gender discrimination that the EPA sought to eradicate Supreme Court remanded on technical grounds
  81. 81. Wal-Mart Stores, Inc. v. Dukes This 2011 Supreme Court holding made it extremely difficult for gender discrimination to proceed as a class action when discriminatory treatment was the product of local supervisors exercising their discretion in awarding pay and promotions In line with the ruling of Wal-Mart v. Dukes, KPMG utilized a decentralized system for determining pay and promotion Background to KPMG Case
  82. 82. Kassman v. KPMG Class action brought by 10,000 female KPMG employees since 2009 Pay disparity = 2.8% Compensate at market rate, based on performance Salary ranges + budgets approved at senior management level Partner or Managing Director uses guidelines to determine compensation
  83. 83. Kassman v. KPMG Plaintiffs argue a “compounding pay gap” issue, and cite Rizo v. Yovino Court finds that Plaintiffs have not shown that source salaries for women were lower Evidence shows that KPMG moves employees to the middle of their pay bands over time
  84. 84. Kassman v. KPMG Individual decisions made by managers at local level Plaintiffs cannot show commonality on their disparate treatment claim District court indicates that it is following Supreme Court guidance + cannot certify the class because of precedent set by Wal-Mart v. Dukes
  85. 85. "Although any statistically significant pay disparity on account of gender would be improper, for context, the national disparity in pay between women and men is 18%.”
  86. 86. “…the motion for class certification is denied.2 “2 One wonders, however, about the empirical reality of a key assumption that underlies Dukes – that ‘left to their own devices most managers in any corporation – and surely most managers in a corporation that forbids sex discrimination – would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.’ Dukes at 355. This assumption is contradicted by studies finding that implicit bias has profound effects. See, e.g., Dukes [Ginsburg dissent].”
  87. 87. Departure of 3 high- level female executives Encouraged internal sexual harassment survey Survey results triggered investigation Gender pay disparities were reviewed Email went out saying issues resolved Spokesperson: problem didn’t reflect company culture Nike
  88. 88. Nike Class-Action Lawsuit 4 women claim Nike violated the Equal Pay Act Demands court-ordered structural reform of hiring and compensation Demands backpay for women who left due to discrimination Special focus on compensation based on each employee’s previous individual compensation Motion to dismiss filed by Nike on 11/5 – case pending
  89. 89. Teachers hired for daycare provided to employees 147 women 3 men Allege all but 1 woman hired at Level 1 salary Allege 2/3 men hired at Level 2 salary Men have less experience and no master’s degree Google: some new hires paid based on initial job interview Google
  90. 90. Google Class-Action Lawsuit DOL investigation of 21,000 employees for 2015 “Systemic compensation disparities against women pretty much across the entire workforce” Google claimed it had closed the gender pay gap and vehemently disagreed with the DOL conclusion
  91. 91. Google Class-Action Lawsuit New narrowed class action suit filed in January of 2018 Study excluded 11% of employees, including all Sr. VPs and above Pressure from activist shareholder to disclose information on pay gaps Google released study showing no significant gender/race pay gap Class action lawsuit dismissed by judge in December 2017
  92. 92. 0 5 10 15 20 25 30 35 40 45 2014 2015 2016 2017 2018 Sex-Based Discrimination Filings Equal Pay Act Filings EEOC Enforcement Actions
  93. 93. “Energetically enforcing equal pay laws is currently one of the national strategic priorities for the EEOC” Published in a press release as of August 31, 2017
  94. 94. EEOC v. First Metropolitan Financial Services, Inc. EEOC vs. PS Holding LLC EEOC vs. Denton County
  95. 95. OVERVIEW Wage Gap Data Statutory Summary Case Law Updates Case Study: Law Firms! Best Practice Tips + Strategies
  96. 96. Picking on OURSELVES Partner compensation survey from Major, Lindsey & Africa, focused on large, private US law firms, published in December 2018
  97. 97. 53% Male partners are earning 53% more than female partners
  98. 98. 28% Only 28% of partners responded that they thought there was a gender pay gap amongst partners
  99. 99. 19% 19% of equity partners are women
  100. 100. Women are less likely to respond that they are excited about making partner Expect to spend less of their career at the law firm than male counterparts Feel forced to make significant trade-offs between career and family Not convinced by law firms’ statements of commitment to gender diversity See the playing field as uneven Likely to fear that participation in flex- work programs will harm their career
  101. 101. McKinsey RECOMMENDATIONS Make flex-work programs a viable option, and culturally acceptable Strengthen senior-level connections that can accelerate women’s careers Create accountability for gender diversity
  102. 102. Compensation FACTORS Individual Timekeeper Statistics Client Origination Receipts Subjective Factors
  103. 103. Task Force RECOMMENDATIONS Build transparency into compensation process Include a critical mass of diverse members on the compensation committee Develop systems to promote fair and accurate allocation of billing + origination Require diversity in pitch teams and related business-development efforts
  104. 104. Reward behaviors that promote institutional sustainability Implement formal client succession protocols Measure and report results Develop a process to resolve allocation disputes promptly and equitably Implement training for all involved in the evaluation and compensation process Engage the client’s role in gender equity Ensure equitable compensation for partners on a reduced-hours schedule Maximize effectiveness of affinity groups
  105. 105. Open Settlement AGREEMENTS as Agents for Change
  106. 106. OVERVIEW Wage Gap Data Statutory Summary Case Law Updates Case Study: Law Firms! Best Practice Tips + Strategies
  107. 107. Compensation DISCLOSURE
  108. 108. Handbooks should no longer contain a blanket prohibition on employees disclosing their compensation to others
  109. 109. No need to disclose salaries upon inquiry, but may not preclude the employee from making that inquiry directly to other employees
  110. 110. Management training on the limited right of employees to ask co-workers about their compensation for the sole purpose of ascertaining their rights under the Equal Pay Act
  111. 111. Compensation PROCEDURES
  112. 112. Train decision-makers on the Equal Pay Act
  113. 113. Disperse compensation decisions within framework guidelines
  114. 114. Review job descriptions for accuracy/avoid different types of work with same title
  115. 115. Establish salary ranges for each position/category
  116. 116. Compensation STRUCTURES
  117. 117. Salary ranges or framework deviations should be limited in amount
  118. 118. Salary ranges should align for similar work
  119. 119. Compensation PRACTICES
  120. 120. Limit or eliminate: Pay negotiations Using tenure or years of experience alone to determine pay Inquiring about historical salary for new employees Prohibiting employees from discussing compensation
  121. 121. Going Beyond COMPLIANCE Mentoring Opportunities Critical Mass PT, Flex Time Policies + Stigma Privileged Audit
  122. 122. Erin Cleary Herbst Kegler Brown Hill + Ritter eherbst@keglerbrown.com keglerbrown.com/herbst 614-462-5420
  123. 123. The cost of Workplace violence Tony Casper CEO and Consultant
  124. 124. Kraft Foods, 2010 $46.5 million 2 deaths
  125. 125. Department of Public Health San Bernardino, CA 2015  14 killed  21 injured
  126. 126. News Headlines Read… Jury Awards $40M In Damages In Kraft Foods Plant Shooting Report: Virginia Tech massacre cost $48.2 million Las Vegas Shooting Recovery Will Cost at Least $600 Million
  127. 127. Virginia Tech 2007 $48.2 Million 11.4 Million $2 Million
  128. 128. 5,147 Fatal injuries in 2017  Average out of court settlements $500,000.  Average jury awarded of $3 million
  129. 129. 458 Homicides in the workplace
  130. 130. For 6-18 weeks after the incident: Productivity decreased by 50%
  131. 131. For 6-18 weeks after the incident: Productivity decreased by 50% 20-40% turnover rate
  132. 132. Financial Impact of Workplace Violence: 1. Incident debriefing with impacted employees (20 supervisors and 130 employees) 2. Plant closed due to incident for 3 and one half days 3. Revenue lost (assumes for 6 weeks after the incident there is a 25% productivity decline) 4. Clean up of incident area/crime scene 5. Increase in annual health care premiums (use of psychological services) 6. Increase in annual worker’s compensation rate premiums. 7. Permanent shut down of plant area where incident occurred and relocation of work operations to another section of plant. 8. Lawsuit settlement 9. Public relations campaign, marketing, communication strategy with stakeholders to counter negative press and restore confidence in company 10. Replacement cost for 10% turnover of workforce, e.g., 25 managers and 75 employees. $3,942.00 $703,125.00 $2,850,000.00 $2,000.00 $5,000.00 $3,000.00 $50,000.00 $300,000.00 $10,000.00 $768,750.00 $4,695,817.00Total:
  133. 133. Avoid with: forethought, strategic planning and QUALITY training.
  134. 134. Strategic planning…  Physical Security Assessment  Emergency Action Plans  Active Aggressor/Shooter Response training  Threat Assessment Team  Drug-Free Workplace training
  135. 135. Physical Security Assessments
  136. 136. Emergency Action Plans  Active Aggressor Response- should include practical exercises or evacuation, table top exercise, and full scale scenario trainings  Fire Evacuation Process- should include written guidelines and evacuation drills  Threat reporting process- should be supported through a strong training component. Goal is to mitigate loss!
  137. 137. Active Aggressor/Shooter Response training
  138. 138. Drug-Free Workplace training  How to recognize behaviors of drug abuse  New drugs on the horizon and the effects
  139. 139. Threat Assessment Team  Human Resources  Employee Assistance Manager  Security  Facilities Manager  Legal Counsel  Senior Executive Leadership  Union Representative (if applicable)  Security Consultant (outside contractor such as Safe Passage Consulting )
  140. 140. How to implement these plans?
  141. 141. Ensuring key stakeholders understand how these items align with the organization’s strategic goals WHY
  142. 142. OSHA General Duty Clause 5(a)(1) states: Employers will provide a place of employment which is, “free of recognized hazards that are causing or are likely to cause death or serious physical harm”
  143. 143. Plan now or pay later?
  144. 144. Any Questions?
  145. 145.  Tony Casper: CEO and Consultant  614-404-4866  Casper@safepassageconsulting.com  www.SafePassageConsulting.com
  146. 146. Presented by Lloyd Pierre-Louis + Randy Mikes A Legal Outlook of Medical Marijuana What’s on the HORIZON?
  147. 147. The crux of the Ohio Medical Marijuana Act (the “Act”) is that it permits a patient, on the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition
  148. 148. Qualifying Conditions  AIDS  Amyotrophic Lateral Sclerosis  Alzheimer’s Disease  Cancer  Chronic Traumatic Encephalopathy  Crohn’s Disease  Epilepsy (or another seizure disorder)  Fibromyalgia  Glaucoma  Hepatitis C  Inflammatory Bowel Disease  Multiple Sclerosis  Pain (either chronic and severe or intractable)  Parkinson’s disease  Positive status for HIV  Post-traumatic Stress Disorder  Sickle Cell Anemia  Spinal Cord Disease or injury  Tourette’s Syndrome  Traumatic Brain Injury  Ulcerative Colitis
  149. 149. The Act specifies that the General Assembly declares its intent to recommend that Congress, the U.S. Attorney General, and the U.S. Drug Enforcement Administration take actions as necessary to reclassify marijuana in an effort to ease the regulatory burdens associated with research on the potential medical benefits of marijuana
  150. 150. Marijuana remains illegal under federal law 33 states + District of Columbia have legalized some form of medical marijuana as of 2018 9 of the 30 medical marijuana states have legalized the recreational use of marijuana
  151. 151. More than 2 dozen countries have legalized medical marijuana Full legislation in Uruguay with sales underway July 2019 Israel as a hub of research Currently full recreational use legal federally in Canada
  152. 152. HB523 WHO WHAT WHEN WHERE HOW
  153. 153. The act defines "medical marijuana" as marijuana that is cultivated, processed, dispensed, tested, possessed, or used for a medical purpose
  154. 154. Federal and Ohio law classify marijuana as a schedule I controlled substance, making its distribution, including by prescription, illegal
  155. 155. For the purpose of this law only, medical marijuana is a schedule II controlled substance under Ohio law
  156. 156. 90Days
  157. 157. 17,077Registered Patients as of February 9 Advising about the risks and benefits of medical marijuana Recommending that a patient use medical marijuana Monitoring a patient's treatment with medical marijuana
  158. 158. 126 lbs. sold so far worth $947,000
  159. 159. Hospitals are not prohibited from barring their doctors from issuing recommendations
  160. 160. Some health care systems say absolutely NO
  161. 161. Some health care systems say some form of YES
  162. 162. Some hospitals don’t permit medical marijuana use, but allow their doctors to become certified and/or recommend
  163. 163. Some hospitals are still developing policies on medical marijuana
  164. 164. 1Wintersville (two) Canton 2 Wickliffe 3 Sandusky 4First Certificates of Operation to Dispensaries issued Jan. 14, 2019 5 E. Liverpool Jefferson (two) 6 Elyria 7 8 Jackson
  165. 165. free
  166. 166. Require an employer to permit or accommodate an employee's use, possession, or distribution of medical marijuana
  167. 167. Prohibit an employer from refusing to hire, firing, disciplining, or otherwise taking an adverse employment action against a person because of that person's use, possession, or distribution of medical marijuana
  168. 168. Permit a person to sue an employer for taking any of those actions
  169. 169. Prohibit an employer from establishing + enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance policy
  170. 170. Interfere with any federal restrictions on employment, including U.S. Department of Transportation regulations
  171. 171. Affect authority of the Administrator of Workers' Compensation to grant rebates or discounts on premium rates to employers that participate in a drug-free workplace program
  172. 172. RC 4123.54 “Rebuttable presumption" retained for medical marijuana “Rebuttable presumption” arises that an employee is intoxicated and that the intoxication was the proximate cause of the injury where a qualifying chemical test shows the presence of a cannabinoids in excess of the statutory limit
  173. 173. Qualifying Chemical TEST Issued within 32 hours of injury Administered after employer had “reasonable cause” Specific, objective facts + reported use
  174. 174. The Ohio Bureau of Workers’ Compensation will not pay for medical marijuana
  175. 175. Pays only for drugs approved by FDA Pays only for prescriptions dispensed by a registered pharmacist from an enrolled provider Pharmaceutical formulary does not list marijuana as a drug approved for reimbursement
  176. 176. Other Interesting LEGAL TIDBITS + CASES
  177. 177. Pending BILLS
  178. 178. Lloyd Pierre-Louis Kegler Brown Hill + Ritter lpierre-louis@keglerbrown.com keglerbrown.com/pierrelouis 614-462-5477 Randy Mikes Kegler Brown Hill + Ritter rmikes@keglerbrown.com keglerbrown.com/mikes 614-462-5414
  179. 179. Presented by Brendan Feheley My Mind’s Playing Tricks on Me! FMLA, ADA + Mental Health Issues
  180. 180. Mental Health IN AMERICA
  181. 181. 18%Mental Health Concerns 8%Substance Abuse Problems 9.8MAdults with Suicidal Thoughts 2MYoung Adults with Severe Depression
  182. 182. What it MEANS Around 1 in 5 employees are dealing with a mental health issue Many times they are not receiving help for the issue The problem is not going away and may be getting worse
  183. 183. FMLA Defines a serious health condition as: “an illness, injury, impairment or physical or mental condition that involves inpatient care in a hospital, hospice or residential medical care facility; or continuing treatment by a health care provider.”
  184. 184. ADA Defines disability as: “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”
  185. 185. What’s An Impairment? An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
  186. 186. Depression is a disability, when, if active, it impairs a major life activity, regardless of medication that may assist with the condition
  187. 187. SUMMARY These conditions are usually going to be considered serious health conditions They are going to involve continuous treatment They are going to substantially limit a major life activity, when active
  188. 188. Anna has an issue with attendance, she’s chronically late Hypothetical Scenario: Anxious Anna She’s received a verbal warning, and last week received a written warning After her written warning, she comes to you and tells you she has anxiety disorder She tells you she’s been treating with a psychiatrist once a week for the past month She says she gets anxious about driving into work and that causes her to be late
  189. 189. Hypothetical Scenario: Anxious Anna Is Anna’s condition a serious health condition covered by FMLA? Is Anna’s condition covered by the ADA? If so, what should you do?
  190. 190. Provide the paperwork and force the doctor to complete it Check the job description
  191. 191. What if the doctor doesn’t complete the FMLA form?
  192. 192. Can you force an employee to take leave if they say no?
  193. 193. Intermittent LEAVE Track it Recertification?
  194. 194. Americans with Disabilities Act
  195. 195. To Employers To Medical Providers EEOC Guidance
  196. 196. Interactive PROCESS When do you do it? What should you discuss? Should you follow up with the doctor?
  197. 197. Can you ask an employee about mental illness? If employees asks for reasonable accommodation After job offer, but before employment Company engaging in affirmative action for people with disabilities Objective evidence employee is unable to do their job or pose safety risk
  198. 198. Hypothetical Scenario: Anxious Anna What if Anna doesn’t come to you? Sporadic absences are not enough to qualify for FMLA or ADA alone Remember – you have to have information that leads you to believe Anna has a condition that qualifies for the FMLA or ADA Do you go to her and ask?
  199. 199. Hypothetical Scenario: Anxious Anna What if Anna’s supervisor comes to you? What if supervisor says, “I know she has been treated for anxiety before”? Now we have a regarded as problem Do you address with Anna? What about the reference to her prior treatment? Now what?
  200. 200. FREQUENT Conditions + Accommodations
  201. 201. Threatening BEHAVIOR
  202. 202. Depression
  203. 203. PTSD
  204. 204. Support ANIMAL/PERSON
  205. 205. Consider the Work ENVIRONMENT Furniture Lighting Open/closed workspace
  206. 206. Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482

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