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2020 Kegler Brown Labor Seminar

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The Kegler Brown 2020 Managing Labor + Employee Relations Seminar, held on 3/3/2020 at OSU's Fawcett Center.

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2020 Kegler Brown Labor Seminar

  1. 1. Presented by Brendan Feheley What to Expect in 2020
  2. 2. Immediate Concerns + CONSIDERATIONS
  3. 3. Continue paying attention to gender gaps Consider potential impact of using AI in hiring Make sure you’re comfortable with your reporting policies
  4. 4. Employees continue to want more time away from work Push toward predictive scheduling More flexibility in where/when they do their work Local wage increases The Price of Top TALENT
  5. 5. Federal LEVEL DOL will continue to work on application of the overtime rule Fluctuating work week The NLRB will continue its retreat to Pre-Obama rules Continued discussion of paid leave Decreased regulation wherever possible OSHA will continue rule-making
  6. 6. Continued monitoring of medical marijuana Push for recreational marijuana Minimum wage increase to $8.70/hr Much talk about paid family leave + little or no action Continued review of arbitration agreements Continued agency review of independent contractors State LEVEL
  7. 7. Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482
  8. 8. Presented by Dave McCarty, Kegler Brown + Jim Anderson, InfoQuest Private Eyes Are Watching YOU
  9. 9. Acting with purpose to defraud or knowing he/she is facilitating a fraud, does any of the following: Receives W/C benefits to which the person is not entitled Makes, presents or causes to be made or presented a false or misleading statement with the purpose of securing payment for goods or services Alters, falsifies, destroys, conceals or removes any record or document that is necessary to establish the validity of a claim Enters into an agreement or conspiracy to defraud the BWC or a self- insuring employer by making, presenting or causing to be made or presented a false claim for W/C benefits
  10. 10. REJECTQuestionable Claims
  11. 11. LATEReporting of Injury
  12. 12. The “Problem” EMPLOYEE Claimant has a poor attendance record Claimant is a new employee, on probation, facing layoff
  13. 13. The “Monday Morning” INJURY Accident or injury reportedly occurred late Friday or early Monday morning, indicating that it actually occurred off the job over the weekend
  14. 14. The “Bitter” EMPLOYEE For example, employee resents job assignment, thinks she can choose for herself what she wants to do
  15. 15. The “Supplemental Pension” EMPLOYEE
  16. 16. Employees with pre-existing related medical conditions But be careful!
  17. 17. Employee first files claim/seeks treatment after termination or with termination imminent
  18. 18. Claimant is engaged in seasonable work that is about to end
  19. 19. Claimant has financial problems
  20. 20. No witnesses to reported accident or injury, or witnesses have a "close" relationship with the claimant
  21. 21. Claimant provides vague or inconsistent details about the accident or injury
  22. 22. Claimant + witnesses provide conflicting details about the accident or injury
  23. 23. Accident or injury reportedly occurred at a location away from where the claimant normally works
  24. 24. Claimant's coworkers express doubt about whether the accident or injury actually occurred Nothing can kill morale among good employees quite like bad employees “getting away with it”
  25. 25. Claimant is unusually pushy about settling the claim
  26. 26. Documentation presented by the claimant contains irregularities or questionable content
  27. 27. Claimant is involved in physical hobbies or sports For example, is it hunting season?
  28. 28. Incident report and the medical evaluation contain conflicting information
  29. 29. Whenever possible, get SIU involved! Provide physical description Home address Work address Hang out spots Hobbies Medical Appointments All solid info of likely/potential fraud
  30. 30. Tips to Fight FRAUD
  31. 31. Social media is often a fertile source
  32. 32. The More the MERRIER Combats the good/bad days argument – maybe enough to deny months or years of compensation
  33. 33. Tips for Industrial Commission Hearings Order a court reporter Ask for extra time Live witness are generally better
  34. 34. Doctor reviewed + confirmed fracture could not have occurred as alleged
  35. 35. Video proves burns could not have happened from a defective welder
  36. 36. Video shows what ACTUALLY happened: Horseplay
  37. 37. TRUE STORY Successfully defended this client on a horseplay defense
  38. 38. Dave McCarty Kegler Brown Hill + Ritter dmccarty@keglerbrown.com keglerbrown.com/mccarty 614-462-5469 Jim Anderson Infoquest janderson@infoquestinv.com infoquestinv.com (614) 761-3003
  39. 39. Employer as Debt Collector: WAGE GARNISHMENT Presented by Larry McClatchey
  40. 40. Types of Withholding from Personal Earnings Wage Garnishment Chapter 13 Bankruptcy Pay Orders Domestic Court Orders Administrative Withholding Orders
  41. 41. Process + Procedure to Garnish Wages Employee Notice of Court Proceedings to Collect Debt Personal Earnings Affidavit of Judgment Creditor Notice and Order to Employer as “Garnishee”
  42. 42. Obligations of Creditors + Duties of Employer Creditor's Affidavit of Current Balance Interim Report and Answer of Garnishee Provide Notices to Employee Withhold and Pay Over Funds
  43. 43. Continuing Duties of Employer Annual Monitoring Final Report of Garnishee Employer Non-Compliance
  44. 44. Protection of Judgment Debtor Protection of Employment Prior Notice and Optional Voluntary Payment Exempt Income Request for Hearing on Garnishment
  45. 45. Limitations Statutory Limitation on Amount of Garnishment Disposable Earnings Not Clearly Defined Worksheet Calculation of Voluntary Payment Amount Bankruptcy or Statutory Trusteeship
  46. 46. Priority of Competing Garnishment Orders Continuing Garnishment Competing Garnishment Priority Scheme Higher Priority Claims May Have Limits
  47. 47. Larry McClatchey Kegler Brown Hill + Ritter lmcclatchey@keglerbrown.com keglerbrown.com/mcclatchey 614-462-5463
  48. 48. 2020 Case Law UPDATE Presented by Danielle Crane
  49. 49. Arbitration Agreements
  50. 50. Epic Systems Decision New EEOC Policy Arbitration Agreements Continued Interest
  51. 51. Ambiguous Agreements Beware Lamps Plus v. Varela
  52. 52. Expansive Agreements, Too Thomas v. Hyundai of Bedford
  53. 53. Clear, unambiguous agreements Limit to employment- related claims Consider alternatives Lessons Learned
  54. 54. Title VII
  55. 55. Logan v. MGM Grand Title VII’s Statute of Limitations Cannot be Contractually Shortened Arbitration alternatives Waivers are still important
  56. 56. The Family + Medical Leave Act
  57. 57. Leave Abuse LaBelle v. Cleveland Cliffs
  58. 58. Americans with Disabilities Act
  59. 59. Genetic Information Not Protected Under ADA Darby v. Childvine
  60. 60. National Labor Relations Board
  61. 61. Caesars Entertainment Overrules Purple Communications Employees have no right to use employer- provided email for non-work purposes Employers maintain control over their property, including communications systems, and may establish nondiscriminatory rules restricting employee use
  62. 62. Apogee Retail A facially neutral rule requiring confidentiality during investigations is presumptively legal Employers may require confidentiality even after a workplace investigation has concluded if a legitimate business interest outweighs the impact on employees’ protected rights Overruled Banner Estrella Medical Center
  63. 63. Joint Employer TEST Company must exercise “substantial direct and immediate” control over the most important elements of a worker’s job
  64. 64. Department of Labor
  65. 65. Joint Employer TEST 1 Hires or fires the employee 2 Supervises and controls the employee’s work schedule 3 Determines the employee’s rate and method of payment 4 Maintains the employee’s employment records
  66. 66. New Overtime REGULATIONS Salary-Basis Test Questions Overtime Calculations
  67. 67. Coming Soon
  68. 68. Title VII Does Title VII prohibit discrimination on the basis of sexual orientation and/or gender identity?
  69. 69. Discrimination Under Section 1981 Comcast v. National Association of African American-Owned Media
  70. 70. ADEA Babb v. Wilkie
  71. 71. Other Trends + Legislation
  72. 72. hit an all-time high for sexual harassment violation pay-outs 2019 of EEOC charges filed last year were for retaliation 50% were sexual harassment/hostile work environment 10%
  73. 73. Application + Hiring INQUIRIES Historical Compensation Fair Chance to Compete for Jobs Act
  74. 74. Advancing Support for Working Families Act
  75. 75. Danielle Crane Kegler Brown Hill + Ritter dcrane@keglerbrown.com keglerbrown.com/crane 614-462-5444
  76. 76. Presented by Jane Gleaves INCIDENT INVESTIGATIONS
  77. 77. What happens when you’re faced with an incident or complaint that requires a full- fledged investigation?
  78. 78. LAWSUIT claiming you retaliated against the employee who was a victim LAWSUIT by an employee who was disciplined or fired after being accused of misconduct OR
  79. 79. Conduct a Competent INVESTIGATION
  80. 80. 2 True Cautionary TALES
  81. 81. Cadena v. Pacesetter Pacesetter is a home improvement company which sells windows, siding, doors, and cabinets In July 1996, Pacesetter hired Cadena to work as a telemarketer in its Lenexa, Kansas office She had a supervisor named Bauersfield Several months after Cadena was hired, Bauersfeld began subjecting her to a steady barrage of severe sexual harassment
  82. 82. That is the way Charlie is…
  83. 83. Pacesetter had conducted an investigation into the conduct BUT: The investigator never spoke to Cadena, Bauersfeld or Hawley She didn’t know that Cadena was the complainant or that Bauersfeld was the accused Not sure whether she had ever been told the nature or the specifics of the complaint
  84. 84. Smith v. First Union National Bank Smith worked in the consumer collections department and reported to a man named Ronald Scoggins Scoggins subjected Smith to a barrage of threats and gender- based insults Scoggins' remarks began when he informed Smith that he would have preferred a male in the team leader position because males are "natural leaders”
  85. 85. Women should not be in management because they are “too emotional to handle a managerial role”
  86. 86. Smith v. First Union National Bank Nov. 3, 1995: Smith made her first formal complaint about Scoggins’ harassment to HR HR launched an investigation, Smith asked to keep her complaint anonymous for fear of retaliation First Union’s investigation focused on Smith’s concerns about Scoggin’s management style and ignored her allegations of sexual harassment
  87. 87. First Union never reprimanded Scoggins for his harassment and instead, put him on probation for ninety days because of his inappropriate management style First Union allowed Scoggins to remain in his position in the Consumer Credit Department
  88. 88. Smith v. First Union National Bank Nov. 14, 1995: First Union temporarily suspended Smith and Scoggins with pay Both employees were sent to its Employee Assistance Program First Union transferred Smith out of Scoggins’ work team, but onto another team on the same floor Smith sued, First Union retaliated
  89. 89. First Union failed to exercise reasonable care to prevent Scoggins‘ harassment 1 They had a policy but it needs to be "both reasonably designed + reasonably effectual" 2
  90. 90. Investigation was INADEQUATE
  91. 91. Smith v. First Union National Bank Hutto had never investigated a sexual harassment claim when he investigated Smith’s complaints Hutto failed to ask Scoggins whether he made any of the sexually harassing remarks to Smith If Hutto had asked Scoggins about Smith's allegations of sexual harassment, he would have discovered that Scoggins admits to making some of the harassing remarks
  92. 92. I don’t know why I didn’t follow up. I don’t know.
  93. 93. Conduct a Competent INVESTIGATION
  94. 94. Multiple avenues Appropriate review Appropriate steps will be taken No retaliation
  95. 95. Vandalism Small thefts Fights or threats of violence Safety issues Sexual harassment Discrimination Misuse of a company’s computer system Information posted about a company on a blog Drug or alcohol abuse
  96. 96. What if the “victim“ doesn’t want to investigate?
  97. 97. Avoid Legal PROBLEMS Take workplace problems seriously Never ignore complaints of wrongdoing Always do initial research before deciding an investigation isn’t warranted Make sure you know all the facts before taking disciplinary action
  98. 98. Conduct an Investigation PROMPTLY
  99. 99. Conduct Investigations CONSISTENTLY
  100. 100. Key Elements of a Successful INVESTIGATION Selecting an appropriate investigator1 Gathering all the documents2 Conducting effective interviews3 Documenting the investigation4
  101. 101. Key Elements of a Successful INVESTIGATION Selecting an appropriate investigator1 Knowledge of law + workplace Neutral, objective + independent Good judgment Rigorous – disciplined thinker Effective communicator Ability to make a good witness
  102. 102. Can your lawyer be your investigator?
  103. 103. Human Resources Independent Lawyer Independent HR Consultant Higher on the Totem Pole
  104. 104. Inadequate Investigator = Inadequate Investigation
  105. 105. Key Elements of a Successful INVESTIGATION Gathering all the documents2 E-mails – work with I.T. Review employee privacy policy Document retention policy + procedures
  106. 106. Key Elements of a Successful INVESTIGATION Conducting effective interviews3 Begin promptly Preliminary statement or checklist Consider the order of interviews Limit those present for interviews Appropriately address refusals to participate
  107. 107. Preliminary Statement or CHECKLIST Outlines reason for the interview and the process that will be followed Includes information about confidentiality + interviewer’s contact info Have each witness initial the document Provide a copy to the witness during the interview
  108. 108. Who to INTERVIEW Complainant + accused Known witnesses Additional witnesses identified through interviews Re-interviews
  109. 109. Interviewing the ACCUSED Request that the alleged harasser respond to the allegations Include a management witness in all discussions
  110. 110. Can third parties attend?
  111. 111. Can someone from outside the company attend? This request should be rejected
  112. 112. Can a co-worker the employee requests attend? No – participation of others is undesirable
  113. 113. Can a lawyer attend? This request typically should be rejected
  114. 114. Tape recorder itself might chill the dialogue1 Company has little control over what is done with it2 Recorded could be presented publicly3 Requests to Tape Record the Interview
  115. 115. Make sure recorder is in plain view1 Interviewer must state date/time/place, name of interviewer and witness 2 Witness must consent on tape to the recording3 Confirm that interview was recorder with consent at the end of interview 4 If You Must Tape Record…
  116. 116. Do NOT Promise Confidentiality
  117. 117. Are employees obligated to participate in a company investigation? Yes – employees do have an obligation
  118. 118. Another Cautionary TALE
  119. 119. Rowe v. Guardian Automotive Products, Inc. Two employees lived together – male employee assaulted the female employee (Rowe) at their residence He was charged with assault and convicted Information came to the company’s attention when the male employee later received a jail sentence for driving without a license Guardian Automotive discovered a history of violence and decided to terminate the male employee
  120. 120. Rowe v. Guardian Automotive Products, Inc. Rowe refused to cooperate with Guardian’s investigation, arguing it invaded her privacy She pointed out that the assault did not happen at work Despite those facts, the company terminated her employment The court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment
  121. 121. Investigation TECHNIQUES From general to specific Sound of silence Conclusions v. facts He said/she said Knowledge v. assumptions Getting an answer to the question
  122. 122. Tell me more about that.
  123. 123. Knowledge Perceive through senses Hearsay Heard from someone else Assumptions Accumulated conclusions + opinions
  124. 124. Fact or Conclusion? “He harassed her all the time.” “He was very hostile toward us.” “It has been a very difficult department to work in.” “He hurt her.”
  125. 125. Conclusion v. Specific Facts He hurt her.A What, specifically, led you to believe he hurt her?Q He grabbed her arm and when he let go I could see red marks where his fingers had been.A
  126. 126. Look for the ripple effect
  127. 127. Key Elements of a Successful INVESTIGATION Documenting the Investigation4 Attempts to reach unavailable witnesses Notes Witness statements or affidavits Investigative report Investigative file
  128. 128. Note TAKING Avoid subjective impressions Note credibility observations separately Reconstruct what learned (detailed) Clearly mark notes with logistics of the interview (date, time, place, names)
  129. 129. Statement/ AFFIDAVIT
  130. 130. Investigative REPORT Avoid drafts and “updates” Sets out all pertinent facts Separate report for additional claims Typically does not recommend particular action
  131. 131. Investigative FILE Discoverable in litigation Contains notes, summaries/affidavits, materials gathered Includes all documentary evidence Stays with the investigator
  132. 132. ABSOLVED DISCIPLINED
  133. 133. Employee DISCIPLINE Assess options for employer response Impose appropriate discipline Document employer response
  134. 134. Reduce the Risk of LITIGATION
  135. 135. Obtain waivers + releases from employees who present a litigation risk 1 Prevent quid pro quo harassment2 Document termination + layoff decisions3 Treat departing employees with respect4
  136. 136. ABSOLVING the Person of Wrongdoing
  137. 137. Follow-up with the complainant1 Remind employees allegations are taken seriously2 Consider proactive measures to reduce future risk3
  138. 138. Are you allowed to fire someone who made a false report? Yes, but you better be sure.
  139. 139. Respond proportionally Respond consistently Communicate the outcome when possible JANE’S TIPS Absolved or Disciplined Never retaliate ABSOLVED DISCIPLINED
  140. 140. Jane Gleaves Kegler Brown Hill + Ritter jgleaves@keglerbrown.com keglerbrown.com/gleaves 614-462-5484
  141. 141. Presented by Brendan Feheley ADA, FMLA, Workers’ Comp, Oh My! Dealing with Employee Leave
  142. 142. 1 Defining the Yellow Brick Road 2 Navigating the Lions, Tigers + Bears 3 Tips for Getting Back to Kansas Our Agenda
  143. 143. Follow the YELLOW BRICK ROAD
  144. 144. Your Policies + Procedures FMLA ADA Workers’ Comp Short- + Long- Term Disability
  145. 145. FMLA Gives you the right to be off work for 12 weeks Workers’ Comp Gives you pay due to your work- related injury ADA Gives you rights to accommodations Short-Term Disability If available, gives money while off work Employer’s Practices + Policies May entitle you to protection or compensation depending on the policy
  146. 146. FMLA Unpaid Limited Time Period Only for Certain Reason Can Be Block or Intermittent Eligibility Requirements Retaliation or Interference
  147. 147. Workers’ Compensation All Employees Eligible Pays Medical Bills No Right to Employment Injury Must Have Occurred at Work Retaliation
  148. 148. ADA All Employees Eligible Substantial Limitation of Major Life Activity Requires Dialogue “Reasonable Accommodation” Can Mean Anything Retaliation, Discrimination, Failure to Participate
  149. 149. Short- + Long- Term Disability Defined + Driven by Plan Documents Not Legally Required Compensation for Employees on Leave May Have Employee Co-Pays + Eligibility Requirements
  150. 150. Can require use of certain benefits (vacation) during leave Can obligate/prohibit employers in actions Can permit other employees to assist Treatment of others critical question Employer POLICIES
  151. 151. The LIONS
  152. 152. Incident at work Workers’ Comp? Fight now or pay later FMLA? Eligibility? ADA?Hypothetical Emily + Dorothy
  153. 153. Is Emily’s absence approved? FMLA? Duration of absence? Anything else you should be doing?What About Emily?
  154. 154. The Saga Begins…
  155. 155. FMLA Paperwork: 2 Weeks Off
  156. 156. Short-Term Disability PAPERWORK
  157. 157. Vacation POLICY
  158. 158. Two Months Off – Have to Accept? Anything to do from a Workers’ Comp perspective? ADA? What about Emily’s reaction?Glinda the Good Doc
  159. 159. Grandma? Marriage penalty? Other issues? Emily’s Requests
  160. 160. Workers’ Comp? FMLA? ADA? What about after FMLA expires?Dorothy’s Requests
  161. 161. Restrictions? ADA Request Dorothy’s Return
  162. 162. FMLA? ADA accommodation? What about Dorothy? Emily’s Niece
  163. 163. Termination
  164. 164. Not ADA – conditions associated with it can be FMLA issues Most favored nation status? Pregnancy Discrimination Act A Word About PREGNANCY
  165. 165. Making it Back to KANSAS
  166. 166. Know your obligations, when you see something ACT Communicate early and often Know your policies + how they interact BRENDAN’S TIPS Handling Conditions Recognize various reports and where you can get them
  167. 167. Engage with employee early + often Press doctors whenever possible Light duty is a 2-way street BRENDAN’S TIPS Handling Conditions Know employee’s responsibilities
  168. 168. Watch out for repeat offenders Attendance still matters Be very careful about telecommuting BRENDAN’S TIPS Handling Conditions Sometimes you have to pick your poison
  169. 169. Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482

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