2023 Managing Labor + Employee Relations Seminar

2. Presented by Danielle Crane NAVIGATING the Intersection of the FMLA, ADA, Workers’ Compensation + Other Leave Laws

3. Why Now?

4. Federal FMLA, ADA, Rehabilitation Act, USERRA State Mini-FMLA, Parental Leave, Paid Sick Leave Workers’ Comp

5. Hypothetical Scenario: Daniel Delivery Driver

6. Workers’ Comp

7. Workers’ Comp Source of benefits for a work- related injury Not truly “leave” Could qualify the employee for other forms of leave

8. Light Duty Employers can offer light duty, if consistent with employee’s restrictions If employee refuses, Temporary Total Disability (TTD) may be reduced or denied Employers cannot require light duty work in lieu of FMLA leave

10. Federal FMLA, ADA, Rehabilitation Act, USERRA

11. FMLA Coverage The employee’s own serious health condition To care for family member with serious health condition Care for a newborn or newly adopted/fostered child

12. 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 “Serious Health Condition”

13. Leave Entitlement Up to 12 weeks unpaid leave Your policy may require paid leave to run concurrently

14. Intermittent Leave

15. Requesting Leave Employee need not formally request FMLA leave Employer simply needs notice that leave could qualify for FMLA

16. Taking PTO from work for work-related injury or illness for more than 3 days Tell you they need time off for a chronic condition or treatment Tell you they are in the hospital

17. Timing is Key! Within 5 business days of notice of qualifying leave

19. Timing is Key! Within 5 business days of notice of qualifying leave Employee provides health provider certification within 15 days Cure period, if applicable – 7 calendar days Designation Notice – within 5 business days of receipt of employee information

20. Benefits Must maintain health-related benefits Must restore to equivalent position with equivalent benefits

21. Process Determine if employee qualifies Determine if leave qualifies Provide required notices Return to work Review returned paperwork from employee Leave

23. Federal FMLA, ADA, Rehabilitation Act, USERRA

24. What does the ADA require? Protects qualified individuals with disabilities from employment discrimination Reasonable accommodations

25. 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 “Disability”

26. ADA vs. FMLA Blindness? Pneumonia? Cancer? Mental health conditions? Being pregnant? Giving birth?

27. any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities “Reasonable Accommodations”

28. Leave Under the ADA Allowing employees to take a leave of absence to attend to their condition Can be used to extend FMLA leave where both apply

29. What about undue hardship?

30. “The Commission takes the position that compliance with the FMLA does not necessarily meet an employer's obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship”

31. What is “Unduly Hard?” An extra 5 weeks off? Additional time off for an indefinite/undetermined period? Additional time off of 2 weeks, but is requested 3 different times? Additional intermittent time off for treatment of a condition, but employee fails to report these absences in accordance with the Company’s attendance policy?

33. State Mini-FMLA, Parental Leave, Paid Sick Leave

35. Retaliation

36. Return to Work FMLA ADA Workers’ Compensation

37. FMLA ADA Workers’ Comp Benefits Unpaid leave; employers may require concurrent use of paid leave under certain conditions • Unpaid leave; employers may require concurrent use of paid leave • Modification of job duties, workspace, workplace policies, etc. Varies by state • Partial wage replacement • Medical care and costs • Vocational rehab/transitional job programs Employers Covered 50+ employees 15+ employees Almost all employers (in states requiring workers’ comp) Employees Covered 1,250 hours worked in 12-month period and 50+ EEs within 75 mi. Qualified individual with a "disability" who can perform essential functions All Employee’s Condition Covered “Serious health condition” (EE or covered family member) • "Disability" • Definition may vary under state/local disability laws • Not same as workers' comp definition Work-related injury or illness Leave Available 12 weeks unpaid in 12-month period • No specified ceiling or floor, although "indefinite leave" generally not required; may vary by EE's specific circumstances and jurisdiction • State/local version may differ from ADA N/A Job Protection? • Reinstatement to same or equivalent condition • "No greater right" but for leave Might be required, e.g. whether position filled, ability to perform essential job functions, "direct threat" Varies by state, but generally no reinstatement rights Prohibition Against Retaliation Yes Yes Yes

39. Danielle Crane Kegler Brown Hill + Ritter dcrane@keglerbrown.com keglerbrown.com/crane 614-462-5444

41. Presented by Nicholas S. Bobb Proving You’re Right: Documentation + Employment Litigation

44. How to BUILD a proper paper story

46. 73,485 total charges filed with the EEOC for workplace discrimination

47. EEOC 2022 Annual Report Charge Statistics – FY 2021 61,331 Total Charges 20,908 Race 18,792 Sex 34,332 Retaliation 12,965 Age 22,843 Disability National Origin 6,213 Religion 2,111 Color 3,516 Equal Pay Act 885 GINA 242

48. Retaliation Disability Race

49. 4,091 total charges filed with the Ohio Civil Rights Commission for workplace discrimination 35% closed for no probable cause

50. OCRC 2022 Annual Report Cases Closed by Type of Closure – FY 2022 1,425 No Probable Cause 421 Charging Party Failed to Return Notarized Charge 382 Withdrawal with Benefits 349 Notice of Right to Sue Issued 152 Probable Cause 89 Negotiated Settlements 79 Successful Conciliation 71 Withdrawal without Benefits 538 Other No Jurisdiction 49 Administrative Closure 39 Unsuccessful Conciliation 6 Charging Party Failed to Participate 1

51. OCRC 2022 Annual Report Charges Filed by Regional Office – FY 2022 1,086 Columbus Toledo 529 696 Akron 837 Dayton 987 Cleveland

52. OCRC 2022 Annual Report Charges Filed by Alleged Basis – FY 2022 1,474 Retaliation 1,472 Race/Color 1,430 Disability 799 Sex 506 Religion 484 Age 200 National Origin 87 Familial Status 224 Other Military Status 4

53. Litigation following the termination of an employee is likely

55. Employment AT-WILL

56. What you CAN’T do is terminate an employee for an illegal reason Race Retaliation Disability Sex Pregnancy Age Religion Familial Status Military Status

57. Employees who have an employment agreement with a provision that they can be terminated for cause

58. How to handle termination with an eye toward litigation

59. Burden of PROOF

60. 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

61. 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

62. 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

63. Ways to Defend Yourself + Prove Your Nondiscriminatory Reasons

64. 1 Develop and consistently apply appropriate policies, procedures + handbooks

65. 1 Have policies in writing Document employee acknowledgement of the policy Buy-in from supervisors and management Achieve good policies with an employee handbook

66. 2 Violations of policies + performance problems – you have the policies, now you must apply them Consistency is KEY!! >

67. 3 Decide if it’s the right time to terminate employment Do you have documentation? >

68. 4 Choose your language carefully

69. Use examples, not labels Generic labels don’t help your employee improve and will not help your defense Nick is usually late for work Nick misses too much work April 1: Nick called in sick and missed eight hours of work April 4: Nick arrived at work at 10 a.m., two hours late from his scheduled start time April 6: Nick scheduled a doctor's appointment and then, stayed home to have a new furnace installed April 12: Nick called in sick and missed eight hours of work

70. Focus on results, not intent 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.

71. Enumerate the consequences of lack of improvement Don’t give employees an excuse to say they were surprised Employee may be disciplined if this conduct continues “Employee will be subject to more severe discipline up to and including immediate discharge.”

72. Avoid 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

73. Avoid using absolutes 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. Nick is always late Nick was late to work 6/7 days he was scheduled to work this week

74. Avoid hedging Use specific and definitive language that shows you are documenting known deficiencies “You don’t seem to understand the new computer software” “You have made three major mistakes with the new computer software that have…”

75. Avoid making evaluations you’re not qualified to make Nick is withdrawn and seems depressed Nick did not speak up or contribute at Monday or Tuesday’s group meetings You aren’t doctors and can’t make medical diagnoses.

76. Avoid writing like a lawyer 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 Our legitimate, non-discriminatory reason for firing Nick is theft of company property. We terminated Nick because he stole money from the cash register.

77. 5 Economic downturn

78. 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

79. 6 Delivering the message

80. 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, nondiscriminatory business reason for termination decision

81. 7 Other documentation

82. 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

83. 8 Conduct an exit interview

84. 8 Discover problems in the workplace Assess litigation risks Discover risks related to confidential or trade secret info Manage the departing employee’s expectations

85. 9 Respond to employee reference checks

86. 9 Implement 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

88. Nero v. Industrial Molding Corp

89. Vaughn v. The Boeing Company

91. Employee is chronically late + repeatedly insubordinate You have delayed terminating him Hypothetical Scenario 1 He has a heart attack and becomes disabled

92. 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

93. From: Mr. Manager To: Brendan Subject: Tardiness Brendan, You clocked in 15 minutes later for your shift today, February 18, 2019. This is your first warning. Sincerely, Mr. Manager

94. From: Mr. Manager To: Brendan Subject: Tardiness Brendan, 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

95. 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

96. 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

97. 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 Danielle’s numbers aren’t where they should be – this is not specific enough

98. 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

99. Think about your documentation trail like a hot stove

100. Documents should reflect that your policies are: Foreseeable Immediate Uniform Impersonal

101. Nicholas S. Bobb nbobb@keglerbrown.com keglerbrown.com/bobb 614-462-5414

102. Presented by Maria Mariano Guthrie What Do I Do About These Garnishments?

103. Ohio Exceptions Money, fines or penalties owed to the government Arrearages in court-ordered child support, alimony or spousal support Unpaid income taxes Defaulted student loans

104. “Employer” a person who is required to withhold taxes out of payments of personal earnings made to a judgment debtor “Disposable Earnings” net earnings after all deductions required by law, excluding child support deductions

105. Receipt of Order + Notice of Garnishment (Section A) The Garnishment PROCESS

106. Employer required to start withholding immediately Five-day response period Employee has time to contest If challenged, employer should send withheld money to the court or agency that issued the garnishment

107. “You are therefore ORDERED to complete the “Answer of the Employer (Garnishee)” enclosed as section B. Return one completed and signed copy of the section B form to the clerk of this court within FIVE (5) business days after you received this order of garnishment. Deliver one completed and signed copy of this form and the accompanying documents entitled “NOTICE TO THE JUDGMENT DEBTOR” and “REQUEST FOR HEARING” to the judgment debtor (employee). Keep the other completed and signed copy of this form for your files.” The employer is also required to return a statutory response form

108. Garnishment is continuous Employer permitted to deduct a processing fee

109. Garnishment remains in place until: Judgment is paid in full Notice filed with the Court that the judgement has been satisfied or terminated Court appoints a trustee for the debtor and issues a stay order Federal bankruptcy issues a stay order

110. Garnishment remains in place until: Ohio or federal law provides another order with higher priority Another garnishment issued (same debtor), that does not have a higher priority Written request filed with the court to terminate + release the order of garnishment

111. Answer of the Employer – Garnishee (Section B) The Garnishment PROCESS

112. You are required to fill out this form + return to Court State the date you received Whether or not the individual works for you Is the debtor a party to a debt scheduling agreement and counseling service? Is the employee subject to another garnishment order?

113. Interim Report + Answer Garnishment CALCULATION

114. Garnishment Calculation Worksheet Employer should use to determine the amount of money withheld

115. Up to 25% withheld for commercial debts 25% 50-65% can be garnished for child support 50- 65% Only 15% can be garnished for student loan debt 15% Up to 70% of an employee’s wages subject to IRS garnishment 70%

116. If the employer has any questions regarding the appropriate garnishment amount, they’re advised to contact the court or agency that issued the garnishment It’s extremely important that the correct amount is withheld

117. Must return the form along with the check to the court Please keep copies for your records! You have to do this every pay period

118. Payment to the court must be accompanied by an Interim Report + Answer Must be prepared in triplicate Submit one copy to court with payment and one to the judgment debtor Interim Report + Answer No report filed for any period earnings not withheld

119. Once a continuous order ceases to remain in effect, the garnishee must file a Final Report + Answer Must be prepared in triplicate Submit one to court with payment and one to the judgment debtor Final Report + Answer

120. Garnishment Priorities Confusion often arises when there is more than one garnishment “First in time, first in right” policy IRS levies + child support garnishments give priority Student loan garnishments don’t usually take precedence

121. Garnishment Exceptions In most cases, employer required to honor garnishment order Can face disciplinary action if not Sometimes, writ of garnishment is sent to wrong employer If maximum amount already withheld, employer cannot honor the new garnishment

122. Ending a Garnishment Some garnishment orders list an end date Even if not fully paid, garnishment will cease on that date If an employer receives a “Notice of Termination of Wage Garnishment order,” they should stop withholding

123. Wage garnishments can cause additional work for an employer, but it’s essential they comply

124. Cannot fire or discipline an employee for wage garnishment

125. Failure of Employer to Comply May be found in contempt Judgement creditor may institute proceedings against employer Garnishee is exempt from civil liability if it acts “in good faith”

126. Maria Mariano Guthrie Kegler Brown Hill + Ritter mguthrie@keglerbrown.com keglerbrown.com/guthrie 614-462-5437

128. Test Your Knowledge Against Your Favorite Employment Lawyer

129. Lookout below, LLC is a manufacturer of drones used to deliver products. It’s based in Columbus and its employees are all in Columbus. It has contracts with the Federal Government as well as private companies. Its salespeople have non- competes, are those enforceable?

130. It depends A

131. David works for a startup company. He, like the other 5 employees at the company, works long hours. For 8 hours a day he works as a salesperson working at the company’s headquarters in Plain City. In addition, for the last 3 hours of every day he sorts all the company’s mail so the employees can review it the next morning. He is paid $25.00 per hour for his sales work and $10.00 per hour to sort the mail. To make everything simple after his first two weeks the company decided it would pay him $17.50 per hour for all hours over 40. Is this legal?

132. No. Realizing that won’t work, 6 months into employment the company decides it will pay David time and a half the rate he got paid for the work he did. Since the overtime work was all sorting the mail, the company pays him $15.00 per hour for the overtime work. This is ok right? A

133. John is a tenured employee who has worked for his employer, a large technology company, for the past 7 years. He approaches the company’s HR and informs them that he is suffering from gender dysphoria – a medical condition where an “incongruence between their gender identity and assigned sex” results in “clinically significant distress.” John requests 6 weeks leave for therapy. Do you have to accommodate John’s request? Under the FMLA? Under the ADA?

134. You’re HR for a large for-profit company. The company is approached by a charitable organization offering to wrap the company’s products in exchange for a donation to the charity. The individuals who would be wrapping the products are members of the organization and sign a waiver indicating they are working as volunteers. Is this legal? If not, anything you can do to make it legal?

135. You have a supervisor Tom, he is approached by one of the employees he supervises, Alex. Alex indicates that while a biological male, Alex would like to use female pronouns. Tom does not agree with Alex’s choice and indicates that if Alex is a biological male, Tom will continue to call him using male pronouns. Tom goes a step further and repeatedly goes out of his way to refer to Alex as a male and make remarks using male pronouns. Having had enough of the comments and treatment from Tom, Alex files a complaint with the EEOC alleging gender discrimination. Does Alex have a case?

136. You have an underperforming supervisor. His attendance is below average, and he regularly berates the employees he supervises. Most of the employees he supervises despise him and their production has suffered as a result. You’ve tried talking to the employee and writing him up. This has not had the effect you’re hoping for. You decide you’re going to start docking his pay by 1/7 for every day he misses. Can you do this? What about if you decide you will take away 5 of the PTO days he is eligible for this year because his performance is bad? Will that work?

137. Your employee, Theresa, approaches you on Monday. She indicates that she is going to see an optometrist regarding some vision problems she is having. She states there is nothing you need to do now, she just wanted to make you aware. Anything you should do?

138. Theresa returns indicating that her vision is deteriorating, and she will be legally blind in six months. She says that the optometrist recommends a service animal within four weeks. She is allergic to dogs, but says she is interested in a mini-horse as her service animal. Is this legal?

139. Your company has had difficulty attracting candidates and many of your recent hires have not worked out the way you had hoped. Your CEO says he has recently purchased an Artificial Intelligence (AI) program that will handle all hiring for you. Anything you should be worried about? Potential bias? Legal responsibility? Lack of human involvement/screening? Best practices?

140. You have a general policy which says that the company e-mail system is only to be used for business purposes. This rule is generally ignored. However, an employee named Joltin Joe has taken to e-mailing his co- workers after hours. Most of these e-mails contain some reference to MAGA employers and strongly advocate for organizing the workplace. You decide you have no interest in being in the middle of a political quagmire and additionally you don’t want a union in your workplace. You fire Joe. Any problems? What about if the e-mails were during work hours?

141. Your company considers itself a “progressive” employer. You have communal office space and allow employees to work remotely. However, you’re also cost conscious, so you decide you’re going to track your employees’ productivity in various ways, including: • Monitoring their device usage • Recording employees during working hours using device cameras • Monitoring employee’s personal e-mail accounts • Requesting employees provide a monthly log of cell phone usage during working hours (Employees can redact all after hours usage) What are your risks? Anything you should do to protect yourself?

142. You have an employee Stormy, working in your marketing department as a videographer. She accuses your other employee Donald of sexual harassment. You investigate and find that you can not determine exactly what occurred. As a result, you decide you’re going to terminate both of their employment. You provide them with a severance which includes having them sign release agreements which include non- disparagement and confidentiality provisions. What could possibly go wrong?

143. Ron is an employee at your company. Ron has requested and been approved for intermittent FMLA leave due to migraine headaches. Last week you received complaints from two co- workers that Ron, without asking permission or telling anyone, left his desk and went to sleep in the break room, in violation of your no sleeping on the job rule. You decide you’re firing Ron for violating the no sleeping rule. Problem?

144. Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482

2023 Managing Labor + Employee Relations Seminar

2023 Managing Labor + Employee Relations Seminar

Recommended

More Related Content

Similar to 2023 Managing Labor + Employee Relations Seminar

Similar to 2023 Managing Labor + Employee Relations Seminar(20)

More from Kegler Brown Hill + Ritter

More from Kegler Brown Hill + Ritter(20)

Recently uploaded

Recently uploaded(10)

2023 Managing Labor + Employee Relations Seminar