This document provides an overview of key labor and employment law issues and trends from 2014. It discusses both winners and losers from various legal developments. Labor unions and the EEOC faced setbacks, while employees gained protections regarding LGBT rights, working from home, and the use of medical marijuana and social media. Employers lost challenges to NLRB pro-union rulings and saw an expansion of joint employer liability. Strong documentation is emphasized as important to defend against discrimination and other employee claims.
10. z
The EEOC’s expert analysis was
“crafted by a witness with no
particular expertise to craft it,
administered by persons with no
particular expertise to administer it,
tested by no one, and accepted by
only the witness himself.”
12. z
“Times They Are A-Changin’”
Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’
Bob Dylan, 1963
13. z
NLRB Pro-Union Activity
+ Narrowing the definition of supervisors
+ Allowing unions to opt to have elections in “micro-units” – so smaller
groups of employees can have their own union
+ New Quickie Election Rules
+ New “joint-employer” standard, where a contracting business can be
deemed the employer, for union purposes, of another business
+ Restricting an employer’s ability to regulate or discipline employees
from Social Media misuse
14. z
NLRB Pro-Union Activity
+ Telling employers that they cannot prohibit employees from discussing
ongoing workplace investigations
+ Decisions broadening union organizers’ access to company property for
union organizing
+ Ruling that employees have statutory, protected right to lie during an
investigation
+ Decisions making it very difficult to enforce reasonable rules of
conduct or terminate toxic employees
+ Requiring employers to allow employees to use the
company’s email system during non-working hours
16. z
Invalid Handbook Provisions
+ Barring “negativity” and requiring employees to represent the
employer “in the community in a positive and professional manner”
+ Prohibiting employees from remaining on the work premises after
their shift
+ Requiring a personal disclaimer if any work-related information is
published online
+ Requiring compliance with copyright and financial disclosure laws, and
not use the company’s intellectual property assets without permission
+ Barring disparagement of the company’s products,
services, leadership, employees, and strategy
17. z
Invalid Handbook Provisions
+ Prohibiting camera–enabled devices in unsecured areas of the facility
+ Requiring confidentiality or prohibiting employees from discussing an
internal company misconduct investigation
+ Prohibiting disrespectful conduct, profanity, or other language which
injures the company’s image or reputation
+ Prohibiting “loud, abusive, or foul language”
+ Prohibiting “intimidation, threats, or violence”
+ Requiring that customer and employee information
be kept secure and used fairly and lawfully
31. z
“The class of cases in which an employee can
fulfill all requirements of the job while
working remotely has greatly expanded. The
law must respond to the advance of
technology in the employment context, as it
has in other areas of modern life, and
recognize that the ‘workplace’ is anywhere that
the employee can perform her job duties. We
are merely recognizing that, given the state of
modern technology, it is no longer the case
that jobs suitable for telecommuting are
‘extraordinary’ or ‘unusual’.”
37. z
“Prestigious employer has
approximately 20 openings for a
highly-skilled position in a very
competitive field: compensation
up to $75,000/yr., work week of
50-60 hours during busy periods.”
Want Ad:
74. z
Prohibits Disability
Discrimination
Failure to engage
in interactive
process
Failure to provide
reasonable
accommodations
Costly Liability
Compensatory +
punitive damages
Front + back pay,
reinstatement
Attorneys fees
75. z
engage in the interactive process
+
accommodate disabled
employees
disabled
91. z
To Do List
Review policies
Think through scenarios
Apply policies + procedures equally
Train supervisors + interviewers
Communicate with employees
92. z
Stay Informed
Kailee Goold
Kegler Brown Hill + Ritter
kgoold@keglerbrown.com
keglerbrown.com/goold
614.462.5479
@KaileeGoold
linkedin.com/in/kaileemgoold
93. z
The Dos + Don’ts
of Documentation
presented by Jeffrey C. Miller
2015 Managing Labor +
Employee Relations Seminar
95. z
+ Lloyd was discharged at
the age of 56
+ He was first offered a
typical release for
severance proposal and
refused it
+ Subsequently, he brought
an age discrimination
claim against Georgia Gulf
Lloyd v. Georgia Gulf Corp.
961 F.2d 1190 (5th Cir. 1992)
96. z
Lloyd v. Georgia Gulf Corp.
961 F.2d 1190 (5th Cir. 1992)
+ Georgia Gulf could NOT produce “a single document” supporting their claims
+ Witnesses had difficulty recalling specific events
+ It was not the policy of Lloyd's supervisor to prepare written warnings and
reprimands
+ His supervisor did not follow the company policy when terminating Lloyd!
+ The 5th Circuit reversed the decision of the district court granting Georgia
Gulf’s Motion for Judgment Notwithstanding the Verdict
WIN FOR LLOYD… BAD FOR GEORGIA GULF!
97. z
Vaughn v. Edel
918 F.2d 517 (5th Cir. 1990)
+ After returning from Vaughn’s second maternity leave, she was criticized for
low productivity.
+ Vaughn’s supervisor told her, she was becoming the “black matriarch” of
Texaco.
+ Vaughn spoke with one of the in-house attorneys.
+ Her principle supervisor indicated that neither supervisor should confront
Vaughn about her poor performance, and should inflate her evaluations.
98. z
Vaughn v. Edel
918 F.2d 517 (5th Cir. 1990)
+ Vaughn was never criticized or counseled about her poor performance
+ She was given satisfactory performance ratings
+ Vaughn’s supervisor stated he was too busy to give Vaughn a lower ranking
+ Two years from the initial confrontation she was terminated
+ There was no documentation confirming poor performance
+ Vaughn’s race discrimination claim was successful!
99. z
Moss v. City of Abbeville
740 F.Supp. 2d 738 (D.S.C. 2010)
+ In 2007, Moss was out of work on FMLA and extended leave
+ On March 4th, 2008, Moss returned to work, and was terminated
+ City claimed that Moss was terminated for poor performance
+ Moss was never disciplined or cited for poor work performance
+ His performance evaluations were always “standard” or “above standard”
+ This District Court concurred that Moss’ FMLA retaliation claim survived
summary judgment
101. z
Greene v. Safeway Stores
210 F.3d 1237 (10th Cir. 2000)
+ On June 10th 1993, after 36 years working for Safeway, Greene was
terminated
+ Safeway claimed Greene was a poor merchandiser, sales in the Division had
declined or stalled, he intimidated his employees and was “pessimistic” about
competition
+ Could not present unique, contemporaneous documentation
102. z
Greene v. Safeway Stores
210 F.3d 1237 (10th Cir. 2000)
+ These concerns were never mention to Greene
+ Internal memos praised Greene’s performance
+ Safeway’s president stated, that he “want[ed] to move forward with [his]
new team”
+ Eight executives left in the months prior to Greene’s termination, all replaced
by younger men
+ The Tenth Circuit affirmed there was sufficient evidence to support Greene’s
ADEA claim and denial of Safeway’s motions for judgment as a matter of law
103. z
Robinson v. Abbott Laboratories
2014 U.S. Dist. Lexis 136978
+ If you do not have an accurate document, you’re lying
+ While Robinson was on medical leave, concerns were raised about her
falsifying a drug refund form
+ After returning to work, she met with an employee relations specialist and a
witness
+ The specialist claimed Robinson,“just wanted that paperwork off [her desk]”
+ The notes from the meeting did not reflect this statement
+ Too many people or attention to detail
104. z
Robinson v. Abbott Laboratories
2014 U.S. Dist. Lexis 136978
+ Robinson’s termination worksheet was incorrectly dated
+ Robinson brought a racial discrimination claim
+ Abbott was denied summary judgment
107. z
Employee Personnel File
Job description
Hiring documentation
Signed statement that the
employee has received the
company handbook or manual
Orientation/Training checklist
+ signed statement
Good record keeping
must begin from the
time an employee is
hired.
108. z
Employee Personnel File
Regular performance
appraisals or evaluations
Discipline/Counseling records
Record of absences
Documentation relating to
promotions, demotions,
transfers, etc.
Good record keeping
must begin from the
time an employee is
hired.
109. z
Helpful Hints
Draft documents/ correspondence as if they will
be seen by a third party (“Exhibit A” at trial)
All things being equal, the employer loses
If you have to explain a document,
it is assumed you are lying
111. z
Papering
Personnel Files
DO NOT
+ Falsify documents
+ Wait until there’s sufficient
supporting documentation on file
DO
+ Draft a memo to the employee:
+ Decision
+ History of the problem
+ Specific examples
+ Chronology of the incidents
+ Reasons for decision
112. z
Performance Evaluations
+ Appraisals
Do Perform employee evaluations regularly in line with company policy
Do not allow any forms of bias to color your evaluation- Even if it is based
upon a relationship with an employee, it is the foundation of illegal bias
claims
Do review the employee’s personnel file- using the employee’s job description
as a starting point, noting patterns of superior or poor performance and
expectations from previous evaluations
Do not focus only on recent events- reflect on the entire evaluation period
113. z
Do include references to previous reviews, conversations or disciplinary
matters, and the employee’s response.
Do not simply focus on the positives or give an average rating rather that a
real assessment.
Do give clear statements as to the employee’s deficiencies- refer to specific
facts, examples and incidents-and proposed solutions with the employee’s
input.
Do not inflate employee’s ratings for any reason whatsoever!
Do disclose the evaluations to the employees- give them an opportunity to
comment/rebut and sign documentation indicating they have read the
evaluation.
Performance Evaluations
+ Appraisals
114. z
+ Focus on employee’s results
+ Use of absolutes - Can an employee find an exception?
+ Be direct
+ Avoid labels which might create liability
+ Use technical jargon sparingly
+ Be Specific! Give specific examples whenever possible
and avoid general statements
+ Describe performance not personality!
Discipline Documentation:
Considerations
115. z
+ Use active not passive verbs and voice as they are clear
and concise
+ Be careful not to use language that might be perceived
as age discrimination
+ Do not use unprofessional/ informal language
+ Tailor the documentation to the employee
Discipline Documentation:
Considerations
116. z
Thank You!
Jeffrey C. Miller
Kegler Brown Hill + Ritter
jmiller@keglerbrown.com
keglerbrown.com/jeffreymiller
216.586.6651
142. z
E.T. Phone (from) Home
An Employer’s Guide to Telecommuting
presented by Brendan Feheley
2015 Managing Labor + Employee Relations Seminar
March 3, 2015
144. z
Do we HAVE
to do this?
Do you do this
ALREADY?Better
Question
145. z
Forced work from home
Voluntary work from home
1
2
Do you have a policy or program covering the issue?
In which (if any) situations does it apply?
160. z
Ending the
+ Who can end?
+ On what grounds?
+ How much notice
is provided?
EXPERIMENT
161. z
Summary Takeaways
+ Lots of potential pitfalls
+ Think globally
+ Do your legwork in the beginning
+ Outline expectations clearly + get
acknowledgement
+ WRITE IT DOWN
162. z
Thank You!
Brendan Feheley, Director
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614.462.5482