2018 Managing Labor+ Employee Relations Seminar

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Harvey
Weinstein
Kevin Spacey Louis CK Bill O’Reilly Roger Ailes
Charlie Rose
Mother
Theresa
Al Franken Roy Moore
Garrison
Keiler
Russell
Simmons
Pete Rose Bill Cosby
Oprah
Winfrey

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Possible Reactions to Harassment Complaint
1 Uncritical acceptance
2 Passive isolationism

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Broader Horizons
Minimum
Wage Levels
Domestic
Violence +
Stalking Victim
Protection
Maternity Leave
with Pay
Expanded
Protection for
Pregnant
Workers
Renewed Focus
on Equal Pay
for Equal Work

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December 2017 NLRB Rulings
1 Employee Handbooks
2 Joint Employers
3 Micro-Bargaining Units

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Demise of the
Quickie Election
Regulations?

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Deductions
for Employee
Awards
Taxation of
Reimbursement
for Employee
Moving
Expenses
Elimination of
Deductions for
Employee
Meal Expenses
Elimination of
Deductions for
Parking + Paid
Transportation
Elimination of
Deductions for
On-Site Gyms
New Provisions:

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Tax Credit for
Paid Family Leave

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Sexual
Harassment
Settlement
Payments

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Sexual Orientation and
the Discrimination Laws

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Increased State +
Local Government
Attention to
Employment Issues

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Safety 101
Maintaining Safety
in Your Workplace
WELCOME

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Key Points
• 1910 or 1926 Compliance
–Top 10 OSHA Violations FY17
• Hazard Recognition
–JHA
–Safety Inspections
• Employee & Management
Engagement
–Safety Committees
–Safety Meetings
–Hazard Reporting

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Top 10 OSHA Violations FY17
• Fall Protection
• Hazard Communication
• Scaffolding
• Respiratory Protection
• LOTO
• Ladders
• PIV
• Guarding
• Fall Protection, Training
• Electrical

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Fall Protection – General Requirements (1926.501)
• #1 OSHA violation of 2017
– 6,887 violations
• The most common violation requirements come from:
– Unprotected edges and open sides
– Failure to provide fall protection on low slope roofs

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Hazard Communication (1910.1200)
Hazard Communication Program
Not having or maintaining a hazard
communication program– 1520 citations.
1910.1200(e)(1)
SDS
Making SDS’s available at each shift– 459
citation. 1910.1200(g)(8)
Training
Improper information and training given to
employees– 1,230 citations 1910.1200(h)(1)
Keeping Up To Date
Keeping SDS book up to date with incoming
and produced hazards– 337 citations
1910.1200 (g)(1)
4,652 violations in the 2017 year

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Scaffolding (1926.451)
• Most common citations result from:
3,697 Violations
Improper
platforms
Improper
access to
surfaces
Lack of fall
protection

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Scaffolding (1926.451)
Proper Set Up
Falling Access Platforms
Employees on a
scaffold 10+ feet
above a lower
level shall be
protected from
falling to that
lower level
Support
On scaffold
platforms more
than 2 feet
above or below a
point of access,
Crossbraces
shall not be used
as a means of
access
Each platform on
all working levels
shall be fully
planked or
decked between
the front uprights
and guardrail
supported
Supported
scaffold poles,
legs, posts,
frames and
uprights shall
bear on base
plates, mud sills,
or other
adequate firm
foundation

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Respiratory Protection (1910.134)
• Providing medical evaluation – 605 citations
• Written respiratory protection program – 494 citations
• Fit testing – 277 citations
• Providing respirators – 239 citations
3,381 Violations

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Lockout/Tagout (1910.147)
Procedures Inspections
Training Programs

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Ladders (1926.1053)
2,567 Violations
Improper use 01
Damaged
ladders
02
Using the top step 03

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Powered Industrial Trucks (1910.178)
• OSHA statistics indicate there are roughly 85 forklift fatalities and ~35,000 serious injuries.
• OSHA’s most common findings and most cited sections of the standard are:
– Inadequate training of employees
– Lack of truck inspections
2,349 Violations

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Machine Guarding (1910.212)
• The exposure to unguarded or poorly guarded machines is prevalent in many workplaces.
• Moving machine parts have to potential to cause injuries such as
– Crushed fingers or hands
– Amputations
– Burns
– Blindness
2,109 Violations

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Electrical – Wiring Methods (1910.305)
1,530 Violations

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Electrical Facility Concerns

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Key Points
–JHA
Engagement
–Safety Meetings
–Hazard Reporting

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This image cannot currently be displayed.
Hazard Assessments/ Job Hazard Analysis

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– Egress
– Emergency Lighting
– Clearances
– Machine guarding
– Housekeeping
Hazard Assessment –Safety Inspections
3rd parties
Safety
Committees
Department
walkthroughs/
checklists

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Key Points
–JHA
Engagement
–Safety Meetings
–Hazard Reporting

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Employee & Management Engagement
Safety Committees
Objectives
Training
Meaningful activities
Safety Meetings
Company Wide
Departments
Lines
Periodic
Daily
Hazard Reporting
Informal
Formal
Corrective action

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Safety 101
Written Safety Programs
Communication
is key
Ongoing training
Routine hazard
recognition
Positive Culture

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Contact us
Central Ohio’s Business Health, Safety and
Environmental Consultants since 1992.
140 N. Otterbein Ave.
Westerville, Ohio 43081
614.890.0800
facebook.com/safex.us
Linkedin.com/company/safex-inc
dgroteadams@safex.us

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Recent Changes
to Injury Claims

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OLD RULE
NEW RULE
The statute of limitations to file a
Workers’ Compensation claim was 2 years
The statute of limitations was
reduced to 1 year

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CAVEAT
Occupational disease claims
unchanged
2 years from last of diagnosis,
treatment or date “quit” work

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OLD RULE
NEW RULE
Parties had 60 days to file an appeal into
Court on “right to participate” issues
If the parties agree, there is a mechanism
to extend the deadline from 60 days to
150 days before an appeal is due so that
the matter can be settled

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REMEMBER
30 days to file Notice of Intent to
Settle
Other party has 14 days to file
Objection to Notice of Intent
If no Objection, then 150 days to file
appeal into Court

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OLD RULE
NEW RULE
Statute listed various drugs + levels of
intoxication for purposes of the
“rebuttable presumption” (that drug use
caused the injury) to apply
List is eliminated and in its place, general
Federal Guidelines now apply with regard
to intoxication levels

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REMEMBER
Still need to have “reasonable
suspicion” to use rebuttable
presumption
Ohio’s new Medical Marijuana laws
don’t change things related to
employment or workers’ comp

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OLD RULE
NEW RULE
In the case of incarceration,
compensation was denied only
to an incarcerated claimant
Neither an incarcerated claimant nor an
incarcerated dependent is entitled to
compensation

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OLD RULE
NEW RULE
If a claimant was successful in Court on a
“right to participate” issue, his/her
attorney was entitled to attorneys’ fees,
capped at $4,200
The cap has been increased to $5,000

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OLD RULE
NEW RULE
Firefighters are not entitled to “wage loss”
compensation in a cancer claim
Firefighters, who previously were not
entitled to “wage loss” compensation in
an allowed cancer claim, are now eligible
for such compensation

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Fewer claims
being filed
across the
state of Ohio

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12%decrease in private
employer premiums

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7.8%rate cut for state
agencies + public
universities

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State, ex rel.
Presbyterian
Retirement
Services v.
Indus. Comm.
2017-Ohio-
7577
Claimant receiving permanent total
disability compensation (PTD) cannot
also be granted awards for permanent
partial disability (PPD or C-92)

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Clendenin v.
Girl Scouts of
Western Ohio
2017-Ohio-
2830
No “regular” court appeal –
must pursue Writ of
Mandamus in Court of
Appeals
Industrial Commission decision that a
substantially aggravated pre-existing
condition has returned to “preinjury baseline
status” is an “extent of disability” issue

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Ferguson v.
State
2017-Ohio-
7844
Court of Appeals
agreed but Ohio
Supreme Court upheld
the law
Claimant cannot
dismiss an employer’s
court appeal without
the employer’s
stipulated consent
Plaintiff argued the
2006 legislation
violated Ohio
Constitution

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Dave McCarty
Kegler Brown Hill + Ritter
dmccarty@keglerbrown.com
keglerbrown.com/mccarty
614-462-5469

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Preventing Unethical Behavior
presented by Jane Gleaves
March 6, 2018

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NYT investigation revealed
sexual harassment allegations
against Harvey Weinstein
October 5

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New Yorker published an
investigation into sexual
assault by Weinstein
October 10

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Alyssa Milano invites
women to #metoo
October 15

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1.7 million tweets with the
#metoo; 12 million posts on
Facebook
November 31

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“Silence breakers” named Time
Person of the Year
December 6

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Time’s Up founded
January 1

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25-75%
of women had been
victims of sexual
harassment

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75%of those women
never report it

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30 million
women have a voice

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Report
to HR
Report
on Social
Media

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Complaint won’t be
taken seriously
Retaliation Consequences

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How do we change
the culture?

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The culture change
+ support has to be
top-down
1

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There have to be
safe, multiple outlets
for filing complaints
2

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Tap into the women’s
based groups at the
company
3

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What if you get a
complaint?

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Don’t ignore it –
address early!
1

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Some complaints can
be brought directly
to the board
2

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HR sends complaints
directly to legal counsel
3

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EEOC is updating its
sexual harassment
guidelines for the
first time in 20 years

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There is now
administrative
interest with this
issue

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Jane Gleaves
jgleaves@keglerbrown.com
keglerbrown.com/gleaves
614-462-5484

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PRIVACY + DATA SECURITY for Employers
Risk in a World of Flexible Workspaces

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Understand the
Risks
Mitigate the Risks
What to Do, if the
Risks Become
Reality

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This is not just
the IT/IS team’s
problem!

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for Employers
Practical
EXAMPLES

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#1
Tax + W-2 Theft
Use of social
engineering coupled
with spear fishing is
increasing
Impacts employers
each year, and this is
the peak season
W-2s are information
rich documents

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#1
Tax + W-2 Theft
Bad actors may use the information to
submit fraudulent tax returns in the
hope of defrauding the IRS into sending
funds for a false tax refund or sell on
dark web to identity thieves
KEY RISK

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of hacking
attacks begin
with a phishing
email
91%

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Encrypt sensitive
information before
sending
“Out of Network”
notifications for
inbound emails
Track rate of tax
fraud reported to
HR

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Think twice before
clicking
Use common sense
+ be aware
When in doubt, use
phone to verify
“Show details” on
emails

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#2
Payroll Vendor Spoofing
Message sent to
employees spoofing a
trusted vendor +
prompts to click
Directs employee to
“confirm identity” by
providing credentials
Some even have reply
feature to email the
employee

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#2
Payroll Vendor Spoofing
Bad actors may use the information to
divert payments to divert funds - to the
extent credentials are similar or the
same, bad actor may gain access to
company systems
KEY RISK

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Alert workforce
of scam
Consider
implementing
training
Direct employees
to forward
suspicious requests
to IT

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Instruct employees
not to supply login
credentials
Do not publicly
post information
your employees
need to access tax
information
Enable 2-factor
authentication

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#3
Remote Workforce
Use of unapproved
apps and devices
Accessing unsecure
Wi-Fi networks
Ignoring security
updates

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#3
Remote Workforce
Bad actors may gain
access to information,
devices and systems
KEY RISK

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Review agreements
to ensure they
include reasonable
security
requirements
Limit access rights
Proactively manage
updates + patches
Backup data

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Enforce an effective
password policy
Save data to offline
storage
Use 2-factor
authentication
Employ/require
encryption on
devices

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Utilize remote wipe
services on devices
Identify security
levels + apply
appropriate
security measures
Maintain device
records

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#4
Biometrics
Less focus on security
+ more on privacy
Google Arts +
Culture app

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#4
Biometrics
Investing capital or other resources
in biometric projects, that may be
later restricted by legislation
KEY RISK

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Keep in mind
dynamic
nature of this
landscape as
you develop
policies +
procedures

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#5
GDPR for Employers
New EU data
protection regulation
as of 5/25/18
Applies to any
organization that
offers goods or
services to EU data
subjects
Personal data is
defined broadly

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#5
GDPR for Employers
Processing
information requires
a legal basis
Employees should
receive effective
information about
monitoring
Adequate protection
for any international
transfer of employee
data

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Common Practices that May Be
Restricted Under the GDPR
Use of information on social media profiles for recruitment purposes
Storing HR and other employee data in the cloud
Wishing employees happy birthday on an intranet
Monitoring electronic communications in the workplace
Monitoring remote working
Scanning private devices as part of a BYOD policy
Monitoring company vehicles

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#5
GDPR for Employers
Companies may be fined up to €20
million or 4% of global turnover
(whichever is greater) for non-
compliance with GDPR
KEY RISK

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Determine
your
organization’s
obligations

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David Wilson
dwilson@keglerbrown.com
keglerbrown.com/wilson
614-462-5406

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Losing My
RELIGION
An Update on Religious
Discrimination and
Accommodations

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What are We
Going to Talk
About?
Title VII
Proof
Paradigms
Breaking
Down
Elements
Modern
Day
Religious
Issues
Future
Problems

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RELIGION =
all aspects of religious
observance and practice,
as well as belief

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UNLESS
an employer demonstrates that he is
unable to reasonably accommodate to
an employee’s or prospective employee’s
religious observance or practice without
undue hardship on the conduct of the
employer’s business

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Discrimination
based on religion
has 3 components

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Can’t treat people
differently because
of religion

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Can’t harass people
because of religion

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Have to accommodate
religion if you can do so
without undue hardship
to your business

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Can’t treat someone
differently because you
know, or suspect, they are a
certain religion and may
require an accommodation

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Can’t require
employees to
follow company’s
professed faith

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Can’t tell employees
they have to read
the Bible to get
promoted

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Employee says they have to wear a
religious button or sign at work?

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After work, employees rub olive oil near entry
way of absent co-workers cubicle to rid the
absent co-worker of her demons?

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Employee says part of their religion is to try
and convert others which includes constantly
discussing their beliefs with other employees
and denouncing other faiths?

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What Constitutes
a Religion?

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Traditional, organized religions
such as Christianity, Judaism,
Islam, Hinduism + Buddhism
Beliefs that are new, uncommon

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RELIGION CAN BE
Beliefs that are not part of a
formal church or sect
Beliefs that are only subscribed
to by a small number of people
Beliefs that seem illogical or
unreasonable to others

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Is this a religion?
Believe in a deity called the Flying
Spaghetti Monster (FSM)
Does not require literal belief in order
to provide spiritual enlightenment
Believe FSM Heaven has a beer
volcano and a stripper factory
Wear a pasta strainer on their head
for religious photos

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Is this a religion?
Religion founded in 1988 – the
founder is religion’s current Pharaoh
Basis in Egyptian religion but founded
in Joliet IIIinois
Has a goddess who is a force that
keeps world balanced
Followers keep personal religious
shrine in their home

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How Do I
Determine Undue
Hardship?

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Is it more than a
minimal burden
on the operation
of business?

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Violating a seniority system
Causing a lack of necessary staffing
Jeopardizing security or health
Costing employer more than a
minimal amount
Infrequent payment of overtime to
employees who substitute shifts
Customer preference or co-worker
disgruntlement

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The Basic Problems
Scheduling Dress Code
+ Grooming
Prayer
During
Work

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Scheduling ISSUES
Scheduling modifications are usually
a reasonable accommodation
Important to understand specifics of
employee’s religious obligations
Is voluntary shift trading enough?

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Dress Code + Grooming
ISSUES
Hotel says employee has to cut his
dreadlocks to comply with dress code
Employee says dress dreadlocks are
required by Rastafarian religion
Can employer refuse to accommodate?

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Prayer During Work ISSUES
Many cases involve Muslim requests
to pray during the work day
EEOC almost always says a break is a
reasonable accommodation
If you’re going to refuse, you need
solid data on either production or
safety concern

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New Problems
Hand
Scanners Flu Shots Customer
Complaints
Religious
Objections

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Hand Scanner ISSUES
Scans right hand
Great tool for monitoring attendance
and keeping track of time, right?
What if employee says scanning right
hand violates his religious beliefs?

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It’s OK - only a
$580,000 mistake

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Flu Shot ISSUES
Hospital requires all employees to
get flu shot
Says safety precaution justifies
requirement
Employee says ingesting foreign
medicine in her body violates
religious beliefs

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Flu Shot ISSUES
Employee says will wear a mask
while working
Employer offers nasal spray
Employee says that won’t work

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Customer Complaint ISSUES
Receptionist has a religious sign he
displays directly over his left shoulder
Can company terminate him if he
doesn’t take it down? What about a
cubicle instead of the lobby?
He is in the lobby, so when customers
enter, they see it
Company asks him to remove it, he
says it is required by his religion

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Religious Objection ISSUES
You own a small bakery – employee
says she recently found religion and
believes gay marriage is a sin
She says she will refuse any gay
customers who request wedding cakes
What do you do?

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Religious Objection ISSUES
Now employee says she has no
problem selling pre-made products
but she won’t bake a cake herself
that she knows is a wedding cake for
a gay wedding
Same result?

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the TAKEAWAY
Don’t fight over whether it’s a religion or not
Avoid fighting over sincerity of belief
Don’t modify rules for someone
else for a different reason
Undue hardship is case by case analysis

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Look at whether granting
accommodation would
result in denial of product or
service, or delay

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If there is a potential
solution try it

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Brendan Feheley
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482

2018 Managing Labor+ Employee Relations Seminar

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2018 Managing Labor+ Employee Relations Seminar