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2022 Managing Labor + Employee Relations Seminar
The document provides detailed guidance on how employers can prepare for and respond to wage and hour investigations by the Department of Labor (DOL), addressing the selection process for investigations, necessary documentation, and communication strategies. It also discusses the evolving legal landscape of marijuana use in the workplace, the impact of remote work trends, and best practices for managing remote employees amidst ongoing labor market changes. Emphasis is placed on compliance, safety, and adapting to new expectations from workers post-pandemic.
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2022 Managing Labor + Employee Relations Seminar
- 2. Presented by Danielle Crane Whenthe DOL Comes Knocking How to Prepare for and Respond to a Wage + Hour Investigation
- 3. Biden’s agenda includes increasedenforcement from labor agencies Have seen a sharp increase in DOL hiring + the number of investigations
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- 5. TIMELINE Pre-Investigation Notice + OpeningConference Document Requests + Interviews Closing Conference Settlement or Appeals
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- 7. Why Me? Employers maybe selected for investigation based on: Tips, Targeted Enforcement Efforts and/or Repeat Investigations
- 8. Before you even know aboutthe investigation . . .
- 9. Employer’s First Steps Knock onDoor Call Letter
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- 12. A Special Noteon INVESTIGATORS
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- 15. The DOL Will CertainlyAsk For Business Records Payroll + Time Records Proof of Posting Required Notices Employee Lists + Contact Info
- 16. They May Also AskFor Contracts + Job Descriptions Terminations + Disciplinary Records Bonus or Commission Plans Handbook Policies
- 17. Employee Interviews Management vs.low-level employees
- 18. Sample Interview Questions What areyour job duties? How does the company track time worked? Is there any time you work that you aren’t paid for?
- 19. Sample Interview Questions Do youkeep a personal record of your hours worked? Do other employees ________? What equipment do minor employees use?
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- 22. Investigator will statethe law, review investigation findings, discuss remedial actions + request that the company agree to future compliance
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- 26. Backpay Traditional Timelines forbackpay Payment plans + forensic accounting
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- 32. Settlement Alternatives What ifyou want to fight a determination?
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- 34. Minimum wage Overtime Recordkeeping Bonuses Unreported time Deductionsfrom pay Classification of exempt employees Classification of independent contractors Employment of minors FMLA issues
- 35. Post-Investigation Considerations No retaliation Avoiding repeatinvestigations Training, handbook revisions, personnel considerations
- 36. Danielle Crane Kegler BrownHill + Ritter dcrane@keglerbrown.com keglerbrown.com/crane 614-462-5444
- 37. Presented by Maria MarianoGuthrie Up in SMOKE? The Future of Pre-Employment Marijuana Testing
- 39. Recreational use ofmarijuana is legal in 18 states, Washington, D.C. + Guam Medical marijuana use is legal in 38 states 13 states + the U.S. Virgin Islands have decriminalized its use Fully illegal in four states: Idaho, Wyoming, Kansas, and South Carolina (as of February 2022)
- 40. We’re not blowing smoke Marijuanais still illegal at the federal level
- 41. Cannabis is oneof the fastest growing industries in the U.S. even though it is banned under federal law Marijuana is still classified as a Schedule I drug under the Controlled Substances Act States that have legalized marijuana have done so in direct conflict with federal law, creating tension Federal government has taken a “hands off” approach to marijuana prohibition enforcement in states where the drug is legal
- 44. Quest Diagnostics conductedthe first large-scale national analysis of workforce drug testing during the COVID-19 pandemic Based on more than 9 million drug tests in 2020 Stark differences in positivity between states that permit recreational marijuana use with either medical use and no legal marijuana states Marijuana positivity rate of post- accident test results grew faster than rate for pre-employment testing
- 46. Marijuana continued double- digityear-over-year increases in the general U.S. workforce Lower positivity rates in states with only medical marijuana use or no legalization Between 2012 + 2020, the gap between pre-employment and post-accident marijuana positivity increased each year 2012: 1.9% pre-employment positivity, 2.4% post-accident; 2020: 3.7% pre-employment positivity, 6.4% post-accident
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- 48. In August 2021,an unprecedented 4.3 million U.S. workers quit their jobs 20% increase from August 2019, according to the U.S. Bureau of Labor Statistics According to Microsoft’s Work Trend Index, over 40% of the global workforce are considering leaving their employer this year
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- 52. Amazon has doneaway with drug screenings for current and prospective employees for positions not regulated by the Department of Transportation and decided to treat it the same as alcohol use Drug screening for marijuana results in a 30% cut in their prospective worker pool As a result, Amazon stopped testing applicants for THC as of June 2021
- 53. In 2021, somestates prohibited pre-employment drug testing for marijuana Philadelphia, Pennsylvania prohibited pre-employment drug testing for marijuana New York state legalized recreational use of marijuana away from the workplace New Jersey enacted a recreational marijuana use law
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- 55. Americans with DisabilitiesAct (ADA) and related state laws require employers to enter into discussions with workers with disabilities to determine if reasonable accommodations can be provided so such workers can perform the essential functions of their job Americans with Disabilities Act (ADA)
- 56. Family and MedicalLeave Act (FMLA) and accompanying state laws allow qualified employees with serious health conditions to take time off for medical treatment Family + Medical Leave Act (FMLA)
- 57. The Drug-Free WorkplaceAct of 1988 requires federal contractors and grantees to guarantee drug- free workplaces as a condition of receiving government contracts or grants Drug-Free Workplace Act of 1988
- 58. Medical marijuana useis not covered under the ADA or FMLA All marijuana use is still illegal under federal law Courts across the country are being asked to decide whether medical marijuana use should be accommodated under state law
- 59. Legalization in Ohio? 1/28/22: OhioSecretary of State announced an initiative proposing the legalization of marijuana had submitted enough valid signatures to be presented to the state legislature This initiative would allow the recreational use of marijuana for those 21+
- 60. Under Ohio law,employers are not required to permit or accommodate an employee’s use, possession, or distribution of medical marijuana in or out of the workplace Employers can refuse to hire, discharge, and discipline an individual because of that individuals use of medical marijuana Employers can prohibit employees from being impaired by or under the influence of medical marijuana while at work
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- 62. Is pre-employment marijuanatesting deterring job applicants from applying with your company or eliminating otherwise-qualified applications? How do you still ensure the safety of your employees if you decide to steer clear from this testing?
- 63. Principles that employersshould keep in mind to minimize workplace risks + potential litigation Only “qualified” individuals can possess + use medical marijuana For it to be legal use in Ohio, that person has to have one or more statutorily qualifying conditions and had a treating physician recommend medical marijuana Ohio law prohibits smoking of medical marijuana
- 64. Decide how youwant to treat employees/applicants Ohio permits employers to maintain a drug free workplace (and the BWC provides premium rebates) and to test for drugs, including medical marijuana
- 65. An employer canchoose to accommodate on and/or off duty medical marijuana use No accommodation necessary if no need to change employee’s job or tasks Accurately describe a job’s essential functions to determine whether medical marijuana could be potentially accommodated While Ohio employers are not required to accommodate medical marijuana use, the individual may have an underlying disability that may need to be accommodated
- 66. Can choose notto drug test applications or employees and to test only in those safety-sensitive positions Remind employees that they cannot come to work impaired by any substance, even medical marijuana Have clear drug testing policies
- 67. Train Managers + Supervisorsto Identify Signs of Impairment Negligence or carelessness Poor decision making Decreased coordination or dexterity Glassy or bloodshot eyes Irrational or unusual behavior Slow or slurred speech
- 68. What jobs tendto test for marijuana? Healthcare Transportation + Logistics Aerospace + Defense Construction Manufacturing Information Technology
- 69. If employers allowmedical marijuana users to work for them they should document the employee’s regular use Get an acknowledgement from the employee stating they use medical marijuana and the “normal” schedule they use it
- 70. KEY TAKEAWAYS Ensure thesafety of your employees Keep a robust reasonable suspicion testing program in place for employees who are “under the influence” Treat marijuana use like alcohol use and allowing recreational off-duty use
- 71. Maria Mariano Guthrie KeglerBrown Hill + Ritter mguthrie@keglerbrown.com keglerbrown.com/guthrie 614-462-5437
- 73. Presented by Brendan Feheley Where’sthe REMOTE? Remote Work in an Endemic World
- 74. Why should weconsider allowing remote work?
- 75. Ladders suggests 25% ofall professional jobs in North America will be remote by end of 2022 25% of high-paying jobs were trending remote pre-pandemic 4% of high-paying jobs were trending remote by the end of 2020 9% of high-paying jobs trending remote today 15%
- 76. Psychologically, workers are burningout as we enter the third year of the pandemic
- 77. Major Issues Politicization ofmasks + vaccines Lack of support for workplaces
- 78. of fully remoteworkers say they are as productive or more productive remotely 90% Say working remote is better for their mental health 74% Say working remote makes them happier 84%
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- 80. The Great Resignationcontinues – 4.3M quits in December 2021 4.5M quits in November 2021 Less resignations in healthcare, food service + construction Increased resignations in manufacturing
- 81. of employees feelmore inclined to hold employers accountable for a better workplace 81.5% Said they would only wait 30-60 days for employers to make changes before leaving 56%
- 82. Remote Work is Hereto Stay Workers believe remote work is beneficial for them Workers don’t see a decrease in productivity with remote work Workers have increased options Workers are going to expect you to be open to remote work + to do it quickly
- 83. Never in theoffice Fully Remote Rarely in the office, but can be called in Regionally Remote Employees live locally, probably used to work primarily in office + can work in office some of the time Locally Remote
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- 85. Hiring from abroader area may increase talent level A larger pool to choose from can increase diversity Hiring remote workers can add anxiety to the current workforce Differing hiring laws in different states + cities
- 86. Managing Remote Workers You needto understand what the remote job looks like Every employee has co-workers – how much face time is necessary How do you handle performance expectations? Do remote workers interact with traditional workers?
- 87. When an Employee Isn’tWorking Out Tendency for supervisor to move quickly What documentation exists? Is ending remote an option? Similarly situated employees?
- 88. Cultural Problems Will remoteworkers care about your culture? Will you be able to maintain your culture? What is the “secret sauce” does it transfer to remote?
- 89. Legal issues relating toremote work
- 90. Domestic tax issues Multipleresidences International tax issues: corporate tax, income tax + social security
- 91. Daily Overtime Laws 8-HourOvertime Law AK, CA, NV, PR, VI 12-Hour Overtime Law CO
- 92. Non-Competition Issues Have topay employee Can’t do it at all Unique limitations Unique limitations
- 93. Miscellaneous Employment LawIssues No height or weight discrimination Final pay limitation + drug testing rule Medical marijuana limits At-will only valid in limited circumstances Performance evals can be basis for defamation Unlimited military leave
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- 95. Next steps forremote work – have a plan
- 96. Localized Remote Allow partially remoteon a trial basis Remote agreement Set productivity expectations Set schedule for time in office Redefine job description
- 97. Regional Remote Define your region Addin-person concept Modify policies + procedures Understand your employment + tax compliance
- 98. National Remote Consider how interactionswill be managed Can employees relocate, what is the policy? Is national truly national?
- 99. Have a plan– where are you now + where you need to be Consider your needs + whether remote will achieve them Balance the need for talent with impact on organization BRENDAN’S TIPS On Remote Work Be consistent
- 100. Brendan Feheley Kegler BrownHill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482