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 EEOCâs expert analysis was
âcrafted 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.â
12. z
âTimes They Are A-Changinââ
Come senators, congressmen
Please heed the call
Donât stand in the doorway
Donât block up the hall
For he that gets hurt
Will be he who has stalled
Thereâs a battle outside
And it is raginâ
Itâll soon shake your windows
And rattle your walls
For the times they are a-changinâ
Bob Dylan, 1963
13. z
NLRB Pro-Union Activity
+ Narrowing the definition of supervisors
+ Allowing unions to opt to have elections in âmicro-unitsâ â so smaller
groups of employees can have their own union
+ New Quickie Election Rules
+ New âjoint-employerâ standard, where a contracting business can be
deemed the employer, for union purposes, of another business
+ Restricting an employerâs 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 organizersâ 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
companyâs email system during non-working hours
16. z
Invalid Handbook Provisions
+ Barring ânegativityâ and requiring employees to represent the
employer âin the community in a positive and professional mannerâ
+ 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 companyâs intellectual property assets without permission
+ Barring disparagement of the companyâs products,
services, leadership, employees, and strategy
17. z
Invalid Handbook Provisions
+ Prohibiting cameraâenabled 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 companyâs image or reputation
+ Prohibiting âloud, abusive, or foul languageâ
+ Prohibiting âintimidation, threats, or violenceâ
+ Requiring that customer and employee information
be kept secure and used fairly and lawfully
26. z
The Court said âa felony drug
conviction simply has no bearing
on an individualâs ability to
perform the primary imaging
duties of a radtech.â
31. z
âThe 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 âworkplaceâ 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
âextraordinaryâ or âunusualâ.â
37. z
âPrestigious 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.â
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 + Donâts
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 âa single documentâ 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
Gulfâs 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 Vaughnâs second maternity leave, she was criticized for
low productivity.
+ Vaughnâs supervisor told her, she was becoming the âblack matriarchâ 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
+ Vaughnâs 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
+ Vaughnâs 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 âstandardâ or âabove standardâ
+ This District Court concurred that Mossâ 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 âpessimisticâ 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 Greeneâs performance
+ Safewayâs president stated, that he âwant[ed] to move forward with [his]
new teamâ
+ Eight executives left in the months prior to Greeneâs termination, all replaced
by younger men
+ The Tenth Circuit affirmed there was sufficient evidence to support Greeneâs
ADEA claim and denial of Safewayâs 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, youâre 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,âjust wanted that paperwork off [her desk]â
+ 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
+ Robinsonâs 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 (âExhibit Aâ 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 thereâs 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
ďź Do Perform employee evaluations regularly in line with company policy
ďźDo 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
ďźDo review the employeeâs personnel file- using the employeeâs job description
as a starting point, noting patterns of superior or poor performance and
expectations from previous evaluations
ďźDo not focus only on recent events- reflect on the entire evaluation period
113. z
ďźDo include references to previous reviews, conversations or disciplinary
matters, and the employeeâs response.
ďźDo not simply focus on the positives or give an average rating rather that a
real assessment.
ďźDo give clear statements as to the employeeâs deficiencies- refer to specific
facts, examples and incidents-and proposed solutions with the employeeâs
input.
ďźDo not inflate employeeâs ratings for any reason whatsoever!
ďźDo 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 employeeâs 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
118. Emily Adams, Employee Benefits Consultant
www.usi.biz
HEALTHCARE STRATEGY
IN A POST-ACA WORLD
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Complex Challenges
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Complex Challenges
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Common Solutions
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Common Solutions
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Reminder:
One strategy isn't enough. It takes a combination of
strategies to change profound and resistant
problems.
Step 1: Establish your goals.
Step 2: Identify the right strategies to get you from
where you are, to where you want to be.
Step 3: Do them. Even the hard ones.
In order to achieve extraordinary results, you need to
exert extraordinary effort.
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| 124
ďź Adopt a consumer-driven health plan
ďź Migrate from fully-insured to self-insured
funding
ďź Achieve maximum network discounts
ďź Emphasize primary care
ďź Implement an aggressive results-based
wellness program with significant financial
incentives
ďź Get serious about chronic disease
management
ďź Implement a telemedicine option for
employees
ďź Make prices and quality transparent
ďź Identify centers of value
Lets discuss the key strategies for
cost containment:
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Phase One: Good
1. Achieve maximum network discounts for
your geographic footprint
2. Offer a consumer-driven health plan with
at least 30% of employees participating
3. Migrate from fully-insured to self-insured
funding
4. Review plan design and contribution
strategy to ensure desired position relative
to benchmarks
5. Promote primary care utilization
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| 126
Phase Two: Better
1. Implement an aggressive results-based
wellness program with significant financial
incentives
2. Provide robust resources for chronic
disease management
3. Implement a spousal coverage strategy
4. Explore defined contribution or private
exchange strategies
5. Implement a telemedicine option
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| 127
Phase Three: Best In Class
1. Make price and quality information
available to employees
2. Identify and promote centers of value
3. Carve-out your pharmacy benefits to
ensure maximum discounts and eliminate
spread pricing
4. Set up an Onsite Medical Clinic
5. Utilize resources for large claim review and
forecasting
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| 128
⢠CDHP usage ever increasing for companies in the Midwest
region of US*
⢠2005 â 6%
⢠2014 â 45%
⢠Defined Contribution strategies becoming very common â
most employers are using the CDHP plan as the basis for
their cost*
⢠Participation in high deductible plans increasing when DC
approach is taken*
The Consumer Driven Health Plan
strategy.
*Source: 2014 USI Midwest Mid-Market Benchmarking Survey
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⢠Over 80% of Employers now report sponsoring a
wellness or health promotion program*
⢠Efficacy of âfluff programsâ?
⢠Important: design programs around disease
management analysis and align incentives to
improve health
⢠Super Important: compliant program designs
*Source: 2014 USI Midwest Mid-Market Benchmarking Survey
What about Wellness?
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ď§ Participation only
programs
Rewards available for
participation to all
similarly situated
employees regardless of
result
ď§ Health contingent
program
Activity Based or
Outcomes Based where
reward is based on a
result/achievement
Satisfying HIPAA does not mean compliance with any other law.
1. Reward cannot exceed 30% of the total
cost of coverage (50% for tobacco
related)
2. Program must be reasonably designed to
promote health and prevent disease
3. Annual opportunity to qualify for the
reward
4. Available to similarly situated individuals
and a reasonable alternative is available
5. Plan materials describing the program
must contain a notification of the
reasonable alternative availability
HIPAA Non-Discrimination Rules
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ď§ADA prohibits employers from requiring medical
examinations or making disability-related inquiries
unless job related and consistent with business
necessity
ď§EEOC is challenging three employers under the ADA
Wellness programs are not job related or consistent
with business necessity and non-voluntary
ADA Challenges
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Do
⢠Ensure any reward threshold complies with
HIPAA requirements
⢠Work with employment counsel to
understand potential risks of incentive
based strategies in light of the ADA, GINA
and recent litigation
⢠Use language like reward, as opposed to
penalty or surcharge when
describing/communicating the program
⢠Consider potential GINA implications if
penalties apply when a spouse fails to
participate in medical exams or health
related inquiries
Donât
⢠Fire employees for non-participation
⢠Impose significant cost-sharing (e.g., 100%
of the premium) for non-compliance
⢠Deny access to coverage or access to a
specific benefit (e.g., HRA)
What to Consider
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Incenting for PCP visits â the new
wellness strategy
Considerations:
⢠Promotion of no-cost preventive benefits of
interest to many employers*
⢠Appropriate care and conversations are left to
the professionals
*Source: 2014 USI Midwest Mid-Market Benchmarking Survey
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Pursuing Self Funding
⢠We continue to see a migration from fully insured
to self funded medical plans for Mid-Market
companies in the Midwest*
⢠Reasons include:
⢠Greater transparency of costs
⢠Savings of ACA taxes and fees
⢠Savings of carrier profit
⢠Internal funding and management
of reserves
*Source: 2014 USI Midwest Mid-Market Benchmarking Survey
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| 135
Cost transparency? What is that?
Serigraph, Inc.:
⢠Direct negotiation with providers
⢠Implementation of an on-site clinic
⢠Researched and communicated results of HR
dept research
⢠MedSave incentive strategy
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⢠Compass
⢠Healthcare Blue Book
⢠Castlight
⢠HooPayz
⢠Carrier Online Transparency Tools
⢠Diagnostic Testing Management
⢠Reference-Based Pricing
⢠Dialysis Management
⢠Value Based Benefits
⢠Clear Options Rx
More turn-key options are
available:
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Finding Your Right Combination:
USI OMNI
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| 138
Finding Your Right Combination:
USI OMNI
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| 139
Finding Your Right Combination:
USI OMNI
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| 140
Reminder:
One strategy isn't enough. It takes a combination of
strategies to change profound and resistant
problems.
Step 1: Establish your goals.
Step 2: Identify the right strategies to get you from
where you are, to where you want to be.
Step 3: Do them. Even the hard ones.
In order to achieve extraordinary results, you need to
exert extraordinary effort.
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| 141
Thank you for your time today.
142. z
E.T. Phone (from) Home
An Employerâs 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