Kegler Brown's 2015 Managing Labor + Employee Relations Seminar

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2014 in the
Rear-View
Mirror
Presented by Larry Feheley | March 3, 2015
2015 Managing Labor + Employee Relations Seminar

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Winner + Loser:
LABOR
UNIONS

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“If they only hear
one side…”

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$20,000
$2,400$6,000
$1.25/hr

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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.”

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“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

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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

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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

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Losers:
Employers +
Handbooks

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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

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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

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Losers:
Employers +
Social Media

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Losers:
Franchisors,
Staffing Agencies
+ Joint Employers

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Potential Joint Employers
Franchisors + Franchisees
Companies with Subcontractors
Companies + Staffing Agencies

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Winners:
Applicants with
Questionable
Backgrounds

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The Court said “a felony drug
conviction simply has no bearing
on an individual’s ability to
perform the primary imaging
duties of a radtech.”

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Winners:
Employees with
Questionable
Behavior

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“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’.”

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Winners:
Potheads,
Strippers +
Delivery Drivers

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Winners:
Plaintiffs’Wage-
Hour Lawyers

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“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:

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Undecided:
The Overtime
Rollercoaster

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Undecided:
Pregnant
Employees

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“Familiarity breeds
contempt – and children.”
-Mark Twain

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Undecided:
Wellness
Programs

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Labor PainsPregnancy in the Workplace
presented by Kailee Goold
2015 Managing Labor + Employee
Relations Seminar
March 3, 2015

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of today’s workforce
is female
50%

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70+%
of mothers with
kids under 18
are employed

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Pregnancy
Discrimination
Claims
since 1997

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No such thing as
MATERNITY leave?

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Sex
Discrimination
Leave
Disability
Wage + Hour
Common
Scenarios

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Pregnancy
DISCRIMINATION
under Title VII

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Covered Entities
Employers
(15+)
Employment
Agencies
Unions
Protects
Applicants
Employees

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Prohibits
Discrimination
Race
Color
National origin
Religion
Sex
Costly Liability
Compensatory +
punitive damages
Front + back pay,
reinstatement
Attorneys fees

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“sex”
pregnancy childbirth
related
medical
conditions

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Equal treatment unless
Legitimate reason
NOT based on sex
Business necessity
(extremely rare)
unless

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necessary to the normal
operation of the business
Business
Necessity

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NOT business necessity
Fertile women
policies
Fetal
protection
Economics

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avoid assumptions + stereotypes

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Child-Rearing or Medical
LEAVE
under FMLA

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Covered Entities
Employers
(50+)
Public Agencies
Eligible Employees
12 months
1,250 hours
50 employees
within 75 miles

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Qualifying Events
Serious health
condition
Birth, placement +
care of child
Care for spouse or
child with serious
health condition
Leave Entitlement
12 workweeks
during 12-month
period
unpaid

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Prohibits
Interference
Retaliation
Costly Liability
Compensatory +
punitive damages
Front + back pay,
reinstatement
Attorneys fees

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Intermittent leave
required when
medically necessary
own
serious health
condition
spouse/child
serious health
condition
required when

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Intermittent leave
requires approval
birth careplacement

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Disability
ACCOMMODATIONS
under ADA

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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

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engage in the interactive process
+
accommodate disabled
employees
disabled

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pregnancy is NOT a disability

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Disability
physical or mental
impairment that
substantially
limits a major life
activity
a record of such
impairment
being regarded as
having such an
impairment

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infertility miscarriage
hypermesis
gravidarum
gestational
diabetes
high blood
pressure
sciatica
pre-term
labor
infections
post-partum
depression
carpal
tunnel

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Accommodation = Change
Restructure non-essential functions
Acquire + modify equipment
Modify schedules
Modify policies
Leave

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Undue Hardship
(extremely rare)
“significant
difficulty”
Health + Safety
“direct
threat”

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Follow Through
Proper implementation
Follow up
Document
Rinse + repeat
if needed

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WAGE + HOUR
considerations
under FLSA

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Covered Employers
50 +
employees
< 50 unless
undue burden
Protections
Reasonable
break time
Private place
Until 1st
birthday
All Employers
Costly Liability
Compensatory +
punitive damages
Attorneys fees
Front + back pay,
reinstatement

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Breaks
unpaid if:
Relieved of all
duty
Other breaks
unpaid

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To Do List
Review policies
Think through scenarios
Apply policies + procedures equally
Train supervisors + interviewers
Communicate with employees

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Stay Informed
Kailee Goold
Kegler Brown Hill + Ritter
kgoold@keglerbrown.com
keglerbrown.com/goold
614.462.5479
@KaileeGoold
linkedin.com/in/kaileemgoold

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The Dos + Don’ts
of Documentation
presented by Jeffrey C. Miller
2015 Managing Labor +
Employee Relations Seminar

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Employment Law
Horror Stories
Tales of documentation gone wrong

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+ 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)

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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!

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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.

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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!

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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

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“Prior satisfactory performance
evaluations can be evidence that
a more recent claim of poor
performance is pretext for
discrimination”.
Judge Harwell

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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

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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

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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

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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

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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.

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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.

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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

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Over
Documenting
Why? Comparables
+ It is possible to over
document
+ Do not nitpick!
+ Document employees’
performances evenly

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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

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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

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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

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+ 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

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+ 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

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Thank You!
Jeffrey C. Miller
jmiller@keglerbrown.com
keglerbrown.com/jeffreymiller
216.586.6651

Emily Adams, Employee Benefits Consultant
www.usi.biz
HEALTHCARE STRATEGY
IN A POST-ACA WORLD

© 2014 USI Insurance Services. All rights reserved.
| 119
Complex Challenges

| 120
Complex Challenges

| 121
Common Solutions

| 122
Common Solutions

| 123
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.

| 124
 Adopt a consumer-driven health plan
 Migrate from fully-insured to self-insured
funding
 Achieve maximum network discounts
 Emphasize primary care
 Implement an aggressive results-based
wellness program with significant financial
incentives
 Get serious about chronic disease
management
 Implement a telemedicine option for
employees
 Make prices and quality transparent
 Identify centers of value
Lets discuss the key strategies for
cost containment:

| 125
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

| 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

| 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

| 128
• CDHP usage ever increasing for companies in the Midwest
region of US*
• 2005 – 6%
• 2014 – 45%
• Defined Contribution strategies becoming very common –
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

| 129
• Over 80% of Employers now report sponsoring a
wellness or health promotion program*
• Efficacy of “fluff programs”?
• Important: design programs around disease
management analysis and align incentives to
improve health
• Super Important: compliant program designs
What about Wellness?

| 130
 Participation only
programs
Rewards available for
participation to all
similarly situated
employees regardless of
result
 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

| 131
ADA prohibits employers from requiring medical
examinations or making disability-related inquiries
unless job related and consistent with business
necessity
EEOC is challenging three employers under the ADA
Wellness programs are not job related or consistent
with business necessity and non-voluntary
ADA Challenges

| 132
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
Don’t
• 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

| 133
Incenting for PCP visits – 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

| 134
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

| 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

| 136
• 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:

| 137
Finding Your Right Combination:
USI OMNI

| 138
USI OMNI

| 139
USI OMNI

| 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.

| 141
Thank you for your time today.

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E.T. Phone (from) Home
An Employer’s Guide to Telecommuting
presented by Brendan Feheley
2015 Managing Labor + Employee Relations Seminar
March 3, 2015

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Cost Savings
Work-Life
Balance
Improved
Health +
Decreased
Stress
Community
Participation
Increased
Job
Satisfaction
Flexibility
“Advantages”
of Telecommuting

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Do we HAVE
to do this?
Do you do this
ALREADY?Better
Question

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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?

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Policy Considerations
Written Contracts
Discrimination Issues
Job Descriptions

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Legal Implications
of Flexible Work
FLSA FMLA OSHA
Privacy Tax Zoning
Insurance

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FLSA
+ Is the employee exempt?
+ Travel time issues?
+ Break time issues?
+ Work day?
+Benefits of telecommuting

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+ Can work from home
substitute FMLA leave?
+ Modified duty?
+ Intermittent leave issues?
+ How do you track?
FMLA

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will NOT go to
employee’s homes
BUT
You should….

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Workers’ Comp
+ Still responsible
+ What’s the work environment?
+ Investigation of Injuries
+ Drug + alcohol issues

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Tax + Payroll
Issues
+ Employees working
in other states
+ New Jersey example
+ 33 states say one
employee enough

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Insurance
Liability Issues
+ “Business up front
Party in the Back”
+ Insurance Policy
+ Employee
Acknowledgement

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Zoning Issues
Is Telecommuting
employee now working
in home occupation?
Alteration concerns,
space concerns, signage

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Practical Considerations
Impact on Culture
Performance Evaluation
Privacy Concerns
Work/Life Balance
Ending the Experiment

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Our Culture is Us
+ Impact on other employees
+ Explanation
necessary?
+ Impact on
individual if denied?

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How will you evaluate
performance?
Technology aides?
How will you meet to
inform the individual
of their performance?

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What information
can employee
access?
Privacy
ConcernsWho owns the
equipment?
How is the
equipment
protected?
How is the
information
protected?

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+ Childcare
requirements
+ Critical hour
requirements
+ Meeting
requirements
Balance

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Ending the
+ Who can end?
+ On what grounds?
+ How much notice
is provided?
EXPERIMENT

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Summary Takeaways
+ Lots of potential pitfalls
+ Think globally
+ Do your legwork in the beginning
+ Outline expectations clearly + get
acknowledgement
+ WRITE IT DOWN

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Thank You!
Brendan Feheley, Director
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614.462.5482

Kegler Brown's 2015 Managing Labor + Employee Relations Seminar

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