What's the Deal? Labor and Employee Relations in the Trump Era
2014 Managing Labor + Employee Relations Seminar
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The annual Managing Labor + Employee Relations Seminar took place on Tuesday, March 4, at 8:30 a.m. at the Fawcett Center and provided valuable information about best practices and the changing regulations that are important for employers to know. The half-day seminar, designed for business owners and professionals in human resources and employment law, discussed the following topics: reasonable accommodation under the Americans with Disabilities Act; investigating employee claims; information on the Affordable Care Act and the options employers have; and tips on how retaliation claims can be handled and avoided.
Transcript of 2014 Managing Labor + Employee Relations Seminar
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The Scorecard for 2013
presented by Lawrence Feheley2014 Managing Labor + Employee Relations Seminar
March 4, 2014
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“Persons attempting to find a motive in this narrative will be prosecuted; persons attempting to find a moral in it will be banished; persons attempting to find a plot in it will be shot.”
+Mark Twain, Adventures ofHuckleberry Finn
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2013 Was a Good Year
+Minimum Wage Employees
+Gays and Lesbians in the Workplace
+Facebook Complainers + Tattletales
+Soldiers
+Unpaid Interns
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2013 Was a Good Year
+Flu-Prone Employees
+People Disabled by Weird Conditions
+Female Wage Earners
+Potheads in the Workplace
+Criminals in the Workplace
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2013 Was a Bad Year
+Obamacare
+NCAA Football
+Non-Union Employers
+Technology Haters
+Erstwhile Independent Contractors
+Employee Handbooks
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2013 Had Mixed Results
+The National Labor Relations Board
+Supervisors
+The EEOC Criminal Background Guidelines
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Reasonable Accommodations after the ADA Amendments
presented by Kailee M. Goold2014 Managing Labor + Employee Relations Seminar
March 4, 2014
What You Do + Don’t Have to Do
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+
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ADAAA Refresher
Triggering the Process
Engaging the Employee
Choosing Accommodations
Final Comments
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Prohibits 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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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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ADAAA significantly expanded “disability”
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Major life activities
Episodic or in remission
Temporary conditions
Mitigating measures
ADAAA Game Changers
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Concentrating
LearningSleeping
Breathing
CommunicatingSeeing
LiftingBending
Speaking
Caring for Oneself
Performing Manual Tasks
Eating
ReadingStanding
ThinkingWorking
Walking
Major Life Activities
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Episodic or In Remission
+Disability if it would limit a major life activity when active
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Temporary Conditions
May be a disability if it lasts or is expected to last fewer than 6
months
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Mitigating Measures
+You must consider how the impairment affects the person before or without the mitigating measure
+ (except ordinary glasses and contacts)
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Obesity ADHD
Sensitivity to perfumes
Incontinence
Torn tendonsSeasonal affective disorder
Bladder conditions
Allergies
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Is This Employee Disabled?
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Shift Your Focus
Is this employee disabled?
How can this employee do this job with an accommodation?
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+
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Identify when is the duty is triggered
Engage with the employee
Choose and maintain a reasonable
accommodation
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employee “requests”
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Believing what you read on the internet
Common Mistake
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No magic words required
Can come from third parties
Don’t have to ask for anything
Employee “Requests”
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Workplace problem
Medical Condition
Employee “Requests”
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Trying the ostrich defense
Common Mistake
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Accommodation “requests”
Your files (FMLA, WC)
Employee
behaviorAbsences
Performance Issues
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Failure to document, document, document
Common Mistake
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“My wheelchair doesn’t fit under my desk.”
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Employee at end of FMLA Leave
“I may need more time off.”
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Spouse calls in
“My wife is in the hospital. She won’t be in for awhile.”
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“It’s been hard to show up on time since my divorce –
I’m really upset.”
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No Link“I’ve been
meaning to tell you . . .”
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Identify when is the duty is triggered
Engage with the employee
Choose and maintain a reasonable
accommodation
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Informal dialogue to figure out if you can accommodate
the employee
Closely scrutinized
The Interactive Process
dialogue
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How can I help you do your job?
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Three Questions
What are the essential functions of this job?
What is the impairment?
What are the specific limitations?
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Unclear essential functions
Common Mistake
Job Description
Employee Agrees
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Three Questions
What are the essential functions of this job?
What is the impairment?
What are the specific limitations?
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Staying dazed + confused
Common Mistake
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Get the information you need!
Company
Medical Request
Employee
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Nothing you can or
should do
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Identify when is the duty is triggered
Engage with the employee
Choose and maintain a reasonable
accommodation
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Accommodation = Change
Make facilities accessible
Restructure non-essential functions
Acquire + modify equipment
Modify schedules
Modify policies
Leave
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Excuses ≠ legal defenses
Common Mistake
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• Eliminating essential functions
• Creating a job
• Bumping
• Indefinite leave
NOT Reasonable:
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Undue hardship (extremely rare)
“significant difficulty”
Health + Safety
“direct threat”
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Short-term memory
Common Mistake
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Letting the employee choose
Common Mistake
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What about our leave policy?
Have one and be flexible.
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Follow Through
Proper implementation
Follow up
Document
Rinse and repeat if needed
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Blabbing
Common Mistake
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Not asking for help
Common Mistake
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Engage and accommodate
Document!
Ask for help
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To Do List
Review accommodation policy
Review job descriptions
Script for inquiries
Train supervisors
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Conducting a Proper Investigation
presented by Jeffrey C. Miller2014 Managing Labor + Employee Relations Seminar
March 4, 2014
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The Basics
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Initial Considerations of an Investigation
+Is it necessary?
+Immediate
+Interim Measures
+Who is the investigator?
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Basics of Conducting an Investigation
The Complainant
The Alleged Harasser
The Witnesses
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The Review
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Credibility Assessment Factors
+ Inherent plausibility+ Is the testimony believable on its face? Does it make sense?
+ Demeanor+ Did the person seem to be telling the truth or lying?
+Motive to falsify+ Did the person have a reason to lie?
+ Corroboration+ Is there witness testimony or physical evidence that corroborates the party's
testimony?
+ Past record+ Did the alleged harasser have a history of similar behavior
in the past?
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The Decision
+Made by management
+Recommendation made by investigator
+Inform the parties at once
+What if there are direct contradictions, lack of documentary or witness corroboration, and inability to make a credibility determination?
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The Risks
+Failure to investigate will lead to claims by the victims
+Negligence claims and other suits by the accused
+Doobenen v. Aerojet-General Corp – Failure to interview the accused
+Garcia v. State University at Albany – Failure to follow internal rules and policies
+Flanagan v. Ashcroft - "reverse sexual harassment" Due to unprofessional, hostile and accusatory investigation
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Getting More Information
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Prepare, Prepare, Prepare
Know all policies, guidelines, or practices that apply to the situation
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Establish a Comfort Level with Complainant/Witnesses
+ Be honest
+ Be professional
+ Introduce yourself and your role
+ Assure prevention of retaliation or reprisal
+ You will limit disclosure to those having a legitimate need to know
+ Ask him/her to do the same
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Use Open-Ended Questions
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Plan the Investigation, But Don’t Fall in Love with Your Questions
+Some answers can require follow-up questions
+Some answers can reveal other problems
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Don’t Accept “Yadda, yadda, yadda”
+You may know the steps that lead to the conclusion, but the witness needs to say them
+Can be one of the more difficult aspects of a statement
+Try to avoid, but note if necessary, that “witness refuses to directly answer question.”
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Exhaust Narratives + Terms
Actively Listen
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Use Physical or Documentary Evidence to Your Advantage
Best for refreshing recollection or questioning credibility
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Take Your Time
+Follow-up if necessary
+Circle back to question issues of credibility
+Don’t rely upon a gut feeling
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Document Everything
+Take notes
+Read all or part of notes to the witness to confirm
+Ask the witness to talk slower or wait until you are done writing
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Potential Pitfalls
+ Becoming biased toward a witness or a side
+ Reaching a conclusion too early
+ Problematic questions: Will I be fired? Will the alleged wrongdoer be fired? Do I have to talk to you?
+ Confidential Complaints still count
+ Maintain Consistency regardless of stature of parties
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Example of a Solid Investigation in National News
+Previous allegations against the employer for being incompetent
+Allegations that the employer engaged in impermissible interviews
+Enterprise has not demonstrated a successful product
+Still managed to complete a textbook investigation
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Jonathan Martin + Richie Incognito
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Problem Cases
Mendoza v. Western Medical Center Santa Ana
+ Jury award of $238k for failure to conduct a good faith investigation
$1Million Dollars for Shoddy Investigation
+ Breach of contract and defamation relating to expense account abuse. Attempted whistleblower was ignored, then investigated by inexperienced and incompetent junior employee
AT&T $5Million Religious Discrimination
+ After employee converted to Islam, she was called a terrorist, other derogatory names, and relentlessly teased. She filed internal complaints, which were not properly investigated. She was ultimately terminated.
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Avoid Retaliation
+Remind everyone of the sensitivities
+HR representatives, supervisors, and managers
+Advise everyone that the company will not tolerate any form of harassment or retaliation against the complainant and anyone who participated in the investigation
+Complainant, accused, all interviewed
+Document that you have made the anti-retaliation statement
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presented by Ralph Breitfeller + Tom Sigmund2014 Managing Labor + Employee Relations Seminar
March 4, 2014
Affordable Care Act 201(The Sophomore Level Course)
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+Problems with HealthCare.gov
+Insurance policy cancellations
+Too few young people signing up
+ (25% of 18-34 years olds)
+Medicaid coverage gap
+Need for a “copper plan”?
Issues Arising in 2014
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2014• Individual Mandate
• Pre-Existing Conditions
• Annual Limits
• Waiting Periods
2015• Pay-or-Play for large employers
• Automatic Enrollment
• Non-discrimination Test
2016• SHOP Exchange
• Pay-or-play for small employers
2017 • SHOP Increase
2018 • Cadillac Tax
Future Compliance Dates
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+Small Employer Compliance with pay-to-play
+Employers between 50 and 99 employees
+Delayed from January 1, 2014 to January 1, 2016
Delayed Small Employer Compliance
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+Pay-or-play for large employers
+Employers with 100 or more employees
+Delayed from January 1, 2014 to January 1, 2015
+Phased in over time
+2015 must cover 70% of full time employees
+2016 must cover 95% of full time employees
Delayed Large Employer Compliance
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+Announced by IRS on February 10, 2014. Found at 79 Fed. Reg. 8544 (2-12-14)
+First delay was announced on July 9, 2013, which delayed compliance from January 1, 2014 to January 1, 2015. (IRS Notice 2013-45)
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Limited Work Force (>49 FTEs <100) Transition Relief
+During the period February 9, 2014 to December 31, 2014, the employer does not reduce the size of the workforce or the overall hours of service in order to satisfy this workforce condition.
+Employer cannot eliminate or materially reduce previously offered health coverage—meaning:
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+Employer continues to offer each employee who is eligible for coverage during the coverage maintenance period an employer contribution toward the cost of employee-only coverage that either:
+ is at least 95 percent of the dollar amount of the contribution toward such coverage that the employer was offering on February 9, 2014, or
+ is the same (or a higher) percentage of the cost of coverage that the employer was offering to contribute toward coverage on February 9, 2014;
Maintain Coverage Means:
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+In the event there is a change in benefits under the employee-only coverage offered, that coverage provides minimum value after the change; and
+The employer does not alter the terms of its group health plans to narrow or reduce the class or classes of employees (or the employees’ dependents) to whom coverage under those plans was offered on February 9, 2014.
Maintain Coverage Means:
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Certify Eligibility for Transition Relief
+The employer must certify that the employer satisfies the three requirements for transition relief.
+__________________________
+ALSO, for non-calendar plan years, relief is available for plan year beginning in 2015 and for the months that such plan year extends into 2016
+HOWEVER, employer may not alter the plan year after February 9, 2014.
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+No penalty under Section 4980H(a) (not offering minimum essential coverage) or Section 4980H(b) (failing to offer coverage that is affordable and offers at least minimum value).
+In other words, no penalty for not offering coverage and no penalty for not offering adequate coverage.
“Relief”
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+For employers with 100 or more FTEs
+An employer is deemed to have offered coverage if it is offered to all but five percent (or five employees if five employees is more than 5%) of the full-time employees
+For each calendar month during 2015 and any calendar months during the 2015 plan year that fall in 2016, an applicable large employer member that offers coverage to at least 70 percent (or that fails to offer to no more than 30 percent) of its full-time employees
Limited Transition Relief
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“Relief”
+Under limited transition relief, the qualifying employer is not subject to a penalty for failing to offer minimum essential coverage. [4980H(a)].
+HOWEVER, still subject to a penalty for failing to offer affordable, minimum value coverage. [4980H(b)].
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Offer of Coverage: MEWAs
+Multiple Employer Welfare Arrangements
+An offer of coverage includes an offer of coverage made on behalf of an employer
+This includes an offer made by a multiemployer or single employer Taft-Hartley plan or a MEWA to an employee on behalf of a contributing employer of that employee
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+ If the staffing company is not the common law employer of the employee,
+Then “an offer of coverage [made by the staffing firm] is treated as made on behalf of a client employer only if the fee the client employer would pay to the staffing firm for an employee enrolled in health coverage under the plan is higher than the fee the client employer would pay to the staffing firm for the same employee if the employee did not enroll in health coverage under the plan.” 79 Fed. Reg. at 8566.
Offer of Coverage: Staffing Firms
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+Each employer member is liable for its own penalty
+Each member is judged on whether the individual member has offered coverage to the requisite number of full time employees
+In other words, cannot aggregate all members and take the average for the group
Multiple Employers Penalty Assessment
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+Did employer employ an average of at least 50 FTEs on business days during any consecutive six month period in 2014?
+Six month period to be chosen by employer
+79 Fed. Reg. at 8573
Period for Determining Status
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+Large employer required to offer coverage to all full time employees and dependents (however, see transition relief)
+Affordable
+Minimum Value
Offer Coverage
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+Common law employee
+Does not include: leased employee; sole proprietor; partner; 2% shareholder of S Corp
+What if employer treats service provider as an independent contractor and the service provider is reclassified as an employee, and this results in the employer failing to offer coverage to all full time employees?
+ IRS and Treasury say, “that is too bad, Employer, you may be liable under 4980H”
Employee Classification Issues
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Employee Classification IssuesSection 3508 Employees
+3508 employees are real estate agents and direct sales agents
+They are not employees for 4980H purposes
+They do not have to be offered coverage
+Their hours of service are not included when calculating an employer’s FTEs
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+ If employer fails to offer coverage to a full-time employee for any day during a calendar month, then employee was not offered coverage during that calendar month
+Commenters said that often coverage begins on the first day of the first pay period of the plan year
Must Offer Coverage
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Response
+Solely for January 2015, if employer offers coverage to a full time employee no later than the first day of the first pay period that begins in 2015, the employer will be deemed to have offered coverage for January 2015. 79 Fed. Reg. at 8573
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+Dependent means child of employee, not spouse.
+Final regulations exclude foster children and step-children for penalty purposes only.
+Includes children who:
1. Are U.S. Citizens;
2. Are residents of the U.S.; OR,
3. Are residents of a country contiguous to the U.S.
Dependents
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Transition Relief Regarding Dependents
+If employer takes steps in 2015 toward satisfying this requirement, no penalty for:
1. Not offering dependent coverage;
2. Not offering dependent coverage that satisfies the minimum essential coverage standard; or,
3. dependent coverage is offered to some but not all.
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When Transition Relief Not Available
+This dependent transition relief is not available to the extent that the employer offered dependent coverage during either plan year 2013 or plan year 2014.
+In other words, employer cannot use the transition relief rules to offer less dependent coverage than the employer has previously provided.
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Still Applicable
1. Minimum essential coverage requirements
2. Minimum Value
3. Affordability
4. Waiting period no longer than 90 days
5. Method for determining number of employees is unchanged
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Self Insurance: A Few Thoughts
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1. ACA Essential benefits requirements
2. ACA Minimum loss ratio requirements
3. ACA Requirement to justify premium increase
4. ACA Excise tax
Not Subject To
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Still Subject To
+ACA regulations regarding limitations on annual and lifetime benefits
+ACA regulations regarding appeal rights
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Any plan that provides accidental health coverage if “any portion of such coverage is provided other than through an insurance policy.” Under this definition, a self-insured health and welfare benefit plan does not have to self-insure all of the benefits it covers.
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+A self-insured plan can have stop loss coverage and still be considered self-insured.
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+Section 105(h) of the tax code prohibits self-insured health plans from discriminating in favor of highly compensated individuals.
+This may be violated if the plan is designed to encourage low income employees to choose to go to the health insurance exchange.
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+Amends the Fair Labor Standards Act
+Generally provides that an employer that has more than 200 full-time employees and offers employees enrollment in one or more health plans shall automatically enroll new full-time employees in one of the plans offered
Automatic Enrollment for Employees of Large Employers
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+Material modifications of the terms and coverage of a plan that are not disclosed in a summary plan description must be disclosed at least 60 days in advance before the effective date of the modification
Notification of Material Modifications
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+ Prohibition of discrimination based on pre-existing condition or other discrimination.
+ Discrimination based on health status. Because self-insured plans are “group health plans,” they therefore may not have eligibility criteria based on the following factors:+ Health status
+ Medical conditions (either physical or mental)
+ Claims experience
+ Receipt of health care
+ Medical history
+ Genetic information
+ Evidence of insurability (including domestic violence)
+ Disability
+ “Any other health status-related factor.”
Discrimination
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Why You Always Picking On Me?
Retaliation Update
presented by Brendan Feheley2014 Managing Labor + Employee Relations Seminar
March 4, 2014
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Much ado about nothing…
+I’ve heard it all before…
+ I already know not to retaliate against employees…, everyone knows that… no one does this anymore.
+Not so fast my friend…+2013- EEOC reports 38,539 charges of retaliation
+41% of all charges filed
+Most of any charge for FIFTH YEAR IN A ROW
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So How Does This Happen?
+Often times inadvertent
+ Manager not thinking how this looks objectively
+Human Nature
+ Especially when initial complaint is untrue
+Lack of communication
+ Supervisor may not know full extent of complaint
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Decision Time
+You offered Sally the chance to transfer, she declined.
+Harry can’t be transferred because this is the only area he knows, and you don’t want to fire him.
+Thus, the two are still working together.
+But you’ve told Harry he can’t retaliate against Sally and he has said he understands.
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The HR Quandary
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What you HOPE Harry’s Thinking
“An eye for an eye makes the whole world blind.”
Mahatma Gandhi
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What Harry’s REALLY thinking
“Don’t get mad, get even. ”Robert F. Kennedy
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What Harry SHOULD be thinking
“Revenge converts a little right into a great wrong.”
German Proverb
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The Saga Continues
+Three weeks later Harry comes to you saying Sally needs fired.
+He’s heard you constantly harp on the importance of writing things down, and even remembers something about a hot stove (but that never seemed to make sense to him).
+This isn’t his first rodeo either, so he’s prepared. He brings you a file ½ an inch thick of problems he’s had with Sally. ALL of them in the last three weeks.
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The Problems Relate To
Sally’s Attendance
Sally’s Motivation
Sally’s Performance Output
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Now What?
+Problem???
+What if you hadn’t fired Sally?
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Proving a Retaliation Claim
+McDonnell Douglass
+Plaintiff has to show 4 things
1. he engaged in activity protected by Title VII;
2. this exercise of protected rights was known to the defendant;
3. the defendant thereafter took adverse employment action against the plaintiff; and
4. there was a causal connection between the protected activity and the adverse employment action.
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+ If Plaintiff can show these 4 things then Defendant has to show legitimate, nondiscriminatory reason for action
+How do you do this???+ Documentation is key
+ If Defendant does this then burden shifts back to Plaintiff to show “that the proffered reason was not the true reason for the employment decision.”
The Proof is in the Pudding
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Breaking Down the Prima Facie Case
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What is Protected Activity?
+Opposing a practice made unlawful by one of the employment discrimination statutes
+Filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute
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What is Opposing a Practice?
+Threatening to file a claim or charge
+Complaining to anyone about an act that would be prohibited by law (usually Title VII but can be NLRA OSHA or others)
+ Can be to co-workers, public, attorney etc… (according to EEOC)
+Refusing to obey an order (if believe it discriminatory)
+Can be explicit or implicit
+ Need not say “discriminates against … (if can be inferred)
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Critical Points
+Opposition must be reasonable
+No threats of violence
+No distributing confidential documents
+No badgering co-workers
+Opposition need not be correct
+Reasonable good faith belief enough
+Opposition of action against co-worker can protect complainer and co-worker
+Relatives can count
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Participation
+Pretty simple: met if individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation.
+Tips to remember
+Doesn’t matter if claims were valid or not
+Doesn’t matter if charge was timely or not
+Spouses, relatives, fiancés count
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You can only know what you know, unless you don’t
+Protected activity had to be known by Defendant.
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Adverse Action
+Same as everything else right?+ Maybe… Maybe not.
+Burlington: + Title VII retaliation provision is not limited to actions by employers that
affect the terms, conditions or status of employment or even those acts that occur at the workplace.
+ Instead, covers those employer actions that would serve to dissuade a reasonable employee from bringing a charge of discrimination.+ strongly suggests that it is for a jury to decide whether anything more than
the most petty and trivial actions against an employee should be considered 'materially adverse'
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Post-Burlington
+A fork in the road
+Courts: Action must be “materially adverse” generally meaning has to cause impact or harm
+ Demotions and negative changes in job responsibilities
+ Lateral transfers
+ Written reprimand
+ Schedule Change
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Post-Burlington
+EEOC+Court decisions are too restrictive
+ Surveillance can be adverse
+ Not inviting to weekly lunch can be adverse
+ Cancelling symposium in employee’s honor
+ Threats
+ Instigation of claims against employee
+Be careful about post-termination actions+ Failure to rehire
+ Negative recommendation.
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Proof of Causal Connection
+Direct Evidence
+ Rarely happens
+ Better not happen to you
+ Indirect Evidence
+ Demonstrated by evidence that:
+ (1) the adverse action occurred shortly after the protected activity, and
+ (2) the person who undertook the adverse action was aware of the complainant's protected activity before taking the action.
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Time is on my side… yes it is
+Typically when more than a month passes you’re beyond “short time after.”
+However, connection can still be proved if other evidence exists:+Constant mention of charge or complaint.
+Repeated slights or insults to employee between complaint and action
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Remember Pretext
+Employee has to prove retaliation is but-for cause of action
+Motivating factor not enough
+Key, like in any discrimination claim, how did you treat other employees and what did you write down.
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Consistent + Contemporaneous Documentation is Key
+ If discipline is heightened after activity… problem
+ If is significantly different than similarly situated employees receive after activity… problem.
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Revisiting Harry + Sally
+What did Harry do wrong?
+What if Sally’s behavior changes because unhappy with results?+ Documentation again key… Document what was going on before
and what is going on now.
+ Objective is better than subjective.
+ Remember claim of discrimination doesn’t permit employee to stop doing job. Just makes you work harder.
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Tips
+Remember protected activity is broader than you may think+ Relatives count, spouses count, fiancés count
+Don’t count on adverse action to save you+ You’re going to EEOC first
+Time is your friend+ Give a man a rope… he’ll learn to hang himself
+Don’t let supervisor off the hook+ Failure to document before may be fatal to ability to take action
after
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