2017 managing labor + employee relations seminar

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Transcript of 2017 managing labor + employee relations seminar

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in 2016

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Workplace Policy Institute Report

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In the last 8 years the NLRB has:

1 Overturned 4,500 years of legal precedent

2 Overturned 91 precedent cases

3 Averaging over 45 years’ precedent per decision

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Joint Employers

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Employment Policies UNDER ATTACK1 Emasculation of Social Media policies

2 Invalidation of Confidentiality + Non-Disparagement Agreements

3 Invalidation of certain Non-Competition Agreements

4 Invalidation of common at-will employment statements

5 Invalidation of policies regulating conduct, profanity, and abusive behaviors

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in 2017

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Wage Hour in 2016

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Wage Hour in 2017

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in 2017

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EEO-1Reporting Forms

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LGBTRIGHTS

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in 2016

Recordkeeping

Retaliation

Safety Incentives

Drug Testing

Increased Penalties

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What Else Can We EXPECT?

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Possible State + Local Initiatives

Minimum wage levelsSalary level for overtime exemptionsRestriction of Non-Compete Agreements

Paid sick leave

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Possible State + Local Initiatives

Medical marijuana

Sexual orientation and LGBT protections

Predictive scheduling

Concealed carry laws

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Lawrence FeheleyKegler Brown Hill + [email protected]/lawrencefeheley614-462-5432

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I’VE FALLEN + I Can’t Get

Comp!

Presented by Dave McCartyMarch 7, 2017

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GONE ON A BENDER Young man attends fraternity

reunion, drinks heavily all weekend

Reports for work, hungover, Monday morning at a call center

Feels nauseous at his desk job, stands up…

That’s the last thing he remembers until he is taken to the ER

Case Study #1

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GONE ON A BENDER

INJURY:Broken cervical spine, months in the hospital/rehab facility, permanent loss of some arm

function

Case Study #1

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GONE ON A BENDER Case Study #1

Compensable?1. Yes2. No

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50%50%

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SHOULD’VE HAD A SPOTTER

Young man falls 5 feet off ladder while working on construction job

Lands on and sprains his shoulder

Goes off work…14 months later and he still has not returned

Bends over backward to resist employer’s efforts to get him back to

light duty work

Case Study #2

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SHOULD’VE HAD A SPOTTERCase Study #2

INJURY:Initial injury – sprained

shoulder; Requests additional allowance of rotator cuff tear, authorization of surgery and

payment of compensation

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SHOULD’VE HAD A SPOTTERCase Study #2

Additional Allowance?1. Yes2. No

100

50%50%

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SHOULD’VE HAD A SPOTTERCase Study #2

Surgery?1. Yes2. No

100

50%50%

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SHOULD’VE HAD A SPOTTERCase Study #2

Compensation?1. Yes2. No

100

50%50%

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TOO LITTLE, TOO LATE?New employee: good employee’s

brother-in-law, hired as a favor to employee at a construction company

Sometimes actually shows up for work, often hungover

Claims he fell off a step ladder while hanging sheetrock, badly injured his

knee in February 2015

Several witnesses on site - no one saw or heard anything, all deny he

reported any injury or incident

Case Study #3

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TOO LITTLE, TOO LATE?Employee does not seek treatment

until May 2015, more than 2 months after he is fired

Unemployment compensation application denied

Files workers’ comp claim June 2015

Goes to hearing in late 2015, employer chooses not to hire counsel

Case Study #3

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TOO LITTLE, TOO LATE?Case Study #3

OUTCOME:Industrial Commission allows

claim for (among other things) aggravation of pre-existing

arthritis and authorizes total knee replacement

Employee STILL off work – has collected compensation for

nearly 2 years

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TOO LITTLE, TOO LATE?Case Study #3

Outcome after jury trial?1. Yes2. No

100

50%50%

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Takeaways?

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Often best to make small investment of time, up front, to

run the situation by your counsel

1

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Workers’ comp is a very narrow field, but it has a vast array of

complex legal subtlety

2

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EXAMPLESParking

Lot CasesIdiopathic

CausesSubstance

Abuse/Drug Use

VoluntaryAbandonmentof Employment

SubstantialAggravation

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CROSS EXAMINATION

often critical to defense

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Dave McCartyKegler Brown Hill + [email protected]/mccarty614-462-5469

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INSPECTION

How to Survive an

Presented by Timothy A. KelleyMarch 7, 2017

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Who isOSHA?

What is anOSHA

Inspection?

Why DoesIt Matter?

How Do ISurvive theInspection?

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Who isOSHA?

What is anOSHA

Inspection?

Why DoesIt Matter?

How Do ISurvive theInspection?

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to assure safe and healthful working

conditions for working men and women by setting and enforcing

standards and by providing training,

outreach, education and assistance”

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FRIENDInspector is NOT your

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Who isOSHA?

What is anOSHA

Inspection?

Why DoesIt Matter?

How Do ISurvive theInspection?

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GovernmentIntrusion on

PrivateProperty

Subject toProtections

of 4thamendment

RequiresEmployer

Consent ora Warrant

What is anOSHA

Inspection?

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Imminent Danger

Severe Injury/Illness

Employee Complaints

Referrals

Programmed

Follow-up

TYPES

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Who isOSHA?

What is anOSHA

Inspection?

Why DoesIt Matter?

How Do ISurvive theInspection?

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“What Do We Know?

New Regulations for 2017

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50

INJURYReporting

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Hours to Report8Old Rule+ all work-related fatalities, and+ in-patient hospitalizations of

3 or more employees

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Hours to Report8New Rule+ all work-related fatalities that

occur within 30 days or a work-related incident

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Hours to Report24New Rule + all work-related in-patient

hospitalizations of one or more employees for “care or treatment”

+ all work-related amputations+ all work-related losses of an eye+ (if they occur within 24 hours of

work-related incident)

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Electronic Reporting + PUBLIC ACCESS

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January 1,

2017250+ employees Submit OSHA Form 300A by 7/1/17

Certain industry employees of

20-249 employeesSubmit OSHA Form 300A by 7/1/17

January 1,

2018250+ employees Submit Forms 300A, 300 and 301 by 7/1/18

Certain industry employees of

20-249 employeesSubmit Form 300A by 7/1/18

January 1,

2019 All employers Submit all forms by 3/2/19

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Why Public Shaming?

Since high injury rates are a sign of poor

management, no employer wants to be

seen publicly as operating a dangerous workplace.”

Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to

investors, job seekers, customers and the public that they operate safe and well-

managed facilities.”

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PENALTIES

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Type of Violation

Former Maximum

Penalty

New Maximum

Penalty

Other than Serious $7,000 $12,471

Serious $7,000 $12,471

Repeat $70,000 $124,709

Type of Violation

Former Maximum

Penalty

New Maximum

Penalty

Willful $70,000 $124,709

Failure to Abate $7,000 $12,471 per day

Posting Violation $7,000 $12,471

Penalty Schedule

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Who isOSHA?

What is anOSHA

Inspection?

Why DoesIt Matter?

How Do ISurvive theInspection?

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What Should You Do

BEFOREan Inspection?

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TRAINyour supervisors

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Prepare them for what to do during an OSHA inspection

Ensure they know safety/ compliance issues specific to their department

Make sure they inform their employees of their rights, duties and obligations during an OSHA inspection

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FRIENDInspector is NOT your

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IMPLEMENTand Enforce a Disciplinary Program

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Existence of program

Communication to employees

Steps to discover violations

Enforcement

to preserve the employee misconduct defense

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Secretary v. Skanska Koch, Inc.“ground inspection” of tie-

off rule insufficient

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Secretary v. CB&I Constructors, Inc.

employees lied about compliance=insufficient

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What to do When OSHA

KNOCKSon your Door?

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Call your attorney

Why is OSHA here?

Let in without warrant?

Be proactive during inspection

Seek immediate resolution

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Call Your Attorney

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Can assert your rights during an OSHA inspection

Can help you decide if/when/where you will allow

the inspection to proceed

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Ask for credentials

Determinereason forinspection

Determinescope of

inspection

Designateemployer

representative

Why is OSHA Here?

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Will You Let OSHA Inspect Without a Warrant?

OSHA cannot conduct a warrantless search without employer consent

OSHA should be able to get the warrant, but it will take time

Factors to consider: possibility of a repeat violation (i.e. bigger fine), more thorough/detailed inspection once warrant is procured

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Employer representative should accompany C.O.

at all times -control the route

C.O. may speak to employees privately, but

employees may be informed that they are

not required to talk

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Make Sure Your Employees Know Their Rights

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Decline to be

interviewedTerminate the

interviewRefuse to sign

statement

Refuse to be recorded or

photographed

Request employer

rep/attorney present at interview

Request interpreter

during interview

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FRIENDInspector is NOT your

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DO NOT offer superfluous information“I don’t know” is ok except for obvious answers

DO NOT admit to violationsask why inspector believes there is a violation, and what actions should be taken to correct it

You ARE NOT obligated to run a machine that isn’t currently operating

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Enforce facility rules restricting

photography when possible

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DO NOTConcede anything

to the C.O.

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IMMEDIATERESOLUTION

If possible, correct alleged

violations immediately

Do not ADMIT to the violation

Use the closing conference to

your advantage

Seek information -do not engage in speculation

Clarify any mistaken

impressions

Demonstrate willingness to comply with

standards

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What are YourGOALS?

Show your good-faith commitment to employee safety + OSHA compliance

Determine strength or weakness of any alleged violation

Begin to decide if you want to contest the citation(s)

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Timothy A. KelleyKegler Brown Hill + [email protected]/kelley614-462-5407

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FLSA

That Employers Often Make

Presented by Timothy J. GallagherMarch 7, 2017

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LET’SDiscuss

GeneralFLSA

Overview

RecentFLSA

Changes

7 CommonFollies

RecommendedFixes

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“Engaged in interstate

commerce”

Fair Labor Standards Act

Applies to All Covered

Employers

Ohio Equivalent(OMFWSA)

Engaged in Interstate

Commerce

Same as FLSA except revenue

threshold is $150,000 annual

sales

Annual sales greater than

$500,000

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FLSAEstablishes

MinimumWage

OvertimePay +

Eligibility

Record-KeepingDuties

Child LaborRestrictions

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Seems

Enough, Right?

MinimumWage

OvertimePay +

Eligibility

Record-KeepingDuties

Child LaborRestrictions

EASYPay at LeastMinimum

Wage

PayApprovedOvertime

RecordTime

ExerciseCaution WhenHiring People

Under 18

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Made sense in 1938…

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Makes less sense today

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But Enforcement has Turned into a

GAME

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Consequences for Violations +

Non-Compliance

Class Action Lawsuits Attorney Fees

Back Wages + Liquidated Damages

Penalties

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Most Common

AREAS

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1(MIS)CLASSIFICATION

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Employee IndependentContractor

VS

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FOLLY

Hiring as or switching to 1099 to keep costs down.

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RULE

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6 Factor Economic Realities Test

Integral? Profit/Loss?

Comparative Investment? Special Skill?

Permanent/Indefinite? Control?

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Internal audit of 1099 workers + err on side of

employee

FIX

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Exempt Non-Exempt

VS

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FOLLY

Everyone who earns a salary is exempt from

overtime

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RULE

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What is an “Exempt” Employee?

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EXEMPT IF:Paid minimum salary of

$________/week (*proposed to be $________/week*)

Duties performed are exempt.Only exempt if duties are:

_______________, _______________, _______________, _______________,

_______________

AND

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EXEMPT DUTY MEANSMANAGEMENTSupervises at least two full-time employees, and has discretionary authority to hire/fire

E

_______________, _______________, _______________, _______________, _______________

OFFICE/NON-MANUALDiscretionary authority to make important decisions, exercise independent judgment

ADOCTORS, LAWYERS, SCIENTISTS, ENGINEERSLots of school

P

CREATIVERequires artistic endeavor – two people would end up with different results

P+SALESAnd engaged AWAY from employer’s place of businessOSSYSTEMS ANALYST, PROGRAMMER, SOFTWARE ENGINEERCreates systems or applies systems

C

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FIX

Have your employees prepare job descriptions +

know how many hours they are working

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2OVERTIME CALCULATION

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FOLLY

Not knowing employee’s “regular rate” / not paying

for “unauthorized” overtime

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RULE

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All overtime MUST be paid

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Week 1

38hours

Week 7

42hours

Week 22

46hours

Week 12

41hours

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FIX

Make bonuses discretionary/fluctuate and know your rates

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FIX

Discipline for unauthorized overtime (but pay it anyways)

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3OFF-THE-CLOCKWORK

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FOLLY

Permitting non-exempt employees to work off the clock or worse – requiring

off the clock work

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RULE

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FIX

Make sure supervisors and managers know the rules

and enforce them

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4TRAVEL TIME

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FOLLY

We only pay for work, not travel

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RULE

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Travel time from work to home and home to work ______compensable time.

Travel time from one workplace to another ______compensable time.

What about travel to central location before going to worksite? One-day assignment?

Travel time ______ be paid.

If employee does not first report to normal work place then ___________________________.

Overnight travel?Travel time ______ be paid if during

__________________________________________.

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FIX

Err on the side of paying

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5UNIFORMS

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FOLLY

Requiring all employees to buy uniforms

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RULE

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RULE

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FIX

Make uniforms wash and wear and provide

reasonable number of uniforms

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6DEDUCTIONS

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FOLLY

“You break it, you bought it!”

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RULE

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FIX

Have employees sign a written policy permitting

deductions from pay – but don’t deduct below

minimum wage

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7RECORD KEEPING

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FOLLY

Not realizing that daily recordkeeping is required

by Ohio Constitution

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RULE

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Ohio ConstitutionArticle II

Section 34a

An Employer Shall Maintain a Record of the

for a period of not less than three years following last date of

employment

Such information shall be provided without charge to an employee or

person acting on behalf of an employee upon request

Name + Address Occupation + Pay Rate

Hours worked each day

Each amount paid to employee

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FIX

Keep good records for at least three years.

Outsource? Digitize?

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Timothy J. GallagherKegler Brown Hill + [email protected]/gallagher614-462-5476216-586-6784

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Presented by Brendan FeheleyMarch 7, 2017

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2002 DOL reports that 13% of employees surveyed indicated they used FMLA leave

at some point in the last year

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of the U.S. workforce is on FMLA leave at any given time

10.7%

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Government

36%Call Centers

33%Manufacturing

23%Casinos

49%Health Care

39%

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“Widespread”PROBLEMS3

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PROBLEM SOLUTION

Not recognizing workers’ need

for leave

Make sure all medical leave requests are as

centralized as possible

Get supervisors out of the discussion

Have absence notice policies match up with request communication lines

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PROBLEM SOLUTIONFailing to meet

the notice deadlines

under FMLA regulations

Put General Notice poster up and have it in your

handbook

Must provide Eligibility Notice within 5 business

days of initial request

Rights + Responsibilities has to be given each time

Eligibility Notice is provided

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PROBLEM SOLUTIONFailing to properly

administer medical

certification

For conditions lasting less than six months - longer of: the duration listed on the

FMLA form or 30 days

For conditions lasting longer than six months –

every six months

Indefinite duration -every six months

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EXCEPT

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Recertification can be done inside of days if:30

Employee requests an extension of

leave

Circumstances described by

previous certification

have changed significantly

Employer receives information that creates doubt in

employee’s stated reason for absence or validity of certification

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Too Much PAPERWORK!!!

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You forget to give Tammy this form

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Too Much PAPERWORK!!!

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Does Tammy have a case?

1. Yes2. No

100

0%

0%

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ANSWER

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Weekend Warrior

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Do you have knowledge of an FMLA condition?

1. Yes2. No

0

0%

0%

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ANSWER

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WeekendWarrior

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Did Wendy give adequate notice of her need for

leave by calling her supervisor after she fell?

1. Yes2. No

0

0%

0%

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Can Wendy’s leave request be denied on

the basis that it exceeds the maximum allowed

by the FMLA?

1. Yes2. No

0

0%

0%

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ANSWERS

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TIPS of the Trade

1Don’t get bogged down by the foreseeable/unforeseeable designation, think fairness and practicality

2 Probability is not a guarantee, wait until the leave is actually expired

3Employees don’t choose if something is FMLA – if it qualifies it should be designated as FMLA

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Lazy Leonard

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LazyLeonard

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Does Leonard have a case?

1. Yes2. No

0

0%

0%

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ANSWER

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LazyLeonard

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Does Leonard have FMLA time available?

1. Yes2. No

100

0%

0%

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ANSWER

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Barry NoBonus

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Barry does not receive his bonus. Does Barry have an FMLA claim?

1. Yes2. No

100

0%

0%

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BarryNoBonus

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Does Barry have an FMLA claim?

1. Yes2. No

100

0%

0%

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ANSWERS

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What if, instead of being based on a sales threshold, Barry’s bonus was

based on having perfect attendance.

If, other than his FMLA absence, Barry had perfect attendance, could

Barry be denied his bonus because of his leave?

1. Yes2. No

100

0%

0%

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ANSWER

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TIPS of the Trade

1 Be careful how your bonuses are worded – check your handbook

2 Be careful to make sure your rules are applied evenly

3 Pro-rating a bonus may be better than denying it entirely

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Amy Absence

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If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or

immediate supervisor as soon as possible by telephone. . . .If you are not at work during your regular hours, you must be on

authorized leave. This means that your supervisor knows of and has approved your absence. In accordance with the law and rules, job

abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays

following the expiration of any authorized leave.

company Call-In

POLICY

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Does Amy have a claim for FMLA interference?

1. Yes2. No

100

0%

0%

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ANSWER

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The Bat Phone

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Does Jeff have a claim?

1. Yes2. No

0

0%

0%

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ANSWER

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TIPS of the Trade

1Include notice procedures in letters approving leave

2Get written acknowledgement of notice procedures

3Submit requests for foreseeable leave in writing

4Use a designated call-in number to notify the employer of an unforeseeable absence

5Report unforeseeable absences within a certain window of time

6Submit requests for leave to a designated individual

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RandyRehab

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Can you require Randy to provide you with the hours of the clinic he is

being treated at?

1. Yes2. No

100

0%

0%

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Assuming you get the schedule, can you

require Randy to modify his treatment times to

times that are more convenient for you?

1. Yes2. No

100

0%

0%

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ANSWERS

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Brendan FeheleyKegler Brown Hill + [email protected]/brendanfeheley614-462-5482

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