WellPoint June HR Training · • Green card process has been filed for at least one full year...
Transcript of WellPoint June HR Training · • Green card process has been filed for at least one full year...
WellPoint June HR
Training
Presented by Seyfarth Shaw LLP
Immigration Pain Points
Presented by: James W. King
©2014 Seyfarth Shaw LLP
Overview
• Immigration Process
• Visa/Work Permit Types
• Green Card Processing
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The Alphabet Soup of Immigration
• CIS (applications filed)
• CBP (airports and borders)
• ICE (investigations and I-9s)
• DHS (parent agency)
• DOS (embassies and consulates)
• DOL (first stage green cards)
• NIV (nonimmigrant visa)
• IV (immigrant visa)
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Work Permit Process Overview
• CIS Petition Approval (if required)
• DOS Visa Issuance
• CBP I-94 Issuance
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I-797 Approval Notice
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VISA Stamp
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I-94 Card (No longer issued)
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I-94 Admission Record
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Tear-Off I-94 Card
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Pain Point: Short I-94 Card
• Short I-94 may be issued
due to passport or visa
expiration or CBP error
• Potential for severe status
issues
• Visa voided
• 3/6 year bar to reentry
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Pain Point: Short I-94 Card
• Solutions
• Send I-94 record to Seyfarth
• Request nunc pro tunc approval
• If less than six months, travel to
get new stamp and reenter
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Most Common Work Permits
• H-1B Professional
• TN Canadian/Mexican NAFTA Professionals
• E-3 Australian
• F-1 Students
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H-1B Work Permits
• General Eligibility
• Requires degree linked to job position
• October 1 Cap
• Applies to first-time H workers (change of status)
• Degree (or Equivalent Experience) Required
• Prevailing Wage Required to be Paid
• Location-specific
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Pain Point: H-1B Prevailing Wages
• Similar to green card PW issues, but more flexibility for
H PW because DOL is not required to approve the use
of an alternative wage
• For most jobs, requiring 5+ years of experience puts
PW at highest level – but we can generally manage that
through an alternative PW
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Pain Point: H-1B Timing Issues
• Change of Employer (COE) – H-1 Transfer
• Takes 3 weeks to get case filed in a best case scenario
• Some employees insist on approval before joining WLP – will add
about two weeks to time-line
• Risk that CIS will deny extension request if employee not
currently employed at time of filing
• Employee would have to leave U.S., get new H visa stamp and then
reenter in order to work
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Pain Point: Hiring an H-1B Worker
• If hiring a candidate:
• with less than 18 months remaining in H status
• without college degree
• for job that does not require degree
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Pain Point: H-1B Work Site Change
• If work site changes or if new work site is added:
• Must file LCA
• May need to amend H petition
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Pain Point: H-1B Max-Out
• H-1B is limited to six years IN TOTAL unless:
• Recapture time is available
• Green card process has been filed for at least one full year
before max-out date
• Can get annual extensions
• Green card PERM and I-140 are approved and green card
numbers are not current
• Can get three-year extensions
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Pain Point: H-1B Max-Out
• If above options not available, then gap will result – gap
in both status and in work authorization. Solutions
include:
• Switch to dependent status if spouse is on work permit (but
cannot work for WLP)
• Depart U.S. and work from foreign country (but tax,
compensation and other issues) until green card PERM pending
for one year
• May be eligible for a different work permit (TN, E-3, L-2 spousal
EAD)
• Premium process green card I-140 if not current so that 3-year
extension is available ASAP
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TN Work Permits
• Canadian or Mexican
• Only Certain Jobs
• Accounting; IT; Engineering; Sciences; Others
• Fast Process
• Duration 3 Years
• Conflict with Green Card
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Pain Point: TN Work Permits
• Risk of denial if a relatively weak case is presented at
the border, with result that employee is then stuck in
Canada/Mexico. Solution:
• Process weak cases via inland (CIS) filing with premium
processing
• Risk that admission will be refused after international
travel if green card stage two has been filed. Solution:
• Convert to H-1B if possible
• Restrict international travel until AOS filed and independent travel
document is issued.
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E-3 Work Permits
• Australians only
• Degree (or Equivalent Experience) Required
• Prevailing Wage Required
• Location-specific
• Duration 2 years / renewable indefinitely
• Conflict with Green Card
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Pain Point: E-3 Work Permits
• No ability to premium process
• No automatic extension of employment authorization
• This means status gaps are LIKELY when E-3 status is
renewed.
• Solution:
• Travel back to home country to process E-3 renewal
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F-1 Students
• Practical Training (PT)
• Pre-graduation – Curricular PT (CPT)
• Post-graduation – Optional PT (OPT)
• One year only (unless STEM and E-Verify, and then you get an
additional 17 months)
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Pain Point: F-1 Students
• Need Exit Strategy
• File for cap-subject H-1B
• Cap-gap available for F-1 students with EAD valid as of April 1
cap filing date (bridges to October 1 effective date of H status)
• Cap gap does NOT allow for international travel
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Pain Point: F-1 Students
• F-1 students who do not get an H-1B number often go
into CPT status
• CIS is starting to question bona fides of CPT “mills”
• Certain schools lose accreditation, with the result that
CIS (unfairly) deems the student not to have maintained
status
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EAD – Employment Authorization
Document
• Who gets them?
• F-1 students
• AOS applicants
• L-2 and E-3 spouses
• H-4 spouses (soon)
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Pain Point: EAD Renewals
• Gap in work authorization
unless EAD renewal is in
hand
• Cannot premium process
renewal request
• Cannot file renewal request
earlier than 120 days prior
to expiration
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Pain Point: EAD Renewals
• Solutions:
• Track expiration dates closely
and file at day 120
• Even then, there is risk of CIS
delay (taking longer than 120
days to adjudicate) and of lost
mail/misdelivery
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Immigrant Visa (Green Cards)
• Three Stage Process
• Short-cut for L-1 Managers
or Outstanding
Researchers/Extraordinary
Ability
• Process May Last Several
Years
• Faster Track for Managers and
Outstanding Researchers/
Extraordinary Ability
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Green Card: Normal Process
• Labor Market Test (PERM)
• Six months pre-filing activities
• Eight month processing time
• Preference Petition
• EB2 (BS + 5 OR MS)
• EB3 (anything else)
• Adjustment or Consular Processing
• Family can work (EAD)
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Pain Point: PERM Prevailing Wages
• Labor Market Test – Prevailing Wage (PW) Issues
• DOL assigns PW
• PW MUST be paid when green card is approved
• PW is based on minimum education and years of experience
required for the job
• Generally, requiring 5+ years means the highest DOL PW
• DOL typically selects highest possible wage
• Can try to get alternative PW based on non-DOL surveys, but
difficult to get DOL to accept alternative surveys
• Re-filing wage request causes case delay (takes 90 days)
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PERM Recruitment
• Primary Recruitment
• Two Sunday newspaper ads
• Internal WellPoint job posting (10 consecutive business days –
no holidays counted)
• State job bank posting (30 days)
• Secondary Recruitment:
• WellPoint website
• Employee referral program (need nexus to job posting)
• Third party website
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Pain Point: PERM Recruitment
• Internal Posting Notice must be up for ten BUSINESS
days, so counting holidays can result in case denial
• Recruitment costs are high
• WLP must consider and notify former employees laid off
in same area/occupation within six months prior to
PERM filing
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Pain Point: PERM Candidate Assessment
• Must interview applicants who appear to meet high-level
requirements of job
• Cannot reject applicants for subjective (but arguably
valid) reasons
• Cannot reject applicants just because the current
foreign national employee is better qualified – can only
reject if the applicant does not meet the minimum
requirements
• Assessment process becomes time-consuming and
resource-intensive
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Pain Point: Meeting Job Requirements
• To get green card, foreign national employee must
prove he/she also meets all of the minimum job
requirements by:
• Submitting detailed and precise employment confirmation letters
• Using only work experience and skills acquired BEFORE being
hired by WellPoint
• Issues include:
• Difficulties in securing appropriate confirmation letters
• Not meeting strict requirements for WellPoint job at time of hire
(and thus under PERM rules cannot qualify for job)
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Pain Point: Meeting Job Requirements
• Sometimes we can use work experience gained with
WellPoint to satisfy the PERM minimum requirements
• Where experience was gained in a role materially different from
the green card role, the experience in the different role can in fact
be used
• Referred to as “50 percent different” analysis
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Pain Point: Three-Year Foreign Degrees
• Candidates with three-year foreign bachelor degrees
present special challenges
• Three-year degree is not equivalent to U.S. bachelor degree
• Thus, employee will not satisfy job requirement of bachelor’s
degree and therefor need to carve out special exception to say
“we are willing to accept a three-year degree”.
• Resulting risk that DOL will data mine PERM applications and
take position that accepting a three year degree makes the job
position ineligible for EB2 because EB2 requires a four-year
bachelor’s degree – thereby potentially impacting other
employees’ applications.
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Pain Point: EB2 Classification
• Many employees push for EB2 classification. Issues
include:
• Maintaining consistency/integrity for job requirements
• Needing to base green card application on future role that is in
fact EB2 eligible. This complicates the case because:
• The required wage will likely be higher than current wage
• Employee must satisfy job requirements for future role as of date of
PERM filing
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Pain Point: PERM Audits
• PERM Audit Risk
• Random selection
• Excessive requirements
• Tailored requirements
• Market-based issues
• PERM audit means:
• Delayed approval by about one year
• Additional costs
• Need to support job requirements via equity analysis
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Pain Point: Age-Outs and Promotions
• Employee’s child is ineligible for derivative green card
status unless under 21 and unmarried at time of filing
green card stage three
• If employee is promoted into a job position that differs
significantly from the green card job position, WellPoint
may have to re-start the green card process
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Pain Point: Green Card Retention
• Abandonment of Green Card
• Living outside the U.S.
• Failing to file U.S. income taxes
• Retention of Green Card
• Maintain residence and ties
• Travel frequently
• Get Reentry Permit
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Pain Point: LOE Required by WellPoint in
Immigration Processes
• H-1B Work Permits:
• Manager – relatively light; may need to approve wage increase
• HR – relatively light; needs to complete Public Access File and
review/approve paperwork
• Employee – relatively light; needs to provide documents and data
for case
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Pain Point: LOE Required by WellPoint in
Immigration Processes
• PERM/Green Card:
• Manager – heavy at front-end of PERM -- must attend one-hour
call, analyze/assess case documents, weigh in on candidate
assessment; may have to perform 50 % difference analysis
• HR/Legal/Recruiting – heavy during PERM -- must attend call,
review case documents, arrange recruitment, screen
applications, conduct telephone screenings, etc.
• Employee – heavy during PERM -- must document work
background, obtain employment confirmation letters, review case
documents; heavy during green card stage three (Adjustment of
Status) – must collect biographic and status documents, provide
detailed information, undergo medical exam, review case
documents, etc.
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FLSA Regulation
Update
Presented by: Heather Havette
©2014 Seyfarth Shaw LLP
FLSA Regulation Update
On March 13, 2014, President Obama issued a
Presidential Memorandum directing the Secretary of
Labor to consider revisions to the Fair Labor Standards
Act’s “white-collar exemptions”
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Significant changes made in 2004
• Eliminated the 20% limitation on non-exempt duties for employees in an executive or
administrative capacity;
• Eliminated the requirement that executive employees regularly and customarily exercise discretionary
powers;
• Eliminated the requirement that administrative employees perform work related to management
“policies” (requiring simply that the work be related to “management”);
• Reduced the reliance upon the “production vs. staff dichotomy,” which required a determination
whether the work is “related to the administrative operations of the business as distinguished
from production”;
• Provided clear guidance with respect to numerous specific types of jobs, including insurance
adjusters, financial services, executive assistants, team leads, and human resources
professionals;
• Allowed professional employees to acquire their required knowledge through a combination of
intellectual instruction and work experience;
• Increased the required salary level;
• Clarified the salary basis requirements; and
• Reaffirmed the definition of “primary duty” as the most important duty, without strict reliance
upon any particular percentage of time spent on exempt tasks.
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Expected Proposal For Regulatory
Revision
• Details are sparse
• President directed the Secretary to consider how the regulations could be
revised to:
• Update existing protections in keeping with the intention of the Fair Labor Standards Act;
• Address the changing nature of the American workplace; and
• Simplify the overtime rules to make them easier for both workers and businesses to
understand and apply.
• Salary level
• Guestimates are between $640/wk ($33,280) and $984/wk ($51,168) - currently
$455/wk ($23,600)
• Duties test (*undo some 2004 changes)
• Primary duty test - talk about clear line 50% rule (like California)
• May eliminate “working managers”
• Elimination of administrative examples, including insurance adjuster example
• Possible re-emphasis on admin/production dichotomy - add back that administrative
employees must perform work related to management “policies”, rather than work related
simply to “management”
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Expected Proposal For Regulatory
Revision
• Assured New Line of Litigation - *with respect to
administrative exemption
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Timeline
• No specific timeline
• Some former DOL officials have speculated that the
Department may rush to publish a Notice of Proposed
Rulemaking (NPRM) in the next few months
• Once the proposed rules are issued, interested
stakeholders will have the opportunity to comment and
suggest changes – ordinarily for a period of at least 30
to 90 days
• At that time, WellPoint should assess potential impacts,
consider submission of comments, and plan legal
strategies accordingly.
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Contingent Workers
and Independent
Contractors
Understanding the Risks and Best Practices
Presented by: Kyle Petersen
©2014 Seyfarth Shaw LLP
What is a Contingent Worker?
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What is a Contingent Worker?
• Freelancers
• Independent contractors
• Temporary workers
• Leased employees
• Consultants
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Examples of Contingent Workers
• Directly hiring a worker on a short-term or project basis;
• Example: Contracting with a web designer to redo company website.
• Hiring “temporary” or “project/contract” workers from a staffing
agency for brief periods such as 30 days, or the length of a defined
project –
• Example: Increased customer service representatives during high
volume open enrollment periods.
• “Leasing” workers from a staffing agency –similar to temporary
workers, but usually one who is hired for an extended period.
• Example: temporary administrative assistant to replace a regular
employee out on medical leave.
• Employees of subcontractors who work in WellPoint offices
• Example: Help Desk function outsourced to IT provider
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The Risk: Misclassification of Contingent
Workers as Non-Employees
1. Misclassification of worker as “independent
contractors” when they should be treated as
employees.
2. Joint Employer Liability for other contingent workers
(e.g., agency temps, leased employees).
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Potential Liability for Misclassification
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Potential Liability for Misclassification
Overtime Liability
• If contractor would be non-exempt as employee
• Staffing agencies often fail to pay on salary basis
Minimum Wage/Reimbursement Issues
• Insufficient reimbursement for business expenses and
effect on minimum wage?
Employee Benefit Coverage
• Contractor claims 401(k), severance, health/wealthfar
coverage, Employee Stock Purchase Plans
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Potential Liability for Misclassification
Federal Taxes
• Back taxes if tax unpaid plus penalty for failure to
withhold
Social Security & FICA
• 6.2% of wages for failure to withhold
State and Federal Unemployment Tax
• Unpaid unemployment tax contributions, interest &
penalties
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Potential Liability for Misclassification
Workers’ Compensation
• Percentage of wages plus fines, no immunity
from tort
Federal Employment Laws
• Title VII, ADEA, ADA, FMLA
• Joint employer liability
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Independent Contractor Test
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Polling Question 1
To ensure proper classification of a worker as an
independent contractor, the manager must:
a. Use written independent contractor agreement
b. Pay the worker on a 1099;
c. Submit an evaluation form in the Fieldglass system for
evaluation and processing;
d. All of the above.
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Answer
d. All of the above.
And more . . . .
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Independent Contractor Test
Depends on law at issue and governmental
agency
• NLRA/ERISA: Common Law Agency Test
• DOL applying FLSA: Economic Realities Test
• IRS: Right to Control Test
• EEOC enforcing Title VII: Common Law Agency Test
• Title VII of the Civil Rights Act of 1964: Combined Test
• State DOL enforcing unemployment insurance acts: Largely
the Control Test (or variations)
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Independent Contractor Test (cont’d)
• Most tests focus on the right to control (rather than
actual exercise of control) and entrepreneurial nature of
contractor’s business.
• Tests often applied in outcome determinative way –
factors weighted differently.
• Most tests focus on reality, rather than labels or what
the contract says.
• Courts do not have a set list of factors; may be willing to
consider additional arguments that re not even
commonly considered to be factors.
©2014 Seyfarth Shaw LLP
Independent Contractor-Employee
Continuum
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Independent Contractor Inquiry Employer – Employee
Who Controls
Details of Work?
Entrepreneurial
Nature?
Are Services Core
to Business?
Who Provides Tools?
Contractor tasked with
results only – works out
details
Independent business; risk
of profit/loss; provides
services to others; may
subcontract
Services provided
incidental to core business
of client
Provides own tools,
instruments and place of
work
Employer dictates and
monitors details; requires
regular reporting
Exclusive to employer;
may not subcontract;
reimbursed for expenses;
paid hourly
Services are the
employer’s core business;
employees performing
same work
Employer provides tools
and instruments or
reimburses; provides
workplace
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Independent Contractor-Employee
Continuum
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Independent Contractor Inquiry Employer – Employee
Length of Service?
Skill and Judgment?
Nature of Payment?
Parties’ Intent?
Services performed in one
year or less; definite period
Services performed for
longer than one year or
indefinite
Highly skilled work requiring
independent judgment
Unskilled work requiring
little independent judgment
Paid by the job, by the
project, or by the piece Paid by the hour or
fixed salary per pay period
Provides own bid, negotiated
contract, and invoices for
services; waives benefits
Employer provides terms, or
terms unclear, and pays
regardless of invoices
Work customarily performed
by independent profession Work typically performed
by employees in industry
Industry Norm?
©2014 Seyfarth Shaw LLP
Recommendations to Managers
Selecting an Independent Contractor
Best Practice is to Choose an IC who:
• Operates through a corporation or other business form (other than
a so-called “single-member LLC”) and incurs expenses in
maintaining business.
• Has FEIN, own stationery, and business cards
• Complies with all applicable state licensing requirements.
• Has other clients and customers for whom he performs similar
services and/or advertises and attempts to obtain business from
other clients and customers.
• Has employees or subcontractors with whom he works.
• Has own business insurance or bonding agent.
• Is not a former employee of the Company, such as a retiree.
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Joint Employer Test
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Polling Question 2
Temporary workers supplied to WellPoint by a staffing
agency are employees of which company?
a. The Staffing Agency
b. WellPoint
c. Both
d. Neither
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Polling Question Answer
Trick question:
• A, B, or C could all be right answers
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What is “Joint Employment”?
• Generally, joint employment means 2 entities are
treated as the employer under various laws.
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• Somewhat different analysis from independent
contractor test
• But certainly some overlap in factors considered
• Factors considered by DOL and by the courts have
varied
• It is a heavily fact driven analysis, which makes it
difficult to set down a specific test.
Joint Employment Test
©2014 Seyfarth Shaw LLP
Joint Employment Test
• Types of factors considered:
• Power to control/supervise the work performed
• Power (whether alone, or jointly), to directly or indirectly hire, fire, or modify
employment conditions of the worker
• Permanency and duration of the relationship (e.g., Microsoft)
• Level of skill required of the worker
• Whether the worker’s activities are integral or incidental to overall business
operations
• Location of work and equipment used
• Power to determine the workers’ pay rates or methods of payment
• Assumption of payroll responsibilities (e.g., making payroll records, issuing pay
checks, paying FICA taxes, providing workers’ comp insurance)
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Joint Employer – Common EEO Issues
The Scenario: The Company brought in a team of temporary
workers from a staffing agency to answer phone calls and process
paperwork during open enrollment period due to high volume. The
temps were trained by the Company and work alongside Company
employees performing similar tasks and taking direction from
Company managers. The Company sets the shifts but temps submit
their timesheets to and are paid by the staffing agency and have an
off-site “supervisor” at the staffing agency.
The Issue: A temp tells a Company manager that the Company shift
supervisor constantly badgers her to go on a date and sends her
sexually explicit email messages.
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Polling Question 3
Can the Company be liable for sexual harassment if the
temp sues?
a. Yes.
b. No.
c. Maybe.
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Polling Question: Answer
c. Maybe
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Explanation
• The Company could be sued for the sexual harassment
if it is determined to be a joint employer of the temp.
• In our Scenario, Several Factors Favor Joint
Employment Status:
• The Company trains the temps
• The Company sets the work hours of the temps
• The Company provides day-to-day direction and supervision to
the temps
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Special Joint Employment Issues Under
the FMLA
Primary and Secondary Employers
• Staffing agency is the primary employer.
• Has authority/responsibility to hire and fire
• Assigns/places the employee
• Makes payroll
• Provides employment benefits
• Receiving company is secondary employer.
• Primary employer is responsible for providing FMLA
notices and job restoration.
©2014 Seyfarth Shaw LLP
Joint Employment Under the FMLA:
Primary and Secondary Employers
“Primary employers” must:
• Give required notices
• Provide leave
• Maintain health benefits
• Restore the employee to the same or similar job
“Secondary employers” must:
• Not interfere
• Accept a contractor employee returning from FMLA leave
©2014 Seyfarth Shaw LLP
Polling Question 4
Mary is assigned by Staffing Agency to work at the
Company. After 8 months, Mary is hired directly by the
Company. Then, six months later, she seeks FMLA for her
own serious health condition. Is Mary eligible for FMLA
leave?
a. No. She has not been employed by the Company for at least 12
months.
b. Only if she worked at least 1250 hours during the 6 months she
has been a Company employee.
c. Yes, so long as her combined hours as a temp and a Company
employee total 1250 over the past 12 months.
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Answer
c. Yes, so long as her combined hours as a temp
and a Company employee total 1250 over the
past 12 months.
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Joint Employment Under the FMLA:
Recommendations
Avoiding Liability
• Do not interfere with contractor employee FMLA
rights.
• Ensure that any employees hired later are credited
for time served as a “joint employee.”
• By contract, require contractors to comply fully with
the FMLA.
• Indemnification provision.
©2014 Seyfarth Shaw LLP
Joint Employment and the FLSA
Wage and Hour Compliance: Potential Landmines
• Exempt vs. Non-exempt misclassification
• Overtime pay
• Off-the-clock work
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Joint Employment & The FLSA: Common
Problems
Scenario: WellPoint contracts with a staffing agency for temp
workers. WellPoint pays a flat hourly rate to Agency for temps based
on invoices sent by Agency detailing hours worked by each temp.
Agency pays temps on an hourly basis based on timesheets
prepared by the temp and signed off on by a WellPoint manager. The
temps work at WellPoint, using its equipment and on a schedule set
by WellPoint. At the beginning of the assignment, the temps go
through a WellPoint orientation and training session.
Issue: Temp sues both the staffing agency and WellPoint, claiming
that she was not paid for all her hours worked, including overtime
hours.
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Polling Question 5
Can WellPoint be liable for the Agency’s failure to
pay the temp for all hours worked?
a. No. WellPoint is not the temp’s employer because the Agency
received her timesheets and paid her.
b. No. WellPoint may be a joint employer, but it had no way of
knowing that the Agency was not paying the temp for all hours
worked.
c. Yes. WellPoint is a joint employer and can be liable because it
should have known that the Agency was not paying for all hours
worked because it received the temp’s timesheets and detailed
invoices from the Agency.
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(Most Likely) Answer
c. Yes. WellPoint is a joint employer and can be liable
because it should have known that the Agency was
not paying for all hours worked because it received
the temp’s timesheets and detailed invoices from the
Agency.
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Contracting With
Vendor/Supplier of Labor
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Contracting with Labor Suppliers
• Include strong indemnification language
• Include promises by vendor/supplier to your company
that staffing agency
• will comply with all employment laws (including all federal, state,
and local wage and hour laws);
• will be solely responsible for the payment of wages and benefits;
• will administer workers’ compensation and unemployment
compensation claims;
• will handle all employee discipline (and grievances, if applicable)
• Implement regular audits of pay, time, and employment
practices of vendor/supplier
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Assessment of Relationships With
Vendors/Suppliers of Labor
• Understand that the contract does not control the
determination of whether your company is a joint
employer.
• Evaluate the necessity of the contract labor and
longevity of the relationship.
• If necessary to use contract labor:
• Train those supervising and/or involved in the vendor-provided
staff and agencies
• Ensure there are points of distinction between contract workers
and employees (other than status)
90
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Ways to Distinguish Contract Workers
91
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Possible Points of Distinction
• While the following distinctions do not guarantee that
the company can avoid being found to be a joint
employer, they may help create the distinction:
• Different jobs from employees
• Different hours
• Different amounts and forms of pay
• Not governed by employee handbook
• Not subject to discipline by company
• Not assigned work by company
• Not evaluated by company
• Not drug tested or background screened by company 92
Telecommuting 2014
Business Strategy, Reasonable
Accommodation, Multitude of Legal Issues
Presented by: Dana Howells
©2014 Seyfarth Shaw LLP
Telecommuting Statistics
“Studying the work-at-home population is a little
like trying to study meteoroids. We know there
are a lot of them and we know they’re important,
but we don’t know where they all are and not
everyone agrees on which ones to count.”
– Global Workplace Analytics & The Telework Research Network
http://www.globalworkplaceanalytics.com/resources/people-telecommute
94
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From Global Workplace Analytics…
Survey Year Millions Definition
U.S. Census 2001 4 (approx.) Worked from home most
of previous week
American
Interactive
Consumer
Survey
2004 44.4 Employed Americans who
perform any type of work
from home from as little
as one day per year to full
time
World at Work 2006 12.4 Regular employee who
works from home at least
one day per month during
normal business hours
IDC 2005 9.1 Worked from home 3 or
more days per month
during regular business
hrs. (2.2 million work from
home full-time)
95
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Latest Numbers by Percentage of Total
• Federal employees = 3.3%
• Private sector non-for profit employers = 2.9%
• Private sector for-profit employers = 2.6%
• State government workers = 2.4%
• Local government workers = 1.2%
3.1 million (excluding self-employed) consider home their
primary workplace
Source: Global Workplace Analytics & The Telework Research Network
http://www.globalworkplaceanalytics.com/telecommuting-statistics
96
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Mixed Reviews
• In 2013, Best Buy and Yahoo limited work from home options
• Takes self-directedness on part of teleworker
• Takes more time to manage remote relationships and may be more
difficult
• Men tend to telework more than women
• Not quite six out of ten employers identify cost savings as a
significant benefit to telecommuting, primarily from real estate
reductions and “hoteling”
• Less driving = environmental gains, some cost saving, less
pressure on infrastructure and resources
97
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Legal Issues For Telecommuting
• Wage and hour issues
• overtime and off-the clock
• meal periods and rest breaks
• record-keeping
• Safety issues
• Workers’ compensation/liability issues
• Posting requirements
• Reimbursement of business expenses
• Confidentiality and privacy
• Industrial homeworkers
• Across state lines—which law applies?
• Reasonable accommodations
98
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Off the Clock
• Employers must maintain records of a nonexempt
employee’s work hours
• Employer must compensate the employee for the time
“suffered or permitted to work” (knew or should have known
standard)
• Nonexempt telecommuting employees should have set working
hours (including scheduled breaks and meal periods)
• Employees should be instructed to record any time spent
responding to e-mails, texts and phone calls (and any other
working time)
• Managers should be warned that contacting employees during
nonscheduled hours will result in overtime liability
• Pre-authorization of overtime can be required
99
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Workplace Safety, Home Safety
• Employers’ general duty to provide a safe work environment is made more
difficult with telecommuters
• U.S. Department of Labor (DOL) issued guidance that OSHA will not
generally hold employers responsible for the safety of home offices (2000)
• Cal/OSHA not as clear as DOL
• Workers’ homes not considered a separate establishment and a separate
Cal/OSHA Form 300 is not required
• Employers should consider a safety checklist
• Compliance with workplace safety rules should be required
• Employees should immediately inform the employer of any injury suffered
in the course and scope of employment
• What about third party injuries at the home?
100
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Workers Compensation
• Workers’ compensation law does not differentiate
between on-site and off-site: injury that occurs in the
course and scope of employment/arising out of
employment is covered (AOE/COE)
• Consider requiring all telecommuting employees (not only
nonexempt employees) to track their time spent working to help
determine injury occurred during working time
• Provide telecommuting employees with the contact information
for workers’ compensation medical providers and emphasize the
importance of reporting all work-related injuries immediately to
preserve tight to control treatment, and timely accept/deny and
raise defenses
• Provide/require ergonomically correct equipment
101
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Reasonable Accommodations – at Home
• For disabled telecommuters, an employer may be
responsible for providing the same accommodations for
the employee’s home office as it would for the
employee’s workplace office (e.g., providing ergonomic
equipment, special chair, special telephone)
• Limits are “undue hardship”
• Not required to provide personal assistive devices ( e.g.
hearing aids, glasses, etc.)
• Use interactive process, offer alternatives to costly
accommodations
102
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Posting Obligations
• Employers have workplace posting obligations
• wages, safety, workers’ comp info, leaves, discrimination, etc.
• No exemption for telecommuting
• No authority on how employers comply with respect to
telecommuting employees
• Options:
• provide employees who work remotely with a binder filled with
copies and update
• intranet/Internet access to the postings with explicit instructions
on how to access
• some posters are required to be posted in multiple places
103
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Reimbursements
• Law vary by state
• Employers may provide necessary supplies directly (e.g., laptop,
printer, phone, post-its) or
• an allowance to reimburse the employee or
• a mechanism for telecommuting employees to submit business
expenses for reimbursement
• Employers need not reimburse telecommuting
employees for expenditures that are solely for personal
use.
• California Labor Code Section 2802
104
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Third Party Privacy Rights
• Telecommuting implicates the security of customer, client or
employee personal information (e.g, SSN#, driver’s license
numbers, medical information, financial account information, HR
records)
• Employers need to enact industry-specific measures to maintain
data security
• In the event of a security breach (such as the theft of the
telecommuting employee’s laptop or the hacking of his or her
personal computer)
• timely notification of third parties may be required
• telecommuting employees need to notify company immediately
• telecommuting employees trained on data security best practices
105
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Employee Privacy in Home Computers
• Employees generally have more expectations of privacy in
their home than they do in the workplace.
• Well- written policies state that employees do not have any
expectation of privacy when accessing organization
documents or using organization networks, even when the
access is from a home computer.
• home computer subject to discovery and subpoenas
• right to search home computer to recover company information?
• Policies should address what, if any, confidential information
may be accessed or transferred to a home computer and
how employees must protect that information when accessed
remotely.
106
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Industrial Home Work Laws and
regulations
• Vestiges of earlier times still on the books
• States may have legal restrictions covering the types of
work that can be done remotely
• The California Labor Code restricts the types of
manufacturing activity that can take place at an
employee’s home
• For certain types of manufacturing that may be
performed at home, the employer must have an
industrial homework license, and the employee must
have a homeworker’s permit.
107
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Crossing State Lines
• Telecommuting occurring within same state is simpler
• Employees working remotely from another state present
potential payroll, tax and choice of law issues
• As a general rule, if an employee works outside the
state in which the employer is located, the employee is
covered by the law of the state in which he or she
works.
• employees may be able to choose the most favorable law
• payroll generally must be set up in the “home” state in order to
withhold taxes, administer unemployment, etc.
• Consider provisions limiting the locations from where work can
be done remotely. 108
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Discrimination
Telecommuting is term and condition of employment
• Employers cannot discriminate when deciding which employees
may or may not receive the benefit of telecommuting
• When formulating the criteria to for telecommuting, focusing on the position needs
and duties, as opposed to the reason that the employee is requesting to
telecommute (e.g., disability or caregiving)
• Providing telecommuting selectively, but not offering telecommuting
as an accommodation for a disability is problematic
• Employers should carefully evaluate the essential job duties of a
position before deciding eligibility to telecommute (whether as an
accommodation for a disability or not).
• Is regular presence (or presence at particular times) an essential
function of the job? What if the employer allows other employees in
similar job categories to telecommute?
109
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Telecommuting as a Reasonable
Accommodation
• Examples of reasonable accommodations: job
restructuring, part-time or modified work schedules,
preferential reassignment to a vacant position for which
the individual is qualified, or an unpaid extension of paid
or unpaid leave.
• Similar to modified schedules and transfers, working
from home full time or part-time is a reasonable
accommodation to consider.
• Case studies and voting!
110
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Case Study # 1
• Female employee, a steel buyer, ensured suppliers had steel to
manufacture parts.
• Job involved group problem-solving, requiring interaction with others.
• Severe IBS worsened over time. Difficult to drive.
• She requested permission to telecommute on an “as-needed basis” up to
four days a week, felt work could be done by computer or phone.
• Employer made a business judgment that group meetings were most
effectively handled face-to-face; email or teleconferencing was an
insufficient substitute for in-person team problem-solving.
• Other accommodations offered included moving closer to the bathroom, or
finding another job more suitable for telecommuting.
• Employee rejected other options.
• Employee subsequently placed on a performance improvement plan, then
fired.
111
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Polling Question 6
Who wins the case?
1.) Employer wins
2.) Employee wins
112
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And The Answer Is…
…Employees wins, at least in the early stages.
(1) Was physical presence an “essential” job function,
such that employee could not be “qualified” for the job
if she had excessive absenteeism?
(2) Was telecommuting a reasonable accommodation?
(3) Were proposed alternative accommodations
reasonable?
113
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Take-Aways
“Attendance” and “physical presence” are not the
same • Cases have found “predictable” and “regular” attendance to be essential
requirements of most jobs, but
• The question is not whether ‘attendance’ was an essential job function for buyer,
but whether physical presence at was truly essential.
• Buyer would not be “absent” from work, but would simply be working from a home
location.
“Workplace” is not just a brick-and-mortar building • Attendance can no longer be assumed to mean attendance at the employer’s
physical location.
• Technology has advanced significantly. Remote conversations, difficult a few
years ago, are now routine (e.g., video conferencing and web-based live
meetings). Advancing technology has diminished the necessity of in-person
contact for effective, productive group discussion.
114
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More Take-Aways
• Positions that require “teamwork” are not “inherently
unsuitable” to telecommuting.
• All relevant factors must be considered, and an employer’s
business judgment is just one factor.
• Telecommuting does not mean “flex time.” Telecommuters do
their same jobs during regular work hours, but from home.
• “Flex time,” where employees schedule their own hours, may
be a more difficult accommodation than telecommuting.
• Relying on past attendance issues in denying telecommuting
requests is problematic.
115
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Case Study # 2
• Female employee, medical transcriptionist, has OCD and it takes her a
long time to get ready in the morning, because if any of her rituals are
interrupted, she has to start over.
• She has received several performance counseling documents and a
“below expectations” performance rating for attendance and tardiness.
Under the company telecommuting policy, only employees rated “above
expectations” or better are eligible to telecommute and no one with a
performance counseling with in the last 12 months is allowed.
• Other people in her job category who are better performers are allowed to
telecommute.
• She asks to be allowed to work from home as a reasonable
accommodation.
• Her request is declined based on her performance.
116
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Polling Question 7
Who wins the case?
1.) Employer wins
2.) Employee wins
117
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And The Answer Is…
…Employee wins, at least in the early stages.
(1) Was physical presence an “essential” job function,
such that employee could not be “qualified” for the job
if she had excessive absenteeism?
(2) Was telecommuting a reasonable accommodation?
(3) Were proposed alternative accommodations
reasonable?
118
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Take-Aways
• Similar to last case study, where performance–based
problem is due to disability, employers may have to
make exceptions to the policy.
• If work from home is granted to others in the job
category, it may be difficult to argue undue hardship,
even though self-directed good performers are better
candidates for telecommuting.
• There was no good reason why the work could not be
performed remotely
119
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Best Practices
• Carefully analyze what positions are suited for working
remotely and why, using essential function analysis
• Use a standardized process for approving/disapproving
telecommuting requests
• Create a written, comprehensive telecommuting policy
• Signed telecommuting agreement
• Set clear time limits on telecommuting pilots (or
accommodations), and review, reassess at the end of
the approved time period
• Consider risk management issues, insurance,
compliance variables 120
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More Best Practices
• Establish availability during core business hours or
other hours, a regular schedule
• Keep track of time worked
• exempts need to track PTO, sick, vacation, observe core hours
• nonexempts need to follow same timekeeping as in office
• Set expectations as to caregiving responsibilities,
distractions
• If some travel into office will be required, set parameters
• Consider impact of telecommuting on other areas of the
business
121
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More Best Practices
• Consider equipment, technology, who pays, return of
property
• Set expectations of privacy (or lack thereof)
• Home visits/inspections?
• Establish rules for handling sensitive business
information, medical records
• Include intellectual property safeguards
• Consider payroll complications, taxes, choice of law
issues
• Manage safety/workers compensation issues
122
ADA Hot Topics and
FMLA/Disability Leave &
Workers’ Compensation
Presented by: Colleen Regan
©2014 Seyfarth Shaw LLP
THE ADA, FMLA & Workers’ Comp
Overlap
124
FMLA ADA
Worker’s
Comp
©2014 Seyfarth Shaw LLP
Legal Framework
125
FMLA ADA WC
Unpaid time off with
job and benefit
protection for specified
family and medical
leave reasons
12 weeks of leave in a
12 month period / 26
weeks in a 12 month
period to care for
injured service
member
Prohibits
discrimination against
a qualified individual
with a disability who,
with or without
reasonable
accommodation, can
perform essential
functions of the job
Reasonable and
necessary medical
treatment and
temporary total or
permanent disability
benefits for an
employee sustaining a
work related injury or
illness
©2014 Seyfarth Shaw LLP
Critical Definitions
126
FMLA ADA WC
Serious health condition
Disability (greatly broadened by
ADAAA)
Arising out of and in course of employment
©2014 Seyfarth Shaw LLP
Trend: Increasing ADA Cases
127
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Avoiding Trouble On Leave Requests
Under The ADA
“The key to avoiding trouble under the Americans with
Disabilities Act, is to be constantly asking the question
‘Can we get this employee back on the job with a
reasonable accommodation?’ and certainly not to be
asking only ‘Has this employee been on leave long
enough for us to get rid of him?’”
- John Hendrickson, EEOC Regional
Attorney heading up Sears case
128
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What Is A Reasonable Accommodation?
• All persons must be able to perform essential
functions of the job with or without reasonable
accommodation
• Essential Functions - Does the individual meet the basic
qualifications of the job?
• Must provide reasonable accommodation absent undue
hardship:
• Modifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that
enable a qualified individual with a disability to perform the essential functions of that
position
129
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What Is A Reasonable Accommodation?
Making existing facilities
more accessible
Reassignment of non-
essential job functions
Part-time or modified
work schedules,
including unpaid leave
Reassignment to a
vacant position
Providing or modifying
equipment or devices
Modifications of
examinations, training
materials or policies
Providing qualified
readers or interpreters
Telecommuting Providing transportation
or reserved parking
spaces
130
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What Is Not A Reasonable
Accommodation?
• Violating a bona fide seniority system
Example: An employee has sleep apnea and needs to work first shift but to transfer
him from first to second would violate the CBA’s seniority provision
• Eliminating essential job functions
Example: An employee can’t drive a forklift due to epileptic seizures and wants this
essential job function eliminated
• Lowering production standards
Example: An employee with carpal tunnel is given various reasonable
accommodations but isn’t meeting performance metrics
131
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The Interactive Process
• Must engage in an interactive process!
• Case by case analysis
• When do you need to engage in the interactive
process?
• An applicant or employee requests an accommodation (no magic words
required); or
• An employer:
(i) knows that the employee has a disability, and
(ii) knows, or has reason to know, that the employee is having difficulty performing
job functions because of an impairment
• The safest approach is to consider any notification that a job modification is needed because
of a medical condition as a request for reasonable accommodation
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The Interactive Process – Steps
• Identify essential job functions (use job description and
consider a functional analysis)
• Dialogue with employee to identify specific limitations,
workplace barriers, and possible accommodations
• Explore those accommodations proposed by the
employee and explore other accommodations
• Obtain information, such as necessary medical
information
133
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The Interactive Process –
Obligations of Applicant/Employee
• Cooperate in good faith
• Provide a concise list of work restrictions (In California, not
required to identify the nature of the disability)
• Provide necessary medical and other information
• Provide supplemental medical information when informed original
medical information is insufficient
• If considering an alternative position, provide information regarding
educational qualifications and work experience
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How Do You Determine Whether There Is
An “Undue Hardship?”
• Generalized conclusions will not suffice
• Individualized assessment showing specific
accommodation would cause significant operational
difficulty or expense
• Based on several factors:
• Nature and cost of the accommodation needed
• Overall financial resources; size, number of employees, and type and
location of facilities of the employer, the effect on expenses and
resources of facility
• Type of operation of the employer
• Impact of the accommodation on operations
• Generally, cost alone will not be sufficient
135
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Examples of Operational Impact
• Significant losses in productivity because work is
completed by less effective, temporary workers or last-
minute substitutes, or overtired, overburdened
employees working overtime who may be slower and
more susceptible to error
• Lower quality and less accountability for quality
• Lost sales
136
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More Examples of Operational Impact
• Less responsive customer service and increased
customer dissatisfaction
• Deferred projects
• Increased burden on management staff required to find
replacement workers, or readjust work flow or readjust
priorities in light of absent employees
• Increased stress on overburdened co-workers
137
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Employee Cooperation
138
FMLA ADA WC
Duty to cooperate in
providing medical
certification and other
requested medical
information (i.e.,
recertification).
Failure to cooperate
can lead to
delay/denial of leave.
Duty to engage in
interactive process
with employer.
Failure to cooperate
can lead to denial of
reasonable
accommodation.
Duty to cooperate.
Failure to cooperate
can lead to denial of
benefits.
©2014 Seyfarth Shaw LLP
Intermittent Leave Or Reduced Leave
Schedule
139
FMLA ADA WC
Absolute right for
employee’s serious
health condition or to
care for a family
member with a serious
health condition, if
medically necessary.
Reasonable
accommodation
unless employer can
establish undue
hardship.
Not guaranteed.
©2014 Seyfarth Shaw LLP
Attendance
140
FMLA ADA WC
Absence due to a
FMLA qualifying
reason cannot count
as occurrence under
any attendance policy.
Frequent unplanned
absences may make
an employee
“not qualified” BUT
accommodate unless
undue hardship.
Disciplining/
terminating an
employee for
absences due to a
workers’
compensation injury
can be risky.
©2014 Seyfarth Shaw LLP
Polling Question 8
• Ben has had absence and tardiness problems for years.
He has been on the last step on your attendance
program several times.
• Before you get to termination, he brings in FMLA leave
papers and requests intermittent leave. What do you
do?
141
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Attendance Case Studies – Ben
• Option 1: Assuming he is qualified, grant the
intermittent leave.
• Option 2: Grant the intermittent leave, but transfer
him to another position.
• Option 3: Deny the request because it is obvious
that he is just trying to avoid discipline.
• Option 4: Seek a second opinion as to the
validity of the medical certification.
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Polling Question 9
Jewel suffers from an anxiety and sleep disorder. She is an
administrative assistant for several employees that do not work on
the local job site, so all communication is by email and phone.
Several of these employees are on other time zones. After a car
accident on the way to work, Jewel suffers disabling anxiety about
commuting during rush hour. She takes twelve weeks leave for
inpatient treatment. Her psychiatrist releases her to full duty, but
recommends several accommodations, such as the ability to
telecommute on certain days and a later start time for days she is
required to be in the office.
What do you do?
143
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Attendance Case Studies – Jewel
• Option 1: Do not accommodate; it will clearly
present undue hardship to the Company.
• Option 2: Tell her supervisor about the medical
condition and ask if it will be too
much trouble to accommodate.
• Option 3: Engage in the interactive process to
determine how long the restrictions will
be in place and whether the Company
can reasonably accommodate without
undue hardship.
144
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Job Protection
145
FMLA ADA WC
Return to same or
equivalent position for
12 weeks
Exception: what would
have happened to
employee had he/she
not gone on leave?
Same position unless
undue hardship to
keep position open –
need not keep it open
indefinitely
Not guaranteed, but ...
©2014 Seyfarth Shaw LLP
Polling Question 10
Sarah was a fairly new employee when she went on ADA
leave. A brand new employee steps in to fill in and does
a fabulous job. The department decides that Sarah has
to go.
What do you do?
146
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Reinstatement Case Studies – Samantha
• Option 1: Terminate Sarah immediately and retain
the new employee.
• Option 2: Let the new employee fill in; when Sarah is
released to return to work, give her back
her old job.
• Option 3: Let the new employee stay in the job and
when Sarah is ready to come back, offer
Sarah a comparable position.
147
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Polling Question 11
• Martha works in Indianapolis in a position that manages a group of
20 people. She has been out on an ADA disability leave for several
months, but has been certified to return to work. While she was out,
the department filled her position due to documented undue
hardship.
• When Martha is released to return to work, she finds that her old
position is filled by another and she must look for alternative
positions in another area of the Company.
What do you do?
148
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Transfer to Another Job Case Studies –
Martha
• Option 1: Inform Martha of all comparable positions
that are available for which she may be
qualified; don’t require her to compete with other
candidates.
• Option 2: If there are no comparable positions open,
assist Martha in obtaining any lower position (not
necessarily comparable) for which she is qualified;
don’t require her to compete.
• Option 3: If no suitable positions are available at the time she
returns, keep looking on her behalf for at
least 30 days.
• Option 4: If no other positions are available, give her a
promotion!
149
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Fitness For Duty Certifications
150
FMLA ADA WC
Employee may be
required to present a
certification from
his/her healthcare
provider that he/she is
able to resume work.
Permitted to determine
if employee can
perform essential
functions with or
without
accommodation.
Permitted.
©2014 Seyfarth Shaw LLP
Fitness For Duty Exam Situation
Before requesting FMLA leave for medical treatment
arising from depression, Steve, a security employee who
carries a weapon as part of his duties had engaged in
erratic behavior. After completing a treatment program,
Steve’s doctor certifies that he is ready to return to full
work duties. Can the employer require a fitness for duty
exam after Steve is returned to work?
151
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Transfer to an Alternative Position
152
FMLA ADA WC
If leave is foreseeable
based on planned
medical treatment or
intermittent, can
require transfer. Can’t
require light duty
Must be similar job
and maintain wages
and benefits
Accommodation of last
resort if unable to
accommodate in current
job
Can change
wages/benefits to those
of new position
Refusal of light duty
position can affect
receipt of benefits
©2014 Seyfarth Shaw LLP
How to Handle Light Duty or Other Work
Restrictions
• Following a work-related injury, there is often a period where the
injured worker has a medical limitation/work restrictions
• Once the employee returns to work, supervisors must ensure that
the work performed complies with medical limitations
• If there are performance problems, avoid references to the WC
claim or disability
• If the employee claims he/she cannot do something, seek
clarification from doctor
• If no work injury but the employee may be disabled, determine
whether he/she can perform the essential functions with or without
an accommodation
153
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Light Duty Case Studies
• Ben has a job that requires lifting, bending and
stooping. He injures himself at work and presents a
restricted return to work release indicating he can’t lift
any weight for 6 weeks. He tells you he wants to take
FMLA leave but you want to put him in a light duty
assignment.
• The Company offers Susan, who was injured at work, a
light duty assignment. Debbie is in a personal car
accident and presents a restricted return to work
release. She tells you she wants a light duty
assignment similar to Susan’s assignment.
154
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Maximum Leave Policies
• Maximum leave policies not sufficient to satisfy
employer’s duty of reasonable accommodation
• Policies must incorporate case-by-case assessment
and employer’s duty for reasonable accommodation
• Challenges to automatic termination policies:
• Challenges to automatic termination policies:
155
$6.2 million settlement
$3.2 million settlement
$20 million settlement
©2014 Seyfarth Shaw LLP
FMLA Current Issue
Samantha has asserted that she has a condition that
qualifies as a “serious medical condition” for which she
will need surgery, but does not want to designate her
leave as FMLA leave. She is pregnant and does not want
to exhaust her FMLA leave so that she can take her full
12 weeks of FMLA leave when she has her baby. To
prevent her employer from forcing her to exhaust her
FMLA leave, she simply refuses to turn in her FMLA
certification from her medical provider. Can the employer
force designate this leave as FMLA protected anyway?
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Hot Button Issue – Performance
• What should an employer do if an employee requests
leave or an accommodation for the first time in
response to counseling?
• May address the performance issues BUT:
• If an accommodation is requested, begin the “interactive process”
• Poor performance does not impact an employee’s right to take FMLA
leave
• NOTE: Don’t counsel an employee for performance issues that
are caused by the FMLA/ADA absences (e.g., employee isn’t
getting his/her work done because he took intermittent leave)
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Hypothetical
Abby does not disclose her learning disability, even when
she begins having performance problems that she
believes are disability-related. Her supervisor notices the
performance problems and counsels Abby about them. At
this point, Abby discloses her disability and asks for a
reasonable accommodation. The supervisor denies the
request immediately, explaining, “You should not have
waited until problems developed to tell me about your
disability.”
• Is the supervisor’s response okay?
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Hot Button Issue – Performance
• May an employer use the same evaluation criteria for
employees with disabilities as for employees without
disabilities?
• Yes. An employer should evaluate the job performance of an employee
with a disability the same way it evaluates any other employee’s
performance.
• Last year Nicole received an “above average” review at her annual
performance evaluation. During the current year Nicole had to deal with a
number of medical issues concerning her disability. As a result, she was
unable to devote the same level of time and effort to her job as she did during
the prior year. She did not request a reasonable accommodation (i.e., inform
the employer that she requires an adjustment or change as a result of a
medical condition). The quantity and quality of Nicole’s work were not as high
and she received an “average” rating. How should Nicole be rated?
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Retaliation – Best Practices
• Make sure that the employee continues to be treated like any other
employee
• Carefully review the decision before disciplining or changing job
duties
• Any information regarding a complaint or an employee’s exercise of
rights under these statutes should only be shared on a “need to
know” basis – and co-workers almost never need to know
• Remember that absences covered by the ADA or FMLA cannot
be counted against an employee under attendance policies, in
performance reviews, or in rankings or layoffs
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Thank you
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