The annual Managing Labor + Employee Relations Seminar took place on Tuesday, March 4, at 8:30 a.m. at the Fawcett Center and provided valuable information about best practices and the changing regulations that are important for employers to know. The half-day seminar, designed for business owners and professionals in human resources and employment law, discussed the following topics: reasonable accommodation under the Americans with Disabilities Act; investigating employee claims; information on the Affordable Care Act and the options employers have; and tips on how retaliation claims can be handled and avoided.

1. z

2. z
The Scorecard for 2013
presented by Lawrence Feheley
2014 Managing Labor + Employee Relations Seminar
March 4, 2014

3. z
“Persons attempting to find a motive in this
narrative will be prosecuted; persons attempting
to find a moral in it will be banished; persons
attempting to find a plot in it will be shot.”
+ Mark Twain, Adventures
Huckleberry Finn
of

4. z
2013 Was a Good Year
+ Minimum
+ Gays
Wage Employees
and Lesbians in the Workplace
+ Facebook
Complainers + Tattletales
+ Soldiers
+ Unpaid
Interns

5. z
2013 Was a Good Year
+ Flu-Prone
Employees
+ People
Disabled by Weird Conditions
+ Female
Wage Earners
+ Potheads
in the Workplace
+ Criminals
in the Workplace

6. z
2013 Was a Bad Year
+ Obamacare
+ NCAA Football
+ Non-Union
Employers
+ Technology
Haters
+ Erstwhile
Independent Contractors
+ Employee
Handbooks

7. z
2013 Had Mixed Results
+ The
National Labor Relations Board
+ Supervisors
+ The
EEOC Criminal Background Guidelines

8. z
Reasonable Accommodations
after the ADA Amendments
What You Do + Don’t Have to Do
presented by Kailee M. Goold
2014 Managing Labor + Employee Relations Seminar
March 4, 2014

9. z
+

10. z
ADAAA Refresher
Engaging the Employee
Triggering the Process
Choosing Accommodations
Final Comments

11. z
Prohibits
Discrimination
Failure to engage
in interactive
process
Failure to provide
reasonable
accommodations
Costly Liability
Compensatory +
punitive damages
Front + back pay,
reinstatement
attorneys fees

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

13. z
ADAAA significantly expanded
“disability”

14. z
ADAAA Game Changers
Major life
activities
Episodic or in
remission
Temporary
conditions
Mitigating
measures

15. z
Major Life Activities
Concentrating Caring for Oneself
Breathing
Eating
Communicating
LearningSeeing
Standing
Sleeping Reading Speaking
Bending
Performing Manual Tasks
Lifting
Working
Thinking
Walking

16. z
Episodic or In Remission
+ Disability if
active
it would limit a major life activity when

17. z
Temporary Conditions
May be a disability if it lasts or is
expected to last fewer than 6
months

18. z
Mitigating Measures
+ You
must consider how the impairment affects the
person before or without the mitigating measure
+ (except
ordinary glasses and contacts)

19. z
Obesity
ADHD
Sensitivity to
perfumes
Incontinence
Torn tendons
Seasonal
affective disorder
Bladder
conditions
Allergies

20. z
Is This Employee Disabled?

21. z
Is this employee disabled?
How can this employee do this job
with an accommodation?
Shift Your Focus

22. z
+

23. z
Identify when is
the duty is
triggered
Engage with the
employee
Choose and
maintain a
reasonable
accommodation

24. z
employee “requests”

25. z
Common Mistake
Believing what you read on the internet

26. z
No magic
words
required
Can come
from third
parties
Employee “Requests”
Don’t have
to ask for
anything

27. z
Medical
Condition
Workplace
problem
Employee “Requests”

28. z
Common Mistake
Trying the ostrich defense

29. z
Accommodation
“requests”
Performance
Issues
Absences
Your files
(FMLA, WC)
Employee
behavior

30. z
Common Mistake
Failure to document, document, document

31. z
“My wheelchair
doesn’t fit under
my desk.”

32. z
“I may need more
time off.”
Employee at end of FMLA Leave

33. z
“My wife is in the
hospital. She won’t
be in for awhile.”
Spouse calls in

34. z
“It’s been hard to show up
on time since my divorce –
I’m really upset.”

35. z
No Link
“I’ve been
meaning to tell
you . . .”

36. z
Identify when is
the duty is
triggered
Engage with the
employee
Choose and
maintain a
reasonable
accommodation

37. The Interactive Process
z
Informal dialogue to figure
out if you can accommodate
the employee
Closely scrutinized

38. z
How can I help you
do your job?

39. z
Three Questions
What are the essential
functions of this job?
What is the impairment?
What are the specific
limitations?

40. z
Common Mistake
Unclear essential functions
Job
Description
Employee
Agrees

41. z
Three Questions
What are the essential
functions of this job?
What is the impairment?
What are the specific
limitations?

42. z
Common Mistake
Staying dazed + confused

43. z
Medical
Request
Employee
Company
Get the information you need!

44. z
Nothing
you can
or
should
do

45. z
Identify when is
the duty is
triggered
Engage with the
employee
Choose and
maintain a
reasonable
accommodation

46. z
Accommodation = Change
Make facilities accessible
Restructure non-essential functions
Acquire + modify equipment
Modify schedules
Modify policies
Leave

47. z
Common Mistake
Excuses ≠ legal defenses

48. z
NOT Reasonable:
• Eliminating essential functions
• Creating a job
• Bumping
• Indefinite leave

49. z
Undue hardship
(extremely rare)
“significant
difficulty”
Health + Safety
“direct
threat”

50. z
Common Mistake
Short-term memory

51. z
Common Mistake
Letting the employee choose

52. z
What about our leave policy?
Have one and be flexible.

53. z
Follow Through
Proper
implementation
Follow up
Document
Rinse and repeat
if needed

54. z
Common Mistake
Blabbing

55. z
Common Mistake
Not asking for help

56. z
Engage and
accommodate
Document!
Ask for help

57. z
To Do List
Review accommodation policy
Review job descriptions
Script for inquiries
Train supervisors

58. z
Stay Informed
Kailee M. Goold
kgoold@keglerbrown.com
614.462.5479
keglerbrown.com/goold
@kaileemgoold
linkedin.com/in/kaileemgoold

59. z
Conducting a Proper
Investigation
presented by Jeffrey C. Miller
2014 Managing Labor + Employee Relations Seminar
March 4, 2014

60. z
The Basics

61. z
Initial Considerations of an
Investigation
+ Is
it necessary?
+ Immediate
+ Interim
+ Who
Measures
is the investigator?

62. z
Basics of Conducting an
Investigation
The Complainant
The Alleged Harasser
The Witnesses

63. z
The Review

64. z
Credibility Assessment Factors
+ Inherent
+
plausibility
Is the testimony believable on its face? Does it make sense?
+ Demeanor
+
Did the person seem to be telling the truth or lying?
+ Motive
+
to falsify
Did the person have a reason to lie?
+ Corroboration
+
Is there witness testimony or physical evidence that corroborates the party's
testimony?
+ Past
+
record
Did the alleged harasser have a history of similar behavior
in the past?

65. z
The Decision
+ Made
by management
+ Recommendation
+ Inform
+ What
made by investigator
the parties at once
if there are direct contradictions, lack of
documentary or witness corroboration, and inability to
make a credibility determination?

66. z
The Risks
+ Failure
to investigate will lead to claims by the victims
+ Negligence
+ Doobenen
claims and other suits by the accused
v. Aerojet-General Corp – Failure to interview the
accused
University at Albany – Failure to follow
internal rules and policies
+ Garcia v. State
- "reverse sexual harassment"
Due to unprofessional, hostile and accusatory
investigation
+ Flanagan v. Ashcroft

67. z
Getting More
Information

68. z
Prepare, Prepare, Prepare
Know all policies, guidelines, or practices
that apply to the situation

69. z
Establish a Comfort Level with
Complainant/Witnesses
+ Be
honest
+ Be
professional
+ Introduce
+ Assure
+ You
yourself and your role
prevention of retaliation or reprisal
will limit disclosure to those having a legitimate need to know
+ Ask him/her
to do the same

70. z
Use Open-Ended Questions

71. z
Plan the Investigation, But
Don’t Fall in Love with Your Questions
+ Some
answers can require follow-up questions
+ Some
answers can reveal other problems

72. z
Don’t Accept “Yadda, yadda, yadda”
+ You
may know the steps that lead to the
conclusion, but the witness needs to say them
+ Can
be one of the more difficult aspects of
a statement
+ Try to
avoid, but note if necessary, that
“witness refuses to directly answer question.”

73. z
Exhaust Narratives + Terms
Actively Listen

74. z
Use Physical or Documentary
Evidence to Your Advantage
Best for refreshing recollection or questioning
credibility

75. z
Take Your Time
+ Follow-up
if necessary
+ Circle
back to question issues of credibility
+ Don’t
rely upon a gut feeling

76. z
Document Everything
+ Take
notes
+ Read
all or part of notes to the witness to
confirm
+ Ask the
witness to talk slower or wait until
you are done writing

77. z
Potential Pitfalls
+ Becoming
+ Reaching
biased toward a witness or a side
a conclusion too early
+ Problematic
questions: Will I be fired? Will the alleged
wrongdoer be fired? Do I have to talk to you?
+ Confidential
+ Maintain
Complaints still count
Consistency regardless of stature of parties

78. z
Example of a Solid Investigation
in National News
+ Previous
allegations against the employer for being
incompetent
+ Allegations
that the employer engaged in impermissible
interviews
+ Enterprise
+ Still
has not demonstrated a successful product
managed to complete a textbook investigation

79. z
Jonathan Martin + Richie Incognito

80. z
Problem Cases
Mendoza v. Western Medical Center Santa Ana
+ Jury award
of $238k for failure to conduct a good faith investigation
$1Million Dollars for Shoddy Investigation
+ Breach
of contract and defamation relating to expense account
abuse. Attempted whistleblower was ignored, then investigated by
inexperienced and incompetent junior employee
AT&T $5Million Religious Discrimination
+ After
employee converted to Islam, she was called a terrorist, other
derogatory names, and relentlessly teased. She filed
internal complaints, which were not properly
investigated. She was ultimately terminated.

81. z
Avoid Retaliation
+ Remind
+ HR
everyone of the sensitivities
representatives, supervisors, and managers
+ Advise
everyone that the company will not tolerate any
form of harassment or retaliation against the complainant
and anyone who participated in the investigation
+ Complainant, accused, all
+ Document
interviewed
that you have made the
anti-retaliation statement

82. z
Thank You!
Jeffrey C. Miller
jmiller@keglerbrown.com
216.586.6651

83. z

84. z
Affordable Care Act 201
(The Sophomore Level Course)
presented by Ralph Breitfeller + Tom Sigmund
2014 Managing Labor + Employee Relations Seminar
March 4, 2014

85. z
Issues Arising in 2014
+ Problems
with HealthCare.gov
+ Insurance
policy cancellations
+ Too
few young people signing up
+ (25%
of 18-34 years olds)
+ Medicaid
+ Need
coverage gap
for a “copper plan”?

86. z
Future Compliance Dates
2014
• Individual Mandate
• Pre-Existing Conditions
• Annual Limits
• Waiting Periods
2015
• Pay-or-Play for large employers
• Automatic Enrollment
• Non-discrimination Test
2016
• SHOP Exchange
• Pay-or-play for small
employers
2017
• SHOP
Increase
2018
• Cadillac
Tax

87. z
Delayed Small Employer
Compliance
+ Small
Employer Compliance with pay-to-play
+ Employers
+ Delayed
between 50 and 99 employees
from January 1, 2014 to January 1, 2016

88. z
Delayed Large Employer
Compliance
+ Pay-or-play for
+ Employers
+ Delayed
+ Phased
large employers
with 100 or more employees
from January 1, 2014 to January 1, 2015
in over time
+ 2015
must cover 70% of full time employees
+ 2016
must cover 95% of full time employees

89. z
+ Announced
by IRS on February 10, 2014. Found at 79
Fed. Reg. 8544 (2-12-14)
+ First
delay was announced on July 9, 2013, which
delayed compliance from January 1, 2014 to January 1,
2015. (IRS Notice 2013-45)

90. z
Limited Work Force
(>49 FTEs <100) Transition Relief
+ During
the period February 9, 2014 to December 31,
2014, the employer does not reduce the size of the
workforce or the overall hours of service in order to
satisfy this workforce condition.
+ Employer
cannot eliminate or materially reduce
previously offered health coverage—meaning:

91. z
Maintain Coverage Means:
+ Employer
continues to offer each employee who is eligible
for coverage during the coverage maintenance period an
employer contribution toward the cost of employee-only
coverage that either:
+ is
at least 95 percent of the dollar amount of the contribution
toward such coverage that the employer was offering on February 9,
2014, or
+ is the same (or a higher) percentage of the cost of coverage that the
employer was offering to contribute toward coverage on February 9,
2014;

92. z
Maintain Coverage Means:
+ In
the event there is a change in benefits under the
employee-only coverage offered, that coverage provides
minimum value after the change; and
+ The
employer does not alter the terms of its group
health plans to narrow or reduce the class or classes of
employees (or the employees’ dependents) to whom
coverage under those plans was offered on February 9,
2014.

93. z
Certify Eligibility for Transition
Relief
+ The
employer must certify that the employer satisfies the
three requirements for transition relief.
+ __________________________
+ ALSO, for
non-calendar plan years, relief is available for plan
year beginning in 2015 and for the months that such plan
year extends into 2016
+ HOWEVER, employer
February 9, 2014.
may not alter the plan year after

94. z
“Relief”
+ No
penalty under Section 4980H(a) (not offering
minimum essential coverage) or Section 4980H(b)
(failing to offer coverage that is affordable and offers at
least minimum value).
+ In
other words, no penalty for not offering coverage and
no penalty for not offering adequate coverage.

95. z
Limited Transition Relief
+ For
employers with 100 or more FTEs
+ An
employer is deemed to have offered coverage if it is
offered to all but five percent (or five employees if five
employees is more than 5%) of the full-time employees
+ For
each calendar month during 2015 and any calendar
months during the 2015 plan year that fall in 2016, an
applicable large employer member that offers coverage to
at least 70 percent (or that fails to offer to no more than 30
percent) of its full-time employees

96. z
“Relief”
+ Under
limited transition relief, the qualifying employer
is not subject to a penalty for failing to offer minimum
essential coverage. [4980H(a)].
+ HOWEVER, still
subject to a penalty for failing to offer
affordable, minimum value coverage. [4980H(b)].

97. z
Offer of Coverage: MEWAs
+ Multiple
Employer Welfare Arrangements
+ An
offer of coverage includes an offer of coverage made
on behalf of an employer
+ This
includes an offer made by a multiemployer or
single employer Taft-Hartley plan or a MEWA to an
employee on behalf of a contributing employer of that
employee

98. z
Offer of Coverage: Staffing Firms
+ If
the staffing company is not the common law employer of the
employee,
+ Then “an
offer of coverage [made by the staffing firm] is treated
as made on behalf of a client employer only if the fee the client
employer would pay to the staffing firm for an employee enrolled
in health coverage under the plan is higher than the fee the
client employer would pay to the staffing firm for the same
employee if the employee did not enroll in health coverage
under the plan.” 79 Fed. Reg. at 8566.

99. z
Multiple Employers
Penalty Assessment
+ Each
employer member is liable for its own penalty
+ Each
member is judged on whether the individual
member has offered coverage to the requisite number
of full time employees
+ In
other words, cannot aggregate all members and take
the average for the group

100. z
Period for Determining Status
+ Did
employer employ an average of at least 50 FTEs on
business days during any consecutive six month period
in 2014?
+ Six month
+ 79
period to be chosen by employer
Fed. Reg. at 8573

101. z
Offer Coverage
+ Large
employer required to offer coverage to all full
time employees and dependents (however, see
transition relief)
+ Affordable
+ Minimum
Value

102. z
Employee Classification Issues
+ Common
law employee
+ Does
not include: leased employee; sole proprietor; partner;
2% shareholder of S Corp
+ What
if employer treats service provider as an independent
contractor and the service provider is reclassified as an
employee, and this results in the employer failing to offer
coverage to all full time employees?
+ IRS
and Treasury say, “that is too bad, Employer,
you may be liable under 4980H”

103. z
Employee Classification Issues
Section 3508 Employees
+ 3508
employees are real estate agents and direct sales
agents
+ They are
+ They do
+ Their
not employees for 4980H purposes
not have to be offered coverage
hours of service are not included when
calculating an employer’s FTEs

104. z
Must Offer Coverage
+ If
employer fails to offer coverage to a full-time employee
for any day during a calendar month, then employee was
not offered coverage during that calendar month
+ Commenters
said that often coverage begins on the first day
of the first pay period of the plan year

105. z
Response
+ Solely for
January 2015, if employer offers coverage to a
full time employee no later than the first day of the first
pay period that begins in 2015, the employer will be
deemed to have offered coverage for January 2015. 79
Fed. Reg. at 8573

106. z
Dependents
+ Dependent
means child of employee, not spouse.
+ Final
regulations exclude foster children and stepchildren for penalty purposes only.
+ Includes
1.
2.
3.
children who:
Are U.S. Citizens;
Are residents of the U.S.; OR,
Are residents of a country contiguous to the U.S.

107. z
Transition Relief Regarding
Dependents
+ If
employer takes steps in 2015 toward satisfying this
requirement, no penalty for:
1.
2.
3.
Not offering dependent coverage;
Not offering dependent coverage that satisfies the
minimum essential coverage standard; or,
dependent coverage is offered to some but not all.

108. z
When Transition Relief
Not Available
+ This
dependent transition relief is not available to the
extent that the employer offered dependent coverage
during either plan year 2013 or plan year 2014.
+ In
other words, employer cannot use the transition
relief rules to offer less dependent coverage than the
employer has previously provided.

109. z
Still Applicable
1.
Minimum essential coverage requirements
2.
Minimum Value
3.
Affordability
4.
Waiting period no longer than 90 days
5.
Method for determining number of employees is
unchanged

110. z
Self Insurance: A Few Thoughts

111. z
Not Subject To
1.
ACA Essential benefits requirements
2.
ACA Minimum loss ratio requirements
3.
ACA Requirement to justify premium increase
4.
ACA Excise tax

112. z
Still Subject To
+ ACA regulations
regarding limitations on annual and
lifetime benefits
+ ACA regulations
regarding appeal rights

113. z
Any plan that provides accidental health
coverage if “any portion of such coverage is
provided other than through an insurance policy.”
Under this definition, a self-insured health and
welfare benefit plan does not have to self-insure
all of the benefits it covers.

114. z
+ A self-insured
plan can have stop loss coverage and still
be considered self-insured.

115. z
+ Section
105(h) of the tax code prohibits self-insured
health plans from discriminating in favor of highly
compensated individuals.
+ This
may be violated if the plan is designed to
encourage low income employees to choose to go to
the health insurance exchange.

116. z
Automatic Enrollment for
Employees of Large Employers
+ Amends
the Fair Labor Standards Act
+ Generally provides
that an employer that has more than
200 full-time employees and offers employees
enrollment in one or more health plans shall
automatically enroll new full-time employees in one of
the plans offered

117. z
Notification of Material
Modifications
+ Material
modifications of the terms and coverage of a
plan that are not disclosed in a summary plan
description must be disclosed at least 60 days in
advance before the effective date of the modification

118. z
Discrimination
+ Prohibition
of discrimination based on pre-existing condition or other
discrimination.
+ Discrimination based on health status. Because self-insured plans are
“group health plans,” they therefore may not have eligibility criteria
based on the following factors:
Health status
+ Medical conditions (either physical or mental)
+ Claims experience
+ Receipt of health care
+ Medical history
+ Genetic information
+ Evidence of insurability (including domestic violence)
+ Disability
+ “Any other health status-related factor.”
+

119. z
Thank You!
Ralph Breitfeller
rbreitfeller@keglerbrown.com
614.462.5427
Tom Sigmund
tsigmund@keglerbrown.com
614.462.5462

120. z
Why You Always Picking On Me?
Retaliation Update
presented by Brendan Feheley
2014 Managing Labor + Employee Relations Seminar
March 4, 2014

121. z
Much ado about nothing…
+ I’ve
heard it all before…
+I
already know not to retaliate against employees…, everyone
knows that… no one does this anymore.
+ Not
so fast my friend…
+ 2013-
EEOC reports 38,539 charges of retaliation
+ 41% of all charges filed
+ Most of any charge for FIFTH YEAR IN A ROW

122. z
So How Does This Happen?
+ Often
+
times inadvertent
Manager not thinking how this looks objectively
+ Human
+
Especially when initial complaint is untrue
+ Lack
+
Nature
of communication
Supervisor may not know full extent of complaint

123. z
Decision Time
+ You
offered Sally the chance to transfer, she declined.
+ Harry can’t
be transferred because this is the only area
he knows, and you don’t want to fire him.
+ Thus, the
+ But
two are still working together.
you’ve told Harry he can’t retaliate against Sally
and he has said he understands.

124. z
The HR Quandary

125. z
“An eye for an eye makes
the whole world blind.”
Mahatma Gandhi
What you HOPE Harry’s Thinking

126. z
“Don’t get mad, get even. ”
Robert F. Kennedy
What Harry’s REALLY thinking

127. z
“Revenge converts a little
right into a great wrong.”
German Proverb
What Harry SHOULD be thinking

128. z
The Saga Continues
+ Three
weeks later Harry comes to you saying Sally needs fired.
+ He’s
heard you constantly harp on the importance of writing
things down, and even remembers something about a hot stove
(but that never seemed to make sense to him).
+ This
isn’t his first rodeo either, so he’s prepared. He brings you a
file ½ an inch thick of problems he’s had with Sally. ALL of them
in the last three weeks.

129. z
The Problems Relate To
Sally’s Attendance
Sally’s Motivation
Sally’s Performance Output

130. z
Now What?
+ Problem???
+ What
if you hadn’t fired Sally?

131. z
Proving a Retaliation Claim
+ McDonnell
+ Plaintiff
1.
2.
3.
4.
Douglass
has to show 4 things
he engaged in activity protected by Title VII;
this exercise of protected rights was known to the defendant;
the defendant thereafter took adverse employment action
against the plaintiff; and
there was a causal connection between the protected activity
and the adverse employment action.

132. z
The Proof is in the Pudding
+ If
Plaintiff can show these 4 things then Defendant has to
show legitimate, nondiscriminatory reason for action
+ How
do you do this???
+ Documentation
+ If
is key
Defendant does this then burden shifts back to Plaintiff to
show “that the proffered reason was not the true reason
for the employment decision.”

133. z
Breaking Down the Prima
Facie Case

134. z
What is Protected Activity?
+ Opposing
a practice made unlawful by one of the employment
discrimination statutes
+ Filing
a charge, testifying, assisting, or participating in any
manner in an investigation, proceeding, or hearing under the
applicable statute

135. z
What is Opposing a Practice?
+ Threatening
to file a claim or charge
+ Complaining
to anyone about an act that would be prohibited by
law (usually Title VII but can be NLRA OSHA or others)
+
Can be to co-workers, public, attorney etc… (according to EEOC)
+ Refusing
+ Can
+
to obey an order (if believe it discriminatory)
be explicit or implicit
Need not say “discriminates against … (if can be inferred)

136. z
Critical Points
+ Opposition
must be reasonable
+ No threats of violence
+ No distributing confidential documents
+ No badgering co-workers
+ Opposition
need not be correct
+ Reasonable good faith belief enough
+ Opposition
of action against co-worker can protect complainer
and co-worker
+ Relatives
can count

137. z
Participation
+ Pretty simple:
met if individual made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, hearing, or litigation.
+ Tips
to remember
+ Doesn’t
matter if claims were valid or not
+ Doesn’t matter if charge was timely or not
+ Spouses, relatives, fiancés count

138. z
You can only know what you know,
unless you don’t
+ Protected
activity had to be known by Defendant.

139. z
Adverse Action
+ Same as everything
+ Maybe… Maybe not.
else right?
+ Burlington:
+ Title VII retaliation provision is not limited to actions by employers that
affect the terms, conditions or status of employment or even those acts
that occur at the workplace.
+ Instead, covers those employer actions that would serve to dissuade a
reasonable employee from bringing a charge of discrimination.
+ strongly suggests that it is for a jury to decide whether anything more than
the most petty and trivial actions against an employee should be
considered 'materially adverse'

140. z
Post-Burlington
+ A fork
in the road
+ Courts: Action
must be “materially adverse” generally meaning
has to cause impact or harm
Demotions and negative changes in job responsibilities
+ Lateral transfers
+ Written reprimand
+ Schedule Change
+

141. z
Post-Burlington
+ EEOC
+ Court
decisions are too restrictive
+ Surveillance
can be adverse
+ Not inviting to weekly lunch can be adverse
+ Cancelling symposium in employee’s honor
+ Threats
+ Instigation of claims against employee
+ Be
careful about post-termination actions
+ Failure
to rehire
+ Negative recommendation.

142. z
Proof of Causal Connection
+ Direct
Evidence
+ Rarely happens
+ Better
+ Indirect
not happen to you
Evidence
+ Demonstrated
by evidence that:
+
(1) the adverse action occurred shortly after the protected activity, and
+
(2) the person who undertook the adverse action was aware of the
complainant's protected activity before taking the action.

143. z
Time is on my side… yes it is
+ Typically when
more than a month passes you’re
beyond “short time after.”
+ However, connection
can still be proved if other
evidence exists:
+ Constant
mention of charge or complaint.
+ Repeated slights or insults to employee between complaint
and action

144. z
Remember Pretext
+ Employee
has to prove retaliation is but-for cause of
action
+ Motivating
+ Key, like
factor not enough
in any discrimination claim, how did you treat
other employees and what did you write down.

145. z
Consistent + Contemporaneous
Documentation is Key
+ If
+ If
discipline is heightened after activity… problem
is significantly different than similarly situated employees
receive after activity… problem.

146. z
Revisiting Harry + Sally
+ What
did Harry do wrong?
+ What
if Sally’s behavior changes because unhappy with
results?
+ Documentation
again key… Document what was going on before
and what is going on now.
+ Objective is better than subjective.
+ Remember claim of discrimination doesn’t permit employee to stop
doing job. Just makes you work harder.

147. z
Tips
+ Remember
+ Relatives
+ Don’t
going to EEOC first
is your friend
+ Give
+ Don’t
count, spouses count, fiancés count
count on adverse action to save you
+ You’re
+ Time
protected activity is broader than you may think
a man a rope… he’ll learn to hang himself
let supervisor off the hook
+ Failure
after
to document before may be fatal to ability to take action

148. z
Thank You!
Brendan Feheley
bfeheley@keglerbrown.com
614.462.5482

149. z