This year we were privileged to have the Chief Executive Officer of Safe Passage Consulting, Tony Casper, presenting alongside our Employment team. Also joining the seminar, we had members of Kegler Brown’s Workers' Compensation and Medical Marijuana practice areas. Topics are as follows: "Surviving Your Worst Fear: Documentation + Employment Litigation"; Jane Gleaves This presentation will outline best practices for accurate and thorough record-keeping with an eye toward litigation. Jane will discuss the ways employers should document any problematic employees or work-place incidents so that their records can be helpful, rather than harmful, in future litigation. She will give examples of both good and bad documentation practices and illustrate how each can affect an employer’s position against a former employee in a lawsuit. "Closing the Pay Gap: Case Law + Best Practices for Equal Pay"; Erin Cleary Herbst Erin will identify and explore the gender gap in employment. She will provide an overview of relevant case law, plus tips and strategies for best practices in dealing with the gender pay gap. "The Cost of Workplace Violence"; Tony Casper During this presentation you will learn the effects of violence in the workplace on productivity and your staff. Tony will discuss steps to preventing and mitigating violence in the workplace. Also, he will discuss the importance of having proper policy, a threat assessment team, Physical Security Assessments and quality training. "A Legal Outlook of Medical Marijuana: What’s On the Horizon?"; Lloyd Pierre-Louis + Randy Mikes Lloyd + Randy will analyze the potential impact of the legalization of medical marijuana in Ohio. Lloyd will cover issues related to the legal challenges and trends in the medical marijuana industry, discuss the Ohio regulatory environment and statutes, and touch on Ohio court cases. Then, Randy will talk about issues including allowance of claims, return to work, and extent of disability. They will also look at what to expect in terms of regulations and the practical impact legalization may have on employment areas including but not limited to workers’ compensation. "My Mind’s Playing Tricks on Me!"; Brendan Feheley Brendan will focus on the intersection between FMLA and the ADA with a special emphasis on mental health conditions. This presentation will examine recent developments regarding certification of and reasonable accommodations for mental health conditions.

2. Presented by
Jane Gleaves
Surviving Your Worst Fear
DOCUMENTATION +
EMPLOYMENT LITIGATION

5. How to BUILD that
paper story

7. 2,392total charges filed with the EEOC
for workplace discrimination

9. Retaliation
Disability
Race

11. 6,098total charges filed with the Ohio
Civil Rights Commission for
workplace discrimination
35%closed for no
probable cause

12. Litigation following
the termination of an
employee is likely.

14. Employment
AT-WILL

15. What you CAN’T do is
terminate an employee
for an illegal reason
Race Retaliation Disability Sex
Pregnancy Age Religion Familial
Status
Military
Status

16. Employees who have an
employment agreement
with a provision that they
can be terminated for cause

17. How to handle
termination with an
eye toward litigation.

18. Burden of
PROOF

19. Initially the burden is on
the plaintiff to prove he:
Is a member of a
protected class Was qualified for the job
Suffered an adverse
employment decision
Was replaced by a person
outside the protected class
or treated differently

20. Burden on plaintiff to
establish prima facie case
Burden shifts to defendant
to show legitimate,
nondiscriminatory reason
Burden shifts back to
plaintiff to show reason
is pretext

21. Instances in which persons outside the
protected class were treated better for
offenses of comparable seriousness
The manner in which the employee
was treated by the employer while
employed
The employer’s reaction to “legitimate
civil rights activities”
Statistics concerning employer’s
employment policy and practice with
respect to minority employment
Evidence of
PRETEXT

22. Ways to Defend
Yourself + Prove Your
Nondiscriminatory
Reasons

23. 1Develop and consistently
apply appropriate policies,
procedures + handbooks

24. 1
Have policies in writing
Document employee
acknowledgement of the policy
Buy-in from supervisors and
management
Achieve good policies with an
employee handbook

25. 2Violations of policies +
performance problems –
you have the policies, now
you have to apply them

26. 2
Document performance and
disciplinary issues fully and objectively
Consistency is key!
Employees subject to inconsistent and
unduly harsh consequences can allege
that the employer followed the policy
in a discriminatory manner or that the
employer should not be believed when
claiming that a particular practice was
standard operating procedure

27. 3Decide if it’s the right time
to terminate employment

28. 3
Do you have documentation that you properly
communicated expected standards of conduct?
Do you have documentation of a thorough
investigation of the misconduct?
Do you have documentation that you’ve
discussed the issue with the employee
and offer the employee the opportunity
to be heard?
Do you have documentation that you
consistently applied this policy in the past?
Timing is key – do not delay excessively
before making and communicating a
termination decision

29. 4Choose your language
carefully

30. 4
Using labels without providing behavioral examples
Generic labels don’t help your employee
improve and will not help your defense.
Jane is usually late for work
Jane misses too much work
April 1: Jane called in sick and missed eight
hours of work. April 4: Jane arrived at work
at 10 a.m., two hours late from his scheduled
start time. April 6: Jane scheduled a doctor's
appointment and then, stayed home to have
a new furnace installed. April 12: Jane called
in sick and missed eight hours of work.

31. 4
Using words that sound like “proxies” for bias
or retaliation
Avoid terms that suggest you have an underlying
discriminatory motive.
Lack of commitment
Employee never volunteers, must be
persuaded to accept assignments and
complains incessantly about how things were
better before the bar was raised

32. 4
Focusing on employee’s intent (as opposed to results)
Focus on what happened and stay away
from what your employee may have
intended.
“You didn’t try,” “You don’t care” and “You
weren’t applying yourself.”
Your sales numbers were (X), and they were
supposed to be (X). Historically, your district
has performed at these levels and your
performance is below expectations.

33. 4
Using absolutes that are not credible
There is no easier way to attack credibility than to
test an absolute statement. One deviation from
the absolute can make your documentation look
unreliable.
Jane is always late
Jane was late to work 6 out of the 7 days she
was scheduled to work this week

34. 4
Hedging too much
“You don’t seem to understand the new
computer software”
“You have made three major mistakes with
the new computer software that have…”
Use specific and definitive language that shows
you are documenting known deficiencies.

35. 4
Failing to make clear the consequences of lack
of improvement
Employee may be disciplined if this conduct
continues
“Employee will be subject to more severe
discipline up to and including immediate
discharge.”
Don’t give employees an excuse to say
they were surprised

36. 4
Making evaluations you’re not qualified to make
Jane is withdrawn and seems depressed
Jane did not speak up or contribute at
Monday or Tuesday’s group meetings
You aren’t doctors and can’t make medical
diagnoses.

37. 4
Writing like a lawyer
Our legitimate, non-discriminatory reason for
firing Jane is theft of company property.
We terminated Jane because she stole money
from the cash register.
Just report what happened honestly and genuinely. If
you throw this up in front of a jury and it looks like your
lawyer has written everything, you look like you’re
covering something up and juries are suspicious of that

38. 5Economic downturn

39. 5
Well-documented basis for the job elimination
or reduction in force based on legitimate
business related reasons
Used objective criteria to select the
employees for job elimination
Conducted a disparate impact
analysis to make sure no protected
class is disproportionately affected
Name
Attendance
Record
Seniority 2018 Sales Total
Jane 10 2 9 21
Brendan 2 10 4 16
Erin 8 5 3 16

40. 6Delivering the message

41. 6
Hold a termination meeting where you are
prepared + well-rehearsed
Have a witness
Ensure that all resources relevant to the
termination have been assembled + assessed
Document the termination
Documents to bring
Focus the message on your legitimate, non-
discriminatory business reason for
termination decision

42. 7Other documentation

43. 7
Signed assurance that he has or will return all
company property
Social media
Clearly communicate to the
employee any limitations to his
right to: post on employer-
owned social media accounts,
use contacts developed through
employer-owned social media
accounts, use social media to
solicit clients or employees

44. 8Conduct an exit interview

45. 8
Discover problems in the
workplace
Assess litigation risks
Discover risks related to
confidential or trade secret info
Manage the departing employee’s
expectations

46. 9Respond to employee
reference checks

47. 9Implement a policy of verifying only job title,
dates of employment + compensation in
response to a request for references
Direct all requests for references to one
employer representative
Provide a written reference letter to the
employee for future use
Document who called, when, who spoke with
them, and what was said
If it’s a written request, retain it

49. Nero v.
Industrial
Molding Corp

50. Vaughn v.
The Boeing
Company

52. Employee is chronically late + repeatedly
insubordinate
You have delayed terminating him
Hypothetical
Scenario 1
He has a heart attack and becomes disabled

53. Hypothetical
Scenario 1
POLICIES
Written policy about how many times you
can come in late before being disciplined
TIMING Impose discipline upon the first violation
LANGUAGE
Document more than “he is always late” -
find the dates that he was late and by
how much

54. From: Mr. Manager
To: Jane
Subject: Tardiness
Jane,
You clocked in 15 minutes later for your shift today, February 18,
2019. This is your first warning.
Sincerely,
Mr. Manager

55. From: Mr. Manager
To: Jane
Subject: Tardiness
Jane,
This is your second written warning for tardiness. According to
your schedule, you were supposed to clock in at 7:30. Instead,
you clocked in at 7:54. According to section 5.1 of the Employee
Handbook, tardiness two times within a quarter will result in
termination.
Sincerely,
Mr. Manager

56. Delivering the
MESSAGE
Hold a termination meeting where
the message is very clear to the
employee that the reason for his
termination is his repeated
tardiness and insubordination

57. Female salesperson claims that she was
discriminated against because she was pregnant
Really, she was terminated because she
consistently failed to meet her sales quotas
Hypothetical
Scenario 2

58. Hypothetical
Scenario 2
POLICIES
Do you have a clear policy that indicates
what her quotas were?
TIMING
Do you have documentation that you
properly communicated expected sales
quotas?
LANGUAGE
Jane’s numbers aren’t where they should
be – this is not specific enough

59. Delivering the
MESSAGE
Hold a termination meeting
where the employee is shown his
already-documented
underperformance – stay on
message that the termination is
due to sales performance

60. Think about your
documentation trail
like a hot stove

61. Documents should reflect
that your policies are:
Foreseeable Immediate
Uniform Impersonal

62. Jane Gleaves
Kegler Brown Hill + Ritter
jgleaves@keglerbrown.com
keglerbrown.com/gleaves
614-462-5484

63. CLOSING THE PAY GAP
Case Law + Best Practices
for Equal Pay
Presented by
Erin Cleary Herbst

64. OVERVIEW Wage Gap
Data
Statutory
Summary
Case Law
Updates
Case Study:
Law Firms!
Best
Practice Tips
+ Strategies

65. Wage Gap Data
+ BACKGROUND

66. National Committee
on Pay Equity
A Tuesday in April is selected
in advance symbolically
Census statistics not available
until August or September

67. Source: equalpaytoday.org
Demographic Date Wage Discrepancy
All full time women, compared to all full time men April 2, 2019 $0.80
Women by race, compared to white, non-Hispanic men:
Asian-American women March 5, 2019 $0.85
White women April 19, 2019 $0.77
African-American / Black women August 22, 2019 $0.61
Native American women September 23, 2019 $0.58
Latinas November 20, 2019 $0.53
All mothers compared with all fathers June 10, 2019 $0.69

69. 78%
89%
69%

70. Geographic-Based
FACTORS
Predominant
Industries Demographics Cultural
Differences
State Law +
Policy Differences

71. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap
Financial Managers 554,104 100,575 $65,237 65% 19,581,000,000
Physicians +
Surgeons
274,511 243,072 171,880 71% 19,543,000,000
Accountants +
Auditors
1,014,827 77,320 60,280 78% 17,293,000,000
First-line supervisors
of retail sales workers
1,177,835 47,774 35,217 74% 14,790,000,000
Registered nurses 2,092,489 71,590 65,612 92% 12,509,000,000
Marketing + Sales
Managers
383,998 100,288 71,066 71% 11,221,000,000
Lawyers 320,159 140,270 106,837 76% 10,704,000,000
Chief Executives 266,890 148,867 111,236 75% 10,043,000,000
Medical + Health
Services Managers
456,984 87,451 67,129 77% 9,287,000,000
Education
Administrators
500,325 83,383 67,989 78% 9,203,000,000

72. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap
Registered Nurses 2,092,489 71,590 65,612 92% 12,509,000,000
Secretaries +
Administrative Assistants
2,060,289 42,566 38,470 90% 8,439,000,000
Elementary + Middle
School Teachers
1,933,074 55,197 50,766 92% 8,565,000,000
Customer Service
Representatives
1,196,513 37,623 32,893 87% 5,660,000,000
First-Line Supervisors of
Retail Sales Workers
1,177,835 47,774 35,217 74% 14,790,000,000
Nursing, Psychiatric +
Home Health Aides
1,071,789 30,125 26,816 89% 3,547,000,000
Accountants + Auditors 1,014,827 77,320 60,280 78% 17,293,000,000
Office Clerks, General 734,622 39,160 35,226 90% 2,890,000,000
First-Line Supervisors of
Office + Administrative
Support Workers
729,985 57,466 46,555 81% 7,965,000,000
Bookkeeping,
Accounting + Auditing
Clerks
723,342 45,254 39,939 88% 3,845,000,000

73. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap
Securities, Commodities
+ Financial Services Sales
Agents
60,572 $101,423 61,936 61% 2,392,000,000
Financial Managers 554,104 $100,575 65,237 65% 19,581,000,000
Personal Financial
Advisors
109,105 108,575 71,154 66% 4,042,000,000
Production, Planning +
Expediting Clerks
162,744 60,836 41,040 67% 3,222,000,000
Credit Counselors + Loan
Officers
150,841 77,214 52,257 68% 3,765,000,000
Inspectors, Testers,
Sorters, Samplers +
Weighers
242,910 46,955 32,280 69% 3,565,000,000
Retail Salespersons 644,453 40,182 27,800 69% 7,980,000,000
First-Line Supervisors of
Housekeeping +
Janitorial Workers
71,736 43,968 30,461 69% 969,000,000
Insurance Sales Agents 212,096 61,768 42,951 70% 3,991,000,000
Sales + Related Workers,
All Other
83,106 67,634 47,543 70% 1,670,000,000

74. Industry Women Employed Men’s Earnings Women’s Earnings Pay Ratio Profession Gap
Wholesale + Retail
Buyers, Except Farm
Products
65,395 41,903 45,496 109% -235,000,000
Combined Food
Preparation + Serving
Workers
87,640 20,886 20,592 99% 26,000,000
Writers + Authors 78,568 56,059 55,092 98% 76,000,000
Pharmacists 111,516 122,441 120,173 98% $253,000,000
Counselors 416,330 47,207 46,104 98% 459,000,000
Social Workers 586,871 46,906 45,644 98% 741,000,000
Clinical Laboratory
Technologists +
Technicians
179,012 50,108 48,241 96% 334,000,000
Receptionists +
Information Clerks
617,205 30,319 28,919 95% 864,000,000
Computer Occupations,
All Other
137,341 73,301 68,923 94% 601,000,000
Security Guards +
Gaming Surveillance
Officers
156,280 32,003 30,072 94% 302,000,000

75. TAKE-AWAYS
Exists to some extent in most industries
Gender gap tends to be exacerbated in
occupations that are either male-
dominated or highly compensated

76. Questioning the
STATISTICS
Education Years of
Experience Hours Worked Choice of Industry
or Specialty

80. TAKE-AWAYS
Unadjusted wage gap steadily improving
“Unexplained” wage gap hovered at
around 8% overall since 1989

81. OVERVIEW Wage Gap
Data
Statutory
Summary
Case Law
Updates
Case Study:
Law Firms!
Best
Practice Tips
+ Strategies

82. Statutory
FRAMEWORK
Equal Pay Act of
1963
Title VII of the
Civil Rights Act
of 1964
Lilly Ledbetter
Fair Pay Act of
2009
Paycheck Fairness
Act (not passed) State Laws

83. No employer shall discriminate, within any establishment,
between employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the
rate at which he pays wages to employees of the opposite
sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar
working conditions, except where such payment is made
pursuant to a (1) seniority system; (2) a merit system; (3)
a system which measures earnings by quantity or
quality of production; or (4) a differential based on any
other factor other than sex. 29 USC §206(d)

84. Title VII of the Civil
Rights Act of 1964
It is an unlawful employment practice for
an employer to … discriminate against
any individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of
such individual’s race, color, religion, sex,
or national origin. 42 USC §2000e-2(a)(1)

85. Lilly Ledbetter
Fair Pay Act
Amends Title VII of the Civil Rights Act of
1964, which has a statute of limitations of
180 days to bring a discrimination claim
Each new paycheck resets the clock with
respect to the statute of limitations for
pay discrimination

86. Would limit permissible discriminatory
factors to education, training, experience
Change defense burdens for company
Provide additional remedies + penalties
Prohibit retaliation against workers who
inquire about their employers’ wage
practices or disclose their own wages
Directs DOL to collect wage-related data
Proposed
LEGISLATION

87. Employees can be compared outside of
the same “establishment”
Employees can be compared if they
engage in “substantially similar work”
Employers cannot prohibit employees
from disclosing or discussing their wages
or inquiring about others’ wages
Employer defenses more limited
Bona fide factor other than sex, such as
education, training, or experience
Bona fide factor cannot be derived from a
sex-based differential
Extends statute of limitation; expands remedies

88. Other More
Aggressive States
Ohio follows the federal Equal Pay Act
6th Circ – Prior pay ok if there is good
reason to rely on it

89. OVERVIEW Wage Gap
Data
Statutory
Summary
Case Law
Updates
Case Study:
Law Firms!
Best
Practice Tips
+ Strategies

90. Case Law
UPDATES

91. Hastings v. First
Community Mortgage
HR manager alleges another female
executive was paid at lower rates
than male counterparts
Plaintiff alleged that her bonus
structure was taken away, and she
personally was the only director
who was not eligible for a bonus
Plaintiff alleged that she was
promoted without receiving any
change in compensation
Two allegations
didn’t establish
gender
discrimination

92. Rizo v. Yovino
Fresno County School System
gender pay discrimination lawsuit
Female math consultant brought
suit when she learned a male
colleague had been brought on at
a higher pay grade for same work
Plaintiff was told the man was paid
more due to both of their prior
salaries at other workplaces
Federal district
court found for
Fresno County

93. Rizo v. Yovino
9th Circuit en banc interpreted Equal
Pay Act to say prior salary history is
NOT an acceptable differential based
on any other factor other than sex
Reversed previous decision
Reliance on past wages, either alone
or in conjunction with less
invidious factors, perpetuated the
pervasive gender discrimination that
the EPA sought to eradicate
Supreme Court
remanded on
technical grounds

94. Wal-Mart Stores, Inc.
v. Dukes
This 2011 Supreme Court holding
made it extremely difficult for gender
discrimination to proceed as a class
action when discriminatory treatment
was the product of local supervisors
exercising their discretion in awarding
pay and promotions
In line with the ruling of Wal-Mart
v. Dukes, KPMG utilized a
decentralized system for
determining pay and promotion
Background to
KPMG Case

95. Kassman v. KPMG
Class action brought by 10,000
female KPMG employees since 2009
Pay disparity = 2.8%
Compensate at market rate, based
on performance
Salary ranges + budgets approved
at senior management level
Partner or Managing Director uses
guidelines to determine compensation

96. Kassman v. KPMG
Plaintiffs argue a “compounding pay
gap” issue, and cite Rizo v. Yovino
Court finds that Plaintiffs have not
shown that source salaries for
women were lower
Evidence shows that KPMG moves
employees to the middle of their
pay bands over time

97. Kassman v. KPMG
Individual decisions made by
managers at local level
Plaintiffs cannot show commonality
on their disparate treatment claim
District court indicates that it is
following Supreme Court guidance
+ cannot certify the class because of
precedent set by Wal-Mart v. Dukes

98. "Although any statistically
significant pay disparity on
account of gender would be
improper, for context, the
national disparity in pay
between women and men is
18%.”

99. “…the motion for class certification is denied.2
“2 One wonders, however, about the empirical reality
of a key assumption that underlies Dukes – that ‘left
to their own devices most managers in any
corporation – and surely most managers in a
corporation that forbids sex discrimination – would
select sex-neutral, performance-based criteria for
hiring and promotion that produce no actionable
disparity at all.’ Dukes at 355. This assumption is
contradicted by studies finding that implicit bias has
profound effects. See, e.g., Dukes [Ginsburg dissent].”

100. Departure of 3 high-
level female
executives
Encouraged internal
sexual harassment
survey
Survey results
triggered
investigation
Gender pay disparities
were reviewed
Email went out saying
issues resolved
Spokesperson:
problem didn’t reflect
company culture
Nike

102. Nike Class-Action
Lawsuit
4 women claim Nike violated the
Equal Pay Act
Demands court-ordered structural
reform of hiring and compensation
Demands backpay for women who
left due to discrimination
Special focus on compensation
based on each employee’s previous
individual compensation
Motion to dismiss
filed by Nike on
11/5 – case pending

103. Teachers hired for
daycare provided to
employees
147 women
3 men
Allege all but 1
woman hired at Level
1 salary
Allege 2/3 men hired
at Level 2 salary
Men have less
experience and no
master’s degree
Google: some new
hires paid based on
initial job interview
Google

104. Google Class-Action
Lawsuit
DOL investigation of 21,000
employees for 2015
“Systemic compensation disparities
against women pretty much across
the entire workforce”
Google claimed it had closed the
gender pay gap and vehemently
disagreed with the DOL conclusion

105. Google Class-Action
Lawsuit
New narrowed class action suit filed
in January of 2018
Study excluded
11% of employees,
including all Sr.
VPs and above
Pressure from activist shareholder to
disclose information on pay gaps
Google released study showing no
significant gender/race pay gap
Class action lawsuit dismissed by
judge in December 2017

106. 0
5
10
15
20
25
30
35
40
45
2014 2015 2016 2017 2018
Sex-Based Discrimination Filings
Equal Pay Act Filings
EEOC Enforcement Actions

107. “Energetically enforcing equal
pay laws is currently one of
the national strategic
priorities for the EEOC”
Published in a press release
as of August 31, 2017

108. EEOC v. First Metropolitan
Financial Services, Inc.
EEOC vs. PS Holding LLC
EEOC vs. Denton County

109. OVERVIEW Wage Gap
Data
Statutory
Summary
Case Law
Updates
Case Study:
Law Firms!
Best
Practice Tips
+ Strategies

110. Picking on
OURSELVES
Partner compensation survey from
Major, Lindsey & Africa, focused on
large, private US law firms, published
in December 2018

111. 53%
Male partners are
earning 53% more than
female partners

112. 28%
Only 28% of partners
responded that they thought
there was a gender pay gap
amongst partners

113. 19%
19% of equity partners
are women

114. Women are less likely to respond that they
are excited about making partner
Expect to spend less of their career at the
law firm than male counterparts
Feel forced to make significant trade-offs
between career and family
Not convinced by law firms’ statements of
commitment to gender diversity
See the playing field as uneven
Likely to fear that participation in flex-
work programs will harm their career

115. McKinsey
RECOMMENDATIONS
Make flex-work programs a viable option,
and culturally acceptable
Strengthen senior-level connections that
can accelerate women’s careers
Create accountability for gender diversity

116. Compensation
FACTORS
Individual Timekeeper Statistics
Client Origination Receipts
Subjective Factors

117. Task Force
RECOMMENDATIONS
Build transparency into compensation
process
Include a critical mass of diverse members
on the compensation committee
Develop systems to promote fair and
accurate allocation of billing + origination
Require diversity in pitch teams and
related business-development efforts

118. Reward behaviors that promote
institutional sustainability
Implement formal client succession
protocols
Measure and report results
Develop a process to resolve allocation
disputes promptly and equitably
Implement training for all involved in the
evaluation and compensation process
Engage the client’s role in gender equity
Ensure equitable compensation for
partners on a reduced-hours schedule
Maximize effectiveness of affinity groups

119. Open Settlement
AGREEMENTS
as Agents for Change

121. OVERVIEW Wage Gap
Data
Statutory
Summary
Case Law
Updates
Case Study:
Law Firms!
Best
Practice Tips
+ Strategies

122. Compensation
DISCLOSURE

123. Handbooks should no longer
contain a blanket prohibition on
employees disclosing their
compensation to others

124. No need to disclose salaries
upon inquiry, but may not
preclude the employee from
making that inquiry directly to
other employees

125. Management training on the
limited right of employees to
ask co-workers about their
compensation for the sole
purpose of ascertaining their
rights under the Equal Pay Act

126. Compensation
PROCEDURES

127. Train decision-makers on the
Equal Pay Act

128. Disperse compensation
decisions within framework
guidelines

129. Review job descriptions for
accuracy/avoid different types
of work with same title

130. Establish salary ranges for
each position/category

131. Compensation
STRUCTURES

132. Salary ranges or framework
deviations should be limited in
amount

133. Salary ranges should align for
similar work

134. Compensation
PRACTICES

135. Limit or eliminate:
Pay negotiations
Using tenure or years
of experience alone to
determine pay
Inquiring about
historical salary for
new employees
Prohibiting employees
from discussing
compensation

136. Going Beyond
COMPLIANCE
Mentoring Opportunities
Critical Mass PT, Flex Time
Policies + Stigma Privileged Audit

137. Erin Cleary Herbst
Kegler Brown Hill + Ritter
eherbst@keglerbrown.com
keglerbrown.com/herbst
614-462-5420

138. The cost of
Workplace
violence
Tony Casper
CEO and Consultant

139. Kraft Foods,
2010
$46.5 million
2 deaths

140. Department of Public Health
San Bernardino, CA
2015
 14 killed
 21 injured

141. News Headlines Read…
Jury Awards $40M In
Damages In Kraft Foods
Plant Shooting
Report: Virginia Tech
massacre cost $48.2
million
Las Vegas Shooting
Recovery Will Cost at
Least $600 Million

142. Virginia Tech
2007
$48.2 Million
11.4 Million
$2 Million

143. 5,147 Fatal
injuries in 2017
 Average out of court settlements
$500,000.
 Average jury awarded of $3
million

144. 458 Homicides in
the workplace

145. For 6-18
weeks
after the
incident:
Productivity
decreased
by 50%

146. For 6-18 weeks
after the incident:
Productivity
decreased by 50%
20-40%
turnover rate

147. Financial Impact of
Workplace Violence:
1. Incident debriefing with impacted employees (20 supervisors and 130
employees)
2. Plant closed due to incident for 3 and one half days
3. Revenue lost (assumes for 6 weeks after the incident there is a 25%
productivity decline)
4. Clean up of incident area/crime scene
5. Increase in annual health care premiums (use of psychological services)
6. Increase in annual worker’s compensation rate premiums.
7. Permanent shut down of plant area where incident occurred and relocation of
work operations to another section of plant.
8. Lawsuit settlement
9. Public relations campaign, marketing, communication strategy with
stakeholders to counter negative press and restore confidence in company
10. Replacement cost for 10% turnover of workforce, e.g., 25 managers and 75
employees.
$3,942.00
$703,125.00
$2,850,000.00
$2,000.00
$5,000.00
$3,000.00
$50,000.00
$300,000.00
$10,000.00
$768,750.00
$4,695,817.00Total:

148. Avoid with:
forethought,
strategic planning
and
QUALITY training.

149. Strategic
planning…
 Physical Security Assessment
 Emergency Action Plans
 Active Aggressor/Shooter
Response training
 Threat Assessment Team
 Drug-Free Workplace training

150. Physical
Security
Assessments

151. Emergency Action
Plans
 Active Aggressor Response- should include
practical exercises or evacuation, table top
exercise, and full scale scenario trainings
 Fire Evacuation Process- should include
written guidelines and evacuation drills
 Threat reporting process- should be supported
through a strong training component.
Goal is to mitigate loss!

152. Active
Aggressor/Shooter
Response training

153. Drug-Free
Workplace training
 How to recognize behaviors of
drug abuse
 New drugs on the horizon and the
effects

154. Threat Assessment
Team
 Human Resources
 Employee Assistance Manager
 Security
 Facilities Manager
 Legal Counsel
 Senior Executive Leadership
 Union Representative (if applicable)
 Security Consultant
(outside contractor such as Safe Passage Consulting )

155. How to implement
these plans?

156. Ensuring key stakeholders
understand how these items align
with the organization’s strategic
goals
WHY

157. OSHA General Duty Clause 5(a)(1)
states: Employers will provide a
place of employment which is,
“free of recognized hazards that
are causing or are likely to cause
death or serious physical harm”

158. Plan now or
pay later?

159. Any
Questions?

160.  Tony Casper: CEO and Consultant
 614-404-4866
 Casper@safepassageconsulting.com
 www.SafePassageConsulting.com

162. Presented by Lloyd Pierre-Louis
+ Randy Mikes
A Legal Outlook of
Medical Marijuana
What’s on the
HORIZON?

163. The crux of the Ohio
Medical Marijuana Act
(the “Act”) is that it
permits a patient, on
the recommendation of
a physician, to use
medical marijuana to
treat a qualifying
medical condition

164. Qualifying Conditions
 AIDS
 Amyotrophic Lateral Sclerosis
 Alzheimer’s Disease
 Cancer
 Chronic Traumatic Encephalopathy
 Crohn’s Disease
 Epilepsy (or another seizure disorder)
 Fibromyalgia
 Glaucoma
 Hepatitis C
 Inflammatory Bowel Disease
 Multiple Sclerosis
 Pain (either chronic and severe or
intractable)
 Parkinson’s disease
 Positive status for HIV
 Post-traumatic Stress Disorder
 Sickle Cell Anemia
 Spinal Cord Disease or injury
 Tourette’s Syndrome
 Traumatic Brain Injury
 Ulcerative Colitis

165. The Act specifies that the
General Assembly declares its
intent to recommend that
Congress, the U.S. Attorney
General, and the U.S. Drug
Enforcement Administration
take actions as necessary to
reclassify marijuana in an
effort to ease the regulatory
burdens associated with
research on the potential
medical benefits of marijuana

166. Marijuana remains
illegal under federal law
33 states + District of
Columbia have legalized
some form of medical
marijuana as of 2018
9 of the 30 medical
marijuana states have
legalized the recreational
use of marijuana

167. More than 2 dozen
countries have legalized
medical marijuana
Full legislation in
Uruguay with sales
underway July 2019
Israel as a hub of research
Currently full recreational
use legal federally in Canada

171. HB523
WHO WHAT WHEN WHERE HOW

173. The act defines "medical marijuana" as
marijuana that is cultivated, processed,
dispensed, tested, possessed, or used for a
medical purpose

178. Federal and Ohio law classify marijuana as a
schedule I controlled substance, making its
distribution, including by prescription, illegal

179. For the purpose of this law only, medical
marijuana is a schedule II controlled
substance under Ohio law

180. 90Days

181. 17,077Registered Patients
as of February 9
Advising about the
risks and benefits of
medical marijuana
Recommending that
a patient use
medical marijuana
Monitoring a patient's
treatment with
medical marijuana

182. 126 lbs. sold so far worth
$947,000

183. Hospitals are not prohibited
from barring their doctors
from issuing recommendations

184. Some health care systems
say absolutely NO

185. Some health care systems
say some form of YES

186. Some hospitals don’t permit
medical marijuana use, but allow
their doctors to become certified
and/or recommend

187. Some hospitals are still developing
policies on medical marijuana

188. 1Wintersville
(two)
Canton
2
Wickliffe
3
Sandusky
4First Certificates of Operation to
Dispensaries issued Jan. 14, 2019
5
E. Liverpool
Jefferson
(two)
6
Elyria
7
8
Jackson

189. free

191. Require an employer to permit or
accommodate an employee's use,
possession, or distribution of
medical marijuana

192. Prohibit an employer from refusing
to hire, firing, disciplining, or
otherwise taking an adverse
employment action against a
person because of that person's
use, possession, or distribution of
medical marijuana

193. Permit a person to sue an
employer for taking any of
those actions

194. Prohibit an employer from
establishing + enforcing a drug
testing policy, drug-free workplace
policy, or zero-tolerance policy

195. Interfere with any federal
restrictions on employment,
including U.S. Department of
Transportation regulations

196. Affect authority of the
Administrator of Workers'
Compensation to grant rebates or
discounts on premium rates to
employers that participate in a
drug-free workplace program

198. RC 4123.54
“Rebuttable presumption" retained for
medical marijuana
“Rebuttable presumption” arises that an
employee is intoxicated and that the
intoxication was the proximate cause of
the injury where a qualifying chemical test
shows the presence of a cannabinoids in
excess of the statutory limit

199. Qualifying Chemical
TEST
Issued within 32
hours of injury
Administered after
employer had
“reasonable cause”
Specific, objective
facts +
reported use

200. The Ohio Bureau of
Workers’ Compensation
will not pay for medical
marijuana

201. Pays only for drugs approved by FDA
Pays only for prescriptions dispensed
by a registered pharmacist from an
enrolled provider
Pharmaceutical formulary does not
list marijuana as a drug approved for
reimbursement

202. Other Interesting
LEGAL TIDBITS
+ CASES

205. Pending BILLS

206. Lloyd Pierre-Louis
Kegler Brown Hill + Ritter
lpierre-louis@keglerbrown.com
keglerbrown.com/pierrelouis
614-462-5477
Randy Mikes
Kegler Brown Hill + Ritter
rmikes@keglerbrown.com
keglerbrown.com/mikes
614-462-5414

207. Presented by
Brendan Feheley
My Mind’s Playing
Tricks on Me!
FMLA, ADA + Mental Health Issues

208. Mental Health
IN AMERICA

209. 18%Mental Health
Concerns
8%Substance
Abuse
Problems
9.8MAdults with
Suicidal
Thoughts
2MYoung Adults
with Severe
Depression

210. What it
MEANS
Around 1 in 5
employees are
dealing with a
mental health issue
Many times they are
not receiving help for
the issue
The problem is not
going away and may
be getting worse

211. FMLA
Defines a serious health condition as:
“an illness, injury, impairment or physical or
mental condition that involves inpatient
care in a hospital, hospice or residential
medical care facility; or continuing
treatment by a health care provider.”

212. ADA
Defines disability as:
“a person who has a physical or mental
impairment that substantially limits one
or more major life activities, a person who
has a history or record of such an
impairment, or a person who is perceived
by others as having such an impairment.”

213. What’s An
Impairment?
An impairment that substantially limits one
major life activity need not limit other major life
activities in order to be considered a disability
An impairment that is episodic or in remission is
a disability if it would substantially limit a major
life activity when active

214. Depression is a disability, when, if
active, it impairs a major life
activity, regardless of medication
that may assist with the condition

215. SUMMARY
These conditions are
usually going to be
considered serious
health conditions
They are going to
involve continuous
treatment
They are going to
substantially limit a
major life activity,
when active

216. Anna has an issue with attendance, she’s
chronically late
Hypothetical
Scenario:
Anxious Anna
She’s received a verbal warning, and last week
received a written warning
After her written warning, she comes to you and
tells you she has anxiety disorder
She tells you she’s been treating with a
psychiatrist once a week for the past month
She says she gets anxious about driving into work
and that causes her to be late

217. Hypothetical
Scenario:
Anxious Anna
Is Anna’s
condition a
serious health
condition covered
by FMLA?
Is Anna’s
condition covered
by the ADA?
If so, what should you do?

218. Provide the paperwork
and force the doctor to
complete it
Check the job description

219. What if the
doctor doesn’t
complete the
FMLA form?

220. Can you force an
employee to take leave
if they say no?

221. Intermittent
LEAVE
Track it Recertification?

222. Americans with
Disabilities Act

223. To Employers
To Medical Providers
EEOC Guidance

224. Interactive
PROCESS
When do you do it? What should you
discuss?
Should you follow up
with the doctor?

225. Can you ask an
employee about
mental illness?
If employees asks for
reasonable
accommodation
After job offer, but
before employment
Company engaging in
affirmative action for
people with disabilities
Objective evidence
employee is unable to
do their job or pose
safety risk

226. Hypothetical
Scenario:
Anxious Anna
What if Anna doesn’t come to you?
Sporadic absences are not enough to qualify for
FMLA or ADA alone
Remember – you have to have information that
leads you to believe Anna has a condition that
qualifies for the FMLA or ADA
Do you go to her and ask?

227. Hypothetical
Scenario:
Anxious Anna
What if Anna’s supervisor comes to you?
What if supervisor says, “I know she has
been treated for anxiety before”?
Now we have a regarded as problem
Do you address with Anna?
What about the reference to her prior treatment?
Now what?

228. FREQUENT
Conditions + Accommodations

229. Threatening
BEHAVIOR

230. Depression

231. PTSD

233. Support
ANIMAL/PERSON

235. Consider the Work
ENVIRONMENT
Furniture
Lighting
Open/closed workspace

237. Brendan Feheley
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482