Kegler Brown's 2016 Managing Labor + Employee Relations Seminar

z
2016HR To-Do List
Evolving Issues for 2016:
presented by Larry Feheley

z
“The Overtimes,
They Are A-
Changing’”

z
New White Collar Exemption
Minimum Salary to $50,440/year
“Highly Compensated” to $122,168/year
Annual Inflation Indexed Increase

z
HR TAKEAWAY
Examine the pros and cons and take the
appropriate steps for your company to be in
compliance with the new exemption
requirements
7

z
What Can You Buy if
You Have $228 Million
Lying Around?

z
HR TAKEAWAY
Audit all 1099 contractors to be sure they are truly
independent contractors and not employees
7

z
Potential Joint Employers
24
Franchisors +
Franchisees
Companies with
Subcontractors
Companies +
Staffing Agencies

z
HR TAKEAWAY
Review all contracts with whom you may “share”
workers to try to minimize joint employer liability
7

z
HR TAKEAWAY
Reevaluate HazCom and safety programs
7

z
HR TAKEAWAY
Review your employee handbook and make
strategic decisions whether, and to what extent,
to comply with the new NLRB rules
7
Evaluate your vulnerability to union organization
and take steps to try to protect yourself

z
Accommodation of:
1 Pregnancy
2 Transgender Employees
3 Religions

z
HR TAKEAWAY
Amend your written policies, as well as workplace behaviors,
to enumerate LGBT status, and to guard genetic information
7
Take the time to consider virtually every employee issue on
an individualized basis, exploring ways to accommodate
difference characteristics and diverse identities

z
Recent Developments
and Impact on Employers

z
to assure safe and healthful
working conditions for working men
and women by setting and
enforcing standards and by
providing training, outreach,
education and assistance”
“

z
Major Changes to OSHA
Reporting
RULE
Increased
FINES
Removal
of
Defenses
Revised
Standards

z
NEW!
January
2015
Fatalities must be
reported in 8 hours
8

z
NEW!
January
2015
In-patient hospitalization
of 1 or more employees
as a must be reported
within 24 hours
24

z
NEW!
January
2015
Amputations and the
loss of an eye reported
within 24 hours
24

z
200-250reports PER WEEK
from 21 States

z
10-11Kreports over the
course of the year

z
40%of reports lead to
some investigation

z
Memo of Understanding
Regarding Enforcement

z
What does this
mean for YOU?

z
Safety Incentive +
Disincentive Plans

z
If an employee of a firm
with a safety incentive
program reports an injury,
the employee, or the
employee’s entire work
group, will be disqualified
from receiving the
incentive, which could be
considered unlawful
discrimination

z
Employee
Misconduct
Defense?

z
Walking Working Surfaces
and Personal Fall Protection
Systems final rule, which is aimed
at preventing slips, trips, and falls
expected by end of year.”
“

z
Why is OSHA here?
Call your attorney
Let in without warrant?
Be proactive
Seek immediate resolution

z
Why is OSHA here?
Ask for
credentials
Determine
reason for
inspection
Determine
scope of
inspection
Designate
employer
representative

z
Inspect without a Warrant?
Will you let

z
OSHA cannot conduct a warrantless
search without employer consent
OSHA should be able to get the
warrant, but it will take time

z
REMEMBER
OSHA is not your
friend, and they might
not know what they
are doing

z
Be polite, proactive and
conscientious to employee
safety/OSHA compliance
1

z
Keep your friends close, but
your enemies even closer.
2

z
Use Closing Conference
to Your Advantage
Seek information, but do not
engage in speculation
Clarify any mistaken impressions the CO
may have formed during the inspection
Demonstrate willingness to comply with
standards, but be resolute in position
that no violations exist

z
Show OSHA your good-
faith commitment to
safety + compliance
Determine strength/
weakness of any alleged
violation
Decide if you want to
contest citation(s)

z
What if your
business isn’t
subject to OSHA
standards?

z
Each employer shall furnish to
each of his employees employment and a
place of employment which are free from
recognized hazards that are causing or
are likely to cause death or serious
physical harm to his employees.”
“

z
What is it?
It is the improper designation and treatment of a worker
as an independent contractor when he or she should be
accounted for compensated as an employee.

z
It is a
fine line
with high risk

z
SO WHAT?
Why does this
matter?
Employee vs.
Independent Contractor
Risks + Consequences
Overview of this Talk
Risk Management

z
1 SO WHAT?
Why does this matter?

z
Contingent Workforce
Lower burden on employers
less costly, less administration

z
40.4%of American
workforce is
“Contingent Workers”

z
But what if your
is actually an ?

z
has stated initiative of
“attacking this problem”

z
MEMORANDUM
of Understanding
Shares data with IRS and
28 states

z
Income Generator for
the Government

z
2 Employee vs.

z
No one rule or test
Usually subjective,
varies by employer

z
20 Factor
Test
All about
“control”
“Only guides” “Not
formalistic”

z
1 Instructions
2 Training
3 Integration
4 Services Rendered
Personally
5 Hiring, Supervising
+ Paying Assistants
6 Continuing
Relationship
7 Set Hours of Work
8 Full Time Required
9 Working on
Employer’s Premises
10 Order or
Sequence Set

z
11 Oral or Written
Reports
12 Payment by Hour,
Week, Month
13 Payment of
Business Expenses
14 Furnishing of Tolls
and Materials
15 Significant
Investment
16 Realization of
Profit or Loss
17 Working for More
than One Employer
18 Service Available to
General Public
19 Right to Discharge
20 Right to Terminate

z
“Economic
Realities”
Six-factor
test
Workers who are economically
dependent on the business of the
employer, regardless of skill level, are
considered to be employees, and most
workers are employees. On the other
hand, independent contractors are
workers with economic independence
who are in business for themselves.
“

z
The extent to which the work
performed is an integral part
of the employer’s business
1

z
Whether worker’s managerial
skills affect his or her
opportunity for profit and loss
2

z
The relative investments in
facilities and equipment by the
worker AND the employer
3

z
The worker’s skill + initiative
4

z
The permanency of worker’s
relationship with the employer
5

z
The nature and degree of
control by the employer
6

z
affirmatively states that
they presume most
workers are employees

z
Agi is a CPA. She works as an accountant for Tacks & Awdett on an as-needed
basis during tax season.
When the company calls her, they give her a list of projects that they want her
to handle. She determines which projects she takes, and which days she
works.
Sometimes she comes into the office, and sometimes
she works at home. She always uses her own equipment.
She invoices Tacks & Awdett when she is done. Her
invoice says to make payments to her company,
Alternative Minimum, LLC within 30 days. Agi also works
for other companies throughout the year.
Her LinkedIn profile lists her as an independent freelance
professional.
AGI FICA

z
CLASSIFICATION:
IRS and DoL would probably say

z
Tim is a handyman. He works for Binford Tools. He has been doing so for 15 years.
When they need him, he comes to Binford’s shop to do the work. He brings his
own tools and he does not have a work supervisor at Binford. He does report to a
safety manager. He often requests that his friend Al, who works for Binford, help
him finalize projects on time
Binford will tell him what they need built or repaired and
the time frame for completion..
Binford reimburses Tim for any materials needed for the
job. Tim bills them for his time and materials at the end of
the job, and lists payment terms on his invoice. Binford
pays Tim directly, in line with its regular payroll.
Tim also works sparingly as a handyman for a his
neighbor’s company, Wilson’s Fences.
TIM TAYLOR

z
CLASSIFICATION:
IRS and DoL would probably say
EMPLOYEE

z
…DoL would definitely
scrutinize this more closely

z
Breaker works part time 25 hours per week at Overroad, Inc.
as a driver. He uses his own truck, but he is reimbursed for
fuel costs.
Breaker is paid an hourly wage and is reimbursed for the
cost of his lunch while on the road. Breaker is eligible for
coverage under the company’s health insurance plan and he
receives one week of paid vacation annually.
The shipping department tells Breaker where and when
the deliveries need to be made, so his schedule revolves
around that information.
BREAKER BRAKER

z
CLASSIFICATION:
IRS and DoL would probably classify
Breaker as an employee

z
of FICA for
employee’s AND
employer’s share

z
fine per
misclassified worker

z
Will owe federal and state
unemployment taxes
Penalties for non-payment/
non-compliance
If any terminations, may be
subject to retroactive benefits

z
Have to offer what
you offer to other
employees

z
ERISA Violations?
Health Benefits?
ACA Violations?

z
FLSA + OMWFSA
Overtime liability
Minimum wage liability
Back wages
Attorney fees

z
Intentionally
Non-Compliant?

z
Dollar for
dollar claims
payments

z
Increase
premiums
going forward

z
Claims incurred during
non-compliance never
leave your experience
rating

z
Can voluntarily
agree to an IRS
audit to limit
past penalties

z
Can also
volunteer for
root canal

z
Require independent
contractors form
their own entity

z
Give up control
(within reason)

z
Would I handle it
this way if he was
a plumber?

z
Would I handle it
this way if she
was a bakery?

z
Pay him or her
like an employee

z
Thank You!
Timothy J. Gallagher,
Attorney
Kegler Brown Hill + Ritter
tgallagher@keglerbrown.com
keglerbrown.com/gallagher
(614) 462-5476

z
Non-Competition
AGREEMENTS
presented by Rob Cohen

z
Concepts Addressed
in Non-Compete
Agreements
Confidential
Information
Soliciting or
Encouraging
Employees,
Customers or
Business Partners
to Leave
Preventing
Employees from
Working for
Competitors
Employment
At-Will
Notice Period
+ Severance

z
PERCEPTION
REALITY
Non-compete agreements
are not enforceable
PERCEPTION
Reasonable restrictions
are enforced
REALITY

z
PERCEPTION
REALITY
If a company doesn’t enforce a
non-compete with respect to one
departing employee, it can’t
enforce the agreement in the
future against other departing
employees
PERCEPTION
Properly drafted agreements
allow the employer to decide
when to enforce an agreement
without affecting future
enforceability
REALITY

z
Considerations for Business Having
Non-Compete Agreement
Communicates expectations + discourages violations
Protects customer relationships + confidential info
Reduces employee turnover
Makes it harder for departing employees to raid
your other current employees
May discourage prospective employees from
coming to company

z
Confidential information is
defined more broadly in a non-
compete agreement than
under trade secret laws
Arguably relaxes the
employer’s requirement of
proof regarding steps to
maintain confidentiality
Helps make clear to the
employee what type of
information the employer
considers to be confidential,
e.g., client lists, client contact information,
historical purchasing information, employee
performance, etc.
Confidential
Information

z
Provisions stating that a
departing employee cannot
solicit current (or former)
employees
departing employee cannot
directly or indirectly hire
current (or former) employees
departing employee cannot be
involved in recruiting
employees or encouraging or
doing anything to get them
to leave your company
Protecting
Employees

z
Provisions prohibiting
departing employee from
soliciting customers
selling products or providing
services to customers
having contact with
customers
interfering with your
company’s relationship with
customers
Protecting
Relationships
with Customers

z
Other Types of
Customer Restrictions
Prohibition against selling products to or providing
services to a specified short list of your competitors
Provisions requiring the payment of liquidated
damages based upon historical sales to customers
Provisions requiring forfeiture of future commissions or
compensation based upon business with customers

z
Protecting
Relationships
with Other
Business Partners
doing anything to interfere
with your company’s
relationships with strategic
business partners, e.g.,
independent contractors,
suppliers, distributors, staffing
firms, etc.

z
Preventing Employees from
Working for Competitors
Harder to enforce than customer restrictions
Avoids difficulty in trying to determine if ex-
employee is complying with restrictions regarding
confidential information and customers
Can make recruiting talent more difficult if the
competition doesn’t require similar restrictions
Legal litmus test is “reasonableness” and whether
the restriction prevents “unfair competition”

z
Reasonableness
The concept of reasonableness applies to all of the
restrictions we have been discussing relating to
confidential information, employees, customers,
strategic business partners and prohibitions on
working for competitors

z
RESTRICTIONS
Reasonable
Confidential Information

z
The reasonableness test will be applied to the
type of information the departing employee is
prevented from using in the future
Regarding Use/Disclosure of

z
If the information is publicly available, it will
likely not be reasonable to restrict its use

z
If the employee worked in the same industry before
coming to your company and learned the information,
it will likely not be reasonable to restrict its use

z
If you list your customers on your internet site, it will not
be reasonable to restrict ex-employees from disclosing
those customers’ relationship with your company

z
RESTRICTIONS
Reasonable
Customers

z
Regarding Customers
A reasonable restriction regarding customers should be limited to
customers with whom the departing employee had contact
(perhaps within the preceding 12-24 months) or about whom the
employee received confidential information during employment
with your company

z
Regarding Customers
The restriction will also need to be limited
in time – for example 12 months after the
termination of the employment relationship

z
RESTRICTIONS
Reasonable
Employees

z
Regarding Employees
A reasonable restriction regarding recruitment of employees will
likely require some confidential knowledge possessed by the
departing employee that relates to the other employees

z
Regarding Employees
Again, the restriction will need to be limited in
time – for example 12 months after the
termination of the employment relationship

z
RESTRICTIONS
Reasonable
Business Partners

z
Regarding Business Partners
Like employee restrictions, you will likely have to be able to
demonstrate some confidential knowledge the employee
possessed regarding the company’s relationship with a strategic
business partner in order for it to be reasonable to restrict a
departing employee from his or her dealings with such business
partner

z
Regarding Business Partners
The knowledge that your company used the
strategic business partner to perform a particular
function for the company may be sufficient

z
RESTRICTIONS
Reasonable
Employment with Competitor

z
In order for a non-compete restriction
regarding employment with a competitor to
be reasonable, it will need to be limited in
both time and geographic scope
Regarding Preventing
Employment with a Competitor

z
The sweet spot for the temporal aspect of the
restriction is 12-24 months. The shorter the
restriction, the easier it is to enforce

z
The time period should be sufficient to establish a new
employee or existing employee into the departing employee’s
position with time for necessary training and establishment of
customer contact and relationships

z
Geographic Restriction
In order to be reasonable, a restriction
against working for a competitor should be
geographically restricted as well
Mileage restrictions are measured
by straight line, e.g. GPS
If an employee is the president of company or
a developer of technology sold by the
company, a geographic restriction that covers
the company’s entire market area may be
appropriate

z
Agreements should be specific to the position.
One size fits all agreements can be hard to enforce.

z
Ideally, agreements will include varying restrictions that are
appropriate to the specific employment positions. This can
require detailed attention to the contracting process and
requires careful attention at the beginning of the hiring process.

z
RESTRICTIONS
Reasonable
Employee Turnover

z
Reducing Employee Turnover
Discouraging employees from leaving
your company and reducing turnover is
not a legally protectable interest

z
RESTRICTIONS
Reasonable
Best Practices6

z
Prospective employees should be
notified of the requirement of signing
a non-compete agreement as early as
possible in the hiring process
Include a statement in your
employment application that asks if the
prospective employee is willing to sign
an agreement with non-competition
and non-solicitation restrictions

z
Provide a copy of the non-compete
agreement to prospective employees
during the interview/application
process
Present the agreement to new
employees for signature before they
begin working or on their first day of
work when they sign their other HR
paperwork

z
Allow employees time to read the
agreement and take it home and consult
with an attorney if they would like
Consider modifying the agreement to
address specific circumstances at the
time of hiring or to address an
employee’s extensive experience in the
industry prior to hiring

z
Other Provisions that Can Be
Included in Agreement
Amount of bond if injunctive relief is awarded
Payment of attorneys’ fees and costs
Court where any lawsuits will be brought
State whose law will be applied
Admissibility of Google maps and GPS
measurements for geographic restrictions
Requirement that employee provide notice before
working in the same industry after leaving

z
Considerations Regarding
Enforcement
What customer relationships does
the employee have?
What confidential information does
the employee have?
How long has the employee worked
for the company?
Where is the employee going?

z
Hiring Employees
Who Worked for a
Competitor
Inquire into whether the prospective
employee is subject to a non-compete
agreement with a previous employer
Doing your due diligence to determine
whether the employee is subject to
restrictions can protect your company
Include terms that require the employee to
pay your company’s legal fees and expenses if
their hiring drags your company into a lawsuit

z
Thank You!
Rob Cohen, Director
rcohen@keglerbrown.com
keglerbrown.com/cohen
614.462.5492

z
1You’ve recently hired Sarah to fill your only
receptionist position. Sarah is a nice person and
generally competent, however in her first 4
months of work she’s been absent 10 times.
By e-mail and text she’s notified you that she’s
off work due to her daughter’s medical
condition, a chronic form of asthma, which
requires intermittent trips to the hospital.
You decide this isn’t working out and fire Sarah
telling her it’s either your child or your job.

z
Does Sarah have a claim?
1. No, Sarah is an employee-at-will
2. Yes because Sarah’s absence is
protected by FMLA
3. Yes because the termination is due to
Sarah’s status as a caregiver of her
daughter who has a disabling condition
4. It depends on how old Sarah is

z
2
Terry, an account manager at your
Company for the last 15 years, comes
into your office and says he’s decided to
become a she, or more directly, he now
identifies as a woman. He indicates he
wishes to use the women’s restroom.

z
How do you respond
to his request?
1. Tell him to put his money where his ----
is and you’ll let him use the women’s
restroom when he has the surgery to
become a woman
2. Tell him no and fire him for even
considering it
3. Allow him to use the women’s restroom
4. Take a poll of your women employees and
act in accordance with the results

z
3Emily, a new employee in your accounting department,
recently indicated she needed time off for a serious
medical procedure. You provided Emily with a non-FMLA
medical leave request form that includes the following
request:
Please explain the need for leave and the justification
for the time off request.
You received the following information from the doctor:
Emily’s family has a long history with breast cancer,
her mother had it, her grandmother had it and her
aunt had it. Thus we believe it is in her best interest
to have a mastectomy at this time.

z
Any issues?
1. No and you can deny her leave
2. It depends on the language in the medical
form
3. Yes, or you wouldn’t have asked the
question, but I don’t know what they are

z
4
Rob is a shop employee at your facility. One
day he slices off his finger while operating a
saw. Consistent with your policy he is drug
tested at the hospital shortly after the
accident. His test is positive for cocaine.
At the BWC hearing you provide the test
results and argue the injury is not
compensable due to the positive test.

z
True or False: The claim will be
disallowed due to positive drug test
1. True
2. False

z
5
You are the HR Director for a chain of
restaurants. An applicant, Ervin, applies for the
job and receives a conditional job offer. After
the offer, but before Ervin starts, you discover
he is HIV positive. You rescind his job offer.

z
Does Ervin have a claim?
1. No, because it turns out another applicant,
Isaiah was better qualified anyway
2. No, because the ADA does not apply to
applicants
3. No because there is no reasonable
accommodation that would exist that
would allow someone who is HIV positive
to work in a restaurant
4. Yes

z
6
Sally is an associate at your company. She’s
been with you for two years and has
recently had a baby for which she is taking
FMLA leave. She indicates that she intends
to take the full 12 weeks of leave to bond
with her child although her doctor indicates
she is medically able to return to work after
8 weeks.

z
True or False: You can require Sally
to return to work after 8 weeks
1. True
2. False

z
7Sam is a customer service employee in your
call center. One day he goes home and
writes a review of your company on the
internet, explaining that your company is a
terrible place to work because you don’t pay
enough to lower level workers and instead
use the money on corporate expense
accounts and fancy dinners.
Sam’s post makes regional news.

z
True or False: You can fire Sam
with no consequence
1. True
2. False
3. I give up

z
8
You have a fleet of inside sales people at your
company. They spend all day at their desks
calling customers. They are paid a salary and
typically work exactly 40 hours.
You decide that it would be better for these
sales employees to make in-person calls twice a
week. Typically this will involve commutes that
are on average 1 hour longer per day.

z
Do you owe these employees
any additional money?
1. No they are paid a salary
2. No it’s a normal commute which is not
compensable
3. Yes

z
9You have a general policy which says that the
company e-mail system is only to be used for
business purposes. This rule is generally
ignored. However, an employee named Hillary
has taken to e-mailing her co-workers after
hours. Most of these e-mails contain some
reference to “Feeling the Bern” and strongly
advocate for organizing the workplace.
You decide you have no interest in being in
the middle of a political quagmire and
additionally you don’t want a union in
your workplace.

z
You fire Hillary. Any problems?
1. No the company e-mail is owned by the
company and can be restricted
2. No because the e-mails were after
hours
3. Yes

z
10
Ron is an employee at your company. Ron has
requested and been approved for intermittent
FMLA leave due to migraine headaches. Last
week you received complaints from two co-
workers that Ron, without asking permission
or telling anyone, left his desk and went to
sleep in the break room, in violation of your
no sleeping on the job rule.

z
You decide you’re firing Ron for
violating the no sleeping rule. Problem?
1. Yes because his sleeping is intermittent
leave which is an approved absence
2. Yes because letting him sleep is a
reasonable accommodation
3. Yes because you failed to engage in the
interactive process
4. No

z
11
You have 35 of your own employees in your
workforce. Additionally, you have a staffing
company that provides you with 20
employees. Those employees get their
schedules from you and are supervised by
your employees. They get paid by the staffing
company.

z
Are your workers eligible
for FMLA?
1. Yes
2. No

z
12
Same situation 30 of your own employees 20
through a staffing arrangement. You learn that
the staffing company is not paying overtime
to its employees.

z
Are you responsible for the
overtime payments?
1. Yes
2. No
3. Maybe

z
13
Stan hurt has a chronic back condition and has
been on FMLA leave for 8 weeks. He brings
you work restrictions that you could
accommodate but you have a company policy
that prohibits employees from returning to
work before they are free of restrictions.

z
Can you keep Stan off work
on FMLA leave?
1. Yes because he still has a serious medical
condition
2. No because you can accommodate his disability
3. Yes because his condition is not a disability
4. Yes because he has not requested an
accommodation

z
14
Your company has recently instituted a
wellness plan. The plan allows for employees
to earn up to 1/3 of the single employee cost
in incentives. In order to reach the incentives
employees must undergo an exam, answer
questions about their health history, meet with
a physical trainer, create and follow a fitness
plan that includes working out twice a week.
There are no exceptions to this requirement.

z
Is your plan legal?
1. No because it violates the ADA
2. Yes because its voluntary
3. No because it violates GINA

z
15
Rachel, a sales executive, filed a complaint of
harassment against her supervisor. You
investigated and found it likely something
occurred, but not enough to warrant
termination. In the two weeks immediately
following complaint being filed, Rachel’s
supervisor tells her she has to call in to him
after every client meeting and invites all of the
other employees to lunch excluding her.

z
Rachel quits. Any issues?
1. No there was no change to the terms
and conditions of her employment
2. No because she quit
3. No because her supervisor stopped
harassing her
4. None of the above

z
16Randy is an emergency repairman for a property
management company, his employer requires him
to have a cell phone with unlimited text messages
to take and respond to tenant calls. He also is
required to have a tablet, and a mobile hotspot so
he can locate manuals electronically if need be.
He drives his own vehicle to the properties when
he is called. He’s paid $8.10 an hour but the clock
begins only when he arrives on site at the
property.
Randy quits and you get a letter from a lawyer
claiming Randy wasn’t paid minimum wage.

z
Does Randy have a case?
1. Yes because of the mileage
2. Yes because of the time the clock started
3. Yes because of the cost of the phone
4. No he got paid minimum wage

z
17John applies to work in your accounting
department. You make him a conditional offer of
employment. You tell him a 3rd party is going to
run a background check at your request, and
provide him with FCRA paperwork. He signs the
consent form. The background check results show
8 years ago John was convicted of theft for which
he served 6.5 years in jail. Upon receiving this you
send John an Adverse Action Form and a copy of
his rights under the FCRA. You tell him his offer is
rescinded.

z
Any problems with your
course of action?
1. Yes you can’t run a background check
until you’ve officially hired the person
2. Yes you failed to comply with the FCRA
3. Yes the background check went beyond
7 years
4. No

z
Thank You!
Brendan Feheley, Director
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614.462.5482

Kegler Brown's 2016 Managing Labor + Employee Relations Seminar

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (19)

En vedette

En vedette (20)

Similaire à Kegler Brown's 2016 Managing Labor + Employee Relations Seminar

Similaire à Kegler Brown's 2016 Managing Labor + Employee Relations Seminar (20)

Plus de Kegler Brown Hill + Ritter

Plus de Kegler Brown Hill + Ritter (20)

Dernier

Dernier (20)

Kegler Brown's 2016 Managing Labor + Employee Relations Seminar