2020 smhra employment law update presented by the …...jun 03, 2020 · ©2020 wimberly lawson....

©2020 Wimberly Lawson Wright Daves & Jones, PLLC. This publication is intended for general information purposes only and does not constitute legal advice. Readers may consult with any of the attorneys at Wimberly Lawson Wright Daves & Jones, PLLC to determine how laws, suggestions and illustrations apply to specific situations.

2020 SMHRA EMPLOYMENT LAW UPDATEPresented by the

Smoky Mountain Human Resources Associationand

Wimberly Lawson Wright Daves & Jones, PLLC

Thursday, March 12, 2020, at theHatfield & McCoy Dinner Theater

119 Music RoadPigeon Forge, TN 37863

8:00 a.m. to 1:30 p.m.

SMOKY MOUNTAIN HUMAN RESOURCES ASSOCIATIONP. O. BOX 4610

SEVIERVILLE, TN 37867

2020 Officers:

President: Mary Sonner, SPHR, SHRM-SCP

Vice President: Christen McDonald, The Island in Pigeon Forge

Secretary: Amanda Knochel, Classic Cookie

Treasurer: Selena Farragut, Citizens National Bank

1

2

https://www.wimberlylawson.com/


2019 SMHRA Employment Law UpdateAgenda

08:00‐08:30 Registration | Continental Breakfast

08:30‐09:15 Employment Law and EEOC Update for 2020 ……………………….. Kelly A. Campbell

09:15‐09:45 HR 101‐Seven Skills for Effective HR Management………….………….. J. Eric Harrison

09:45‐10:15 The Storm on the Horizon: Workplace Retaliation Claims………… Mary C. Moffatt

10:15‐10:30 Break

10:30‐11:00 TN Workers’ Compensation Update…………………………………… Jeffrey M. Cranford

11:00‐11:30 Conducting Effective Internal Investigations…………………………. Kelly A. Campbell

11:30‐12:00 Fair Labor Standards Act Update…………………………….…………….. Carol R. Merchant

12:00‐12:30 Panel Discussion

12:30‐01:30 Lunch and Show

Table of Contents

Employment Law and EEOC Update | Kelly A. Campbell 1

HR 101‐Seven Skills for Effective HR Management | J. Eric Harrison 28

The Storm on the Horizon: Workplace Retaliation Claims | Mary C. Moffatt 35

TN Workers’ Compensation Update |Jeffrey M. Cranford 48

Conducting Effective Internal Investigations | Kelly A. Campbell 56

Fair Labor Standards Act Update | Carol R. Merchant 68

3

4


TARGET OUT OF RANGENovember 12-13, 2020

SAVE THE DATE!THE 2020 WIMBERLY LAWSON LABOR EMPLOYMENT UPDATE

5

©2020 Wimberly Lawson. This publication is intended for general information purposes only and does not constitute legal advice. Readers may consult with any of the attorneys at Wimberly Lawson to determine how laws, suggestions and illustrations apply to specific situations.

WELCOME!

Employment Law Update

2020Kelly A. Campbell

[email protected]

423-587-6870

EEOC Update

3

1

2

3

1


2019 EEOC Data• Retaliation: 39,110 (53.8 percent of all charges)• Disability: 24,238 (33.4 percent)• Race: 23,976 (33.0 percent)• Sex: 23,532 (32.4 percent)• Age: 15,573 (21.4 percent)• Sexual Harassment (7,514; 10.3 percent)• National Origin: 7,009 (9.6 percent)• Color: 3,415 (4.7 percent)• Religion: 2,725 (3.7 percent)• Equal Pay Act: 1,117 (1.5 percent)• Genetic Information: 209 (0.3 percent)

4

Harassment and Discrimination

• Prevention is more important than ever• EEOC very serious about #MeToo movement• Monetary benefits from EEOC’s sexualharassment settlements have steadily risen overpast 4 years (2016‐$40.7 million to 2019‐$68.2million)

• Ensure policy fully describes conduct prohibitedand has multiple reporting avenues

• Need separate anti‐retaliation policy• Training is essential!

5

Sexual Harassment

6

4

5

6

2


EEOC v. Carmel Rest.

• 1/9/2020‐Restaurant chain pays $175,000 to settle sexual harassment lawsuit filed on behalf of male and female kitchen staff and agrees to consent decree (training, etc.)

• Male line cook suffered repeated inappropriate grabbing of his private parts by the kitchen manager, cook and chef: When he reported, complaints dismissed as “play”. Chef then became confrontation, yelled and hit the line cook forcing him to quit

7

EEOC v. Carmel Rest.

• Female dishwasher endured daily sexual comments and occasional unwanted physical touching by same kitchen manager: She reported to manager, but comments continued

• Employer failed to investigate or discipline the harassers after complaints properly reported to management

• Anti‐harassment training is part of consent decree, as well as hiring external consultant to monitor and investigate future reports of harassment

8

Disability Discrimination

9

7

8

9

3


EEOC v. Imperial Trading• 1/10/2020‐Wholesale distributor in LA agreed to pay $140,000 for disability discrimination and 3‐year consent decree

• Subjected workers to illegal pre‐employment medical inquiries

• Failed to reasonably accommodate employees with disabilities‐would discharge employees if became disabled and would not consider for rehire unless “100% healed” or could provide no restriction release

10

EEOC v. Heritage Charity Auction

• 1/9/2020‐Auction company in GA pays $19,000 to settle disability discrimination lawsuit and agrees to 2‐year consent decree

• Fired employee after she disclosed that she had mental disabilities and requested an accommodation

• Mental disabilities did not affect her ability to perform her job, but she indicated that she may need accommodations in future

11


• Supervisor and owner of company made employee leave work immediately and told her it needed documentation from a counselor or MD describing her mental health issues

• When she attempted to comply, company refused to engage in interactive process and instead fired her and replaced her with another employee

12

10

11

12

4



• Company required to implement a written policy on the ADA and a procedure for requesting reasonable accommodations

• Company also required to conduct training on disability discrimination to its employees

13

EEOC v. Hawaii Medical Service Ass’n.

• 1/7/2020‐Health insurance company pays $180,000 to settle disability discrimination lawsuit and agrees to 3‐year consent decree

• Did not allow intermittent leave as a possible accommodation for employees with disabilities in its customer relations department

• Also failed to engage in interactive process

14

EEOC v. Cutter Mazda

• 1/6/2020‐Dealership agrees to pay $42,000 and 2‐year consent decree

• Failed to hire a deaf applicant due to his disability

• Consent decree includes agreement to change hiring procedures, and to recruit and accept job applications from deaf individuals for all entry level jobs

15

13

14

15

5


EEOC v. JPPJATT

• 1/10/2020‐Jacksonville Plumbers Apprenticeship program pays $207,500 and agrees to 4‐year consent decree in class race discrimination lawsuit

• Apprenticeship program denied positions to applicants because they were black

• Must hire consultant to review and revise selection process and implement and train employees in new process

16

Race, National Origin Discrimination

17

EEOC v. Jackson Nat’l Life Ins.

• 1/9/2020‐NY life insurance company will pay $20,500,000 to 21 complainants in race, national origin, and sex discrimination and retaliation lawsuit plus 4‐year consent decree

• Employer tolerated a work environment hostile to female and African American employees in its Denver and Nashville offices

• African American employees referred to as “lazy,” had stress balls thrown at them, and subjected to racially demeaning cartoons

18

16

17

18

6



• A high‐level manager referred to multiple African American female employees as “resident street walkers” and female employees endured sexual comments and leering from male coworkers

• One high‐level manager kissed subordinate females on their lips

• Much of the harassment conducted by high‐level managers and executives

19


• Also discriminated against African Americans and female employees by paying inferior compensation and regularly passing them over for promotion, and selecting less‐qualified, white male employees over the complainants

• Also retaliated against employees who filed charges or opposed the discrimination‐Fired a white VP who refused to give a negative evaluation and disciplinary warning to 2 African American female employees who had complained

20

Pregnancy Discrimination

21

19

20

21

7


EEOC v. Rainbow USA, Inc.

• 1/10/2020‐Specialty apparel chain in LA pays $11,000 in back pay to settle pregnancy discrimination lawsuit plus consent decree

• Junior assistant manager in first trimester of pregnancy was indefinitely suspended and 2 days later was fired after company learned of her pregnancy‐related restrictions

22

EEOC v. Maurizio Trattoria Italiana

• 1/7/2020‐CA restaurant pays $18,800 to settle pregnancy discrimination lawsuit plus 4.5 year consent decree requiring training, etc.

• After female employee notified restaurant of her pregnancy, her hours were cut, resulting in substantially less pay

• Also refused to return her to her server position after she gave birth, instead firing her

23

Age Discrimination

24

22

23

24

8


EEOC v. AZ Metro

• Sept. 2019‐Jury awards over $450,000 for age discrimination

• Two accomplished sales employees – over the age of 40

• Evidence showed Manager told both at time of termination Company needed to “move in a new direction” and that it was their “time to go.”

• Evidence that Company manager “wanted a younger sales force.”

• Plaintiffs had no performance issues

25

EEOC v. SAI

• Sept. 2019‐EEOC sued jewelry retailer

• Failure to hire 57‐year old applicant as sales associate despite extensive experience

• Hired at least 40 other less experienced applicants who were younger

• Two recruiters made negative remarks about her age in 2 interviews

26

EEOC v. SAI

• Took pictures of her face and body

• Told her that SAI typically hired applicants in their 20’s

• Asked her if she had any younger friends who might be interested in job

• Told her job required long hours and that younger employees had more energy

27

25

26

27

9


SCOTUS – 2019 TERM

28

Sexual Orientation/Gender Identity Discrimination

• U.S. Supreme Court held oral arguments in 2019 on several cases to determine whether Title VII prohibits discrimination on the basis of gender identity or sexual orientation

• One of these cases is Harris Funeral Home, 6th Cir. Case which held Title VII prohibits transgender discrimination based on sex and sex stereotypes

• There is currently a split of authority among the Federal Circuit Courts of Appeals, although the EEOC takes the position that Title VII does prohibit such discrimination

29

SSA No‐Match Letters

30

28

29

30

10


SSA No‐Match Letters• In Spring of 2019, Social Security Administration resumed issuance of no‐match letters

• Cannot assume a no‐match letter equals an unauthorized or undocumented worker

• Receipt of one creates affirmative duty to investigate the discrepancy

• ICE regards an employer’s failure to act upon discovering a SS discrepancy as evidence of constructive knowledge of unauthorized employment

31

Do’s/Don’ts Related to No‐Match Letters

• Do:– Check the reported info against personnel records

– Inform employee and ask employee to confirm his name/SSN reflected in personnel records

– Advise employee to contact SSA to correct/update his/her SSA records

– Give employee reasonable period of time to address

– Periodically meet with employee to document status of employee’s efforts to address/resolve

– Submit employer or employee corrections to SSA

32

Do’s/Don’ts Related to No‐Match Letters

• Don’t:

– Use as basis to take adverse action

– Attempt to re‐verify employment eligibility by requesting completion of new I‐9

– Follow different procedures for different classes of employees based on national origin/citizenship

– Require the employee to produce specific documents to address the no‐match

33

31

32

33

11


New I‐9 Form

34

New I‐9 Form

• New edition is dated 10/21/2019

• Becomes mandatory 5/1/2020

• Through 4/30/2020, employers may use previous edition dated 7/17/2017 or the new edition

35

Fair Chance Act

36

34

35

36

12


Fair Chance Act

• Signed into law by Pres. Trump on 12/20/2019

• Effective 12/20/2021

• Prohibits federal employers (executive, legislative and judicial branches) from requesting criminal history information from applicants until after extending conditional offer of employment

37

Fair Chance Act

• Prohibits federal contractors from requesting criminal history information from candidates for positions within the scope of federal contracts until the conditional offer stage

• Provides for exceptions for positions related to law enforcement and national security duties, positions requiring access to classified information, and positions for which access to criminal history information is required by law

38

AMERICANS WITH

DISABILITIES ACT

39

37

38

39

13


Popeck v. Rawlings Company, LLC • 10/16/2019 – 6th Cir. Ct of Appeals

• Summary Judgment affirmed for employer

• Whether employee could work remotely due to her IBS condition after exhaustion of FMLA and PTO

• Employer rejected “work at home” request

• Court upheld decision because work involved confidential and HIPAA‐protected information

• Court noted that for this employer, in‐person attendance was not an essential function of ALL JOBS

• Requires careful analysis of facts, job descriptions, and policies

40

Key Element of Avoiding Liability for Employee Claims? Supervisor Training!

• Supervisors & Managers are often the ones with first‐hand information about accommodation requests, complaints regarding the workplace and other employee needs

• Supervisors & Managers are the Employer!

• Their actions (or inactions) can significantly impact liability for the Company

41

Why Supervisor Training Is Important!

• Bottom Line: Experts continue to cite front‐line managers and supervisors as a leading cause of employment law violations ‐

• Particularly when they wear their hearts (or production quotas or general frustrations) on their sleeves, and allow emotions to influence oral and written discussions regarding employees who have exercised their legal rights under employment laws ‐

42

40

41

42

14


ADA: Top Supervisor Issues That Create Problems

• Failing to recognize a reasonable accommodation request

• Failing to consider leave (beyond that which is provided in your policies) as an accommodation

• Failing to recognize mental disabilities• Failing to engage in and document the interactive process – failure to get HR involved

• Failing to consider alternatives to the accommodation requested by the employee

Family and Medical Leave Act

44

Dyer v. Ventra Sandusky, LLC

• 8/8/2019‐6th Cir. Reverses summary judgment for employer, faulting “no fault” attendance policy

• No‐fault attendance policy excluded FMLA absences from point accumulation system

• However, the policy allowed reduction of points thru perfect attendance for 30 days (treating time off for vacation, bereavement, jury duty, military duty, union leave and holidays as days worked‐not FMLA absences)

45

43

44

45

15



• Employee took intermittent leave for migraine headaches

• Never assessed points for FMLA leave

• However, terminated for attendance points for other absences

• Employee claimed FMLA interference, stating he would have lost points under the reduction schedule if FMLA absences were also considered “days worked”

46


• District Court granted summary judgment to employer, but 6th Cir. Reversed and remanded for trial

• FMLA regulations state “benefits accrued at the time leave began…must be available to an employee upon return from leave”

• Point reduction could be viewed as an employment benefit

• Showed that employer treated FMLA leave less favorably than other equivalent leave statuses

47


• Employers should closely examine policies and procedures to ensure that an employee’s FMLA leave does not negatively affect accrued benefits

• Employers must also be careful not to treat FMLA leave less favorably than other equivalent leave statuses

48

46

47

48

16


LaBelle v. Cleveland Cliffs, Inc.

• 9/13/19‐6th Cir. Affirmed dismissal of complaint for FMLA interference following discharge for FMLA abuse

• Plaintiff on intermittent leave for degenerative joint disease (shoulder)

• Frequently extended PTO and weekends by calling in for FMLA

• Employer got surveillance showing him playing golf on 2 days of “FMLA” leave

49

LaBelle v. Cleveland Cliffs, Inc.

• When confronted, said he took leave on days before and after PTO to allow him extended time to recover from work, and that golf did not aggravate his condition

• Discharged for FMLA abuse

• Sued FMLA interference

• Court not impressed with seeming ability to play golf pain free

• Court also noted FMLA request was only approved to deal with flare‐ups and medical appointments, not to recover from lower level pain caused by work

50

Ways to Curb FMLA Abuse

• Prepare a list of questions to ask all employees when they request time off– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/condition?

– Have they previously taken leave for this condition?

– If they call in late in violation of call in policy, when did the employee first learn he/she would need to be absent? Why did they not follow the policy?

– When do they expect to return to work?

51

49

50

51

17



• Require employees to complete a written leave request form for all absences

• Enforce call in procedures

• Require employees to complete a personal certification to confirm that they actually took leave for the reason provided

• Advise of expectations during leave and check in on employees while on leave

52


• Follow up on patterns of absences (FMLA does not stand for Friday Monday Leave Act)

• Contact certifying health care provider if leave appears inconsistent with original certification

• Require employees to schedule medical treatment around job requirements

• Consider temporary transfer of employee on intermittent leave (to an equivalent position)

• Certify and recertify as often as legally allowed

53

Supervisor Training Concerns• Recognizing a request for leave (employee does not have to use term “FMLA”, being able to recognize serious health condition)

• Being aware of a need for leave but not notifying HR

• Telling employees it is not a good time for leave to be taken

• Being hostile toward employees who take leave

• Badger employees on leave with work questions/concerns

54

52

53

54

18


Supervisor Training Concerns

• Not being aware of their responsibilities regarding responding to a leave request

• Understanding that they “own” the request for leave until it is handed off to HR, and that they can be held individually liable under the FMLA, FLSA and potentially other laws

• Keeping their emotions in check when presented with inconvenient leave requests

55

Supervisor Training Concerns

• Understanding the need for confidentiality

• Understanding that termination recommendations regarding employees with leaves of absence for medical reasons (ADA/FMLA/WC) must be solidly documented with legitimate business‐related reasons unrelated to the leave of absence

• Understanding that their “my files” are subject to discovery

56

Gender Discrimination

57

55

56

57

19


Riot Games Settlement

• Nov. 2019‐Developer of popular online battle game, “League of Legends,” agrees to pay $10 million to women as part of class action gender discrimination lawsuit

• Plaintiffs alleged company’s “bro culture” resulted in systemic gender discrimination

• Company cultivated “men‐first” and “bro culture”

58


• Harassment and inappropriate behavior included “crotch‐grabbing, phantom humping, and sending unsolicited and unwelcome pictures of male genitalia”

• Managers cultivated a “hot girl list,” ranking female employees by attractiveness, which apparently went unchecked

59


• One female employee described the work environment, “…her direct manager would ask her if it was hard working at Riot being so cute. Sometimes, she said, he’d imply that her position was a direct result of her appearance. Every few months, she said, a male boss of hers would comment in public meetings about how her kids and husband must really miss her while she was at work.”

60

58

59

60

20



• This employee also described an experiment: After an idea she really believed in fell flat during a meeting, she asked a male colleague to present the same idea to the same group of people days later. He was skeptical, but she insisted that he give it a shot. “Lo and behold, the week after that, [he] went in, presented exactly as I did and the whole room was like, ‘Oh my gosh, this is amazing.’ [His] face turned beet red and he had tears in his eyes.” “They just didn’t respect women.”

61


• Outspoken female employees repeatedly faced retaliation including denied promotions, refusals to provide increased compensation or equal pay, demotions, reassignment with significantly different responsibilities, losses of benefits, suspensions, terminations, and other adverse employment actions

62

NLRB

63

61

62

63

21


NLRB

• 12/17/2019‐NLRB ruled that businesses can ban workers from using company email for union and other organizing purposes. In that decision, which overruled precedent from the Obama era, the Board stated that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” (Caesars Entertainment Inc. , N.L.R.B., Case 28‐CA‐060841, decision 12/17/19).

64

NLRB

• 12/17/2019‐NLRB ruled that employer rules that require employees to maintain confidentiality of workplace investigations into matters such as sexual harassment are lawful. (Apogee Retail , N.L.R.B., Case 27‐CA‐191574, Decision 12/17/19). This overruled an Obama‐era case that required employers to justify such confidentiality policies.

65

NLRB

• 12/23/2019‐NLRB held that Wal‐Mart’s dress code policy limiting the wearing of union insignia was lawful. (Wal‐Mart Stores Inc. , N.L.R.B., 12/16/19).

66

64

65

66

22


ACTION LIST

• If you have policies impacted by these decisions, get them updated to take advantage of the Employer‐friendly approach being taken by the NLRB….for now….

67

TN Update

68

TN Healthy Workplace Act

• 4/23/19 Expansion of law to protect private employers from liability in certain claims linked to workplace bullying

• Act in 2014 applied only to public employers• Now, if private employer adopt the State’s Model Policy, or implements policy that complies with statute’s requirements, employer is immune from liability when one or more of its employees’ actions allegedly result in the “infliction of mental anguish” to another employee (bullying claim)

69

67

68

69

23


TN Healthy Workplace Act

• Statute’s requirements‐Employers must recognize, respond to, and prevent retaliation, for reports of abusive/bullying conduct

• State’s Model policy was not drafted for private employers, and needs to be revised for private employers

• Anti‐Bullying Policy should also dovetail with other misconduct policies against discrimination, harassment and workplace violence

70

Proposed Legislation in TN

• Legalization of medical marijuana

• Pay equality between male/female employees

• Leave for employees to attend school activities with children

• Prohibition for employers to ask applicants about prior criminal convictions unless relating to position, and prohibition against using conviction as basis to not hire

71

Interesting Developments/Trends

for 2020

72

70

71

72

24


73

CaliforniaFairEmploymentandHousingAct

2019: CA First State to Protect People from “Natural Hair” DiscriminationOn July 3, 2019, Governor Gavin Newsom signed the Crown Act into law, banningemployers and schools from discriminating against hairstyles such as afros, braids, twists, and locks

74

California Fair Employment and Housing Act

“…the Legislature recognizes thatcontinuing to enforce a Eurocentric imageof professionalism through purportedlyrace‐neutral grooming policies thatdisparately impact Black individuals andexclude them from some workplaces is indirect opposition to equity andopportunity for all.”

75

73

74

75

25


New York City Commission on Human Rights

February 2019 – Guidance on Race Discrimination on the Basis of Hair

“Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”

76

New York City Commission on Human Rights

“Covered employers that enact grooming or appearance policies that ban or require the alteration of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locks may face liability under the NYCHRL because these policies subject Black employees to disparate treatment.”

77

NY State (July 12, 2019)

“The term ‘race’ shall, for the purposes of this article include traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”

“The term ‘protective hairstyles’ shall include but not be limited to, such hairstyles as braids, locks, and twists.”

78

76

77

78

26


New Jersey LAD (Dec. 2019)

New Jersey’s Law Against Discrimination was amended with the Create a Respectful and Open Workplace for Natural Hair Act,” also known as the Crown Act

Makes it illegal to target people at work, school or in public spaces based on their hair texture, hair type and protective hair styles — like braids, locks and twists.

Occurred 1 year after black high school wrestler forced to cut off his dreadlocks or face forfeiture of wrestling match

79

“Natural Hair” Discrimination

• Michigan, Wisconsin, Illinois and Kentucky as well as Cincinnati, Ohio, and Montgomery County, Maryland, have followed with proposed legislation.

80

Thank You!

Kelly A. Campbell

[email protected]

(423) 587‐6870

79

80

81

27


HR 101 – Seven Skills of Effective HR Management

Presented by:

J. Eric Harrison

Introduction

• Talent management is paramount in business

• It is vital for an organization to have a human resources manager (“HRM”) that can effectively onboard, integrate and retain key employees

• Today’s HRMs need to have a much broader, more complex skill set

2

Skill # 1 ‐ Communication

“The single biggest problem in communication is the illusion that it has taken place.”

– George Bernard Shaw

• HRMs are constantly interacting with persons at every level of their organization and must know how to communicate with them.

3

1

2

3

28



• HRMs should listen to the employees and ensure they got their message across clearly, which gains their trust and confidence, thereby improving interrelationships in the workplace.

• Good oral and written communication skills are necessary to capture their audience’s attention and deliver the message in a positive and effective manner.

4


• Written presentation materials must be well‐written, have proper grammar and punctuation, and deliver a concise message.

• HRMs must take care to use inclusive language that makes all individuals feel recognized and respected.

• Facilitating communication between employer and employee is a key function of an HRM.

5

6

Skill # 1 ‐ Communication• An effective HRM must take the lead in promoting the importance of reliable and updated tech and equipment necessary for communication within the organization.

• An HRM who frequents the areas where the employees work is seen as a part of the team rather than as someone who hides behind the policies of the organization in a separate office.

4

5

6

29


7

Skill # 2 – Organization

“For every minute spent organizing, an hour is earned.” – Benjamin Franklin

• Human resources management is a juggling act that entails a lot of functions including, but not limited to, recruitment, training, performance appraisals, individual development plans, and employee relations.

• Good HRMs utilizes effective time management skills and efficiency in completion of tasks.

Skill # 2 – Organization

• An HRM must be able to maintain proper files and documents related to personnel, safety, training, legal compliance, etc.

• Organization can be honed by doing a few things the same every day to build a routine.

8

Skill # 3 – Knowledge and Expertise

“Never become so much of an expert that you stop gaining expertise. View life as a continuous

learning experience.”

– Denis Waitley

• Every successful HRM needs to have a firm educational foundation regarding the functions of human resources.

• An attitude of life‐long learning is crucial for success.

9

7

8

9

30


Skill # 3 – Knowledge and Expertise

• Industry and legal knowledge are the minimum requirements.

• An effective HRM exercises good judgment and decision‐making by knowing when to ask for help.

• HRMs must have the knowledge to make sure their organization’s policies and practices are in legal compliance and have current knowledge of labor and employment laws.

10

Skill # 4 – Leadership

“The greatest leader is not necessarily the one who does the greatest things. He is the one that gets the people to do the greatest things.” – Ronald Reagan

• HRMs are seen as experts on a broad variety of topics related to the organization and the employee's employment at the organization.

• An HRM must be confident enough to take charge in certain situations or provide insight when needed.

11

Skill # 4 ‐ Leadership

• HRMs are responsible for designing and leading a healthy workplace culture and understanding what motivates its employees.

• Motivation is about creating sustainable reasons to maintain a quality of work and to foster employees’ belief in the organization’s cause and business model.

12

10

11

12

31


Skill # 5 – Conflict Management

• An HRM must be an effective leader that can coach employees and develop them into leaders themselves.

• “If we manage conflict constructively, we harness its energy for creativity and development.”

– Kenneth Kaye.• Even in the most agreeable workplaces, problems arise that need a diplomatic ear, an eye for assessment and a hand for getting the problem solved.

13

Skill # 5 – Conflict Management• Conflicts within the workplace will generally do one of two things: a) work themselves out; or

b) be blown out of proportion.

• An HRM must: a) gather all pertinent information;

b) pinpoint the issue;

c) devise possible solutions;

d) then negotiate a compromise.

14

Skill # 5 – Conflict Management

• Conflict management includes the ability to be empathetic.

• The job of an HRM is to listen, give advice, and negotiate conflict resolution between employees.

• A human resources professional cannot take sides or become personally involved but must remain objective in all decision making.

15

13

14

15

32


Skill # 6 – Discretion and Ethics

“Discretion is the perfection of reason, and a guide to us in all the duties of life.”

– Walter Scott

• HRMs must be discrete and ethical in the performance of their duties.

• HRMs are entrusted with sensitive organization and employee information that must always be kept confidential.

16


• Legal obligation to keep everything an employee tells an HRM confidential, unless otherwise specified or discussed.

• HRM serves as the organization’s conscience.

• The needs of both the employer and the employee must be fulfilled in a trustworthy and discretionary way.

17


• The expenses associated with indiscretion or unethical conduct of an HRM can cause a business to go from operating in the black to seeing red.

• Discreet and ethical human resources practices are fundamental to an organization’s compliance with federal, state and local employment laws and regulations.

• Title VII of the Civil Rights Act of 1964

18

16

17

18

33


Skill # 7 ‐ Multitasking

“I’m multitasking, so I can listen, ignore and forget at the same time.” – Anonymous

• Each day an HRM faces a variety of issues, questions and requests.

• Most of the problems that appear at the door of the HRM are unplanned and unexpected.

• HRM must be able to adapt to each day’s diverse challenges to be successful.

19

Conclusion

• Human resources is a dynamic, challenging yet rewarding profession that requires a diverse array of skills.

• The best human resource professionals are leaders, and the best leaders are constantly growing their skills and experience.

• Each new day and each new experience as an HRM is an opportunity for growth and improvement of the skills needed.

20

Questions/Comments?

Thank You!

J. Eric Harrison

[email protected]

21

19

20

21

34


The Storm on the Horizon: Workplace Retaliation Claims

Presented by:

Mary C. Moffatt

ANTI‐RETALIATION LAWS

• Generally include broad damages, including attorneys’ fees; and

• Generally employee‐favorable.

2

FEDERAL LAWS

• FLSA• Title VII• Equal Pay Act• ERISA• NLRA• ADA/ADAAA• ADEA• OSHA• Sarbanes‐Oxley

3

1

2

3

35


TENNESSEE HUMAN RIGHTS ACT• Plaintiff must prove the following:

–Plaintiff engaged in activity protected by THRA;

–Defendant employer had knowledge Plaintiff engaged in protected activity;

–Defendant took employment action adverse to Plaintiff; and

–Causal connection exists between protected activity and adverse employment action.

4

TENNESSEE PUBLIC PROTECTION ACT• Plaintiff must establish:

– Status as an employee;

–Refusal to participate in or remain silent about illegal activities as defined by the Act;

– Termination; and

– Exclusive causal relationship between refusal to participate in or remain silent about illegal activities and the termination.

– Tenn. Code Ann. 50‐1‐304

5

TENNESSEE PUBLIC PROTECTION ACT• Changes July 1, 2014

– Eliminated common law for “whistleblower” actions if also states a claim under TPPA

– 2014 amendment did not affect claims for other types of retaliatory discharge; common‐law claims for retaliatory discharge have been recognized in a variety of contexts. See, Crews v. Buckman Labs., 78 S.W.3d 852 (in‐house counsel brought action for retaliatory discharge when she was terminated for reporting that her employer’s general counsel was engaged in the unauthorized practice of law).

6

4

5

6

36


TENNESSEE COMMON LAW• Plaintiff must show:

– Employment at‐will relationship existed;

– He was discharged;

– Reason for discharge was he attempted to exercise statutory or constitutional right, or for any other reason which violates clear policy evidenced by an unambiguous constitutional statutory or regulatory provision; and

– Substantial factor in the employer’s decision to discharge was his exercise of protected rights or compliance with clear public policy.

7

ESSENTIAL ELEMENTS OF

RETALIATION CLAIM

• Protected Activity;• Materially adverse action; and

• Causal Connection.

8

Protected activities include, but not limited to:

• Filing complaint or complaining about discrimination;

• Filing complaint or complaining about other alleged unlawful acts;

• Opposing discriminatory or illegal practice;

• Participating in complaint process or investigation;

• Requesting protected leave of absence; and

• Requesting reasonable accommodation.

9

7

8

9

37


Potential adverse actions include:

• Termination;

• Disciplinary action;

• Poor performance review;

• Transfer to less favorable working conditions;

• Change in pay or job duties;

• Disciplinary action that is later rescinded; or

• Post‐employment action such as providing inaccurate/negative job reference.

10

Adverse Action – Case Comparisons • Redlin v. Grosse Pt. Public Sch. System – (6th Cir. 2019) –FMLA/Title VII

– Summary judgment reversed on Plaintiff’s gender discrimination and retaliation claims

– Plaintiff treated adversely with poor review, asked to resign and transferred; male comparator did not receive same level of discipline

• Hasting v. First Community Mortgage (MD Tenn. July 31, 2019)

– Case dismissed

– Failure to say “good morning” ≠ adverse action

11

Adverse Action – Case Comparisons

• Netter v. Guilford County, North Carolina (4th Cir. 2019) ‐

– Termination for illegal act is not “retaliation”

– EEOC and Court dismissed entire case

12

10

11

12

38


Causal Connection

• Can employee raise inference of causal connection between protected activity and adverse action?

– University of Texas v. Nassar, 133 S. Ct. 2517 (2013);

– Donathan v. Oakley Grain, Inc., 8th Circuit (June 28, 2017)

13

Discussion Scenario #1

• Plaintiff transfers to the Piney Flats Walgreens

• Supervisor immediately takes a negative view of Plaintiff.

• Supervisor determines that she is “too slow.”

14


• 50 Pound Boxes

• Self Improvement Articles

• Written Summaries

• Opportunities to Fail

15

13

14

15

39



• Performance Improvement Plan

– Contained 31 entries of deficiencies over 5 months

– Leadership

– Functional Competency

– Operations Leadership

– Communication

– Time Management

16


• Supervisor threatened many times that he will terminate her if she didn’t improve.

• Plaintiff felt like she was being singled out.

• She felt like she was being threatened and harassed.

• On PIP, she advised that she would contact EEOC and district manager to complain about harassment and threats.

17


• 30‐day PIP follow up– 13 more entries on the timeline of deficiencies

– Failed to submit all requested summaries

– Complained to management on June 26 and July 19 and advised of complaint to EEOC.

– July 25 Supervisor tells her he is considering terminating her for submitting 2 summaries late.

• Ultimately terminated in August without any reason and no separation notice.

18

16

17

18

40



• Plaintiff filed suit alleging age discrimination, hostile work environment due to age‐based harassment, and ADEA retaliation.

• No facts to support age discrimination or age‐based harassment. Those claims dismissed on summary judgment.

19


• But, the retaliation claim . . .

1) Engaged in protected activity?

2) Employer knew of protected activity?

3) Adverse employment action?

4) Causal connection between 1 and 2?

20


• Plaintiff argued temporal proximity:– She told them in June and July

– Terminated in August

• Court held temporal proximity not enough

• But temporal proximity + . . . is sufficient

• Ramping up essay requirements

• Legitimate non‐discriminatory reason

• Pretext

21

19

20

21

41



• Police officer told by Chief of Police to “fix” a traffic ticket. Officer complained to Mayor that instruction was against new Dept. Policy.

• Mayor advised COP, who 19 days later, terminated the Officer for “going outside the Chain of Command.”

• Officer sued City under TPPA.

• What happened?

22


• Trial Court granted City’s MSJ, but Court of Appeals reversed.

• Then, Trial Court rendered judgment for City; Officer appealed again.

• Court of Appeals and Supreme Court reversed, entered judgment for Police Officer.

– Williams v. City of Burns, 465 S.W. 3d 96 (Tenn. 2015)

23

Retaliation Awards in the News

• In Louisville, and African‐American Plaintiff alleged a race discrimination claim

• A Caucasian employee on probation received a 20% raise while she received a $.70 per hour raise.

• Alleged Caucasian employees routinely received 20% to 40% raises while African‐American employees received cost‐of‐living raises.

24

22

23

24

42


Retaliation Awards in the News

• Supervisor began scrutinizing her work and attendance.

• Jury delivered a defense verdict on the race discrimination claim.

• But on retaliation claim, awarded $880,000 plus attorneys’ fees.

• Jury selection issue may have contributed to the award.

25

Jack in the Box

• Employee suffered two work related injuries and not given any accommodations.

• Boss called her “grandma” based upon how she moved around the restaurant.

• Employee alleged that boss engaged in sexual harassment due participation in a “bizarre love triangle” with underaged employees.

26

Jack in the Box

• Company alleged she was terminated for manipulating company’s internal system for measuring employees’ performance metrics.

• Had video of employee doing it.

• Jury found that age was a substantial factor in decision to terminate, that she was fired because of her disabilities and for complaining about the alleged sexual harassment.

27

25

26

27

43


Jack in the Box

Jury awarded $15.4 million

28

POLICIES

Employers must have a written policy and procedure:

• To establish how employees should report workplace concerns; and

• To address potential claims of retaliation.

29This Photo by Unknown Author is licensed under CC BY‐SA

REPORTING

• Adopt a User‐Friendly Reporting and Investigation Process

– keep policies updated;

– promptly investigate internal complaints and allegations of retaliation.

30

28

29

30

44


WHAT IF YOU GET SUED/EEOC CHARGE?

• Retaliation claims –over 50% of all EEOC in 2019 Charges included a retaliation claim

• That’s +/‐ 40,000 charges

• Easy to add to a charge of discrimination

• Do you have EPLI coverage?

31

IF YOU GET SUED/EEOC CHARGE?• If no EPLI coverage – what do you do?

–Call your favorite attorney

• If EPLI coverage – turn in claim to carrier

• “Your assigned counsel is Joe Doe”.. whom you don’t know….

• So, you can then ask your carrier:

– Is (my favorite lawyer) on your panel?

• Put litigation holds in place immediately.

32

TRAINING Development and implementation of regular training for employees, management and supervisors is essential for an effective anti‐retaliation program.

33

31

32

33

45


TRAINING (CONT.) • Training should cover:

– Interactive sessions to illustrate issues of perception/risks of perceived retaliation

– Diversity & Inclusion –

34

Diversity & Inclusion – Diversity is the range of human differences, including but not limited to race, ethnicity, gender, gender identity, sexual orientation, age, social class, physical ability or attributes, religious or ethical values system, national origin, and political beliefs.

– Diversity, however, is nothing without inclusion. In fact, it is inclusion that has become the hot‐button issue and the trendier topic over the last two years. Inclusion is the company’s devotion to and strategies for ensuring their diverse workforce functions as a true team, and all people’s skills, values, and perspectives are valued.

35

TRAINING (CONT.) • Training should cover:

–Provisions of company’s reporting of complaints;

–Anti‐harassment and anti‐retaliation policies;

–Review of reporting and investigation procedures;

–Remedial measures available with respect to allegations and complaints.

36

34

35

36

46


37

38

Mary C. [email protected]

37

38

47


Tennessee WorkComp Update

Presented by:

Jeffrey M. Cranford

2019 Legislative Changes

• Quick Reference Guide ‐‐ new maximum / minimum rates for TTD and PPD– To keep track of these, be sure to pick up one of our Quick Reference Guides

• July 1, 2019‐ June 30, 2020: – Min (TTD and PPD): $144.00

– Max TTD: $1,056.00

– Max PPD: $960

2

Presumption of Causation

• The General Assembly passed a new provision in the TN Workers’ Compensation Statute Protecting Firefighters

– Creates a presumption that certain conditions or impairments of full‐time firefighters caused by certain cancers occurred in the course of employment unless the contrary is shown by competent medical evidence.

3

1

2

3

48


Drug Free Workplace

• Prohibits a medical review officer from considering prescriptions issued more than six months prior to a positive confirmed drug result for purposes of determining a valid prescription and immunity from actions authorized for employers to take against employees and job applicants following such a result.

4

Employee or Not?

• General Assembly passed Public Chapter 337 which Requires the consideration of the 20‐factor test in IRS Revenue Ruling 87‐41 to determine whether an employer‐employee relationship exists in certain employment arrangements.

• Does not apply to Worker’s Compensation– T.C.A. §50‐6‐102(12)(D) still applies

• IRS Regs do apply to wage regulations, TOSHA, unemployment, and Drug Free Workplace Act

5

Are Interns Covered by WC?

• Replaces the Department Of Economic And Community Development with the Tennessee Higher Education Commission as the state agency charged with administering grants related to work‐based learning programs.

• Requires local school system to provide student accident insurance for volunteer interns.

6

4

5

6

49


Claims Handling Standards

• Not brand new – Became effective at the end of 2018

• Requires employers and their workers’ compensation adjusters to timely submit forms to BWC in a timely manner

• Different obligations between the employer and adjuster

7

Claims Handling Standards, cont’d

• One provision requires employer to provide, upon request of the BWC, all information and documentation that is requested for purposes of monitoring, examining, or investigating the entity’s operations and processes.

• Must be provided within ten (10) days unless an extension is granted.

• Potential Penalties of $50.00‐$5,000.00.

8

Claims Handling Standards, cont’d

• Take Away: Employers need to be mindful that they are under a separate duty from that of their adjusting entity to provide this information.

• While the adjuster may usually be responsible for some or all of this, the employer needs to stay informed and in communication with the adjuster in case of such requests from the BWC.

9

7

8

9

50


An Active Year For Case Law

10

Rhodes v. Amazon.com

• An order picker at Amazon warehouse

• Injured left foot when a box fell on it

• Amazon provided a panel of doctors and he selected Dr. Ballard at AFC Urgent Care

11


• Dr. Ballard was unable to pinpoint the cause of employee’s pain

• Made a referral to orthopedic specialist, Dr. Rickey Hutcheson in Cleveland, Tennessee

• Dr. Ballard testified that he chose Dr. Hutcheson at Amazon’s request, as that was Amazon’s preferred orthopedic specialist

12

10

11

12

51



• Rhodes refused treatment, arguing that Dr. Hutcheson was not in the “community”

• 25 miles away

• Chose his own physician, Dr. Doty

• Filed a Petition for Benefit Determination seeking medical benefits either in the form of a panel or orthopedic specialists or authorization to treat with Dr. Doty

13

The Trial Court’s Decision

• 25 miles from home was not sufficiently inconvenient to exclude Dr. Hutcheson as an appropriate physician

• By directing Dr. Ballard to refer employees to Dr. Hutcheson, the employer removed the treating physician’s neutrality

14

The Trial Court’s Decision

• Ordered employer to provide a new panel

15

13

14

15

52


Workers’ Comp Appeals Board

• Agreed with the Trial Court’s ruling that 25 miles was not outside the claimant’s “community”

• Reversed the Trial Court and found that when a direct referral is made, the employer can either accept the direct referral as the new authorized treating physician or offer employee a panel of specialists within 3 days

16

What Did The Regulations Say?

• 0800‐02‐01‐.06 medical panels (8)– Cases involving an injury that occurred on or after July 1, 2014 and the authorized treating physician, selected by the employee from an initial panel, refers the employee for specialized care, the employer shall be deemed to have accepted the referral, unless the employer, within three (3) business days, provides a panel . . .

– Note that nothing in the statute gives the employeethe right to an additional panel when a specialist referral is made

17

Workers’ Comp Appeals Board• The fact that the employer influences the occupational

health doctor does not nullify the direct referral

• However, in a footnote, Court refers to the definition of a “treating physician” indicating that in order to be an ATP, the physician must have been selected from a panel

• “Thus, an employer or insurance carrier takes a significant risk by instructing its panel physicians to make direct referrals to specific physicians since the causation opinion of a referral physician is not entitled to a presumption of correctness”

18

16

17

18

53


Key Issues In This Case

• Clarifies what the definition of “community” is

• Validates the practice of employers to influence the occupational health doctor to make a specific referral

• If not chosen from a panel, ATP loses the “presumption” of correctness

19


• Take away is to be careful in your instructions to occupational health doctors in the hopes that testimony later on is that the referral is to a physician because of his merits, not necessarily because they are compelled to do so by the employer

20

Travis v. Carter Express, Inc., et al.

• Case dealt with whether a forum selection agreement between employer and employee that was executed before employee’s injury is binding

• Answer: No. Unless entered into after the work injury

21

19

20

21

54


Updating Your Workers’ Comp Coverage

22

THANK YOU!

Jeffrey M. Cranford(423) 587-6870

[email protected]

22

23

55


Conducting Effective

Internal Investigations

Presented by:

Kelly A. Campbell

[email protected]

(423) 587‐6870

THE NEED FOR

INTERNAL INVESTIGATIONS

2

Policies and Procedures Before You Need an Investigation

• Keys to Planning:

– Good Personnel Policies

– Avenues for Filing a Complaint – Making sureemployees know to whom they can file acomplaint and supervisors know what to do if theyreceive a complaint

– Investigation Protocol – Who is responsible forinvestigating what kinds of complaints

3

1

2

3

56


Policies and Procedures Before You Need an Investigation

• Know Your Responsibilities:

– What kinds of complaints go to Human Resourcesor to a designated person in leadership

– What kinds of complaints should supervisorshandle

• Establish Protocols for Investigations andRecord Keeping – Training!!

4

Receiving the Complaint

5


• LISTEN!!

• Timing of a Complaint isnever convenient

• Person making theComplaint may not beyour favorite employee

• As First Point of Contact,this Interaction is Key

6

4

5

6

57



• What you need to know: 5WH – Who, What,When, Where, Witnesses, and How Often– Who is the person complaining about – Supervisor?Co‐worker? Vendor?

– What are they complaining about? Get the details onwhat happened.

– When– Where– Names of Any Witnesses and identify any documentsrelated to the complaint (emails, notes, pictures, etc.)

– How Often

7


• Want ALL the details up front before you beginyour investigation

• Have the person making the complaint put itin writing– ALL incidents about which the person iscomplaining

– ALL steps the person has taken to address thesituation

– ALL witnesses

8


• Let person know you will look into thesituation and get back to them

• Do NOT promise an outcome

• Assure the person you take the complaintseriously

• Tell the person to let you know if anything elseoccurs in the meantime

• No retaliation

9

7

8

9

58


The Investigation

10

This Photo by Unknown Author is licensed under CC BY‐SA‐NC

The Investigation

• Know your purpose: To find outwhat happened so you can addressthe situation

• Goal is to address a workplace issue

• Goal is NOT to fire someone ordecide who is right or wrong(although you may have to do both)

11

The Investigation

• Plan out your investigation:– Gather any documents you need to review –emails, letters, notes, cards, pictures, etc.

– Make a list of witnesses and decide in what orderyou want to talk to people

– Decide if someone else will participate as awitness

– Provide notice to the person accused, explain theprocess you will follow, and remind person of theNO RETALIATION rule

12

10

11

12

59


The Investigation

• Conducting Witness Interviews– Let person know you are just there to gatherinformation related to a workplace issue

– Provide sufficient detail so the person can answerquestions, but do not provide unnecessaryinformation about what others have said

– Let person know that goal is to figure out whathappened so the matter can be resolved

– Be prepared to address the witness who just does notwant to be involved because everyone is a friend

13

The Investigation

• Conducting Witness Interviews:

– Take Good Notes – consider in important mattershaving witnesses sign summaries you type basedon the interview

– LISTEN – Let the witness do most of the talking;remember, you are there to get information fromthe witness

– Confidentiality?

14

The Investigation

• Interviewing the accused:– This is time for the accused to give his or her side of the story

– Explain the specific allegations and ask for a response to each allegation

– Get any additional background between the complaining party and the accused

– Explain NO RETALIATION

15

13

14

15

60


The Investigation

• Before concluding your investigation:

– Review all notes from all interviews

– Determine if you need any additional informationfrom the complaining party, the accused, or anywitness

– Make sure you have all documents and othermaterials referenced by anyone as being relevant

16

Decision Time and Follow‐Up

• Remember your Goal – Resolve a workplace issue

– Consider the nature of the complaint

– Consider the nature of the conduct you have beenable to verify

– Consider multiple solutions and decide which one ismost effective and most appropriate given all of thecircumstances – what do your policies say?

– Consider what you have done in similar situations inthe past

17


• Who is Involved in the Final Decision?

– Human Resources?

– Supervisor?

– Remember – the employee who brought thecomplaint does not get to decide the outcome

18

16

17

18

61



• To Whom Do You Communicate the Decision?

– Take any disciplinary action against the accused, even ifjust a warning on expected behavior in situations whereyou could not substantiate the allegations

– Inform the complaining party of what you concluded andsteps to be taken to resolve the issue – does not includedetails of specific disciplinary action (final warning,training, etc. given to the accused)

– Notify supervisors of outcome and how they shouldmanage the situation going forward

19


• Close your file, breathe a big sigh of relief, andgo on to the next project, forgetting all aboutthis?

• NO – want to follow‐up with complainingparty a short time later (couple of weeks) tomake sure all is well

• Follow‐up with supervisor to make surematter appears resolved

20

LEGAL ISSUES

ASSOCIATED WITH

WORKPLACE INVESTIGATIONS

21

19

20

21

62


Sham Investigations

• Characteristics according to 7th Circuit Court of Appeals in Harden v. Marion County Sheriff’s Dept.:– The “persons conducting the investigation fabricate, ignore, or misrepresent evidence, or the investigation is circumscribed so that it leads to the desired outcome” (for instance, by deliberately failing to interview certain witnesses)

– The decision‐makers were the same individuals who harbor [discriminatory] or retaliatory animus

22

Castelluccio v. IBM

• Plaintiff had worked at IBM since 1968• Few days before his 60th birthday, his new supervisor asked him how old he was and if he was interested in retiring‐He said no interest in retiring

• The next day, this new supervisor sent an email to HR stating that she wanted to replace the plaintiff and that things were not working out

• New supervisor mentioned retirement to plaintiff on 2 subsequent occasions

23

Castelluccio v. IBM

• Plaintiff reported his concerns regarding age discrimination, and IBM launched an internal investigation

• New supervisor moved plaintiff into new position with increased workload

• Plaintiff asserted this new move was “calculated to have him quit because it was an impossible task”

24

22

23

24

63


Castelluccio v. IBM

• New supervisor then moved him into another new position, with no actual tasks to perform, referred to as “benching” him

• During time plaintiff on “bench,” several younger employees were promoted by same supervisor

• After 6 months on “bench,” IBM fired plaintiff

• Plaintiff filed his age discrimination complaint

25

Castelluccio v. IBM

• IBM asserted plaintiff was fired because of work performance issues

• Majority of evidence came from new supervisor, whose credibility was impacted by her ageist remarks and disparate treatment against plaintiff

• IBM sought to introduce its internal investigation memo, but it was excluded by trial judge

26

Castelluccio v. IBM

• Trial court noted the investigation memo was one‐sided

• Trial judge also stated that he suspected “the purpose of the investigation was more to exonerate IBM than to determine if Mr. Caselluccio was treated fairly”

• Memo only included findings and conclusions, as opposed to plaintiff’s account

27

25

26

27

64


Castelluccio v. IBM

• Court noted the investigation was not conducted by a neutral third party

• Court noted the investigation focused more on the plaintiff’s job performance than on his complaint of age discrimination

28

Sham Investigations

• Evidence that an employer fails to follow its own internal policies and procedures, or past practices, regarding investigations may also result in finding of sham investigation

• Zisumbo v. Ogden Regional Medical Center

29

Lessons to Learn

• Internal investigations must be conducted in a fair and objective manner

• Investigator must be neutral and trained

• Investigation must be comprehensive and thorough

• If evidence of sham, employer runs risk of investigation being excluded at trial or in support of its questioned employment decision

30

28

29

30

65


Other Legal Issues

• Retaliation

• False Imprisonment

• Intentional Infliction of Emotional Distress

• Assault and Battery

• Invasion of Privacy

• Defamation

31

32

This Photo by Unknown Author is licensed under CC BY‐SA

Final Recommendations

• Do not ignore complaints from employees

• Select appropriate investigators

• Prepare the scope and nature of investigation

• Conduct prompt and timely investigation

• Conduct thorough investigation

• Do not delay onset of investigation

• Maintain objectivity

• Do not become distracted

33

31

32

33

66


Final Recommendations

• Do not use overly aggressive interview methods

• Reach a conclusion

• Follow up with all involved

• Document all steps taken

• Consistently follow and apply company policies

• Maintain confidentiality

• Avoid any type of retaliatory conduct

34

Thank You!

Kelly Campbell [email protected]

(423) 587‐6870

35

34

35

67

Presented by

Carol R. Merchant

Fair Labor Standards Act(FLSA) Updates

DOL LEADERSHIP

Eugene Scalia was confirmed as the Secretary of Labor on 9/26/19 and was sworn in on 9/30/19.

Cheryl Stanton, former head of the South Carolina Department of Employment & Workforce, was confirmed as the Wage and Hour Administrator on 4/10/19 and was sworn in on 4/29/19.

BUDGET

DOL WHD

FY 2012 $104.3 billion $215.2 million

FY 2019 $39.9 billion $277 million

The proposed budget for 2020 is $39.6 billion for DOL and $280.6 million for the WHD.

1

2

3

68

BACK WAGE COLLECTIONS BY

WAGE AND HOUR DIVISION

In FY 2019, the Wage and Hour Division recovered a record $322 million in wages owed to employees for violations of the FLSA and other wage laws.

STATUS OF OVERTIME REGULATIONS ON SALARY LEVEL FOR WHITE

COLLAR EXEMPTIONS

On 9/24/19 the DOL issued a final rule on the salary level and salary basis for the white collar exemptions. This rule will became effective on 1/1/2020.

KEY PROVISIONS OF REGULATIONS

• Raising the standard salary level from the current level of $455 to $684 ($35,568 annually)

• Raising the total annual compensation level for “highly compensated employees (HCEs)” from $100,000 to $107,432 per year

4

5

6

69

KEY PROVISIONS OF REGULATIONS

• Allowing employers to use incentive payments and nondiscretionary bonuses that are paid at least annually to satisfy up to 10% of the standard salary level or $35,568 annually

• Revising the special salary levels for workers in U.S. Territories and in the motion picture industry

TREATMENT OF NONDISCRETIONARY BONUSES AND INCENTIVE PAYMENTS

If an employee does not earn enough in nondiscretionary bonus or incentive payments in a given year (52 weeks) to retain exempt status, the employer may make a “catch-up” payment of no more than 10% of the required annual salary within 1 pay period of the end of the 52-week period.

TIPPED EMPLOYEES

The FLSA allows the payment of $2.13 per hour to tipped employees who receive an average of $5.02 per hour in tips. It also guarantees that tips are the property of the employee & does not allow an employer to retain any of the tips. 2011 regulations prohibited cooks, dishwashers & managers from receiving tips from a tip pool.

7

8

9

70

TIPPED EMPLOYEES

On 12/4/17, a notice of a proposed rule was issued to rescind the 2011 regulation and remove any language prohibiting how an employer handled tips where an employer pays the full MW of $7.25 per hour. Such a rescinsion would have allowed employers to distribute tips however they saw fit, even to mgt.

TIPPED EMPLOYEES

In the 2018 Consolidated Appropriations Act, Congress amended the FLSA to vacate the 2011 regulations and provide that employers may establish tip pooling arrangements between tipped employees and employees such as cooks and dishwashers when the employer pays tipped employees the full cash MW of $7.25.

TIPPED EMPLOYEES

The amendment does, however prohibit managers, supervisors or owners from receiving any money from the tip pool. The original tip pooling restrictions continue to apply to tipped employees who are paid a cash wage of less than $7.25 per hour.

10

11

12

71

JOINT EMPLOYMENT

When 2 or more employers jointly employ an employee, the employee’s hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime pay is due.

JOINT EMPLOYMENT

Under former President Obama’s administration an expanded assertion of joint employment was a priority. An interpretative bulletin which they had issued was immediately rescinded when the Trump administration took over. The Trump administration has issued a final rule on this issue.

PROPOSED RULE

The rule establishes a 4 factor test. To be considered a joint employer, the employer has to exercise the power to:

1.Hire or fire the employee

2.Supervise & control the employee’s work schedules or conditions of employment

3.Determine employee’s rate of pay

4.Maintain employment records

13

14

15

72

Overtime Pay

Covered, non-exempt employeesmust receive one and one-half timesthe regular rate of pay for all hoursworked over forty in a workweek

Overtime Issues

• Each workweek stands alone

• Regular rate– Payments excluded from rate

– Payments other than hourly rates

– Tipped Employees

• Deductions

Regular Rate

Is determined by dividing total earnings inthe workweek by the total number ofhours worked in the workweek

May not be less than the applicableminimum wage

16

17

18

73

Regular Rate (RR)

Step 1: Total Straight Time Earnings (MinusStatutory Exclusions) Divided By Total Hours Worked = Regular Rate

Step 2: Regular Rate x .5 = Half Time Premium

Step 3: Half Time Premium x Overtime Hours = Total Overtime Premium Due

BONUSES, COMMISSION AND SIMILAR PAYMENTS

Currently, virtually all nondiscretionary bonuses have to be included in calculating the regular rate of pay for overtime purposes. However, DOL has issued a proposed rule to delineate certain payments that may be excluded, but no final rule has been issued. So, for now, you will have to follow current guidance.

20

Example: Hourly Rate + Production Bonus

Total Hours = 48Hourly Rate = $9.00 Bonus = $10

48 hours x $9.00= $432.00Bonus + 10.00

$442.00

$442.00 / 48 hrs = $9.21 (Regular Rate)$9.21 x .5 = $4.61 $4.61 x 8 hrs = $ 36.88 (Overtime Due)

19

20

21

74

FINAL RULE ON REGULAR RATE

A new final rule effective 1/15/20 was issued by the WHD defining bonuses that can and cannot be excluded from inclusion in the regular rate as just discussed.

To be excludable, such payments cannot depend on hours worked, services rendered, job performance or other criteria that depend on the quality or quantity of work performed.

22

EXCLUDABLE PERKS AND BENEFITS

• Cost of certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services and certain tuition benefits

• Payments for unused paid leave

• Reimbursed expenses, including cellphone plans, credentialing exam fees, membership dues and travel

23

EXCLUDABLE PERKS AND BENEFITS

• Certain sign-on bonuses

• Cost of office coffee and snacks to employees as gifts

• Contributions to benefit plans for accident, unemployment, legal services or other events that could cause future financial hardship or expense

24

22

23

24

75

EXCLUDABLE DISCRETIONARY BONUSES

• Bonuses to employees who make unique or extraordinary efforts which are not awarded according to pre-established criteria

• Severance bonuses

• Referral bonuses for employees not primarily engaged in recruiting activities

25

EXCLUDABLE DISCRETIONARY BONUSES

• Bonuses for overcoming challenging or stressful situations

• Employee-of-the-month bonuses

To be excludable the bonuses should not be promised in advance and the fact and amount of payment is in the sole discretion of the employer.

26

PAYMENTS THAT MUST BE INCLUDED

• Payments that would be considered as wages under the FLSA, e.g., routinely-provided childcare

• Sign-on bonuses with a “clawback” provision

• Attendance bonuses

• Production bonuses

• Bonuses for quality & accuracy of work

27

25

26

27

76

Hours Worked: Issues

• Suffered or Permitted

• Preliminary and Postliminary

• On-Call Time

• Meal and Rest Periods

• Training Time

• Travel Time

• Electronic Device Usage

Suffered or Permitted

Work not requested but suffered or permitted is work time

Preliminary and Postliminary

Any activity that employees perform at thebeginning or end of their shift that is a part ofthe principal activity which they areemployed to perform is compensable timeunless legally excludable through acollective bargaining agreement.

30

28

29

30

77

On-Call TimeOn-call time is hours worked when

• Employee has to stay on the employer’s premises

• Employee has to stay so close to the employer’s premises thatthe employee cannot use that time effectively for his or herown purposes

On-call time is not hours worked when

• Employee is required to carry a pager

• Employee is required to leave word at home or with theemployer where he or she can be reached and

• Employee is not contacted so often that the employee cannotuse that time effectively for his or her own purposes

Meal and Rest PeriodsMeal periods are not hours worked whenthe employee is relieved of duties for thepurpose of eating a meal

Rest periods of short duration (normally 5to 20 minutes) are counted as hoursworked and must be paid

Training TimeTime employees spend in meetings,lectures, or training is considered hoursworked and must be paid, unless• Attendance is outside regular working hours• Attendance is voluntary• The course, lecture, or meeting is not job

related• The employee does not perform any

productive work during attendance

31

32

33

78

Travel Time

• Ordinary home to work travel is not work time

• Travel between job sites during the normalwork day is work time

• Special rules apply to travel away from theemployee’s home community

Use of Electronic Devices

Time spent by an employee outside ofnormal working hours using electronicdevices, e.g., blackberries, computers, cellphones, etc., to perform otherwisecompensable work is compensable time.Such time should be recorded and paid for.

35

Youth Employment

16 Sixteen- and 17-year-olds may be employed for unlimitedhours in any occupation other than those declared hazardousby the Secretary of Labor

14 Fourteen-and 15-year-olds may be employed outsideschool hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and underspecified conditions

Under 14Children under 14 years of age may not be employed in non-agricultural occupations covered by the FLSA

34

35

36

79

Common Errors to Avoid

• Assuming that all employees paid a salaryare not due overtime

• Improperly applying an exemption

• Failing to pay for all hours an employee is“suffered or permitted” to work

• Limiting the number of hours employees areallowed to record


• Failing to include all pay required to be included in calculating the regular rate for overtime

• Failing to add all hours worked in separate establishments for the same employer when calculating overtime due


• Making improper deductions from wages thatcut into the required minimum wage orovertime. Examples: shortages, drive-offs,damage, tools, and uniforms

• Treating an employee as an independentcontractor

• Confusing Federal law and State law

37

38

39

80

Thank You

www.wimberlylawson.com

40

81

2020 smhra employment law update presented by the …...jun 03, 2020 · ©2020 wimberly lawson....

Documents