preventing epli claims

800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com

2013 Webinar Series

PREVENTING EPLI CLAIMS: Strategies and ADR

July 18, 2013

Presented by:

Carrie Cherveny, Esq.

V.P. of Employment Practices

AlphaStaff

Simplifying business. Benefiting people. 2

Today’s Featured Speaker

Carrie Cherveny, Esq.

Vice President

Employment Practices

Key Laws and basic Don’t and Do’s (No problem, no claim)

Simplifying business. Benefiting people.

Don’t Do

Fail to pay an employee for overtime worked whether supervisor knew or should have known.

Require prior authorization to work overtime and discipline employees who fail to obtain prior authorization.

Fail to pay an employee for time worked. Pay employees for time spent in meetings, on rest breaks, and other compensable time.

Retaliate against an employee for reporting non-payment of overtime.

Work with Payroll to correct and treat employee the same as before the report.

Fair Labor Standards Act (FLSA) Dos and Don’ts


Family Medical Leave Act (FMLA) Dos and Don’ts

Don’t Do

Prevent an employee from taking leave Notify HR, accommodate leave

Deny intermittent leave Accommodate need for intermittent leave

Refuse to reinstate a returning worker Ensure jobs are adequately covered

Deny job restoration Provide job restoration rights during the 12 week leave period

Share confidential medical information Request leave certifications and ensure that they are complete and sufficient

Don’t forget FMLA may apply to workers’ compensation leave

Ensure that an employee’s FMLA, WC, and ADA rights are addressed and protected


Civil Rights Act of 1964 (Title VII) Dos and Don’ts

Don’t Do

Apply policies inconsistently from one employee to the next.

Treat all similar offenses the same way.

Make employment decisions based on appearance, accent, religion, ethnic origin, or other characteristics of protected classes.

Use objective, job-related criteria for all employment decisions.

Provide special opportunities or bonuses to an employee just because you like them.

Make sure all employees have equal opportunities.

Retaliate, in any way, against an employee who called HR to claim unfair treatment.

Treat the employee the same as you did before they made the claim.


Sexual Harassment / Sex-Based Harassment Dos and Don’ts

Don’t Do

Allow employees to make unwelcome sexual advances to co-workers.

Enforce the anti-harassment policy and maintain an environment free of harassment.

Tolerate environment in which employees feel threatened or abused.

Require employees to treat one another with respect.

Ignore harassment or complaints. Encourage employees to come to you with harassment complaints, report complaints to HR immediately.

Operate without a no-harassment policy with a clear complaint procedure

All companies (especially those with 15 or more employees) should have an anti-harassment policy with a clear complaint procedure (Faragher/Ellerth)


Age Discrimination in Employment Act (ADEA) Dos and Don’ts

Don’t Do

Promote an employee to a supervisor position because he/she is young enough to make the job his/her career.

Provide equal opportunity to all employees and select the most qualified employee for the promotion.

Terminate an older employee because he/she is set in his/her ways and you think a younger employee would be easier to develop.

Create a culture that embraces change and set clear expectations for all employees on how to adapt to change. Provide coaching and feedback to employees who are unable to adapt to change.


Don’t Do

Ask about disabilities at job interview or make assumptions about people’s abilities.

Define a job’s essential functions and ask all applicants if they can perform the essential functions of the job.

Deny employment opportunities because of disabilities.

Provide reasonable accommodation.

Tell an employee you have to let them go because they can’t perform a function of their job for a medical reason.

Notify HR of the employee’s limitations and begin the interactive process.

Americans with Disabilities Act (ADA) Dos and Don’ts


Don’t Do

• Interfere with union-related activities

• Question employees about union sympathies or activities

• Discriminate or retaliate for grievances or union activities

• Meet with groups of employees to discuss their concerns about working conditions or terms of employment

• Allow engagement in appropriate union activities

• Respect the right of workers to join together in “concerted activity”

• Allow union representation

• When discussing terms of employment, meet with employees individually

National Labor Relations Act (NLRA) Dos and Don’ts

Why should HR become involved in mediation? (The world we live in)


Unemployment Rate and EEOC Charges

Bureau of Labor Statistics

Equal Employment Opportunity Commission 2012


Unemployment Demographics

Bureau of Labor Statistics


EEOC Aggressive & Effective

EEOC Performance – 2012: • Private sector workplace discrimination charges totaled 99,412

• Historic monetary recovery $365.4 million

• Pending inventory of charges reduced by 10% from fiscal year 2011

• Filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits and 10 systemic suits

• Resolved 254 lawsuits for a total monetary recovery of $44.2 million

• Completed 240 systemic investigations and secured $36.2 million

Equal Employment Opportunity Commission 2012


Aggressive EEOC

EEOC filings: 3rd Consecutive Year approaching 100,000

Florida Charges of Discrimination

Equal Employment Opportunity Commission

2009 2010 2011 2012

TOTAL

CHARGES

7,043 7,779 8,088 7,940


Aggressive EEOC

Retaliation charges lead the way



Aggressive EEOC

ADA Amendments Act passed in 2008 (Final Reg. 2011) Equal Employment Opportunity Commission

Disability Charges on the Rise – as we expected


EEOC Strategic Plan 2012 - 2016

The EEOC has identified three emerging or developing issues:

1. Americans with Disabilities Act (“ADA”), including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat.

2. Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (“ADAAA”) and the Pregnancy Discrimination Act (“PDA”).

3. Coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.

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EEOC Aggressive & Effective

EEOC Strategic Plan

• Strategic law enforcement

• Education and outreach

• Efficiently serving the public

Key EEOC focus areas that will drive future charges:

• Systemic Discrimination Initiative

• ADEA “Reasonable Factors Other than Age” (RFOA Final Rule 2012)

• Background Checks (Arrest & Conviction Records Enforcement Guidance 2012 / Fair Credit Reporting)

• Aggressive pursuit of ADA systemic matters

• Transgender EEOC Commission Opinion (2012)

• Youth@work Initiative


State vs. Federal Median Awards - (2004-2010)

Jury Verdict Reporter 2011


2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Resolutions 7,858 7,990 8,086 7,900 8,202 8,649 8,840 8,498 9,362 9,831 8,714

Mediations

Conducted 11,457 11,595 11,658 11,278 11,314 11,956 12,254 11,692 12,755 13,002 11,376

EEOC Mediation Program – 2002 - 2012

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Resolutions

Mediations Conducted



Employment Practices Claims Jury Award vs. Settlement 2004 - 2010

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Liability Jury Award Mean

Settlement Mean

Discrimination $600,690 $144,817

Retaliation $722,179 $222,077

Wrongful Termination $789,184 $684,469

Employment Cases, overall $631,589 $515,816

Jury Verdict Reporter 2011

800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | alphastaff.com

Certified Mediators


State/Local Mediator Certification Requirements

Basic Requirements - certification as a county court, family, circuit court, or dependency mediator:

• at least 21 years of age and be of good moral character

• Each certification requires a total of 100 points across three point categories: mediation training, education/mediation experience and mentorship from other mediators.

County Court Mediator - County Civil mediations encompass both Small Claims cases ($5,000 or less) and County Civil cases (less than $15,000). • Obtain a high school diploma or GED = 10 points • Complete a training program certified by the Florida Supreme Court = 30

points • Complete a mentorship program under the supervision of a court-certified

mediator = 60 points


Mediator Certification Requirements, cont.

Circuit Court Mediator - Circuit Civil mediation includes civil cases (other than family law cases) with damages of $15,000 or greater. • Obtain a bachelor's degree = 25 points • Complete a training program certified by the Florida Supreme Court = 30

points • Complete a mentorship program under the supervision of a certified

mediator = 30 points • Complete additional mentorship hours or education training classes to

obtain the additional points necessary to meet the 100-point requirement. ** In addition, each renewal cycle a mediator must complete 16 hours of

continuing mediator education (CME) credits.


Private Mediation Certifications

For example:

• inAccord program – HR Mediation certification program

– www.mediatorswithoutborders.com

– HRCI credits available

• Mediation Training.Org – a repository of information regarding mediation training – identifies mediation trainers across the US

– http://www.mediationtrainings.org/

• Mediation Training Institute International

– http://www.mediationworks.com/mti/certconf/hrd.htm

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http://www.mediatorswithoutborders.com/

http://www.mediationtrainings.org/

http://www.mediationworks.com/mti/certconf/hrd.htm

ADR Programs/Example


Early and Internal Mediation – the Value

• Opportunity for more creative solutions

• Avoids EPLI claim – protects EPLI program

– Hardening EPLI market

– Increasing premiums

• Opportunity to save employment relationship

• Learning opportunity for all involved

• Cost savings

– Attorneys

– EPLI premiums

– Settlement amounts

– Turnover (hiring, training, lost productivity)

– Outside mediators (attorneys) can be as much as $350 an hour

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Mediation and ADR – Internal Policies

• Most ADR programs include:

– Hotline

– Ombudsman

– Mediation

– Arbitration

• Must assure confidentiality

– Consider the benefit of inadmissible settlement communications

• Human Resources has a unique opportunity to serve as mediator before:

– Attorneys or government agencies

– The employment relationship becomes irreparable

– Time, money, and energy is spent defending the employer

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What is an Ombudsman?

• Designated neutral party

• Sometimes high-ranking in an organization, but not part of executive management.

• Functions independently from all regular line and staff management

• Usually reports to the CEO or Board of Directors.

• Can provide:

– options to whistleblowers or employees and managers with ethical concerns; provide coaching,

– generic solutions (meaning a solution which protects the identity of one individual by applying to a class of people, rather than just for the one individual) and

– mediation for conflicts;

– track problem areas;

– make recommendations for changes to policies or procedures in support of orderly systems change.


ADR Program Flowchart

800 HelpLine

Open Door (Internal)

Mediation Voluntary

Arbitration Mandatory

Employee Complaint

Harassment Complaint Procedure

Internal Measures OR

OR OR

Overview


800 HelpLine

Report HR Regularly Follow-up with

Employee

Regularly Follow-up with

HR

Intake Interview

Open Door Voluntary

Mediation Voluntary

Arbitration Mandatory

OR OR

Related Investigation(s)?


Mediation

Mediation Fails

HR Follows-up with Employee

HR Follows-up with Employer

Resolves Differences

Employee Signs Release

Employee Remains

Employed

Employee Remains

Employed

Employee Terminates

Employee Terminates

Employee Elects

Arbitration

Employee Does

Nothing

OR

Related Investigation(s)?


Arbitration

HR Follows-up with Employee – Regular Intervals

HR Follows-up with Employer – Regular Intervals

Employee Remains

Employed

Employee Terminates

Wrap-Up

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QUESTIONS?


Need Help? Contact Us ! • .

Copies of the presentation [email protected] (888)335-9545 (Option 8)

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mailto:[email protected]

Upcoming AlphaStaff Webinar

Please mark your calendars !!!

Date: Thursday: August 15, 2013

Topic: Social Media in the Workplace: Social NOT Working

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Thank you for your participation!

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