Presented by Seth P. Briskin, Esq.
Not to be reproduced in any manner without prior consent
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Ultimate Software is a leading cloud provider of people
management solutions. The company’s UltiPro solution
provides a comprehensive approach to human capital
management. Web-based features include recruitment,
onboarding, benefits, payroll, performance management,
succession management, business intelligence, time and
attendance, and 24-7 direct access for executives, managers,
and employees.
Alliance Solutions Group (ASG) provides technology, marketing,
finance/payroll, talent/HR and other business operations
support to specialized staffing and recruitment companies.
Alliance’s shared service model allows for our brands to direct
their full attention to matching the best talent to the
specialized needs of the employers they work with.
Thank you Sponsors
Thank you to:
CSHRM Board for their Support:
Lauren Rudman
Beth Warholy
Pam Smith
Frank Zupan
Save the Date
• SMA Upcoming Programs and Conference:
– March 27th- Total Rewards- 7:30-9:30am
– May 8nd- Conference- 7:30-2:30 at Hyland, creator of OnBase
• CSHRM Upcoming Events:
– January 28th - CSHRM Cleveland Cavaliers Night
– February 4th – Diversity Event: Employing People with Disabilities
– February 5th – Disrupt HR
• NOHRC Conference- March 20th
– Seth will be presenting at 3:15 p.m
Register on CSHRM website
Today’s Program
• This program is approved for 1 HR Certification credit.
• Submit questions via “Chat” & address the questions to
“Staff.”
• Questions will be answered in the order that they are
received. We will address as many questions as time permits
• Please reach out to sbriskin@meyersroman.com with
additional questions.
Experience and Background
• Provides labor and employment counsel to private, public sector and
non-profit organizations
• Represents employers and executives in employment litigation, wage and
hour matters, non-competition and trade secret litigation, workers’
compensation claims/appeals, union organizing drives, collective
bargaining, labor arbitrations and all manner of disputes involving the
NLRB, OSHA, EEOC, OCRC, BWC and the Department of Labor
• Prepares employment and consulting contracts, confidentiality and noncompetition agreements and advises clients on severance packages and
separation agreements
• Frequently speaks on labor and employment law issues
• Interned for the National Labor Relations Board, Cleveland, Ohio
Seth P. Briskin
• Practiced at boutique and general practice law firms where he developed
Chair, Labor &
his experience in all areas of labor and employment law
Employment Group
• Consistently named an Ohio “Super Lawyer” and awarded Crain’s
sbriskin@meyersroman.com Cleveland Business “40 Under 40” in 2005
Memberships & Associations
• Ohio State and Cleveland Metropolitan Bar Associations
• Officer on the Executive Boards of the Cleveland Leadership Center,
American Jewish Committee, Beachwood Chamber of Commerce and the
Cleveland Jewish News
• Former Chairman of Cleveland Bridge Builders
Employment Law
Alphabet Soup
FMLA
ADEA
WARN
IRCA
ADA
EEO
FCRA
PDA
HIPAA
COBRA
FLSA
NLRA
OSHA
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Employment At Will
• Terminate the Employment
Relationship With or
Without Cause
• Even for Cause Morally
Wrong
• Without Legal Liability
Even though at-will
employment is the established
law in Ohio, it is under
constant attack!
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Exceptions To The Employment At
Will Doctrine
• Promissory Estoppel
• Implied Contract
• Public Policy
Wrongful Termination
• Protected Classification
Discrimination
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Fair Credit Reporting Act (FCRA)
Background Screening Legal Protections
Background screening promotes a safe and profitable
workplace. It protects an employer from:
• Negligent hiring/retention lawsuits
• Wrongful termination
• Sexual/other harassment claims
• Theft
• Wasting recruiting time
Screening employees/applicants may also serve as a
competitive advantage for employers.
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Fair Credit Reporting Act (FCRA)
Fair and Accurate Credit Transactions Act
(“FACT Act”) of 2003
• Reaction to the 1999 FTC “Vail Letter”
• Investigation of workplace misconduct by an outside third
party is no longer covered by the FCRA’s prior notice
requirement.
• Attempts to control identity theft
• Requires proper destruction of consumer information by
companies who retain/request this information.
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Americans With Disabilities Act (ADA)
• Prohibits discrimination against a qualified
individual with a disability (physical or mental
disabilities)
• Employers required to make “reasonable
accommodation” unless it causes an “undue
hardship”
• Definition of disability under the ADA
– Substantially limits one or more major life activities
– Having a record of such impairment, or
– Being regarded as having such an impairment
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The Americans With Disabilities
Amendments Act (ADAAA)
• The ADA Amendments Act of 2008 (the
“Act”) took effect January 1, 2009
• The Act was intended to expand and clarify
the definition of disability under the ADA
• Expanded? YES. Clarified? NO!!
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What is a Disability Under the Act?
• Expanded definition of “substantially limits”
• Expanded definition of “major life activities”
• Disregard of mitigating measures / current
abilities
• Expanded definition of “regarded as”
disabled
• Prohibition on use of uncorrected vision as
selection criteria
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Your ADA Analysis -What You Need to Consider
• Essential job functions
• Reasonable accommodation
• Types of reasonable
accommodation
• The accommodation process
• When is an accommodation
unreasonable?
• What is an undue hardship?
• Issue of “direct threat” to health
and safety of the disabled
individual or to others
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Age Discrimination in Employment Act
Prohibits discrimination based on
an employee’s or applicant’s age
for individuals age 40 or over
Older Workers Benefit Protection
Act
–
Creates additional requirements on
employers who are offering severance
agreements to one or more employees
over the age of 40
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The Fair Labor Standards Act (FLSA)
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Minimum wage
Child labor
Record keeping
Overtime requirements
- Exempt vs. non-exempt employees
• Common violations
- Independent contractors
- Breaks / “suffered to work”
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Class Action Lawsuits
Wage and hour class action lawsuits continue to outpace all other types of
employment litigation in the federal and state courts. These class claims
typically fall into one of two groups:
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•
Improper exemptions (exempt/non-exempt)
“Off-clock” work claims/failure to pay for all compensable time
(claims for back-pay, vacation/PTO time, including overtime)
8,119 FLSA cases were filed between May 1, 2013 and April 30, 2014
(Previous year: 7,388 between 5/1/12 to 4/30/13)—increase of 10%.
These stats do NOT capture any wage and hour lawsuits based on state law
claims or brought in Circuit Courts.
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Class Action Lawsuits
Abadeer, et al. v. Tyson Foods, Inc., et al.
(U.S. District Court, Middle District, TN)
• Tyson Meat Processing Plant
• Employees brought suit claiming
additional time to put on specialized
clothing (Donning-Doffing claim)
• Court approves $7.8M Settlement
(7/18/14)
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Class Action Lawsuits
• Minimum Wage Violation
– Pimp my Ride (DOL v. West
Coast Customs of Corona)
– Raider Cheerleaders
(Lacy T. v. Oakland Raiders)
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What Can You Do to Protect Yourself
Against the Class Action Explosion?
• Ensure Compliance with State and Federal Law
– Audit your policies and practices (safe harbor, pay
for all work time, require accurate time reporting,
prohibit off-the-clock work, proper OT calculations)
– Audit your employee classifications
– Audit your record-keeping practices
– Provide wage and hour training for HR, supervisors
and employees
– Create open door complaint reporting system
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What Can you Do to Protect Yourself
Against the Class Action Explosion?
• AT&T Mobility v. Concepcion (Sup.Ct. 2011)
– Companies may require employees to waive their rights
to bring or participate in a class action in court by
requiring mandatory arbitration:
– Benefits:
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not public
confidential
less chance of big damages and runaway juries
reduced litigation costs
savings on appeals
– Negatives:
• costs to create
• may be subject to challenge
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DOL’s Latest Weapon – Jail Time
DOL v. High Performance Ropes of America
Convictions of Owner, Plant
Manager and Office Manager
for:
• Making false statements
• Demanding kickbacks from
employees
• Second set of books
• Failure to pay OT (workers
worked 96 hrs./wk.)
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Other Hot Wage & Hour Topics
• Manipulation of employee work days / weeks
(rounding up / down)
• FLSA’s “Companionship Exemption”
• State wage statutes requiring immediate
payment of unpaid wages / salary to
terminated employees
• State minimum wage increases
• Obama Administration proposed exemption
changes and Executive Orders
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Other Hot Wage & Hour Topics
• Off-clock work
– PDA’s/Smart phones
– Meal Periods
• FLSA retaliation expanded
(Kasten v. Saint Gobain, US
Sup.Ct. 2011)
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Family and Medical Leave Act of 1993
• General Provisions
Who is eligible?
• What type of leave is an
employee entitled to?
• Employment protection
• More leave for
military/caregivers
•
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*ADA issues
with not
giving leaves
Title VII of the Civil Rights Act of 1964
• Prohibits discrimination on the basis of:
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Race
Color
Religion
Sex
Sexual Orientation[Not Yet!]
Transgender – yes!
National Origin
• Covers employers with 15 or more employees
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Sexual Harassment (Title VII)
Prohibits unwelcome or offensive conduct toward
an individual because of his/her gender
– Prohibited conduct includes sexual
advances, requests for sexual favors,
and other verbal or physical conduct of
a sexual nature
– Also may include repeated offensive
conduct directed at an individual
because of his/her gender or that
demeans a particular gender
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Types of Sexual Harassment
(1) Quid Pro Quo
(2) Hostile Environment
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Hostile Environment
Sexual Harassment
• Unwelcome Conduct
• Severe or Pervasive
• Substantially Interferes with
Performance or Creates
Intimidating or Hostile or
Offensive Environment
• May be committed by co-workers,
supervisors or outside third
parties
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Not Covered By Title VII? Have No
Fear – OCRC 4112 Is Here!
• Prohibits discrimination based on:
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Race
Color
Religion
Sex
National Origin
Handicap
Age
Ancestry
• Covers employers with 4 or more employees
• Allows supervisors to be sued individually!!
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Additional Employment
Alphabet Soup
• EEO – Equal Employment Opportunity Employers or
Policies
• GINA – Genetic Information Nondiscrimination Act
of 2009
• IRCA – Immigration Reform and Control Act of 1986
• NLRA – National Labor Relations Act of 1935*
• OSHA – The Occupational Safety and Health Act of
1970*
*A lot of administrative rulemaking
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Additional Employment
Alphabet Soup
• PDA – The Pregnancy Discrimination Act
of 1978
• BWC - Workers Compensation (O.R.C.
§4123)
• WARN – The Worker Adjustment and
Retraining Notification Act of 1988
• USERRA – The Uniformed Services
Employment and Reemployment
Rights Act
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PROACTIVE MEASURES TO AVOID
EMPLOYMENT LAWSUITS
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Preventative Measures
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Employment Applications
Employee Handbooks/Training
Employment Agreements
Non-Competition/Non-Solicitation Agreements
Severance Agreements
Supervisory Training
ADR Programs
Employment Law Audits
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Employment Application
• Employer’s First Opportunity to
Learn Valuable Information such
as:
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Educational Background
Prior Employment
References
Skills and Experience
Restrictive Covenants
• Criminal Background Screening –
Ban the Box?
• A New Aggressive Tactic!
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Pursuant to the Sixth Circuit’s
decision in Thurman v. Daimler
Chrysler, you may now require
employees to sign a waiver on their
job application which shortens the
statute
of
limitations
on
discrimination claims.
Employee Handbooks / Training
Policies to be included in a handbook:
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At-Will Employment Disclaimers
Anti-Harassment Policies
FMLA Policy
FLSA Exemption/Safe Harbor Language
ADA Policy
Violence in the Workplace
Disciplinary Policies/Procedures
Substance Abuse/Workers Comp. Notice
Breastfeeding Policy
Social Media/IT Policy
Acknowledgement Form
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Employment Agreements
Common Elements of an Employment Agreement:
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Salary, Equity and Benefits Provisions
Job Duties / Expectations
Non-Competition/Non-Solicitation Provisions
Confidentiality/Trade Secret Provision
At-Will vs. Just Cause Employment
Choice of Law/Arbitration Agreement
No Restrictions on Employment Provision
Severance and General Release Provisions
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Non-Competition / Non-Solicitation
Agreements
• Enforceable in Ohio
• “Blue Pencil Rule”
• Must be reasonable in scope of time and geographic
limitations
• Must have a protectable interest
• Prevents solicitation of clients and employees
• May contain liquidated damages provision
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Severance Agreements
Common Elements:
• Severance/Continued Salary and Benefits/Stock Vesting
Provisions
• Termination vs. Voluntary Resignation
• General Release and Waiver of all Employment Litigation
Claims
• Confidentiality Agreement
• Restrictive Covenants
• Non-Disparagement
• Litigation Cooperation
• Return of Company Property
• OWBPA Review and Revocation Provisions
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Supervisory Training
Common Subjects:
• ADA Training
• Sex Harassment and Discrimination
• Handbook & Employment Policies
• Safety & Health
• Wage & Hour
• Substance Abuse/Alcohol
• Union Avoidance
• Disciplinary/Termination Procedures
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Alternative Dispute
Resolution (ADR) Programs
Common Elements of an ADR:
• No contract of employment (at-will)
• Consideration given/voluntary agreement
• Clear waiver of right to sue for all claims of
discrimination
• Specify controlling law and arbitration selection
method
• Create due process, strict legal processes, full court
remedies
• Cannot make the ADR a financial burden for employee
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Employment Audits
Commonly review:
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All Employment Forms
Handbooks
Safety Procedures/Rules
Workers Compensation Claims / Experience
Wage and Hour Compliance
Disciplinary Procedures/Personnel Files
Review of All Employment Agreements
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Litigation Wrap-Up
• What are the Causes
of Litigation?
• Why Avoid Litigation?
• How to Avoid Litigation.
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28601 Chagrin Boulevard, Suite 500
Cleveland, OH 44122
216-831-0042 – main office
216-831-0542 – facsimile
sbriskin@meyersroman.com
www.meyersroman.com
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