Dear Helga Returns With New and More Complicated HR Problems. Michael S. Cohen, Esq HR Law

Transcription

1 Dear Helga Returns With New and More Complicated HR Problems presented by Michael S. Cohen, Esq HR Law 2017 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm Offices New York London Singapore Philadelphia Chicago Washington, D.C. San Francisco Silicon Valley San Diego Shanghai Taiwan Boston Houston Los Angeles Hanoi Ho Chi Minh City Atlanta Baltimore Wilmington Miami Boca Raton Pittsburgh Newark Las Vegas Cherry Hill Lake Tahoe Myanmar Oman Duane Morris Affiliate Offices Mexico City Sri Lanka Duane Morris LLP A Delaware limited liability partnership DM2/

2 Learning Objectives 1. What legally and practically to consider when faced with an employee dilemma. 2. Relevant employment laws to reference when managing common (and not-so-common) employment-related matters. 3. Business-focused solutions for HR quandaries in a law firm environment. 1

3 Are We Asking The Wrong Questions? Dear Helga, My organization keeps talking about its commitment to diversity and inclusion; however, we can t seem to achieve our goals. I am starting to get concerned that our interview process is hindering our efforts. What can I do to better support our efforts? Signed, Befuddled in Bethlehem 2

4 Definition of Diversity 1. These individual differences fall into 2 general categories a. EEO: age, gender, race, color, religion, disability, national origin, sexual orientation or membership in any other group protected by law b. Non-EEO: education, geography, income status, political perspective, work experiences, physical stature/appearance, problem solving style, etc. 3

5 Reasons for Increasing and Embracing Diversity 1. Values 2. Creating and maintaining comfortable working environment for all employees 3. Diversity among existing and potential firm clients and business partners 4. Better product and service 5. Business proposition: increase pool of top potential employee talent by demonstrating that inclusivity 6. Right thing to do 4

6 Legal Restrictions on Achieving Diversity 1. Cannot: a. Set quotas b. Reserve a position for a particular EEO group c. Consider EEO factors directly in decision-making 5

7 Legal Restrictions on Achieving Diversity 2. Can (and should): a. Increase the diversity of the qualified applicant pool b. Value in decision-making non-eeo diversity in terms of experiences, ideas, contracts, etc. c. Create a working environment which embraces diverse talent 6

8 Valuing Our Differences 1. Avoid questions which directly or indirectly relate to: a. EEO status b. Family status c. Personal matters 7

9 Valuing Our Differences 2. EEO a. Age b. Citizenship c. Claims/charges/lawsuit d. Criminal record i. Individualized assessment e. Disabilities/medical and/or psychological conditions f. Gender identity/expression 8

10 Valuing Our Differences 2. EEO (continued) g. Military status/veteran status h. National origin/ancestry i. Race/color j. Religion k. Sex/pregnancy l. Sexual orientation 9

11 Valuing Our Differences 3. Family a. Marital Status b. Parental Status 4. Non-EEO 10 a. Education f. Experiences b. Geography g. Ideas c. Income status h. Contacts d. Political perspective i. Appearances e. Work experiences j. Skills

12 I m Under Siege Dear Helga, My organization is being bombarded with issues involving accommodations and leaves of absence under the FMLA and ADA. I m really struggling with how to deal with all of the requests. Can you provide me with common mistakes you see, so I can make sure to avoid those errors? Signed, Saying so Long to Sanity in South Whitehall 11

13 Americans with Disabilities Act 1. Background a. Applies to employers with 15 or more employees b. Applies to employees and applicants c. Applies to employees in absence of FMLA eligibility and/or once FMLA leave has been exhausted d. Non-discrimination obligation e. Reasonable accommodation obligation, e.g., leave of absence 12

14 Americans with Disabilities Act 2. Employer may not discriminate on the basis of: a. Current disability b. Past disability c. Perceived (regarded as) disability d. Associated with disability 13

15 Americans with Disabilities Act 3. Reasonable Accommodation (RA) Obligation a. Employers are required to provide a Reasonable Accommodation to a qualified individual with a disability b. Not a Reasonable Accommodation if eliminates essential function not every function is essential! i. Importance of job description 14

16 Americans with Disabilities Act 3. Reasonable Accommodation (RA) Obligation (continued) c. Do not have to make Reasonable Accommodation if it imposes undue hardship on the employer i. This is a narrow defense ii. Determination MUST be based on individualized assessment 15

17 Americans with Disabilities Act 3. Reasonable Accommodation (RA) Obligation (continued) d. Duty to engage in an interactive process with an individual with a disability to determine what accommodations (e.g., leaves of absence) may be needed and whether they may reasonably be provided 16

18 Americans with Disabilities Act 3. Reasonable Accommodation (RA) Obligation (continued) e. Types of potential RAs (examples only): i. Eliminate non-essential functions ii. Accommodate the manner in which essential functions are performed, such as: Equipment Schedule changes Telecommuting iii. Transfer to another, available position iv. Leave of absence 17

19 Common Interactive Process Mistakes 1. Only engaging in reasonable accommodation process if employee formally initiates it 2. Refusing to consider an accommodation because it is too hard or bad for morale 3. Focusing on disability and not essential job functions 18

20 Common Interactive Process Mistakes 4. Failing to consider job description when focusing on essential job functions and risks of using old/outdated job description 5. Dismissing unreasonable requests without exploring more reasonable ones 6. Failing to consider other accommodation decisions in similar situations 19

21 Common Interactive Process Mistakes 7. Failing to understand potential right of employee to leave of absence under not only ADA but also FMLA 8. Sharing medical information beyond need to know, narrowly defined 9. Having direct supervisors obtain medical information 20

22 Not You Again! Dear Helga, As you ve seen, our favorite employment law, the Fair Labor Standards Act, is back in the news. This has prompted me to review our wage and hour policies and practices. After reviewing them, I ve realized we have outdated policies regarding these laws. Where should I start? Signed, Loving the Law in the Lehigh Valley 21

23 Wage and Hour and Compensation 1. Classification a. Exempt vs. Non-Exempt b. Full-Time vs. Part-Time vs. Temporary 2. Pay Period a. Begin and end b. Inclusion of OT c. When paid 22

24 Wage and Hour and Compensation 3. Telecommuting a. Length of employment b. Length of no discipline c. Positions ineligible for telecommuting d. Sole discretion to allow/prohibit/discontinue e. May apply as a reasonable accommodation 23

25 Wage and Hour and Compensation 4. Deductions from exempt employee s pay a. Prohibit improper deductions b. Complaint mechanism c. Reimburse for improper deductions d. Good faith commitment to future compliance e. Lose safe harbor if i. Improper deductions following complaint ii. No reimbursement for improper deductions 24

26 Wage and Hour and Compensation 5. Recording Time Worked a. How is time recorded? i. Automatic deductions b. Exempts required? c. Recording time of another or another recording your time d. Leaving premises during workday i. Exempt/non-exempt 25

27 Wage and Hour and Compensation 6. Payment of non-exempt employees a. Overtime i. Eligibility ii. When OT applies iii. Right to mandate iv. Prior approval v. PTO 26

28 Wage and Hour and Compensation 6. Payment of non-exempt employees (continued) b. Meal Breaks i. 30 minutes unpaid ii. Must take full 30 minutes iii. Cannot break up 30 minutes iv. Notify supervisor if: Don t take break Don t take full 30 minutes Work during break v. Adjustment of time sheets 27

29 Wage and Hour and Compensation 6. Payment of non-exempt employees (continued) c. Rest Breaks i. Define number ii. Paid iii. Cannot be combined iv. No additional pay given if not taken 28

30 Wage and Hour and Compensation 7. Correction Procedure a. Notify if i. Work before log in ii. Work after log off iii. Skip meal break/take less than 30 minutes/work during iv. Work outside work hours or at home 29

31 Wage and Hour and Compensation 8. Complaint Procedure a. Improperly paid b. Asked to work off the clock c. Contact identified official d. Investigation e. Corrected next paycheck f. No retaliation g. If not satisfied 30

32 To Test or Not to Test Dear Helga, 31 I keep reading about issues surrounding drug testing in the workplace. I recently was confronted with a unique situation and wanted your thoughts. Here it is: On a cold and rainy morning, one of our most trusted employees asked to speak with me. She told me that she saw a co-worker snorting cocaine on the lawn behind the building. She believed that he was high at the moment she reported it. The co-worker s performance had been erratic, and she had heard rumors that he had a cocaine problem. What should I have done? Signed, Anxious in Allentown

33 Goals of Substance Abuse Policy 1. Clearly identify organization s expectations (e.g., the use, sale, or possession of illegal drugs and alcohol on the job or on organization s property is prohibited) 2. Eliminate adverse impact of drugs and alcohol 3. Educate management on how to identify warning signs 4. Help employees help themselves if they have drug or alcohol problems 32

34 General Prohibitions 1. Sale or distribution of drugs and/or alcohol 2. Use, possession, concealment or purchase of drugs or alcohol a. While on premises, or b. While on duty c. Includes unpaid break/meal periods d. On-duty impairment due to use of drugs and/or alcohol e. Off-duty and off-premises involvement with drugs and/or alcohol f. Use of prescription or OTC medications while on-duty or on-premises 33

35 General Prohibitions 3. Disclosure a. Prescription or OTC medication that might impair or cause safety problems i. Inform supervisor ii. Inform of use, side effects and duration of use 4. Self-identification a. Leave of absence b. Distinction between self-identification and gotcha c. Return to work 34

36 General Prohibitions 5. Types of Test a. Reasonable suspicion based on evidence including, but not limited to: 35 i. Direct observation ii. Noticeable declines in productivity/performance iii. Violent, erratic or risky behavior b. Post-accident c. Random d. Pre-commencement of work i. May work pending results e. Return to work f. Government regulation

37 General Prohibitions 6. Searches a. Employee, possessions, work area, vehicle, organizational premises 7. Failure to cooperate a. Refusal to provide specimen b. Refusal to provide written consent c. Provides adulterated, substituted or tampered with specimen 36

38 Thank you! Follow Me On Twitter HR Law 2017 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris Firm Offices New York London Singapore Philadelphia Chicago Washington, D.C. San Francisco Silicon Valley San Diego Shanghai Taiwan Boston Houston Los Angeles Hanoi Ho Chi Minh City Atlanta Baltimore Wilmington Miami Boca Raton Pittsburgh Newark Las Vegas Cherry Hill Lake Tahoe Myanmar Oman Duane Morris Affiliate Offices Mexico City Sri Lanka Duane Morris LLP A Delaware limited liability partnership

39 Michael S. Cohen Partner Duane Morris LLP 30 South 17th Street Philadelphia, PA USA Phone: Fax: Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. He has conducted trainings for executives, directors, managers, supervisors and employees in many industries, including financial services, healthcare, pharmaceutical, manufacturing, retail, real estate development, law firms and human services. Mr. Cohen also has conducted trainings for executives, deans and faculty in several institutions of higher education and secondary education. He has conducted more than 150 trainings in the last year. 2. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, non-compete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings. 3. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On-Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources, Workforce Management Magazine, Human Rights Campaign On-Line, Yahoo! Sports, The Sporting News, The Newark Star-Ledger, The Houston Chronicle, The New Orleans Times-Picayune, The Pittsburgh Tribune-Review, The Syracuse Post-Standard, The Ann Arbor News, The Harrisburg Patriot News, The Mobile Press Register, The Flint Journal, The Desert Sun, The Courier-Post, The Honolulu Advertiser, The Stamford Advocate, The Huntsville Times, AM New York, The Workplace Substance Abuse Advisor, Legal Issues in Collegiate Athletics, Talent Management, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star-Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit News and Business& Legal Reports, Inc. He has been a regular guest lecturer on human resources issues at Temple University and West Chester University for its Masters of Science in Administration program. 4. Mr.Cohenisa1997magnacumlaudegraduateofTempleUniversityBeasleySchoolofLawandacumlaudegraduateoftheUniversityofPennsylvania. 5. Areas of Practice- Employment Law 6. Professional Activities- Pennsylvania Bar Association; Philadelphia Bar Association 7. Admissions- Pennsylvania; New Jersey 8. Education a. Temple University Beasley School of Law, J.D., magna cum laude, 1997 b. University of Pennsylvania, B.A., cum laude, Selected Speaking Engagements a. A Practical Look at Updating Your Handbook: Change with the Laws, Dear Helga Returns(AGAIN) with New and More Complicated HR Problems, SHRM Annual Conference, Washington, DC, June 19-20, 2016 b. The Minefields of All Minefields Wage and Hour Issues in Law Firms, Embracing Diversity by Preventing Harassment, Association of Legal Administrators Business of Law Conferences, New Orleans, LA; Atlanta, GA, Las Vegas, NV, September-October, 2015 c. Speaker, Devaluing Diversity and Creating an LGBTQ-Friendly Work Environment, SHRM Diversity Conference, Boston, Massachusetts, October 26-27, 2015 d. Speaker,"Dear Helga Returns(Again) With New And More Complicated HR Problems," SHRM Annual Conference, Las Vegas, Nevada, June 29, 2015 e. Speaker,"Human Resources 101," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014 f. Speaker,"Motivating Employees in the New Economy," Association of Legal Administrators Annual Conference, Toronto, Ontario Canada, April 20, 2014 g. Speaker,"Background Checks Criminal, Credit and Social Media," SHRM National Legislative and Employment Law Conference, Washington, DC, March 17, 2014 h. Speaker,"Helga s Back And You re Never Going To Believe What Her Employees Did This Time," and"creating on LGBT-Friendly Workplace," SHRM Annual Conference, Orlando, Florida, June 24-25, 2014 i. Speaker,"HR 101: Basic Training," "HR 201: Inspire, Motivate and Achieve Results," and "HR 301: Mission Possible Conducting Internal Investigations," Association of Legal Administrators Annual Conference, Toronto, Ontario, May 20-21, 2014 j. Speaker,"Background Checks-Criminal, Credit and Social Media," SHRM Employment Law and Legislative Conference, Washington, D.C., March 17, 2014 k. Speaker, "Dear Helga: You re Never Going To Believe What My Employee Did" and"time To Go Back To School Updating Your Employee Handbook," SHRM Annual Conference, June 16-17, 2013, Chicago, Illinois l. Speaker,"What s Your Site Social Media in Hiring" and"documenting Performance Yes It Does Matter," SHRM Talent Management Conference, May 16-17, 2012, Las Vegas, Nevada m. Speaker,"Out of the Closet and Into Your Workplace Sexual Orientation and Gender Identity" and"background Checks The Law Has Changed," Lehigh Valley SHRM Annual Conference, October 5-6, 2012, Bethlehem, Pennsylvania n. Speaker, "Time to Go Back to School Updating Your Employee Handbook" and "The ABCs of the FMLA and ADA." Association of Legal Administrators National Conference, May 24-25, 2011, Orlando, Florida (#1 Rated Speaker at Conference) o. Speaker,"Get Ready to Hire Again" and"diversity and the Law," Association of Legal Administrators National Conference, May 4-5, 2012, Boston, Massachusetts(#1 Rated Speaker at Conference)