Presented by Seth P. Briskin, Esq. Not to be reproduced in any manner without prior consent

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.

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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 27 th - Total Rewards- 7:30-9:30am – May 8 nd - 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 20 th – Seth will be presenting at 3:15 p.m Register on CSHRM website

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 with additional Today’s Program

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 non- competition 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 Practiced at boutique and general practice law firms where he developed his experience in all areas of labor and employment law Consistently named an Ohio “Super Lawyer” and awarded Crain’s 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 Seth P. Briskin Chair, Labor & Employment Group

Employment Law Alphabet Soup FMLA WARN ADA FCRA HIPAA FLSA OSHA NLRA ADEA IRCA EEO PDA COBRA

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!

Exceptions To The Employment At Will Doctrine Promissory Estoppel Implied Contract Public Policy Protected Classification Discrimination Wrongful Termination

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. 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. Fair Credit Reporting Act (FCRA)

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

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!! The Americans With Disabilities Amendments Act (ADAAA)

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 What is a Disability Under the Act?

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

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

The Fair Labor Standards Act (FLSA) Minimum wage Child labor Record keeping Overtime requirements - Exempt vs. non-exempt employees Common violations -Independent contractors -Breaks / “suffered to work”

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: 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

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) Class Action Lawsuits

Minimum Wage Violation – Pimp my Ride (DOL v. West Coast Customs of Corona) Class Action Lawsuits – Raider Cheerleaders (Lacy T. v. Oakland Raiders)

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 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: 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 What Can you Do to Protect Yourself Against the Class Action Explosion?

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.) DOL’s Latest Weapon – Jail Time DOL v. High Performance Ropes of America

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 Other Hot Wage & Hour Topics

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)

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 *ADA issues with not giving leaves

Title VII of the Civil Rights Act of 1964 Prohibits discrimination on the basis of: – Race – Color – Religion – Sex – Sexual Orientation[Not Yet!] – Transgender – yes! – National Origin Covers employers with 15 or more employees

Sexual Harassment (Title VII) – 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 Prohibits unwelcome or offensive conduct toward an individual because of his/her gender

Types of Sexual Harassment (1) Quid Pro Quo (2) Hostile Environment

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

Not Covered By Title VII? Have No Fear – OCRC 4112 Is Here! Prohibits discrimination based on: – Race – Color – Religion – Sex – National Origin – Handicap – Age – Ancestry Covers employers with 4 or more employees Allows supervisors to be sued individually!!

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

Additional Employment Alphabet Soup WARN – The Worker Adjustment and Retraining Notification Act of 1988 USERRA – The Uniformed Services Employment and Reemployment Rights Act PDA – The Pregnancy Discrimination Act of 1978 BWC - Workers Compensation (O.R.C. §4123)

PROACTIVE MEASURES TO AVOID EMPLOYMENT LAWSUITS

Preventative Measures Employment Applications Employee Handbooks/Training Employment Agreements Non-Competition/Non-Solicitation Agreements Severance Agreements Supervisory Training ADR Programs Employment Law Audits

Employment Application Employer’s First Opportunity to Learn Valuable Information such as : – Educational Background – Prior Employment – References – Skills and Experience – Restrictive Covenants Criminal Background Screening – Ban the Box? A New Aggressive Tactic! 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: 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

Employment Agreements Common Elements of an Employment Agreement: 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

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

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

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

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

Employment Audits Commonly review: All Employment Forms Handbooks Safety Procedures/Rules Workers Compensation Claims / Experience Wage and Hour Compliance Disciplinary Procedures/Personnel Files Review of All Employment Agreements

Litigation Wrap-Up What are the Causes of Litigation? Why Avoid Litigation? How to Avoid Litigation

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