Stop Sinking & Swim: 10 HR & Employment Law Strategies to Survive 2009 Karen Michael, Esq. RHRMA Meeting April, 2009

A New Era 2

In 2009 …. So far….  ADAAA  FMLA  Lilly Ledbetter Fair Pay Act  COBRA changes  Employee Free Choice Act (re-introduced)  Genetic Information Non-Disclosure Act (GINA)  New Investigators to be added to:  Wage & Hour Division (confirmed 150 net new)  OFCCP  EEOC 3

4 Obama Wish List? Healthy Families Act Minimum Wage Increases Employment Non- Discrimination Act FOREWARN Act Union Changes

#1 Back To The Basics 5

Foundation for Success 6 Extras Ensure Compliance with Laws & Manage Risk Train Managers on Managing People & Train Employees to do their jobs Pay Employees Properly Develop Legally Compliant & Business Focused Policies & Practices Hire & Promote the Right People into the Right Jobs

#2 What’s In A Job …(Description that is)? 7

Job Descriptions - What are you paying the person to do? 8 Essential Functions (position exists to perform this function) Knowledge, Skills & Abilities Needed to perform job Marginal Functions, if necessary Regular Reliable Attendance, Core Competencies & “other duties as assigned” Is this job exempt or non- exempt—make a decision and document the reason

#3 What’s in Your Handbook? 9

Give a Second Look to:  Attendance & Punctuality  FMLA  ADA & Religion (Reasonable Accommodations)  Substance Use & Abuse  Sick Leave (to include fit for duty)  Performance Management  “Light Duty” policy (if any)  Wage & Hour policies  Workplace Conduct (harassment/discrimination) to include no retaliation & complaint procedures  Union-Free Workplace (depends on sentiment)  No Solicitation Policy 10

#4 Hire Right (because once they’re there….good luck!) 11

Hiring Right – Begin at the Beginning 12 Job Analysis/Job Description Employment Application Second Guess Testing Know the Right Answers Prepare for the Divorce

#5 Medical Matters 13

Tips to Survive the New Leave Laws 14 Eliminate the Silos Managers need to know who and when to call Develop in-house expertise to use law in your favor Whoever is the most reasonable will win Confidentiality of medical records is KEY!!!!

#6 Pay Matters (If you have to pick one …. Pick this one!) 15

Case Study – Get Out Those Calculators! You have 10 employees who are computer technicians that are all classified as exempt. They each earn $50,000 a year. You fired one of them, who went to a lawyer and figured out that he, and his 9 friends, should have been classified as non-exempt. The 10 claim that they worked 43 hours per week for the past 5 years. Assume that the court determines this is a willful violation. How much will this cost you? 16

Rough Analysis  $50,000 a year / 2080 = $24.04 (reg. rate of pay)  x 1.5 = $36.06 (overtime rate of pay)  $36.06 x 3 hours a week x 52 weeks = $5,625  $5,625 x 3 years (willful) = $16,876 in back pay  $16,876 x 2 (liquidated damages) = $33,752  $33,752 x 10 employees = $337,521 (total)  Add about $100,000 for plaintiff’s attorney  Add about $100,000 for your attorney  All In about $537,000 17

Pay Matters to Consider 18 Exempt/Non- Exempt Time-Keeping Practices RecordkeepingComp-time Hours Worked

#7 A Seat at the Table… For the Computer Guy/Gal 19

“E-Discovery” & Metadata Dilemma Notice of Potential Litigation Must Notify Everyone of “Document Hold” If You Lose It, You Will Pay! 20

#8 Say Goodbye …..Early & Often 21

Saying Goodbye Is Hard to Do (legally) 22 The Sooner the Better RIFs Done Right Dignity & Respect Focus on Policy & Consistency

#9 The Union You Deserve??? 23

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#10 Focus on You! 25

K AREN M ICHAEL, PLC Employment Law, Training and Consulting 2711 Buford Road, #210 Richmond, Virginia (office) (mobile) (fax)