PRESENTS THE 18TH ANNUAL EMPLOYMENT LAW FORUM · 2016-09-19 · The 18th Annual Employment Law Forum presented by Cline Williams Wright Johnson & Oldfather, L.L.P. has been approved

S P O N S O R E D B Y :

EMPLOYMENT LAW FORUM P R E S E N T S T H E 1 8 T H A N N U A L

LINCOLN | SEPTEMBER 20, 2016

Registration

The Times, They Are A Changin': Implementing Changes to the FLSA's White-Collar Exemptions Henry Wiedrich

1:30-2:00 Managing Employee Leave: Navigating the Bermuda Triangle of the FMLA, ADA, and Workers' Compensation Susan Sapp & Renee Eveland

2:00-2:30

Recent Developments in Employee Benefits Keith Peters & Michelle Sitorius

2:30-3:00

3:15-3:45 Emerging Employment Law Issues in 2016 and Beyond!John Hewitt & Jody Duvall

3:45-4:15 He Took What? Protecting Your Company's Trade Secrets Rick JeffriesFrom Hiring to Firing: An Interactive Update on Recent EEO Developments and CasesJason Yungtum & Tara Stingley

AGENDA

T H E 1 8 T H A N N U A L

EMPLOYMENT LAW FORUM

3:00-3:15

Recruiting and Hiring: Keys to Effective Recruiting Practices and Discussion of Industry ChangesJosh Boesch, Lutz

12:30-1:00

1:00-1:30

Break

Open Panel - Questions and Answers

4:15-4:45

4:45

The 18th Annual Employment Law Forum presented by Cline Williams Wright Johnson & Oldfather, L.L.P. has been approved for CLE credit:

Nebraska CLE (3.5 hours) Iowa CLE (3.5 hours)Colorado CLE (4.0 hours)Wyoming CLE (3.5 hours)

Course No. 127505Course No. 238652 Course No. 754793

The State of Nebraska Board of Public Accountancy made a determination that the Employment Law Forum, Course No. 16-351, is approved for 4.0 CPE hours.

PROFESSIONAL CONTINUING EDUCATION CREDITS

This activity, ID No. 289030, has been approved for Recertification Credit Hours Awarded: 3.50 Specified Credit Hours: HR (General) recertification credit hours toward aPHR™, PHR®, PHRca®, SPHR®, GPHR®, PHRi™, SPHRi™ recertification through HR Certification Institute's® (HRCI®). Please make note of the activity ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.The use of this seal is not an endorsement by the HR Certification Institute of the quality of the activity. It means that this activity has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.



These materials and program are being offered as an outline of general information on the subject to assist in development and implementation of employment practices and policies. They are offered for educational and

information purposes only and are not intended as legal advice.

Cline Williams Wright Johnson & Oldfather, L.L.P. is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CPSM or SHRM-SCPSM. This program, Activity ID #16-PK5SD is valid for 3.5 PDCs for the SHRM-CPSM or SHRM-SCPSM. For more information about certification or recertification, please visit www.shrmcertification.org.

RECENT DEVELOPMENTS IN EMPLOYEE

BENEFITS

PRESENTED BY KEITH PETERS & MICHELLE SITORIUS



KEITH T. PETERS [email protected]

(402) 474-6900

Practice Areas:

Employee Benefits and DeferredCompensation

Admitted to Practice:

Nebraska

Education:

University of Nebraska, J.D., with high distinction, 2006

Cedarville University, B.A., with high honors, 2002

KEITH T. PETERS

Practice Emphasis:

Keith’s practice includes employee benefits and executive compensation. He counsels clients on qualified plans, including defined benefit pension plans, profit sharing plans, 403(b) plans, 457(b) plans, and employee stock ownership plans (ESOP). He prepares and reviews non-qualified deferred compensation plans for compliance with Code Section 409A and other applicable laws. He prepares and reviews welfare benefits arrangements, including cafeteria plans, flexible spending account plans, dependent care spending account plans, wrap plans, wellness plans, and other fringe benefit plans. He reviews and prepares plan documents, summary plan descriptions, policies, procedures, and other participant communications for retirement and welfare benefit plans. He counsels fiduciaries regarding their obligations and responsibilities related to retirement and welfare benefit plans. Keith counsels clients on matters related to COBRA, HIPAA portability, and the Patient Protection and Affordable Care Act. He regularly works with clients to comply with the reporting requirements of the ACA. He counsels multiple employer welfare arrangements (MEWA) and voluntary employees' beneficiary associations (VEBA) on a variety of state and federal law issues. Keith works with clients responding to audits by the Internal Revenue Service and the U.S. Department of Labor. In addition, he works on litigation matters involving ERISA, retirement and welfare benefit plans, and non-competition agreements. He assists clients with employee benefits issues that arise in connection with mergers and acquisition transactions.

Other Experience/Achievements: Member, ESOP Association, 2012 to present Member, Board of Directors, Lincoln Children's

Zoo, 2013 to present Member, Board of Directors, Mead Lumber, 2015

to present Leadership Lincoln Class XXVI Articles Editor, Nebraska Law Review 2005-2006 Order of the Coif

MICHELLE L. SITORIUS [email protected]

(402) 474-6900 Practice Areas:

Employee Benefits and Deferred Compensation


Nebraska United States District Court for the District of

Nebraska United States Court of Appeals for the Eighth

Circuit Education:

University of Nebraska, J.D., with distinction, 2009

McGill University, Montreal, Quebec, M.A., 2005

University of Nebraska, B.A., with high distinction, 2002

MICHELLE L. SITORIUS

Practice Emphasis:

Michelle concentrates her practice on employee benefits counseling. She counsels a variety of clients, including for-profit, nonprofit, governmental, and church organizations on qualified and non-qualified plans and welfare benefits arrangements. Michelle advises clients in relation to defined benefit and defined contribution pension and profit sharing plans, employee stock ownership plans, section 401(k), 403(b) and 457 plans, section 125 cafeteria plans, and deferred compensation plans subject to Internal Revenue Code Section 409A. She also advises clients on self-insured, fully-insured, and funded and unfunded welfare benefit arrangements. She assists clients with plan design and administration, fiduciary duties, disclosure requirements, and correction procedures. Michelle has experience amending and restating plans, terminating plans, applying for determination letters, and preparing submissions to voluntary correction programs. She works with clients in dealing with the U.S. Department of Labor and Internal Revenue Service. She also consults with clients concerning compliance with the Affordable Care Act, COBRA continuation coverage requirements, and HIPAA portability requirements as well as other health insurance issues.

Other Experience/Achievements:

Member, Board of Directors, Voices of Hope, 2015-present

Leadership Lincoln Class XXVII Articles Editor, Nebraska Law Review, 2007-2008

KATIE A. JOSEPH [email protected]


Employee Benefits and Deferred Compensation

Labor and Employment


Nebraska Education:

University of Nebraska, J.D., with highest distinction, 2015

University of Nebraska, B.A., with distinction, 2001

KATIE A. JOSEPH

Practice Emphasis:

Katie’s practice focuses on employee benefits and labor and employment matters.


Guy Cleveland Chambers Award, 2015 Managing Editor, Nebraska Law Review, 2014-

2015 President, Women's Law Caucus, 2014-2015 Student Attorney, Entrepreneurship Legal Clinic,

2014 National Champion, ABA Client Counseling

Competition, 2014 Order of the Coif Published: "Copyright's Unconsidered

Assumption: Statutory Successors to the Termination Interest (and the Unintended Consequences for Estate Planners)," 94 Neb.L.Rev. 441 (2015)

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RECENT DEVELOPMENTS IN EMPLOYEE BENEFITS

JASON YUNGTUM/TARA STINGLEYKEITH PETERS & MICHELLE SITORIUS

OVERVIEW

• Wellness Plans Developments• Health Insurance

Marketplace Notices• ACA Reporting• ACA § 1557• Retirement Plans• Potpourri

WELLNESS PLANS DEVELOPMENTS

• New ADA Regulations issued May 17, 2016• Effective: First day of the plan year beginning on or

after January 1, 2017• HIPAA, GINA requirements also apply to Wellness

Plans

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WELLNESS PLANS DEVELOPMENTS• Disability-related inquiries and medical examinations

must be “voluntary”o No requirement to participateo No denial of coverage for non-participationo No adverse action, retaliation, or coercion for

non-participation

WELLNESS PLANS DEVELOPMENTS• Maximum incentive 30% of –

o A particular health plan, if no choiceo Lowest cost health plan, if enrollment not

necessaryo Lowest cost health plan, if choiceo 40-year-old non-smoker silver coverage if no

health plan• Maximum incentive - 50% (tobacco users on your

honor)

WELLNESS PLANS DEVELOPMENTS• Notice Requirement• EEOC has provided a sample notice

https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm

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WELLNESS PLANS DEVELOPMENTS• Confidentiality Requirements

o Only aggregate medical info or historyo Cannot require employees to agree to selling

medical infoo But HIPAA likely applies anyway

• EEOC does not agree with the “bona fide benefit plan”safe harbor recognized by recent court decisions.

WELLNESS PLANS DEVELOPMENTS• IRS Chief Counsel Advice 2016-22031 (Apr. 14, 2016)• Generally, an employer must include the value of a

wellness plan rewards in the employee’s gross income(e.g., tax withholding), unless–o The reward qualifies as “medical expenses” under

Code § 213(d)o De minimis fringe under Code § 132(e) (but cash is

never de minimis)

HEALTH INSURANCE MARKETPLACE NOTICES

• 500,000 Notices sent June 21, 2016

• Gather any Notices sent to your organization

• Appeal if not correct• No response necessary if

correct

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ACA REPORTING• Draft 2016 versions of Forms 1094-B/1095-B; Forms

1094-C/1095-C• Draft 2016 Instructions – Forms 1094-C and 1095-C• Overall, minor changes from 2015 versions• (Final Forms not issued as of deadline for printed

materials.)

ACA REPORTING• June 30, 2016 filing deadline (electronic)• IRS continues to accept 2015 Forms on its website

even after the June 30, 2016 deadline.• Employers with 50-99 employees –– ACA penalties

new for 2016 Forms• Employers with 100+ employees –– ACA penalties

continue for 2016 Forms

ACA REPORTING• What happens if I filed but something did not work?

o Rejected? Act within 60 days.o “Accepted with Errors”? Submit corrections.o Missed the deadline? Document your “legitimate

efforts” to register and to file, continue to make such efforts, and complete the process as soon as possible.

o Still in bad shape? Hope for a reasonable cause waiver from the penalties.

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ACA REPORTING• IRS Information Letter 2016-0030• Example: Employer adopted a new policy restricting

part-time and seasonal employees from working morethan 29 hours of service in any week. However, some ofthe employer’s part-time and seasonal employees workmore than 29 hours of service in a week. Some of theseemployees are covered by Medicare or another source ofcoverage.

• Result?

ACA § 1557• Section 1557 prohibits discrimination in certain health

programs and activities on the basis of race, color,national origin, sex, age, or disability.

• Regulations issued May 18, 2016; generally effectiveJuly 18, 2016

• Additional compliance time is allowed for benefit designchanges, such as, covered benefits, benefits limitationsor restrictions, and cost-sharing mechanisms.

ACA § 1557• Applies to –

o Any health program or activity any part of whichreceived funding from HHS

o Any health program or activity that HHS itselfadministers

o Health Insurance Marketplaces and all plans offeredby issuers that participate in those Marketplaces

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ACA § 1557• Stated Goals:

o Protecting individuals against sex discriminationo Ensuring meaningful access for individuals with limited

English proficiencyo Ensuring effective communication with and accessibility for

individuals with disabilities

ACA § 1557• What employers are impacted?

o Coverage of Health Insurance in Marketplaces and Other Health Plans

o Additional materials: http://www.hhs.gov/civil-rights/for-individuals/section-1557/

RETIREMENT PLANS• IRS has eliminated the regular cyclical Determination

Letter program for individually-designed plans.• IRS intends to annually publish a Required

Amendments List.• Individually designed non-governmental plans will then

generally be required to adopt any requiredamendments by the end of the second calendar yearthat begins after the issuance of the RequiredAmendments List in which the change in qualificationrequirements appear.

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RETIREMENT PLANS• Retirement Plan Investment Fees

o New Fiduciary Rule (Apr. 8, 2016)o Duty to monitor plan investments – Tibble v. Edison

Int’l, 2016 WL 1445220 (9th Cir. 2016), following 2015 U.S. Supreme Court decision.

POTPOURRI• Retain proof of mailing COBRA Election Notices• Perkins v. Rock-Tenn Services, Inc., 2016 WL 3135709

(W.D. Mich. 2016)• Court accepted electronic copy of the notice along with

computer records showing the dates on which the noticewas created and mailed, supported by affidavit from aTPA employee responsible for the delivery of COBRAnotices as directed by the employer.

POTPOURRI• Notice 2013-54 et al. – IRS continues to emphasize that

an employer may not reimburse individual insurancepolicies for employees.

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POTPOURRI• DOL has proposed changes to Form 5500• Comments requested by October 4, 2016• Proposed changes would apply beginning with the 2019

Plan Year.

POTPOURRI• DOL identified 5 Goals of the proposed changes to Form 5500:

1. Modernize Financial Reporting2. Provide Greater Information Regarding Group Health Plans3. Enhance Data Mineability4. Improve Service Provider Fee Information5. Enhance Compliance with ERISA and the Code

POTPOURRI• EBSA increases civil money penalties for inflation• Effective August 1, 2016• Examples include:

ERISA Statute

Description Current $ New $

209(b) Failure to furnish reports Up to $11 per employee

Up to $28 per employee

502(c)(2) • Failure or refusal to file annual report and

• Failure of a multiemployer plan to certify endangered or critical status under Section 305(b)(3)(C) treated as failure to file annual report

Up to $1,100per day

Up to $2,063 per day

502(c)(5) Failure of a multiple employer welfare arrangement to file report required by regulations issued under Section 101(g)



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POTPOURRITABLE CONTINUED

ERISA Statute

Description Current $ New $

502(c)(6) Failure to furnish information requested by Secretary of Labor

Up to $110 per day not to exceed $1,100 per request

Up to $147 per day not to exceed $1,472 per request

502(c)(7) Failure to furnish blackout notice or notice of the right to divest employer securities

Up to $100per day

Up to $131 per day

502(c)(9)(A) Failure by an employer to inform employees of CHIP coverage opportunities – each employee a separate violation

Up to $100 per day

Up to $110 per day

715 Failure to provide Summary of Benefits Coverage under Public Health Services Act

Up to $1,000 per failure

Up to $1,087 per failure

ACTION STEPS FOR EMPLOYERS1. If you successfully filed your ACA Reports for 2015 on

time, celebrate (responsibly) with your favorite beverage! 2. Examine Wellness plan(s)3. Respond as appropriate to Exchange Notices 4. Continue ACA Reporting5. Discuss ACA § 1557 with Health insurer or TPA

ACTION STEPS FOR EMPLOYERS6. Retirement Plan – annually consider whether

amendments needed7. Consider Retirement Plan investment fees8. Retain proof of COBRA notices9. Don’t reimburse individual insurance policies

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QUESTIONS?

KEITH [email protected]

MICHELLE [email protected]

KATIE [email protected]

THIS MATERIAL IS NOT INTENDED TO CONSTITUTE A COMPLETEANALYSIS OF ALL LEGAL AND TAX CONSIDERATIONS. IT IS OFGENERAL NATURE AND INTENDED FOR INFORMATIONAL PURPOSESONLY, NOT LEGAL ADVICE.

THE INTERNAL REVENUE SERVICE REQUIRES US TO INFORM YOUTHAT ANY FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION(INCLUDING ATTACHMENTS OR ENCLOSURES) SHOULD NOT BE USEDOR REFERRED TO IN PROMOTING, MARKETING, OR RECOMMENDINGOF ANY ENTITY, INVESTMENT, PLAN OR ARRANGEMENT, AND SUCHADVICE IS NOT INTENDED OR WRITTEN TO BE USED AND CANNOT BEUSED BY A TAXPAYER FOR THE PURPOSE OF AVOIDING PENALTIESUNDER THE INTERNAL REVENUE CODE.

MANAGING EMPLOYEE LEAVE: NAVIGATING THE

BERMUDA TRIANGLE OF THE FMLA, ADA, AND WORKERS'

COMPENSATION

PRESENTED BY SUSAN SAPP & RENEE EVELAND



SUSAN K. SAPP

[email protected] (402) 474-6900

Practice Areas:

Administrative Litigation Business Litigation Employment Litigation Health Care Labor and Employment Personal Injury and Wrongful Death Professional Liability and Licensing


Nebraska Iowa United States District Court for the District of


Circuit Education:


University of Nebraska, B.S., 1986

SUSAN K. SAPP

Practice Emphasis: Susan has a general civil trial practice which includes labor and employment issues, medical and legal malpractice defense and insurance defense. She represents school districts, hospitals, doctors, employers and insurance companies in all aspects of legal representation. She also handles all aspects of adoption proceedings, and was the legislative drafter for LB 712 (1995), LB1014 (1998), LB 247 (2007), LB 908 (2014) and LB 744 (2016) adoption legislation. In addition, Susan serves as mediator in personal injury and employment cases. Other Experience/Achievements:

Fellow, American Academy of Adoption Attorneys Associate, American Board of Trial Advocates Listed: Best Lawyers in America (Woodward/White,

Inc.) (Employment Law-Management) Named: Best Lawyers' 2013 Lincoln Labor Law -

Management Lawyer of the Year Listed: Chambers USA, America's Leading Lawyers

for Business (Chambers & Partners Publishing) (Litigation: Insurance)

Listed: Great Plains Super Lawyers (Personal Injury-Medical Malpractice Defense; Personal Injury General Defense; Schools & Education)

Fellow, Litigation Counsel of America Fellow, Nebraska State Bar Foundation Past President and Member, Nebraska Council of

School Attorneys Member, American Trial Lawyers Association Member, National Association of Trial Attorneys Vice-Chair, Nebraska State Bar Association

Continuing Legal Education Section Past Chair, District One Committee on Inquiry for

Attorney Discipline Board Member, Child Guidance Center Research and Case Note Editor, Nebraska Law

Review, 1987-1988 Order of the Coif

RENEE A. EVELAND [email protected]

(402) 474-6900

Practice Areas:

Personal Injury and Wrongful Death Business Litigation• Professional Liability and Licensing

Workers' Compensation

Admitted to Practice: Nebraska United States District Court for the District of


Circuit

Education:

University of Nebraska College of Law, J.D., with distinction, 2005

Truman State University (formerly Northeast Missouri State University), B.A., summa cum laude, 1998

RENEE A. EVELAND

Practice Emphasis:

Renee’s trial experience is in the area of civil defense litigation, focused on insurance defense and professional liability (malpractice) defense. She handles a variety of insurance and business suits, including premises liability, construction litigation, and contract disputes. She defends health care providers and businesses in litigation throughout the State of Nebraska. She represents businesses in workers’ compensation litigation as well. She has tried jury cases throughout the state of Nebraska and has argued before the Nebraska Court of Appeals and the Nebraska Supreme Court.


President-Elect, Nebraska Defense CounselAssociation (NDCA), 2016

NSBA Leadership Academy, 2011-2012 Member, Nebraska Association of Trial

Attorneys, 2005-present Member, Defense Research Institute, 2005-

present Vice Liaison of Nebraska to national Defense

Research Institute Women in the LawCommittee, 2010-present

Nebraska Defense Counsel Association “RisingStar” Award, 2011

Member, Robert Van Pelt Inns of Court, 2003-2009

Member, American Inns of Court, 2005-present Member, NDCA Board of Directors, 2009-present Former Editor, Nebraska Defense Counsel

Association’s publication Member, Board of Directors, Nebraska Defense

Counsel Association liaison to UNL College ofLaw Defense Research Institute StudentChapter, 2009-2012

Past President, Nebraska Court-AppointedSpecial Advocates Association (CASA), 2010

Member, Advisory Committee Chair andStandards Committee Chair, Nebraska CASA,2009-2014

•

1

MANAGING EMPLOYEE LEAVE: NAVIGATING THE BERMUDA

TRIANGLE OF FMLA, ADA, AND WORKERS’ COMPENSATION

JASON YUNGTUM/TARA STINGLEYSUSAN SAPP & RENEE EVELAND

OVERVIEW• Objectives and overview of Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and Worker’s Compensation Laws

• Recurring Issues & problem areas

THE DIFFERENT OBJECTIVES OF THE ADA, FMLA, AND WORKERS’ COMPENSATION

• FMLA – Department of Labor (Wage and Hour Division)o Balance work and family lifeo Sets leave standards for employees for the birth and care of a

newborn child, placement of a child for adoption or foster care, tocare for an immediate family member with a serious healthcondition, and for the employee’s serious health condition

• ADA – Equal Employment Opportunity Commission (EEOC)o Enforce the principle of non-discrimination against applicants and

employees who are “qualified individuals with a disability,” on thebasis of disability

• Nebraska Workers’ Compensation – state law

2

INTERACTIONS BETWEEN THE LAWS

• Employer Coverageo FMLA – 50 or more employees for at least 20 workweeks

during current or preceding calendar yearo ADA – 15 or more employees for at least 20 workweeks

during current or preceding calendar yearo Workers’ Compensation – applicability and exceptions

(rare) are defined by Nebraska Workers’ Compensation Act

*** NOTE THAT STATE LAWS MAY PROVIDE BROADER PROTECTION THAN FEDERAL LAWS.


• Employer Eligibilityo FMLA

• Employed for at least 12 months and performed 1,250 hours of service duringthe 12-month period immediately preceding the beginning of FMLA leave.

• The employee’s reason for leave must also qualify for leave under the FMLA –Serious Health Conditions.

o ADA - An employee who is disabled as defined by ADA, is qualified to perform theessential functions of the position with or without reasonable accommodation.

o Workers’ Compensation:1. Employee;2. Injury;3. Acting in the course and scope of employment that arises from an accident or

an occupational disease.

WORKERS’ COMPENSATION

• Scenario 2:o EE smoking under this sign:

o Ice patch under a leaking guttero EE told to fix the gutter &…

…said he did!

3

(HE DIDN’T…)

Answer: __________


• Length of Leave

o FMLA - 12 workweeks of leave in a 12 monthperiod for employee’s serious health condition.

o ADA – No specific limito Workers’ Compensation – “depends”

• Concurrent running – how it all works


• Medical Inquirieso FMLA – permitted using WH-380 (the optional U.S.

Department of Labor FMLA Medical Certification form).o ADA – permitted only if job-related and required by

demonstrated business necessity. Limited to determiningwhether the employee is able to perform the essentialfunctions of the position and whether an accommodationis needed.

o Workers’ Compensation – permitted if it pertains to theemployee’s on the job injury. Fairly liberal rules ofinvestigation. Maintain separate medical files.

4

CHOICE OF PHYSICIAN FORM

RECURRING PROBLEM AREAS

• Light Duty Assignments

WEIGHING THE “COSTS”

LIGHT DUTY WORK HOLDING THE POSITION MORALE & PRECEDENT DEDUCTIBLE / RATES

5


• Leave as an accommodationo Equal access to leaveo Unpaid leave in excess of FMLA

• Leave and the interactive process• Maximum leave policies

o Returning to Worko Part-time or Intermittento Job Reassignmentso Reinstatement

• Fitness for duty• Medical Inquiries• Attendance Policies


• Workers’ Compensationo “MMI”o Role of functional evaluations

QUESTIONS?

SUSAN [email protected]

RENEE [email protected]

6



Managing Employee Leave: Navigating the Bermuda Triangle of the FMLA, ADA, and Workers’ Compensation

Susan K. Sapp

Renee A. Eveland

I. The Basics A. The FMLA 1. What it does: a. The FMLA was intended to allow employees to balance

the demands of their work and family life by allowing for reasonable, unpaid leave for medical reasons, for the birth or adoption of a child, and for care of a child, and for the care of a child, spouse or parent who has serious health condition, and for the employee’s serious health

b. The FMLA provides to qualified and eligible employees

of a covered employer up to 12 workweeks or 26 workweeks of unpaid leave in a 12-month period, depending on the type of leave requested.

c. The employee may substitute paid leave for the unpaid

FMLA leave if the paid leave has been earned or accrued.

d. An employee on FMLA leave is entitled to have group

health plan benefits maintained while on leave as if the employee continued to work.

e. The employee at the conclusion of FMLA leave is entitled

to return to the same or to an equivalent position in terms of pay, benefits, and working conditions.

f. If the need for leave is foreseeable, employees are

required to provide notice 30 days before the leave is to commence. Where the need for leave is unforeseeable, employees are required to notify their employers “as

Managing Employee Leave: Navigating the Bermuda Triangle of the FMLA, ADA, and Workers’ Compensation Page 2

soon as practicable under the facts and circumstances of the particular case.”

g. Employers may also require an employee to provide a

medical certification to substantiate the need for leave because of a serious health condition.

2. When does it apply?

a. Applies to an employer which is defined as any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

b. The employee must be “eligible” and the employer must

be “covered.” (1) To be eligible, an employee must be employed by

the employer for at least 12 months, and (2) Employed for at least 1,250 hours of service

during the 12-month period immediately preceding the beginning of FMLA leave, and

(3) The employee must work at a worksite where 50

or more employees are employed by the employer within 75 miles of the worksite.

(i) The 75 miles is not measured “as the crow

flies.” It is measured using surface transportation over public streets, roads, highways and waterways by the shortest route from the facility where the eligible employee requesting leave is employed.

c. Issues about employee eligibility: (1) The 12 months of employment need not be

consecutive. If the employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave during which the employer provides other benefits or compensation (such as workers’ compensation benefits or group health plan benefits), the week counts as a week of employment. For employees hired on


intermittent, occasional, casual or similar basis, 52 weeks of employment is equal to the required 12 months.

(2) The 1,250 hour requirement is based upon the

number of hours the employee has worked for the employer under the Fair Labor Standards Act (“FLSA”). The employer has the burden of showing that the employee has not worked the required number of hours. If the employer cannot do so, the employee is deemed to have met this requirement.

(3) Whether the employee has worked for the

employer the required 12 months and 1,250 hours is determined as of the date the FMLA is to begin.

d. 12 workweeks of leave is provided to the following

“qualified” reasons: (1) For the birth of a child and to care for the

newborn child; (2) For placement of a child for adoption or foster

care; (3) To care for the employee’s spouse, child, or parent

with a serious health condition; or (4) For a serious health condition of the employee

that makes the employee unable to perform the essential functions of his or her job.

(5) For qualifying exigency arising out of the fact that

the employee’s spouse, child, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

e. 26 workweeks of leave is provided to eligible employee

to care for a covered service member with a serious injury or illness, if the employee is the child, parent, or next of kin of the covered service member.

3. Obligations for employers:


a. Employers must post required FMLA notices that

explain the FMLA’s provisions and that provide information about how to file complaints concerning violations of the FMLA with the U.S. Department of Labor’s Wage and Hour Division. These notices need to be posted prominently where they can be seen by employees and employment applicants. A copy of the latest FMLA notice provided by the U.S. Department of Labor for posting is at the end of this outline. If the workforce is comprised of a significant number of workers who are not literate in English, the notice should be provided in a language in which the employees are literate.

(1) Willfully failing to post required notices may lead

to civil money penalties of $110 for each separate offense. Employers who fail to post the required notice cannot take adverse action against an employee and cannot deny FMLA leave because of the employee’s failure to give the employer advance notice of the need to take FMLA leave.

b. Employers must include information concerning FMLA

entitlements and employee obligations in the employer’s employee handbook if there is one. If the employer does not have an employee handbook, the employer is required to provide written notice of the employee’s FMLA rights and obligations upon hire and each time the employer responds to a request for FMLA leave. The Wage and Hour Fact Sheet can be used for this purpose.

c. Employers should determine whether the employee is

eligible and qualified for FMLA leave when it is requested and designate the leave. When an employee requests FMLA leave or when the employer acquires knowledge that an employee’s absence may be for an FMLA-qualifying reason, the employer must provide notice of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.

d. Employers should provide an 8-point notice to the

employee requesting FMLA leave concerning the specific expectations and obligations of the employee no less often than the first time in a six-month period that an


employee gives notice of the need for FMLA leave. The notice should explain any consequences for failing to meet those expectations and obligations. This 8-point notice must be provided in a language the employee will understand. The notice should include as appropriate:

(1) That the leave will be counted against the

employee’s annual FMLA entitlement; (2) Whether a medical certification will be required

and the consequences of failing to submit a medical certification;

(3) The employee’s right to substitute paid leave and

whether the employer will require paid leave to be substituted for FMLA leave and the requirements for any substitution;

(4) Requirements for employee payment of the

employee’s share of health insurance premiums, arrangements for making such payments, and consequences for failing to make the payments in a timely way;

(5) Whether the employee will be required to provide

a fitness for duty certificate prior to being restored to employment;

(6) Whether the employee is a considered a key

employee, the potential consequence that restoration following leave may be denied if the employee is “key,” and the conditions for such restoration to be denied;

(7) The employee’s right to job restoration to the

same or to an equivalent job upon return from leave; and

(8) The employee’s potential liability for the

employer’s share of health insurance premium payments made by the employer during unpaid FMLA leave if the employee fails to return from FMLA leave.

e. Failure to provide a required notice may constitute an

interference with, restraint, or denial of the exercise of


an employee’s FMLA rights. As such, an employer may be liable for compensation and benefits lost due to violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered by the employee. In addition, Employers who fail to give the required notices cannot take adverse action against an employee for failing to comply with any provision that is required to be addressed in the required notices.

f. The prototype notice (WH-381) at the end of this outline

may be used and modified by employers as appropriate to give the required 8-point notice to employees requesting FMLA leave.

4. Employers who provide more generous benefits than FMLA: a. Nothing in the FMLA prevents an employer from

adopting or retaining more generous leave programs than guaranteed under FMLA. An employer may adopt or amend a leave policy so long as the policy complies at minimum with the FMLA.

b. If an employer provides greater unpaid family leave

rights than are afforded by the FMLA, the employer is not required to extend additional rights afforded by the FMLA, such as maintenance of health benefits (other than through COBRA), to the additional leave period not covered by the FMLA.

c. Courts have uniformly determined that a cause of

action under the FMLA is not created when an employer’s leave program exceeds FMLA requirements.

5. Key points for analysis: a. Is the employer covered? (1) Has the employer employed 50 or more employees

during each working day of 20 or more calendar workweeks in the current or preceding calendar year?


(i) If the employee is on the payroll, the employee is included within the count of employees, even though the employee may be on paid or unpaid leave. As long as the employer has the reasonable expectation the employee will return to work, the employee will be included within the count of employees to determine whether the employer is covered.

(ii) Is the employer an agent acting in the

interest of a covered employer or successor in interest of a covered employer?

(iii) Is the employer a public agency or a private

or public school? (2) Is the employee eligible?

(i) Employed at least 12 months? (ii) Employed for at least 1,250 hours in the

12 months preceding FMLA leave? (iii) Employed at a worksite where 50 or more

employees are employed within a 75 mile radius of the worksite?

(iv) Employed within the 50 states, D.C. or any

territory or possession of the U.S.?

(3) Does the employee’s reason for leave qualify for leave under the FMLA?

(i) For the birth of a child and to care for the

newborn child; (ii) For placement of a child for adoption or

foster care; (iii) To care for the employee’s spouse, child, or

parent with a serious health condition; (iv) For qualifying exigency arising out of the

fact that the employee’s spouse, child, or parent is a military member on covered


active duty (or has been notified of an impending call or order to covered active duty status);

(v) To care for covered service member with a

serious injury or illness, if the employee is the child, parent, or next of kin of the covered service member;

(vi) For a serious health condition of the

employee. 6. Definitions: a. A “serious health condition” is an illness, injury, impairment,

or physical or mental condition that involves:

(1) Inpatient care, including any period of incapacity (an inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, or recovery from it), or any subsequent treatment related to the inpatient care;

(2) Continuing care by a health care provider: A serious health condition involving continuing care by a health care provider includes:

(i) A period of incapacity of more than three

consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition, that also involves:

1) Treatment 2 or more times by a health care

provider, a nurse, or physician’s assistant (“PA”) or by a provider of health care services under order by a health care provider; or

2) Treatment by a health care provider at least

once that results in a regimen of continuing treatment under the supervision of the health care provider.

(3) Any period of incapacity due to pregnancy or for

prenatal care.


(4) Any period of incapacity or treatment for the incapacity

due to a chronic serious health condition, which is one that:

(i) Requires periodic visits for treatment by a health

care provider, or by a nurse or PA under the direct supervision of a health care provider;

(ii) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(iii) May cause episodic rather than a continuing period of incapacity.

(iv) Examples: Asthma, diabetes, epilepsy, etc.

(5) A period of incapacity which is permanent or long-

term due to a condition for which treatment may or may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment, by a health care provider. Examples: Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(6) Any period of absence to receive multiple treatments

including any period of recovery from such treatments by a health care provider or by a provider of health care services under orders of a health care provider, either for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer, severe arthritis, kidney disease.

* Colds, flu, ear aches, upset stomachs, ulcers, headaches, other than migraine headaches, routine dental or orthodontia problems, periodontal disease, etc. are not generally considered serious health conditions unless other complications are present that meet the terms of the definition of a serious health condition.


b. The definition of “treatment” includes examinations to determine whether a serious health condition exists. It does not include routine eye exams, physicals, or dental exams.

c. A “regimen” of continuing treatment includes a course of

prescription medications or therapy requiring special equipment to resolve or alleviate a serious health condition. A regimen of treatment that includes over-the-counter medications, bed rest, fluids, exercise, or the like, by themselves is not sufficient to constitute a regimen of continuing treatment by a health care provider.

d. Parent is defined as biological, foster, or adoptive parent;

stepparent; legal guardian. It does not include parent-in-law or grandparent.

e. Child is a biological, adopted, or foster child, a stepchild, a

legal ward, a child of a person who stood in place of his/her parent, who is under 18; or a child over 18 but incapable of self-care because of mental or physical disability.

B. The ADA 1. What it does: a. The Americans with Disabilities Act (the “ADA”)

prohibits discrimination against employees and applicants for employment on the basis of disability. The statute is intended to prevent discrimination in employment against “qualified” individuals who have a disability with regard to job application procedures, employment, and any other terms or conditions of employment.

2. When does it apply? a. Employers of 15 or more employees for 20 workweeks

in the current or preceding calendar year are covered by the ADA.

b. A person is protected by the ADA if he or she is a

qualified individual with a disability as defined by the statute. A person is “disabled” if the individual has:


(1) A physical or mental impairment that substantially limits one or more of the individual’s major life activities;

(2) A record of such an impairment; or (3) Being regarded as having such an impairment. c. Note that the ADA’s protection does not depend on how

long an employee has been with the employer. d. Examples of major life activities: (1) Caring for one’s self (2) Doing manual tasks (3) Walking (4) Seeing (5) Hearing (6) Speaking (7) Breathing (8) Learning (9) Working (i) The inability to perform a single, particular

job does not constitute a substantial limitation in the major life activity of working.

(10) Operation of a major bodily function, including

but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(11) Other examples from jurisdictions across the

country including standing and sitting, lifting, reading, and sleep impairment.


(12) In considering whether the individual is covered

by the ADA, the employer is not required to analyze the individual’s situation as to every “major life activity.” Instead, the employer is required to consider only the major life activity claimed as impaired by the employee.

d. What is a “substantial limitation”?

(1) To be protected by the ADA, the individual’s impairment of a “major life activity” must be severe enough to constitute a substantial limitation on the major life activity. To substantially limit a major life activity means to render an individual unable to perform a basic function that the average person in the general population can perform, or to significantly restrict the condition, manner, or duration under which an individual can perform a particular life activity as compared to an average person in the general population.

(2) The substantial limitation does not have to rise to

the level of an “utter inability,” however. (3) Courts consider the following factors: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the

impairment; and (iii) The permanent or long-term impact of the

impairment. (4) In determining whether an individual is

substantially limited as to the major life activity of work, the employer must consider the following factors:

(i) The geographical area to which the

individual has reasonable access; (ii) The job the individual has been disqualified

from because of the impairment;


(iii) The number and type of jobs that use

similar skills, training, knowledge or ability, within the geographical area from which the individual is also disqualified because of the impairment; and/or

(iv) The job from which the person has been

disqualified because of the impairment, and the number and types of jobs not utilizing similar training, knowledge, skills, or ability within the geographical area (class of jobs) from which the individual is also disqualified because of the impairment.

(5) The ADA protects persons with permanent illness

or short-term illness or other impairment that has long-lasting effects or is a symptom of an underlying disabling condition. A mere “predisposition to illness” does not qualify as an ADA disability.

(6) Conditions that recur or are chronic may be symptoms of an underlying permanent disability, however.

(7) Employers should be cautious concerning changed conditions. An employee who at one time is determined to be not disabled may later become disabled due to a change in circumstances or health condition.

(8) A disabled individual is a qualified individual with a disability, and, therefore, protected by the ADA’s employment provisions, if he or she can perform the essential functions of a position with or without a reasonable accommodation.

(9) A reasonable accommodation must be provided to a disabled employee unless the employee would be a direct threat to the health or safety of the employee or others, or providing a reasonable accommodation would pose an undue hardship on the employer.


3. Key points for analysis: a. Is the employer covered by the ADA? b. Is the individual “disabled” as defined by the ADA? (1) Does the claimed impairment substantially

impair one or more major life activities?

(2) Does the person have a record of having such an impairment or is he or she regarded as having such an impairment?

(3) Is the impairment permanent or if temporary, does it have long-lasting effects or is a symptom of an underlying disabling condition?

c. Is the individual a “qualified individual” with a

disability? (1) What are the essential functions of the position? (2) Can the individual perform the essential

functions of the position with or without a reasonable accommodation?

(3) Does the individual pose a direct threat to the

health or safety of him or herself and others? (4) Would providing the reasonable accommodation

be an undue hardship on the employer? d. Other employer obligations: (1) The ADA also requires employers to post notices

advising employees of their rights under the ADA. (2) The employee should request a reasonable

accommodation, however, where an employee’s disability is obvious, the employer can initiate the dialogue with the employee concerning whether a reasonable accommodation is needed.

(3) Qualified individuals with a disability are entitled

to the same terms and conditions of employment as other, non-disabled employees.


(4) ADA Amendments Act of 2008 (“ADAAA”): (i) The House and Senate have passed

sweeping changes to the ADA, and President Bush signed the legislation on September 25, 2008.

(ii) The amendments effectively overturn

Supreme Court cases that have narrowly construed who has a “disability” under the ADA. Under these cases, physical and mental impairments do not rise to the level of an ADA “disability” if the impairment is controlled with medication, assistive devices (like hearing aids), or do not prevent or significantly restrict an individual from performing a major life activity. Now, the amendments prohibit consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining whether an impairment constitutes disability.

(iii) The amendments also lower the standard

to prove an employer discriminated against an individual whom it “regarded as” having a disability. The amendments do, however, clarify that “regarded as” claims cannot be based on minor or temporary impairments that are expected to last less than six months.

C. Workers’ Compensation 1. What it does: a. Workers’ compensation statutes are designed to

compensate injured workers for the effects of work-related injuries. The primary purposes of workers’ compensation statutes are to insure employees against accidental injury, to do justice to workers without expensive litigation and unnecessary delay, and to compensate employees for injuries suffered at work.


b. Workers’ compensation claims are governed by the Nebraska Workers’ Compensation Act and case law interpreting those statutes.

c. Traditionally the emphasis in the workers’

compensation system has been on what the injured employee cannot do. The system was designed to pay the medical expenses or injured employees and to compensate them while they convalesced. Benefits historically have been calculated based upon what an individual is unable to do. This contrasts with the ADA as attitudes now are more likely to focus on the abilities of workers, not their limitations.

d. Workers’ compensation statutes require that an

employer must provide reasonable and necessary medical treatment, temporary and/or permanent disability benefits, and possibly vocational rehabilitation for employees who suffer work-related injuries or illnesses.

e. The statutes generally cover private or state entities that

use the services of one or more persons for pay. f. For the most part, anyone who serves another is covered

by workers’ compensation statutes if the individual: (1) Incurs an injury or occupational disease that

arises out of and in the course of employment; or (2) Has a pre-existing injury that is aggravated or

accelerated during employment. g. An injury or occupational disease is compensable only

if it “arises out of and in the course of employment.” h. Employees who engage in willful negligence, such as

blatant disregard of safety procedures or intoxication at the workplace, are excluded from workers’ compensation coverage in most jurisdictions.

i. Certain categories of employees, such as household

domestic workers or farm laborers, may be excluded from coverage under the workers’ compensation act.


j. In order to be compensable, workers’ compensation injuries need not be severe enough to limit a major life activity as defined by the ADA or they may be temporary in nature and, thus, not included in the protection of the ADA.

2. Employers may not take adverse employment action against

employees or discriminate against employees who file workers’ compensation claims. Termination from employment does not end an employer’s obligation to continue providing the workers’ compensation benefits required by law. Employers need to be mindful of constructive termination or demotion that can be seen as retaliatory against an employee for filing a claim.

3. Whether health insurance benefits or other employment benefits need to be maintained for an employee who is on workers’ compensation leave may vary by jurisdiction.

4. Workers’ compensation statutes may differ from the FMLA and ADA in terms of the definition of “employer.” Certain employer who attempt to engage a “subcontractor” or “independent contractor,” must take caution. Workers may be considered “statutory employees” and liable for workers’ compensation benefits for them. [Neither the FMLA nor the ADA contains similar provisions that would hold an employer liable for acts of a subcontractor.]

II. Managing the Sick and Injured A. The FMLA and its Relationship with the ADA:

1. The FMLA and the ADA are to be applied to assure that the most generous provisions of the two statutes apply to individuals with serious health conditions who are also qualified individuals with a disability.

2. The FMLA does not modify or affect any state or federal law prohibiting discrimination on the basis of race, religion, national origin, sex, age, or disability (this includes the ADA).

3. The leave obligations of the FMLA are completely distinct from the reasonable accommodation requirements of the ADA.


a. Note, however, that the FMLA and the ADA provide simultaneous protection and at all times an employer is required to comply with both laws.

b. Employers are required to provide leave under

whichever statutory provision gives the most protections to an employee.

c. If an employer violates the ADA and the FMLA, the

employee may make a claim against the employer under either or both statutes (an employee may not be awarded double relief for the same loss, however).

4. If an employee is a qualified individual with a disability under

the ADA, the employer is required to provide a reasonable accommodation unless the employer is excused from doing so under the ADA. Further, the employer must provide FMLA rights to the employee if the FMLA is applicable.

a. An employee’s rights under each statute must be

analyzed separately. b. “Reasonable accommodation” and “serious health

condition” are separate concepts that need to be considered separately.

(1) A particular medical condition may fall under

both statutes’ applicable definitions, under only one statute’s definition, or under neither statutes’ definition.

B. The FMLA, the ADA, and Their Relationship to Workers’

Compensation: 1. Different Objectives: a. The ADA’s objective is to enforce the principle of

nondiscrimination because of disability.

b. The FMLA was designed to balance the demands of the workplace and the need of families, to promote economic security of families, to promote national interests in preserving family integrity, and provide leave for medical reasons.


c. The objective of workers’ compensation is to give quick and certain compensation under state law to workers suffering from an accidental injury or disease arising out of and in the course of employment.

2. Work-Related Injuries: a. Work-related injuries are covered by the ADA only if the

injury constitutes a “disability” within the meaning of the ADA.

b. Work-related injuries are covered by the FMLA only if

the injury constitutes a “serious health condition” within the meaning of the FMLA.

c. If the employee is certified by a physician to return to a

light duty position, the employee may return to such a position, but is not required to do so under the FMLA. If the employee declines to return to work, he or she may lose workers’ compensation benefits, but would continue to be entitled to FMLA leave until able to return to work or until the FMLA leave was exhausted, whichever happens first. If the individual is a qualified individual with a disability, rights under the ADA would need to be considered as well.

d. An employee may have a record of impairment, such as

a previous workers’ compensation injury that substantially limited the employee’s major life activities, or may be regarded as having an impairment, as in the case of the employee with a back injury whose physician provides a release to return to work when the employer questions whether the employee truly can perform at the required level of exertion.

(1) If the employee has a record of impairment or is

regarded as having an impairment because of a work-related injury, the employee will be protected by the ADA.

(2) An individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. As the definition of a “record of” impairment includes a limitation on the


person’s ability to perform a major life activity, every person who files a workers’ compensation claim does not have a record of impairment under the ADA.

e. Another distinguishing feature when comparing

workers’ compensation injuries against qualifying medical conditions under the FMLA and ADA may be that some state statutes define a person as disabled when the individual retains the ability to perform the essential functions of the job. Many state workers’ compensation acts provide that if an employee injures certain body parts, the employee is by definition permanently and totally disabled.

(1) If, for example, an individual loses the use of both

legs in an employment accident, even though that person may be permanently and totally disabled by statute, he or she may still be able to perform the essential functions of many jobs.

(2) In this example, for the purpose of the workers’

compensation act, the worker could be considered to be permanently and totally disabled but under the ADA the worker would be considered a qualified individual.

3. Workers’ Compensation Absences and FMLA Leave: a. The FMLA provides that an employee may be on a

workers’ compensation absence due to an on-the-job injury or illness which also qualifies as a “serious health condition” under the FMLA.

b. Workers’ compensation absences and FMLA leave may

run concurrently (subject to proper notice and designation by the employer). In fact, the employer should designate it as such.

(1) For example, if an employee has been on a

workers’ compensation absence for an injury, it can be designated as FMLA leave as well, to run concurrently. Otherwise, the employee can return following a work comp injury absence and still retain full FMLA leave.


(2) FMLA leave is capped whereas workers’ compensation leave is not (or not in the same way). That is, the 12 work week maximum under the FMLA does not limit the length of leave under workers’ compensation or the ADA.

4. The ADA and Workers’ Compensation: a. The ADA preempts inconsistent state laws. An employee

can, therefore, pursue an ADA claim for discrimination as a result of a work-related injury.

b. Employers should use care in workers’ compensation

cases not to make statements as to the “disability” of the injured employee. Those statements potentially could have more significance in a subsequent action under the ADA than the employer intended. Likewise, statements made by the employee regarding his/her ability to perform the essential functions of the job may affect a later claim that the employee is entitled to the protection of the ADA.

(1) Statements the employee makes while applying

for disability benefits, such as Social Security disability, may be relevant to an employee’s action under the ADA or in a workers’ compensation action. The ADA Enforcement Guidance states that such statements are not conclusive proof that a claim under the ADA should fail.

5. Workers’ Compensation Benefits and Paid Leave: a. While FMLA leave may run concurrently with a workers’

compensation absence, payments provided by workers’ compensation funds are not considered “accrued paid medical or sick leave” within the meaning of the FMLA.

b. Where an employee is receiving payments vis-à-vis

workers’ compensation, the employee may not elect, nor may the employer require the employee, to exhaust any form of paid leave provided by the employer during any portion of the absence covered by the workers’ compensation payments.


c. During an FMLA leave when workers’ compensation or temporary disability benefits are paid, (1) the substitution rules do not apply and (2) the employer may restrict and limit entitlements to the benefits in question to the extent otherwise lawful.

d. Employers can no longer utilize “integrated programs”

wherein the employer required the employee to utilize paid sick leave, vacation and paid personal time off in partial day increments so the amount paid plus any workers’ compensation payments equaled 100% of the employee’s regular wages.

C. Recurring problem areas:

1. Light Duty: There is no obligation under the FMLA to create a light duty job for an individual who is to return from FMLA leave. Further, the employee is under no duty to return early from FMLA leave to take a light duty job.

a. The ADA does not require employers to establish

permanent light duty jobs as a reasonable accommodation and does not require the employer to restructure the entire position, by removing or reallocating its essential functions. Reassignment to a vacant position may be used as a reasonable accommodation, however.

b. Light duty positions are not mandated by workers’

compensation laws. However, such positions may help reduce an employer’s exposure for temporary or permanent disability benefits or vocational rehabilitation benefits. If a legitimate job offer within the injured worker’s physical capabilities is extended to the employee, and the employee refuses to accept the light duty position, he or she may lose temporary total disability benefits.

2. Leave as an accommodation: An employee could be a qualified

individual with a disability who is entitled to a reasonable accommodation. If the FMLA also applies, the employee could be entitled to 12 workweeks of FMLA leave. However, if leave is used as a reasonable accommodation, an employer may be


obligated to provide an indeterminate amount of leave under the ADA.

Equal access to leave Unpaid leave in excess of FMLA Leave and the Interactive Process Maximum leave policies

3. Returning to work: At the end of FMLA leave, an employer is

required to restore the employee to the same or to an equivalent position which the employee held when leave began. If the employer offered the employee the same position with equivalent pay and benefits, the employer’s job restoration obligation would be satisfied under the FMLA. Under the ADA, if the employee is a qualified individual with a disability and is unable to return to work because of the disability, the employer may offer additional leave, part-time work, or a reassignment to a vacant position as a reasonable accommodation, unless to do so would cause undue hardship to the employer. Under workers’ compensation systems, if an employer is unable to allow the employee to work after a compensable injury or cannot accommodate the employee’s new restrictions, for example, there may be an obligation to pay for the cost of vocational rehabilitation services.

a. An employer cannot require an employee who is entitled

to FMLA leave to take a job as a reasonable accommodation. The ADA may require an employer to offer the employee such a job as a reasonable accommodation, however.

b. If the employee is unable to return to work following

FMLA leave, the employee no longer has rights under the FMLA, and must look to the ADA or workers’ compensation statutes for further protections.

c. What if the employee doesn’t know whether he or she

will be physically able to return to work? Under the FMLA, the employer may have to allow the 12 weeks of leave even if the employee doesn’t know whether return to work will be possible. Under the ADA, the employer may be able to terminate the employee if he or she is unable to inform the employer as to whether return to work is likely. Under workers’ compensation systems, the employer must wait until the injured worker attains


maximum medical improvement (MMI) before return to work issues and potential permanent effects of the injury can be fully addressed.

4. Part-time or Intermittent Leave: An employer may provide a

qualified individual with a disability with a part-time job as a reasonable accommodation. Because the employer does not provide health insurance benefits to part-time employees, the employer would not be obligated to do so for a disabled employee. However, if the same employee was eligible for FMLA leave, the employee could take part-time leave and have his or her group health plan benefits maintained for up to 12 workweeks.

a. Part-time or intermittent leave may be a reasonable

accommodation under the ADA unless undue hardship would result.

b. An employee may not be entitled to intermittent leave or part-time leave under workers’ compensation statutes. However, allowing employees to take such leave on a temporary basis may provide cost savings for the employer. If the injured worker establishes that the need for intermittent or part time leave is permanent, the worker may be able to prove a loss in his or her earning power.

5. Job reassignments: The FMLA allows employers to transfer

employees who need part-time or intermittent leave to another job that better accommodates the employer’s needs in addressing the absence. However, the ADA only permits reassigning an employee to another position as an accommodation if the employee cannot perform the essential functions of his or her position and a reasonable accommodation is not possible in the employee’s current position. Vocational rehabilitation priorities established under workers’ compensation systems in some jurisdictions may provide that before a new job with a new employer or a formal education are pursued for an injured worker, alternative options for employment within the company are evaluated.

6. Limitations on Employee Reinstatement: An employee is not

protected from actions that would affect him or her if the employee was not an FMLA leave. An employee has no greater right to reinstatement or to other benefits and conditions of


employment than if the employee had been continuously employed during an FMLA leave period.

a. If an employee is laid off during the course of taking

FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health benefits and restore the employee cease at the time the employee is laid off (provided the employer is not bound by other contractual obligations).

b. If a shift has been eliminated, or overtime has been

decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration.

c. If an employee was hired for a specific term or only to

perform work on a discrete project, the employer has no obligation to restore the employee if the employment term or project is over and the employer would not otherwise have continued to employ the employee.

7. Fitness for Duty Certifications: Fitness for duty certifications

are permitted by the FMLA provided an employer follows a uniform policy in requiring them. The FMLA also requires that the employer give notice that the fitness for duty certification will be required, either in its employee handbook and the notice given to the employee in response to the request for FMLA leave or in a separate written notice.

a. The certification can only relate to the condition for

which FMLA leave was requested. If intermittent or reduced leave is taken, no fitness for duty certification can be required under the FMLA. However, an employer is entitle to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his or her duties, based on the serious health condition for which the employee took such leave .

b. No second or third opinions are permitted as to fitness

for duty certifications under the FMLA. c. A health care provider employed by the employer may

seek clarification, with the employee’s consent, from an employee’s health care provider concerning the fitness


for duty certification under the FMLA. The employee’s restoration to employment cannot be delayed while contact is being made with the employee’s health care provider about the fitness for duty certification.

d. If the employee is a qualified individual with a disability,

the policy concerning fitness for duty certifications following FMLA leave must comply with ADA requirements that the inquiry be job-related and consistent with business necessity.

(1) Fitness for duty certifications are permitted by

the ADA where: (i) There is a need to determine whether an

employee is able to perform the essential functions of the position;

(ii) The certification is needed as part of the

reasonable accommodation process; (iii) The certification is required by federal,

state, or local law; or (iv) In all circumstances, must be job related

and consistent with business necessity.

e. Nothing in the Nebraska Workers’ Compensation Act, prevents an employer from requesting fitness for duty certifications or otherwise obtain clarification from medical providers or obtaining functional capacity evaluations to ascertain the employment duties the injured worker is capable of safely performing. Medical inquiries and access to medical records are liberal, more so than under the FMLA and the ADA. Descriptions of the work duties that could be performed by the injured worker may be used to:

(1) Help define parameters for physical therapy,

occupational therapy, or work hardening programs

(2) Identify jobs to which the employee could return (3) Evaluate whether the employee is entitled to

temporary disability benefits


(4) Determine whether the worker has reached the

point of maximum medical improvement (MMI) (5) Serve as the basis for a loss of earning power

assessment or other permanent disability benefits

(6) Assess whether the injured worker is

permanently and totally disabled 8. Medical Inquiries: If an employee submits a complete and

sufficient medical certification under the FMLA, the employer cannot request additional information from the health care provider. Additional information beyond the information requested in WH-380 (the optional U.S. Department of Labor FMLA Medical Certification form found at the end of this outline) cannot be requested. However, a health care provider representing the employer, with the employee’s permission, may contact the employee’s health care provider to obtain clarification and to determine the authenticity of the certification.

a. Where the FMLA leave is running concurrently with a

workers’ compensation absence, state law permits direct contact between the employer/insurer and the health care provider. Consequently, the employer may follow the provisions of the workers’ compensation statute in making inquiries to the employee’s health care provider. Generally the employer may be entitled to gather any information from medical providers under the workers’ compensation system that is relevant to the claim for benefits.

b. The FMLA permits the employer to seek and obtain

second opinion concerning a medical certification where its validity is doubted. The employer may provisionally designate the leave as FMLA leave until the second or third opinion is received and during that time, the employee is entitled to the benefits and protections of the FMLA. These opinions are sought at the employer’s expense and cannot be obtained from a health care provider who is employed on a regular basis by the employer in most circumstances. The employee and his or her family members are entitled to reimbursement


from the employer for reasonable out-of-pocket expenses related to obtaining the additional opinions.

c. Under the FMLA, if the opinions of the employee’s

health care provider and the second opinion differ, a third opinion may be sought and obtained from a health care provider approved jointly by the employer and employee. The third opinion is binding and final.

d. The ADA permits disability-related medical

examinations and inquiries under the following circumstances:

(1) There is a need to determine whether the

employee is able to perform the essential functions of the position;

(2) The examination or inquiry is needed for the reasonable accommodation process;

(3) The examination or inquiry is required by applicable federal, state, or local law; or

(4) If the examination or inquiry is job-related and required by demonstrated business necessity.

e. The ADA does not address the identity of the health care

provider who will supply the information concerning the employee.

f. Notably, the ADA’s requirements concerning medical

examinations and inquiries apply to all employees, not just to those who are disabled.

g. Under state workers’ compensation acts, employers

may have the right to have the injured employee evaluated by a medical provider at the employer’s expense. The employee is reimbursed for reasonable out-of-pocket expenses associated with the examination, such as mileage.

9. Attendance Policies: Employees under the FMLA are to be

treated as if they are not on leave for purposes of applying an employer’s attendance policy. In other words, the taking of FMLA leave cannot be counted against an employee under an employer’s attendance policy.


a. Under the ADA, attendance policies may be applicable

if attendance is an essential function of the job. b. When an employee is within the workers’ compensation

system due to an injury, the employer must be careful to document the reasons for adverse personnel action against an employee having nothing to do with the injury or claim itself. Any adverse action must have a non-discriminatory, business-related purpose. The employee must be treated as other employees who do not have pending claims.

These materials and program are being offered as an outline of general information on the subject to assist in the development and implementation of employment practices and policies. They are offered for educational and information purposes only and are not intended as legal advice. 4816-4310-8663, v. 1

THE TIMES, THEY ARE A CHANGIN': IMPLEMENTING CHANGES TO THE FLSA'S

WHITE-COLLAR EXEMPTIONS

PRESENTED BY HENRY WIEDRICH



HENRY L. WIEDRICH [email protected]

(402) 397-1700

Practice Areas:

Business Litigation Employment Litigation Labor & Employment


Nebraska Iowa United States Court of Appeals, Eighth Circuit United States Court of Appeals, District of

Columbia Circuit United States District Court for the District of


Colorado United States District Court for the District of

Northern District of Illinois United States District Court for the District of

Northern District of Iowa United States District Court for the District of

Southern District of Iowa

Education:

University of Nebraska College of Law, J.D., with high distinction, 2007

University of Nebraska, B.S., Civil Engineering, 2004

HENRY L. WIEDRICH

Practice Emphasis: Henry concentrates his practice in the area of labor and employment. He helps large and small businesses with daily and long-term compliance with federal, state and local employment laws, the development and implementation of best employment practices, advice on employment and termination decisions, and employment-based litigation and administrative actions, including guidance on Title VII, the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), state discrimination and leave laws, workers’ compensation and non-compete provisions. Henry drafts employment policies and handbooks, employment and independent contractor agreements, non-compete and confidentiality agreements and training materials for clients. He also assists clients with wage and hour audits, helping employers identify areas of compliance and non-compliance with applicable laws.

In his litigation practice, Henry represents employers in state and federal courts, as well as before federal and state administrative agencies, such as the Equal Employment Opportunity Commission (EEOC), the Nebraska Equal Opportunity Commission, the Iowa Civil Rights Commission, and the National Labor Relations Board (NLRB). Henry has defended employers against claims of discrimination, harassment, retaliation and wrongful termination. He regularly helps employers enforce non-compete and confidentiality provisions.

He also appears in state and federal court on commercial litigation matters, including cases involving claims of breach of contract, complex business disputes, product liability, securities fraud, patent, trademark and copyright infringement, unfair competition, defamation, premises liability, eminent domain and government contract procurement disputes, among others.


Listed: Great Plains Super Lawyers (Laborand Employment Rising Star)

Board Member, Southwest YMCA

1

THE TIMES, THEY ARE A CHANGIN’ :

IMPLEMENTING CHANGES TO THE FLSA’S WHITE-COLLAR EXEMPTIONS

JASON YUNGTUM/TARA STINGLEYHENRY WIEDRICH

Come gather ’round employersWherever you roamAnd admit that exempt salariesAround here have grownAnd if you don’t change You’ll be paying overtime out the nose If your business to you is worth savin’Then you better start payin’, or hourly go For the times they are a-changin’

ROBERT DYLAN, SPHRDirector of Human ResourcesWatchtower Consultants, LLC

**This may or may not be on President Obama’s summer playlist.

OVERVIEW• What are the regulatory changes to the Fair Labor Standards Act?

• What hasn’t changed?

• What steps should be taken to implement the changes?

• What challenges will your business face in implementing the

changes?

• How to overcome those challenges?

• What opportunities do these changes present?

2

THE FAIR LABOR STANDARDS ACT• The Fair Labor Standards Act (“FLSA”) is a Federal law (29 U.S.C. § 201 et seq.) that

establishes minimum wage, overtime pay, recordkeeping, and youth employment standards forcovered employers in the private and government sectors. It also establishes certainexemptions to minimum wage and overtime—including the white collar exemptions.

• Enterprise Coverage = 2 employees + Annual $ volume or sales/business > $500,000or

2 employees + either a hospital, a business providing medical or nursing care for residents, a school or preschool, or a government agency

• Individual Coverage: Even if there is no enterprise coverage, employees are covered by theFLSA if their work regularly involves them in interstate commerce (very broad). (i.e. producinggoods for sale in interstate commerce, contacting people in other states, etc.)

• Most employers are covered by the FLSA.

• Employees of covered employers, unless otherwise exempt, must be paid at least minimumwage for all hours worked and overtime at time and one-half for hours worked over 40 in aworkweek. Accurate tracking and recordkeeping of hours worked.

• Under the FLSA, the United States Department of Labor (“DOL”) is granted the authority to pass regulations implementing the FLSA, including rules regarding overtime requirements and exemptions to the overtime requirements—including the white collar exemptions (executive, administrative).

• See 29 CFR Part 541 – “Defining and Delimiting the Exemptions for Executive,Administrative, Professional, Computer and Outside Sales Employees”

• Thus, when determining whether the white collar exemptions apply, we look to theFLSA regulations for the applicable rules and how to apply them.

• SOME OF THOSE RULES WILL CHANGE EFFECTIVE DECEMBER 1, 2016.

FLSA REGULATIONS

• Generally speaking, to qualify for a white collar exemption, an employee must meetcertain tests regarding the job duties performed AND must be paid on a sufficientsalary basis.

• Example – Requirements for Executive Exemption. To qualify for the executiveemployee exemption, all of the following tests must be met:

o The employee must be compensated on a sufficient salary basis (as definedin the regulations);

o The employee’s primary duty must be managing the enterprise, or managinga customarily recognized department or subdivision of the enterprise;

o The employee must customarily and regularly direct the work of at least twoor more other full-time employees or their equivalent; and

o The employee must have the authority to hire or fire other employees, or theemployee’s suggestions and recommendations as to the hiring, firing,advancement, promotion or any other change of status of other employeesmust be given particular weight.

TEST FOR EXEMPTION

3

SALARY BASIS TEST• What does it mean to be paid on a salary basis?

o The employee is paid the same amount each pay period regardless of the quality orquantity of the work performed, if any work is performed.

o Limited exceptions (deductions for full day personal absences, deductions in accordancewith bona fide sick leave plan, etc.).

o See 29 CFR § 541.602

• What is the minimum (i.e. sufficient) amount of salary to be paid to qualify for thestandard white collar exemptions under OLD regulations?

o $455/week, which equates to $23,660/year

o If using the Highly Compensated Employee exemption, the employee must receive the$455 weekly salary amount and his/her total annual compensation must be at least$100,000.

o Nondiscretionary bonuses cannot be used to satisfy the salary amount.

WHAT IS CHANGING ON DECEMBER 1?• The minimum exempt salary for the white collar exemptions is increasing from $455/week or

$23,660/ year to $913/week or $47,476/year.

• The minimum exempt salary will automatically update (i.e. increase) every three years. Itwill be set at the 40th percentile of full-time salaried workers in the lowest income region ofthe country, which is currently the South. Thus, this will be an ongoing compliance issue -ensuring salaries fall above the minimum salary amount to maintain the exemption. Thenext update will be on Jan. 1, 2020, and current projections put that figure at $51,168/year.

• Employers will now be able to use non-discretionary bonuses, incentives, and commissions toaccount for up to 10% ($4,747) of the salary requirement, if paid on at least a quarterly basis.But this does not apply to highly compensated employees. Examples: bonus for meetingproduction/profit goals, retention bonuses, commission payments based on fixed formula.Must be set/objective.

• The highly compensated employee exemption threshold has increased from $100,000/year to$134,004/year.

WHAT IS NOT CHANGING ON DECEMBER 1?• Duties test remains unchanged.

• There was much discussion about whether the duties tests would be modified, particularly with regards to what is a “primary duty.”

• On the “primary duty” issue, the discussion was whether a California-inspired 50%of working time should be adopted in considering what are “primary duties”.

• Under the current regulations, the term “primary duty” means “the principal, main, major or most important duty that the employee performs.” Many factors are looked at, including relative importance of the duty, time spent performing exempt work, supervision, etc.

• Time spent is a useful guide (and I am more comfortable when exempt work takes more than 50% of the time), but it is not the sole test. See 29 CFR 541.700

• Tabled FOR NOW.

4

WHAT IS NOT CHANGING ON DECEMBER 1?

• No additional slack on showing the employee meets theduties requirements, just because they are paid more now.

• Do not be fooled into thinking that you simply have to paythe employee more now, and your other worries about thework they are doing go away.

• An employer can increase an employee’s salary above thenew threshold and the employee may still not be properlyexempt, depending upon their actual job duties. The sameconcerns/issues are still present.

PUTTING THE INCREASE IN PERSPECTIVE• In Nebraska, when it comes to compliance with employment laws, we like to joke:

“Well, at least we’re not California.” Well…

• In 2017, 2018, and 2019, the California state law is actually less protective on the issue of white-collar exemptions. The minimum salary threshold for the California exemptions is currently $41,600.

• By 2020, California gets back to being California and will have a projected threshold of $54,080 v. the $51,168 for projected federal threshold.

• By 2022, California becomes Uber-California and will have a $62,400 threshold.

• Proponents say this big jump in the federal rules was needed because it hadn’t been adjusted since 2004. But it is a big jump.

IMPLEMENTING THE CHANGES: IDENTIFYING AND ADDRESSING THE AFFECTED EMPLOYEES

• STEP 1: Identify exempt employees whose pay currently falls between the previous threshold ($23,600/year) and the new threshold ($47,476/year), or are highly compensated employees and make between the old ($100,000) and new ($134,004) thresholds. These are the employees on which adjustments will be needed.

• STEP 2: Make a financial/practical assessment of the affected employees.o How much are they currently paid? Near the threshold?o How many hours are they generally working (if you know; if not start tracking)?o Based upon expected workload, what are anticipated overtime costs if the employee

becomes non-exempt?o Can hours be limited to 40 per week and accomplish necessary tasks?o Are there any quarterly, nondiscretionary bonuses, incentives, or commissions that can

help close the gap?o Consistency?o Ongoing chasing of the threshold?o Was the previous classification correct?

5

IMPLEMENTING THE CHANGES• STEP 3: Make a decision on the affected employees—whether to keep them

exempt and adjust their pay accordingly or move them to non-exempt status and adjust their pay accordingly.

• STEP 4: Communicate the changes to employees. (More on this later)

• STEP 5: If an employee is changed from exempt to non-exempt, they will needtraining and reminders on tracking time and life as a non-exempt employee.

o Record timeo Approval to work overtime?o Adjust work routines: No working through lunch or staying lateo No working off the clocko Smartphones and e-mail access!!!!!o BIG CHALLENGE IS CHANGING HABITS.

POTENTIAL OPTIONS• Increase the salary to make them exempt.

• Move to non-exempt, pay them hourly, and pay them overtime over 40 hours per week. Limit OT to control costs.

• Move to non-exempt, pay them hourly, and reduce the hourly rate so that total compensation with OT remains the same.

• Move to non-exempt, pay on salary, but pay for OT (I don’t particularly like this option, although it can be structured in numerous ways).

• Hire part time workers to offset reduced workload of employees now working less.

• Reduce benefits and/or other costs?

OVERCOMING EMPLOYEE CONCERNS• How you communicate the changes, the reasons for the changes, and their effects

will have a huge impact on how well the changes are received.

• Common Concerns for Employees Moving to Non-Exempt Status• Demotion?

o Response: How pay is calculated, not their relative position.• Advancement?

o Response: Career path unchanged?• Make Less $?

o Response: Paid for every hour worked, including OT.o Response: Moving to Hourly? How does the math work out? Equivalent?o Response: Staying at Salary but paying OT?

• Loss of Flexibilityo Response: Recording time means being paid for every hour worked,

including OT.

6

OTHER COMMUNICATION TIPS• Who is the point person for the communication? Consider someone other than

employee’s manager. HR?

• Clearly explain that the changes are needed because of changes by the federalgovernment. Not a performance issue. Objectively required.

• Emphasize paid for every hour worked.

• Train your Managers and Supervisors on the changes, especially if they will beworking newly non-exempt employees.

• Train newly non-exempt employees on timekeeping requirements. Follow up and beproactive. Don’t let old habits perpetuate, like working extra hours, not trackingtime, etc.

OPPORTUNITIES?

• Opportunity to conduct a full review of classifications andjob descriptions. Are job descriptions accurate? Areclassifications appropriate?

• Cover: Does the company have a classification decision orchange they want to make? Making a classification changeout of the blue often raises eyebrows. The regulatorychanges provide plausible cover.

QUESTIONS?

HENRY [email protected]

Likely Lawyer Answer: “It Depends”…

7



RECRUITING AND HIRING: KEYS TO EFFECTIVE

RECRUITING PRACTICES AND DISCUSSION OF INDUSTRY CHANGES

PRESENTED BY JOSH BOESCH



TALENT PARTNER

W W W. L U T Z . U S

JOSH BOESCH402.778.7940 [email protected] 13616 CALIFORNIA ST | SUITE 300 | OMAHA, NE 68154

Josh joined Lutz in 2014 and runs Lutz Talent, a service that helps clients identify “the ideal candidate” to meet their business goals, challenges, culture and vision.

He brings over 10 years of experience in public accounting and the search industry serving clients of every size and type. Josh’s experience as a CPA and his approach to gaining an in-depth understanding of the client’s talent needs, including the skills, experience, cultural understanding and personality fit, has been integral to his success.

Josh enjoys chasing his three children around and taking in Creighton basketball games with his wife, Lindsey.

AFFILIATIONS & CREDENTIALS • Nebraska Society of Certified Public Accountants, Accounting Careers Committee Vice Chairman

• Institute for Internal Auditors, Aksarben Chapter

• Information Systems Audit and Control Association, Aksarben Chapter

• American Payroll Association, Nebraska Chapter

• Association for Corporate Growth, Nebraska Chapter

COMMUNITY SERVICE• St. Vincent de Paul Parish, Volunteer

• Knights of Columbus, Finance Committee and Membership Vice Chairman

EDUCATIONAL BACKGROUND• BSBA, Accounting and Managerial Information Systems, Creighton University

1

INTERVIEWING BEST PRACTICES

COST OF A MIS‐HIRE

• DOL MINIMUM ESTIMATE IS $11,713

– Most experts would triple that at a minimum

– Have seen up to 15 times base salary for cost

• Hiring costs – run ads, background checks, assessment tests, time

• Training costs• Costs of mistakes, failures, disruptions, & missed business opportunities

• Severance, unemployment costs

• Negative impact on culture and morale

2

JOB DESCRIPTION

• SHOULD EXPLAIN RESPONSIBILITIES & DUTIES• SHOULD EXPLAIN REQUIRED QUALIFICATIONS OR PREFERRED BACKGROUND

• BEGIN WITH THE END IN MIND– Outcomes– Competencies– Helps to ensure that focus is maintained on what is important

– Can be used as a scorecard for the employee by adding in goals & objectives

• ADVERTISE APPROPRIATELY

PHONE SCREEN

• UNDERSTAND WHY THEY ARE LOOKING

• DISCUSS ANY GAPS IN EMPLOYMENT HISTORY

• LISTEN/LOOK FOR ANY “RED FLAGS”

IN‐PERSON INTERVIEW – PAST EXPERIENCE

• GO IN CHRONOLOGICAL ORDER– Start back as early as you feel comfortable

• WHAT WERE THEY HIRED TO DO• WHERE DID THEY SPEND THEIR TIME• BIGGEST CHALLENGES, ACCOMPLISHMENTS & MISTAKES• WHAT DID THEY ENJOY THE MOST/LIKE THE LEAST• ORGANIZATIONAL STRUCTURE• TORC

– Threat of reference check

• WHY DID THEY LEAVE– Push vs. Pull

3

IN‐PERSON INTERVIEW ‐ FUTURE

• CAREER NEEDS/IDEAL POSITION– How does this position stack up?

• OTHER JOB POSSIBILITIES– What is the timing on these?

– How does this position compare?

• THIS WILL LEAD INTO THEIR QUESTIONS

INTERVIEWING TIPS

• KEEP IT CONVERSATIONAL• BUT MAINTAIN CONTROL• ASK OPEN‐ENDED QUESTIONS• ASK PROBING QUESTIONS• USE PAST TENSE WHEN INQUIRING ON FAILURES/MISTAKES

• UNCOVER NEGATIVE TRENDS & FLIGHT RISKS

• SELL THE ROLE/COMPANY

SECOND ROUND FOCUS INTERVIEW

• ASSIGN TOPICS TO FOCUS ON– Eliminates the possibility of everyone asking the same questions

– Creates accountability with interviewers

4

REFERENCE CHECKING

• DETERMINE WHO TO TALK TO– Supervisors are the most important individuals to talk to in most cases

• USE PROFESSIONAL SKEPTICISM

• USE PAST TENSE WHEN INQUIRING ON FAILURES/MISTAKES

• BE THOROUGH– Ask open‐ended questions

RECRUITING MILLENIALS

MILLENIALS ‐ BAD RAP

5

MILLENIALS ‐ BAD RAP

MILLENNIALS ARE TECH SAAVY + CONNECTED

• TECHNOLOGY IS AT THE CORE OF WHO THEY ARE AND HOW THEY LIVE.

• UTILIZE SOCIAL MEDIA FOR YOUR COMPANY

MILLENNIALS WANT TO MAKE A DIFFERENCE

• EMPHASIZE HOW THEY CAN MAKE A DIFFERENCE FROM DAY ONE

• SHARE HOW YOUR COMPANY IS MAKING A DIFFERENCE IN COMMUNITY, OR EVEN THE WORLD

6

MILLENNIALS WANT DEVELOPMENT

MILLENNIALS WANT FLEXIBILITY

• PROMOTE FLEXIBLE WORK OPTIONS WHENEVER POSSIBLE

• FOCUS ON BENEFITS THAT SUPPORT WORK/LIFE BALANCE

MILLENNIALS ARE CREATIVE + ENTREPRENEURIAL

• BE CHARGED BY INNOVATION AND INCORPORATE IT ON A DAILY BASIS

7

Josh BoeschLutz Talent Shareholder

[email protected]

QU E S T I ON S ?

EMERGING EMPLOYMENT LAW ISSUES IN 2016 AND

BEYOND!

PRESENTED BY JOHN HEWITT & JODY DUVALL



JOHN C. HEWITT


Practice Areas:

Administrative Litigation Alternative Dispute Resolution Communications and Media Law Employment Litigation Health Care Labor and Employment


Nebraska United States District Court for the District

of Nebraska United States Court of Appeals for the

Eighth Circuit Education:

University of Nebraska, J.D., 1985 Hastings College, B.A., 1982

JOHN C. HEWITT

Practice Emphasis:

John represents public and private employers in labor and employment matters, including collective bargaining, arbitration, affirmative action, Wage and Hour, OSHA, and fair employment practice proceedings before federal and state courts and agencies, and the Nebraska Commission of Industrial Relations. John served as the Chair of the Board of the Alegent Creighton Health System and represents health care providers on a variety of issues including nonprofit governance and executive compensation. John also represents print and broadcast media on First Amendment, open meetings and public record issues. Other Experience/Achievements:

Listed: Best Lawyers in America (Woodward/White, Inc.) (Employment Law-Management; Labor Law-Management)

Listed: Chambers USA, America's Leading Lawyers for Business (Chambers & Partners Publishing) (Labor and Employment)

Chair, Labor Relations and Employment Law Section of Nebraska State Bar Association, 1995-1997

Member, Nebraska State Bar Association, Committee on Multi-Disciplinary Practice of Law, 2000

Fellow, Nebraska State Bar Foundation Member, Hastings College Board of Trustees Member, Alumni Council for University of Nebraska

College of Law Member, Board of Directors, Alegent Creighton Health,

2006-2012; Vice Chair, 2009-2010; Chair, 2011-2012 Member, Board of Directors, Alegent Creighton Clinic,

2009-2015 Member, Board of Directors, Immanuel Health System,

2009-2010 Member, Board of Directors, Hastings College Alumni

Association, 1988-1990 Published: "Employers Prepare: Arbitration of

Statutory Employment Claims," The Nebraska Lawyer, June 1998

Published: "Independent Contractor or Employee: Avoiding Legal Risks and Penalties Associated with the Misclassification of Workers," The Nebraska Lawyer, November/December 2010

JODY N. DUVALL


Practice Areas:

Employment Litigation Labor & Employment

Personal Injury & Wrongful Death


Colorado Washington United States District Court for the District of

Colorado United States District Court for the Western

District of Washington United States District Court for the Eastern

District of Washington Education:

University of Oregon School of Law, J.D., 2011 Colorado State University, B.A., 2002

JODY N. DUVALL

Practice Emphasis: Jody’s practice focuses on labor disputes and labor relations for clients from a variety of industries. He represents employers in all stages of litigation before federal and state trial and appellate courts, before the National Labor Relations Board and other state and federal administrative agencies, and in mediation and arbitration. Additionally, he counsels clients on a wide range of issues related to their employment policies. He has represented employers in matters involving labor negotiations and arbitrations, unfair labor practice proceedings before the National Labor Relations Board and state administrative agencies, wage and hour class and collective actions, wrongful termination and unlawful discharge, discrimination and retaliation.

In addition to his labor and employment practice, Jody has represented clients in a variety of civil litigation matters, including products liability, commercial disputes, and bankruptcy. He counsels individual clients on matters relating to estate disputes and management.


Published: “MLRC 50-State Survey: Employment Libel and Privacy Law,” Survey of Washington Employment Libel Law, 2014 and 2015 editions

Published: "New NLRB Decision Takes Aim at Employment Relationships Within the Construction Industry," Merit Builder, Assoc. Builders and Contractors (Rocky Mountain Chapter), Fall 2015

1

EMERGING EMPLOYMENT LAW ISSUES IN 2016 AND

BEYOND!

JOHN HEWITT & JODY DUVALL

EMPLOYMENT DISCRIMINATIONRETALIATION ENFORCEMENTSAME SEX MARRIAGESEXUAL ORIENTATIONEEOC STUDY ON HARASSMENT IN THE WORKPLACELEAVE AS A REASONABLE ACCOMMODATIONWRITTEN POSITION STATEMENTSPENALTIES FOR POSTING VIOLATIONSEEO-1 PAY DATA

WAGE & HOUR

JOINT EMPLOYMENT UPDATEFRIEDRICHS V. CALIFORNIACLASS ACTION WAIVERS

EMPLOYMENT POLICIESNON-COMPETE/NON-SOLICITATIONPAID SICK LEAVEWORKPLACE WEARABLES

SAFETY

LABOR

EMPLOYEE CLASSIFICATIONPERSONAL & SUCCESSOR LIABILITY

INCREASE IN OSHA FINESELECTRONIC REPORTING/RECORDKEEPING RULEOSHA BATHROOM RULE

NEBRASKA-SPECIFIC ISSUES

PREGNANCY DISCRIMINATION ACT• State law amended in 2015 to

provide protections to pregnant workers

• Protects individuals who:– Are pregnant;– Have given birth; or– Have a related medical condition

• Applies to employers with 15 or more employees

2

RETALIATION ENFORCEMENT• New guidance from EEOC

regarding what it will consider retaliation

• Same 3 elements for retaliation:– Employee’s participation in protected

activity– Adverse action – Causal connection between the two

• BUT, much broader definition of each element

EMPLOYMENT DISCRIMINATION

SAME SEX MARRIAGE• Obergefell v. Hodges—Supreme Court

ruling that same-sex couples may exercise the right to marry in all states

• However, Court avoided whether LGBT Americans constitute a protected class

• Obergefell will affect employers in the areas of benefits and mandatory leave laws


SEXUAL ORIENTATION• EEOC has started prosecuting cases of

sexual orientation discrimination under the sex discrimination provisions of Title VII

• Multiple lawsuits filed by EEOC in multiple jurisdictions

• However, Hively v. Ivy Tech Community College (7th Cir. 2016)– At least in the Seventh Circuit, discrimination on

the basis of an individual’s sexual orientation is not prohibited under federal law


3

HARASSMENT IN THE WORKPLACE• Prevalence of harassment in the

workplace• Workplace leadership and

accountability• Prevention policies and procedures• Anti-harassment compliance

training• Workplace civility and bystander

intervention training

EMPLOYMENT POLICIES

LEAVE AS A REASONABLE ACCOMMODATION• EEOC provided guidance in May• Employers must treat request

for leave due to a medical condition as a request for accommodation

• Factors for undue hardship


WRITTEN POSITION STATEMENTS• EEOC issued first-ever procedures

for employer position statements and guidance on effective position statements

• Changes procedures in some jurisdictions, formalizes practices in others

• Potential release of position statement to charging party


4

PENALTIES FOR POSTING VIOLATIONS• EEOC announced new fines for

employers that fail to properly post federal discrimination laws

• Maximum penalty now $525, more than double previous maximum of $210


EEO-1 PAY DATA• OFCCP announced top two priorities:

– Systemic pay discrimination in gender- and race-based pay disparities

– Establishing Regional Centers focused on compensation practices of financial services companies

• If you are in the financial services industry and subject to the OFCCP’s jurisdiction, you are in the crosshairs


NON-COMPETE/NON-SOLICIT• Illinois Attorney General Action

– Deceptive Business Practice– Focus on Restriction of Low Wage

Workers• White House Report on Non-

Compete Agreements– Usage, Issues and State Responses

EMPLOYMENT POLICIES

5

PAID SICK LEAVE• Currently, there are no federal or

applicable state legal requirements that you provide paid sick leave

• Hot topic in state and local governments:– 5 states (CA, CT, MA, OR, VT) and the District of

Columbia now have mandatory paid sick leave requirements

– More than 25 local jurisdictions have mandatory paid sick leave

– In response, some states have passed laws banning local paid sick leave laws

• Stay tuned!

EMPLOYMENT POLICIES

WORKPLACE WEARABLES• What are we talking about?

– Smart glass– Fitness tracking bracelets– Smart watches– Other tech gadgets that are becoming

popular in the workplace• Potential benefits and concerns

EMPLOYMENT POLICIES

EMPLOYEE CLASSIFICATION• Independent Contractor vs.

Employee• Uber class-action litigation in

California

WAGE & HOUR

6

PERSONAL & SUCCESSOR LIABILITY• Fair Labor Standards Act can impose

liability on individuals responsible for operation of a company

• Now, individuals may be subject to personal liability for violations of the Family and Medical Leave Act:– Federal Court holds that Human Resources

Director is personally liable for FMLA violation

WAGE & HOUR

INCREASE IN OSHA FINES• OSHA fines increase for first

time in 25 years• Near 80% fine increase went

into effect on August 1• Strategies for compliance

SAFETY

ELECTRONIC REPORTING & RECORDKEEPING RULE• New rule effective January 2017• Applicable to businesses with 250

or more employees• Smaller businesses (20-249) may

still be subject to the rule if in particularly dangerous industries

SAFETY

7

OSHA GUIDANCE REGARDING BATHROOMS• OSHA issued a guide setting forth

the basics of gender identity and bathroom access

• OSHA requires that employers provide sanitary and available toilet facilities

• Transgender workers must be allowed to use the bathroom consistent with their gender identity

SAFETY

JOINT EMPLOYMENT UPDATE• The NLRB’s Browning-Ferris

decision created uncertainty regarding who will be considered a Joint Employer

• State law is attempting to fill the gap to protect franchisors

• Steps to reduce potential liability

LABOR

FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION• U.S. Supreme Court decision• 4-4 split after Justice Scalia’s

passing• Split results in Court upholding

lower court’s decision• Issue: Agency fees for non-union

teachers

LABOR

8

CLASS ACTION WAIVERS• Ninth Circuit recently released a decision

finding that certain mandatory arbitration agreements violate federal labor law

• Circuit Split:– Ninth and Seventh Circuit will invalidate mandatory

arbitration agreements requiring individual arbitration– Second, Fifth, and Eighth Circuits will uphold such

agreements under the Federal Arbitration Act• NLRB is continuing to pursue these types of

agreements as unlawful• This will likely head to the Supreme Court

LABOR

QUESTIONS?

JOHN [email protected]

JODY [email protected]


THE INTERNAL REVENUE SERVICE REQUIRES US TO INFORM YOUTHAT ANY FEDERAL TAX ADVICE CONTAINED IN THISCOMMUNICATION (INCLUDING ATTACHMENTS OR ENCLOSURES)SHOULD NOT BE USED OR REFERRED TO IN PROMOTING,MARKETING, OR RECOMMENDING OF ANY ENTITY, INVESTMENT, PLANOR ARRANGEMENT, AND SUCH ADVICE IS NOT INTENDED ORWRITTEN TO BE USED AND CANNOT BE USED BY A TAXPAYER FORTHE PURPOSE OF AVOIDING PENALTIES UNDER THE INTERNALREVENUE CODE.

HE TOOK WHAT?PROTECTING YOUR COMPANY'S TRADE

SECRETS

PRESENTED BY RICK JEFFRIES



RICHARD P. JEFFRIES [email protected]


Alternative Dispute Resolution Banking, Bankruptcy and Creditors Rights

Litigation Business Litigation Construction Litigation Insurance and Surety Coverage Litigation Intellectual Property and Technology Professional Liability and Licensing Securities Litigation and FINRA Arbitration




Colorado United States Court of Appeals for the Third

Circuit United States Court of Appeals for the Sixth

Circuit United States Court of Appeals for the Eighth

Circuit Education:

Creighton University, J.D., cum laude, 1993 University of Chicago, A.B., 1990

RICHARD P. JEFFRIES

Practice Emphasis:

Rick’s trial practice focuses on complex commercial matters, with particular emphasis on technology, information security and privacy law, insurance and reinsurance, securities litigation and FINRA arbitrations, real estate disputes, trademark, intellectual property, and creditors' rights.


Listed: Best Lawyers in America (Woodward/White, Inc.) (Commercial Litigation)

Listed: Great Plains Super Lawyers (Business Litigation)

Listed: Benchmark Litigation, The Definitive Guide to America's Leading Firms & Attorneys

Member, Nebraska State Bar Association House of Delegates, 2003-2005

Member, University of Nebraska Omaha Committee on Athletics, 2013-present

Member, Board of Directors, College of St. Mary, 2009-present; Chair, 2013-present

Member, Memorial Little League Board of Directors, 2014-present

Member, Board of Directors, Community Bike Project Omaha 2009-2013; Chair, 2011-2012

Member, Omaha By Design Advisory Board, 2003-2013

Member, Leadership Omaha, Class 21 (1998-1999)

Published: "Common Sources of Data Loss: Are you Prepared?" Nebraska Banker Magazine, November/December 2014

Published: "Making the Paperless Office Work," The Brief, American Bar Association Tort Trial and Insurance Practice Section Magazine, Summer 2009

Published: "The Empty Inbox: Total Victory Over E-Mail," The Brief, American Bar Association Tort Trial and Insurance Practice Section Magazine, Winter 2010

1

HE TOOK WHAT?PROTECTING YOUR COMPANY’S

TRADE SECRETS

JASON YUNGTUM/TARA STINGLEYRICK JEFFRIES

The Louisville, Kentucky-based company says that the original recipe from 1940 handwritten by Sanders is locked up in a digital safe that's encased in two feet of concrete and monitored 24 hours a day by a video and motion detection surveillance system.

2

WHAT’S A TRADE SECRET?

• Stuff you know• Stuff they don’t know• Stuff that has value because you know it• Stuff you don’t let them know• Stuff that they can’t get legitimately

IN LEGAL TERMS• “information, including but not limited to a drawing,

formula, pattern, compilation, program, device, method, technique code or process”

o Derives independent economic value…from not being knownto, and not being ascertainable by proper means by, otherpersons...

o Is the subject of efforts that are reasonable under thecircumstances to maintain its secrecy.

TRADE SECRET VS. PATENT

• Patents: • Public• Expensive • Exist for finite period,

then public domain

• Trade Secrets• Cheap (but not free)• Not public• Exist indefinitely

3

EXAMPLES OF TRADE SECRETS

• Pricing strategies• Algorithms• Recipes and formulas• Source code• Customer lists, maybe

HOW WE PROTECTED TRADE SECRETS UNTIL THIS YEAR

• State trade secrets acts• Based on model legislation• Legislators could choose• Courts could interpret through the lens of state law• Variable results• Concerns that remedies were not strong enough

LIMITATIONS ON NEBRASKA LAW

• A threatened misappropriation can be enjoined.• But then what?• First Express v. Easter

o Customer list, taken by departing agent, was not protectibleo Was “ascertainable by legitimate means” – reference to public

records

• May inadvertently prohibit whistleblowing

4

NEW FEDERAL LAW: DEFEND TRADE SECRETS ACT

• Signed by the President in 2016• Definition of trade secret, other terms nearly

identical to Uniform Trade Secrets Act• Creates federal jurisdiction• Enhanced remedies in extreme circumstances• Imposes whistleblower notice requirement on

employers

ADVANTAGES TO DTSA OVER STATE LAW

• Federal courts sometimes are better equipped to handleintellectual property matters, and judges aren’t elected

• Includes traditional state law remedieso Injunctiono Damageso Attorney fees

• Creates new remedieso Punitive damageso Seizure of materials

SEIZURE OF INFORMATION• Only when an injunction is insufficient• When necessary to prevent dissemination• Can be obtained ex parte• Elaborate procedural mechanisms

o “Motion for Encryption”o Law enforcement assistanceo No access by movement

• Wrongful seizure = damages• Heightened burden of proof

5

WHISTLEBLOWER PROTECTION

DTSA IMMUNITY

• Employees and contractors are immune from liability for:

o Disclosing trade secrets to a government official solely for an investigation of a violation of law; or

o Disclosing trade secrets by filing a document in court under seal;

YOU MUST NOTIFY EMPLOYEES AND CONTRACTORS OF THIS RIGHT

• Employers must notify in any “contract”respecting trade secrets or by crossreference contained in it.

• Failure to notify results in ineligibility for:o Attorney’s feeso Punitive damages

6

IF YOU HAVE TRADE SECRETS YOU SHOULD HAVE A POLICY

• What are the secrets?o Who needs access to them?

• What must be returned at termination?• What must employee do?

o Decrypt/provide passwordso Allow inspection

• What are your rights?o Examine BYOD policy

TRADE SECRETS MUST BE PROTECTED

• “subject of measures reasonable under thecircumstances to maintain secrecy.”

• Weak passwords are a cause of 66% of networkinfiltrations.

• “thefutureisbaconpants” is better than “Husker$1”• Every employee should have the least access necessary• Use of admin credentials should be sharply limited• Consider data loss prevention

HOW TRADE SECRETS GET STOLEN

• BYODo “But you said to encrypt it!”

• Thumb drives• Email• Dropbox/Google Drive• Smartphone-based “scanners”• Social engineering

7

HOW I WOULD STEAL YOUR TRADE SECRETS

• Months in advance• VPN• Tor• Shared passwords• Phishing/Social Engineering• ARE YOUR EMPLOYEES READY?

OTHER THINGS TO ASK YOUR GEEKS

• Are all your machines updated?• You’re not running Windows XP, are you?• Is your wireless network secure?• Are you monitoring network activity?• What is the admin password policy?• How are people trained for information security?

QUESTIONS?

RICK [email protected]

8



FROM HIRING TO FIRING: AN

INTERACTIVE UPDATE ON RECENT EEO

DEVELOPMENTS AND CASES

PRESENTED BY JASON YUNGTUM & TARA STINGLEY



JASON R. YUNGTUM [email protected]


Health Care Labor and Employment


Nebraska Iowa United States District Court for the District of Nebraska

United States District Court for the Southern District of Iowa

United States Court of Appeals for the Eighth Circuit

United States Supreme Court Education:

Creighton University, J.D., 1997 Luther College, B.A., 1994

JASON R. YUNGTUM

Practice Emphasis: Jason was formerly with Catholic Health Initiatives (CHI) and the Alegent Creighton Health System. His practice involves advising health care clients on a variety of issues, including the Federal fraud and abuse laws (the False Claims Act, the Anti-Kickback Statute, the Physician Self-Referral Law, the Exclusion Authorities, the Civil Monetary Penalties Law); mergers, acquisitions, and joint ventures and affiliations; hospital and physician employment, recruitment, and compensation plans; corporate governance; antitrust; medical staff-hospital relationships; medical staff bylaws, rules and regulations; hospital administrative policies; EMTALA and emergency department policies; patient consent; medical records and HIPAA; and record retention policies and programs. He also represents health care workers in state disciplinary proceedings. Jason also advises clients on a variety of employment and labor law issues, including employment contracts and severance agreements; wage/hour and unemployment issues; Title VII, the ADEA; the ADA; and the FMLA. In addition, he has represented employers in discrimination and retaliation claims before the Omaha Human Rights and Relations Department, the Nebraska Equal Opportunity Commission, the Council Bluffs Civil Rights Commission, the Iowa Civil Rights Commission, the U.S. Equal Opportunity Employment Commission, and the U.S. Department of Labor/OSHA.

Other Experience/Achievements: Regional General Counsel and Vice President, Legal Services Group, Catholic

Health Initiatives, 2013-2014

General Counsel, 2012-2013, and Deputy General Counsel, 2009-2012, Alegent Creighton Health System

Law Clerk to Chief Justice John V. Hendry, Nebraska Supreme Court, 1998-1999

Law Clerk to Chief Justice C. Thomas White, Nebraska Supreme Court, 1997-1998

Member, American Health Lawyers Association

Member, Iowa Society of Healthcare Attorneys

Member, Nebraska Chapter of Healthcare Financial Management Association

Member, Human Resource Association of the Midlands

Member, Society for Human Resource Management

Member, Leadership Omaha, Class 32, 2009-2010

Adjunct Professor of Law, Legal Research & Writing, Creighton University School of Law, 1999-2004

Member, Creighton Law Review, 1995-1996

Editorial Staff, Creighton Law Review, 1996-1997

Member, Regional and National American Bar Association Appellate Moot Court Advocacy Team, 1995-1996

Published: Co-authored "The Times They Are A-Changin'...Everywhere and For Everyone: LB107 and Nurse Practitioners," The Nebraska Lawyer, May/June 2016

Published:"COBRA & Preexisting Coverage After Geissal v. Moore Medical Corp.", Creighton Law Review, 1999

Published: "Mediating Sexual Harassment Claims: If, When & How", Journal of Alternative Dispute Resolution in Employment, 1999

Published: "The 'Captain of the Ship' Sets Sail in Nebraska: Long v. Hacker", Creighton Law Review, 1997

TARA A. STINGLEY [email protected]


Alternative Dispute Resolution

Business Litigation Employment Litigation Intellectual Property

Litigation Labor and Employment


Nebraska United States District Court for

the District of Nebraska United States Court of Appeals for

the Eighth Circuit Education:


University of Nebraska, B.S. Criminal Justice, summa cum laude, 2002

TARA A. STINGLEY

Practice Emphasis: Tara specializes in employment law, advising large and small businesses in a variety of industries on compliance with federal, state, and local employment laws and regulations. Tara assists clients in developing employment policies and provides guidance on best employment practices, employment/termination decisions, and avoiding employment litigation and claims. She advises clients on Title VII, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), and other similar federal, state, and local laws and regulations. In the area of wage and hour laws. Tara assists clients in performing internal wage/hour audits to identify potential areas of exposure. Tara also prepares and updates employment policies, employee handbooks, employment agreements, independent contractor agreements, restrictive covenant agreements (including non-compete, non-solicitation, non-disclosure/confidentiality, and non-diversion agreements), and separation agreements/releases for individual terminations and reductions-in-force. Additionally, she develops employee training materials and conducts training sessions on equal employment opportunity subjects and recent changes in employment law. Tara also has a litigation practice and routinely represents public and private employers of all sizes in federal and state court and before federal, state, and local administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the Nebraska Equal Opportunity Commission (NEOC), and the National Labor Relations Board (NLRB), among others. Tara defends employers against claims of discrimination, retaliation, and harassment under Title VII, the ADA, the FMLA, and the ADEA; claims for wage/hour violations under the FLSA and state wage payment laws; and claims alleging wrongful termination and breach of contract. She also assists employers in enforcing restrictive covenant agreements containing non-compete, non-solicitation, non-disclosure/confidentiality, and non-diversion provisions.

Other Experience/Achievements: Listed: Best Lawyers in America (Woodward/White, Inc. (Employment Law-

Management; Litigation-Labor and Employment) Listed: Chambers USA, America's Leading Lawyers for Business (Chambers &

Partners Publishing) (Labor and Employment) Listed: Benchmark Litigation, The Definitive Guide to America's Leading

Litigation Firms and Attorneys Listed: Great Plains Super Lawyers (Employment Litigation Defense;

Employment & Labor; Employment Discrimination; Employment Law - Employee; Retaliation, Sexual Harassment, Wage & Hour Laws; Whistleblower; Wrongful Termination)

Chairperson, Board of Directors, Food Bank for the Heartland Member, University of Nebraska President's Advisory Council Member, University of Nebraska Law College Alumni Council Member, Robert M. Spire American Inn of Court, 2006-2011 Member, Leadership Omaha, Class 33 (2010-2011) Graduate, Nebraska State Bar Association Leadership Academy, Class 2010 Law Clerk to the Honorable William Jay Riley, U.S. Circuit Judge, Eighth

Circuit Court of Appeals, 2005-2007 Managing Editor, Nebraska Law Review, 2003-2005 Member, National Moot Court Team, 2004 Order of the Coif Order of the Barristers Published: "Independent Contractor or Employee: Avoiding Legal Risks and

Penalties Associated with the Misclassification of Workers," The Nebraska Lawyer, November/December 2010

Published: "Physicians and Facebook: Implications of Social Media Usage in the Health Care Industry," Nebraska Medicine/The Nebraska Medical Association, September 2012

1

FROM HIRING TO FIRING: AN INTERACTIVE UPDATE ON RECENT EEO DEVELOPMENTS

AND CASES

JASON YUNGTUM/TARA STINGLEYJASON YUNGTUM & TARA STINGLEY

THE HIRING ANDBACKGROUND CHECK SCENARIO

THE FACTS

• Don Draper applies for an entry-level junior copywriter position atSterling Cooper, an advertising agency.

• At the bottom of Don’s application, Don checks the box authorizingSterling Cooper to perform a background check under the Fair CreditReporting Act (“FRCA”).

• Based on Don’s authorization, Sterling Cooper orders the backgroundcheck from a third party consumer reporting company.

• After reviewing the results of Don’s background check, the agencydoesn’t like what it sees. Sterling Cooper e-mails Don stating “We gotthe results of your background check. We’re unable to move forwardwith you. Better luck next time, you hippie.”

2

DID STERLING COOPER MISSTEP?A. NO. Employers can consider the totality of the circumstances when determining

if an applicant should be hired.

B. NO. Don authorized the background check, he was told of his FCRA rights, andSterling Cooper properly told Don it was rejecting his application after it reviewedthe background check report.

C. YES. Sterling Cooper failed to provide a notice of FCRA rights and failed to getDon’s authorization for the background check in documents separate from theapplication.

D. YES. Sterling Cooper failed to send Don a Notice of Pre-Adverse Action and failedto give him a chance to review a copy of his background check report to disputeany inaccuracies.

E. YES. Sterling Cooper failed to send Don a Notice of Adverse Action that includedthe final decision to reject his application based on information in the report.

F. C, D, and E.

SO, WHAT DID THAT BACKGROUND CHECK REPORT REVEAL ABOUT DON?

• Don’s background check revealed a 2006 drug offense:conviction for possession of marijuana.

• Don was a 21-year-old college student when this happened(his favorite music artist at that time was Snoop Dogg).

• Don’s other convictions or arrests since 2006 – None.

DID STERLING COOPER APPROPRIATELY SEND DON’S APPLICATION “UP IN SMOKE”?

A. YES. Come on, dude! Once a hippie pot head, always a hippie pot head.

B. NO. The conviction was for a non-violent misdemeanor. The agency should consider thenature and gravity of the offense.

C. NO. It was 10 years ago! The agency should consider the time that has passed since theoffense.

D. NO. Don is applying for an entry-level position to work with other artist-types in the“creative lounge.” The agency should consider the nature of the position sought.

E. MAYBE. In 2006, Don’s wife Betty divorced him and he lost custody of his child. SterlingCooper should talk to Don about the circumstances surrounding the offense.

F. B, C, and D

3

SO, WHAT HAPPENS NEXT?

• Sterling Cooper’s Human Resource Department believes theorganization has a systemic problem with screening applicants.

• It recommends a new policy to use when reviewing the results ofcriminal background checks:

“Background checks will be marked as‘Pass’ or ‘Fail’ depending on whether theapplicant has a felony conviction.Applicants with a felony conviction willnot be hired.”

IS THIS NEW POLICY A GOOD IDEA?

A. YES. No reputable employer wants to or should have a felon working for them.

B. NO. Sterling Cooper may face Title VII liability for disparateimpact. It should eliminate this policy and any other policiesthat automatically exclude applicants from employment basedupon a criminal conviction.

C. MAYBE. Depending on the job and the circumstances, it maybe reasonable to exclude an applicant from furtherconsideration based on a felony conviction.

THE DEMOTION AND RETALIATION

SCENARIO

4

BACKGROUND INFORMATION

• Anna is an Account Executive at Frozen, Inc., acompany with 60 employees that makes ice cream.

• Elsa is Anna’s boss.

• Frozen, Inc. just lost a big account. Elsa has to demoteat least one Account Executive.

• Anna and Hans are on the list of potential AccountExecutives to be demoted.

oBoth have worked for Frozen, Inc. for over a year.

oBoth have been underperforming and not meeting companystandards.

• One day in the warehouse, while Anna is flirting withanother employee in the warehouse (an area in which shedoes not work), Anna bumps into a shelving unit for the icecream.

• Anna tries to grab the shelving unit to prevent furtherdamage, and her boss Elsa yells, “Let it go! Let it go!”

• In Anna’s attempt to stop the shelving unit from falling, shebreaks both legs and an arm. Frozen, Inc. suffers damageto its warehouse and products.

• Anna subsequently files a worker’s compensation claim andrequests FMLA leave.

WHAT SHOULD ELSA DO?A. Grant Anna’s request for FMLA leave, if Anna is otherwise

eligible.

B. Deny Anna’s request for FMLA leave because Anna canperform many job duties with one working arm.

C. Grant Anna’s request for FMLA leave, but move her to thedemoted position while out – Elsa was going to do it at somepoint anyway, and this is a nice opportunity to deal with it.

D. Deny Anna’s request for FMLA leave because Anna violatedworkplace rules and caused damage to Frozen, Inc. Plus,Anna is already getting work comp benefits.

5


• Elsa grants FMLA leave to Anna, and considers what to dowith the two Account Executives.

• A few weeks after Anna returns from FMLA leave, Elsa tellsher that Frozen, Inc. is restructuring various departments.

o Both Hans and Anna will no longer be Account Executives, butinstead will be Sales Leads.

o Their duties are somewhat similar, but they have fewerresponsibilities and will receive slightly less pay.

• Anna considers this a demotion and becomes very upsetand icy to others at work.

• Meanwhile, Frozen, Inc. continues to suffer poor sales of icecream due to a never-ending winter.

• In order to keep the company in business, Elsa implements ahiring freeze and must immediately cut 10% of Frozen’spayroll by terminating underperforming employees.

• Anna complains about her demotion to Olaf, the HR director.

• Since Anna has returned from FMLA leave, her jobperformance has declined, and she is increasingly icy tocolleagues and clients in her new role.

• Elsa also finds out that Hans has a good relationship with oneof Frozen’s biggest accounts, Sven’s Ice Cream Shoppe.

WHAT’S THE RISKIEST THING ELSA COULD DO RIGHT NOW?

A. Let Anna go, let Anna go, even though Anna has been theiciest, poorest performing employee and Elsa has beenconsidering a termination for months.

B. Cut equal parts of Anna’s and Hans’ pay. A fair and equalcut for two low performers won’t lead people to believe anydiscrimination or retaliation has occurred.

C. Reduce the salaries for all Sales Leads.

6


• Elsa ignores the well-reasoned advice of legal counsel andthe HR Department and terminates Anna.

• Anna is outraged. She believes she was demoted fortaking FMLA leave and then fired in retaliation forcomplaining to the HR Department.

• Anna asks herself, “Do I want to file a lawsuit?” andultimately asserts claims against Frozen, Inc. forretaliation.

WILL ANNA’S RETALIATION CLAIM SUCCEED?

A. YES. Anna’s claim will succeed because Anna’s complaint to HRwas quickly followed by her being frozen out of the company.

B. NO. Both Anna and Hans were demoted for legitimate, non-retaliatory reasons, and the timing of Anna’s termination after hercomplaint to HR is a mere coincidence, given that Frozen, Inc. hasbeen considering Anna’s termination for months.

C. MAYBE. Even if Frozen, Inc. had been considering Anna’stermination for months, the timing of the termination so quicklyafter Anna’s complaint to HR seems suspect. Jury trial!

THIS SCENARIO WAS BASED ON: BROWN V. DIVERSIFIED DISTRIBUTION SYSTEMS, LLC,

801 F.3D 901 (8TH CIR. 2015)• An employee took FMLA leave and returned to a demoted position.

• The employee complained to HR, and five days later the employee wasfired.

• In order to cut costs, the company had been considering who toterminate for months, and the employee, while on the list fortermination, was not originally the one selected to be fired.

• The Eighth Circuit found the timing of the decision to fire the employeeso quickly after she filed a complaint to HR supported an inference ofretaliatory intent.

• The Eighth Circuit reversed the district court’s order granting summaryjudgment on the employee’s FMLA entitlement claim and retaliationclaim and remanded the case for trial.

7

THE PREGNANT EMPLOYEE

SCENARIO

BACKGROUND INFORMATION• Leia is a delivery driver for Dark Side Trucking, Inc., a growing company

with 20+ employees.

• Dark Side Trucking, Inc. requires drivers to lift 20-30 lb. boxes whenloading/unloading trucks for delivery and when stocking the warehouse.

• Leia is in the last 15 weeks of her pregnancy.

• She tells her boss, Darth Vader, that she can’t lift more than 10 lbs.o In the past, Dark Side Trucking has provided accommodations for other

employees with non-pregnancy related physical limitations.o For example, Luke and Han, two other drivers, injured their backs this

year and both were temporarily transferred from delivery to sales becausethey could not do any lifting.

• Leia asks Darth to be given less strenuous work, such as coordinatingdeliveries, because of her lifting limitation.

WHAT SHOULD DARTH DO?A. Tell Leia that he will not transfer her to a coordinator position or

give her light-duty work (i.e., stop acting like such a littleprincess). Pregnancy is not a “disability” so Dark Side Trucking,Inc. is not required to provide an accommodation.

B. Tell Leia she needs to show proof of her lifting limitation (e.g.,doctor’s note) before Dark Side Trucking, Inc. can accommodateher request.

C. Place Leia on unpaid leave because it would be very difficult andcostly to train her for the new position, and Darth is worried Leiamay have further complications if she continues working.

D. Transfer Leia to an open coordinator position. It will take sometime and expense to train her, but at least she won’t sue.

8


• Darth chooses option (D) and transfers Leia to a delivery coordinatorposition after one week of training. Leia is assigned to the warehouseoffice.

• The chair in Leia’s office is pretty uncomfortable. Some employeeshave suggested Darth use the budget surplus to buy new office chairs.

• Three weeks after the transfer, Leia complains to Darth that sitting inthe uncomfortable office chair for hours-on-end causes her pain andmakes it vey difficult to do her job.

• A few weeks later, Leia complains to Darth (again), saying the pain isso bad that she can no longer perform her job if she has to sit in thechair for so many hours a day. She requests an ergonomic chair.

WHAT CAN DARTH DO?A. Tell Leia, “I find your lack of pain tolerance disturbing!” The company

has already incurred enough expense by transferring and training Leia.

B. Buy a new ergonomic chair ($2,500). Darth really has no other choice ifhe wants to avoid a lawsuit.

C. Talk with Leia and provide her with more frequent and longer breaks,or modify her work schedule altogether to avoid sitting in the officechair for extended periods of time.

D. Buy a new chair, but make note to delay Leia’s scheduled pay increaseby a few months; Dark Side Trucking, Inc. has spent too much moneyaccommodating her lifting limitation to give her the scheduled pay raisenext month.

WHAT HAPPENS NEXT?

• Darth talks with Leia, and they agree Leia will take morefrequent and longer breaks rather than purchasing a new chair.

• This works out well, and Leia has no more requests or concerns.

• A few months later, Leia has her baby (Kylo Ren).

• After her maternity leave, she is ready to return to her normaldelivery driver position because she can now lift the boxesweighing 20-30 lbs.

• However, when she returns to work, she asks Darth for breaktime throughout the day and a private place to be set aside inthe office given that she is a new mother and is nursing hernewborn.

9

WHAT SHOULD DARTH DO?A. Grant Leia’s request. Dark Side Trucking, Inc. must provide the requested

accommodations even after Leia returns to work.

B. Deny Leia’s request. Dark Side Trucking, Inc. can’t afford to miss anydeliveries, and the temporary worker hired to fill in for Leia is leaving thisweek.

C. Deny Leia’s request and place Leia on unpaid leave for a few more weeks,as allowed under company policy. Tell Leia that, when she returns, shewon’t be given any more accommodations since Dark Side Trucking, Inc.already provided a temporary transfer/training and more breaks while shewas pregnant.

D. Deny Leia’s request. While Dark Side Trucking, Inc. had to accommodateLeia’s limitations while she was pregnant, they don’t have to provide anyadditional accommodations after she has had her baby and returned towork.

FEDERAL VS. STATE LAW –DIFFERENT OUTCOME?

• Federal law (Pregnancy Discrimination Act of 1978) requires employersto treat employees with pregnancy-related medical conditions the sameas employees with non-pregnancy related medical conditions.

• 42 U.S.C. §§ 2000e et seq.

• Nebraska law (Nebraska Pregnancy Accommodation Law) requiresemployers to accommodate “known physical limitations” of pregnantemployees, employees who have given birth, and employees withpregnancy-related medical conditions.

• Neb. Rev. Stat. §§ 48-1102 et seq. (Effective Sep. 1, 2015)

THIS SCENARIO WAS BASED ON:YOUNG V. UNITED PARCEL SERVICE, INC.,

135 S. CT. 1338 (2015)• The plaintiff, a pregnant UPS driver, had a 20-lb. lifting restriction for

the first 20 weeks of her pregnancy and a limit of 10 lbs. thereafter.

• UPS denied the accommodation request and put her on unpaid leave.

• The U.S. Supreme Court ruled that the plaintiff had stated enoughfacts to show UPS treated her differently from other employees who hadsimilar physical limitations that resulted from things other thanpregnancy.

• If those facts were ultimately proved, then UPS violated the federalPregnancy Discrimination Act.

10

NEBRASKA’S NEW PREGNANCY ACCOMMODATION LAW, HOWEVER, IS EVEN MORE ONEROUS THAN FEDERAL LAWNebraska law defines “reasonable accommodations” with respect topregnancy, childbirth, or related medical conditions, to include:

o Buying equipment for sittingo More frequent or longer breakso Periodic resto Assistance with manual laboro Job restructuringo Light-duty assignments or modified work scheduleso Time off to recover from childbirtho Break time and appropriate facilities for breastfeeding or expressing

breast milko Temporary transfers to less strenuous or hazardous work

THE CONSTRUCTIVE DISCHARGE

SCENARIO

BACKGROUND INFORMATION• Independence, Inc. is a large employer that manufactures fireworks.

• Alexander Hamilton works on Independence’s factory floor.

• Aaron Burr is Hamilton’s direct supervisor.

• Hamilton complained to Burr that he had been denied a promotion because ofhis race and was experiencing a hostile work environment, stating he was thesubject of continuous racial slurs and racially-motivated threats in theworkplace.

• Burr denied this, stating Hamilton did not receive the promotion because hewas suspected of stealing fireworks. Burr stated the company was consideringreporting Hamilton to law enforcement to investigate Hamilton’s conduct.

• Hamilton and Burr came to an agreement that Hamilton would pay back thecompany for the stolen fireworks. Hamilton later decided to resign.

• Two weeks later, Hamilton finally signed and returned his formal resignationpaperwork to Independence, Inc.

11

SHOULD INDEPENDENCE, INC. INVESTIGATE HAMILTON’S CLAIMS OF RACIAL BIAS?

A. NO. Hamilton did not provide any concrete evidence ofdiscrimination so Independence, Inc. is under no obligation toinvestigate. Employers need not investigate frivolous complaints.

B. NO. Because Hamilton voluntarily resigned, Independence, Inc.has no continuing duty to investigate his claims. What doesIndependence possibly have to worry about?

C. YES. Independence, Inc. should investigate allegations ofdiscrimination in the workplace – regardless of whether thecomplaining employee has resigned.

D. Both A and B are correct.

WHAT HAPPENS NEXT?• Independence, Inc. decides not to investigate Hamilton’s

complaints because it’s busy with fireworks sales seasonand Hamilton resigned. Good riddance to bad rubbish!

• However, Hamilton sends Independence a firework of hisown: an NEOC/EEOC Charge of Discrimination alleginghe was constructively discharged from Independence, Inc.in light of the racially charged workplace.

• To defend against the Charge, Independence nowinvestigates Hamilton’s allegations.

IS HAMILTON’S CHARGE HISTORY?

During its investigation, Independence discovers the following:

• Hamilton’s coworker George Washington made several racially inappropriate jokes tocoworkers, including Hamilton, but was never issued any verbal or written warnings.

• Hamilton’s coworker James Madison overheard another coworker making racially-inappropriate comments directed at Hamilton numerous times over several months.

• Hamilton’s coworker Thomas Jefferson heard Hamilton’s supervisor, Burr, refer toHamilton by a racial slur outside of Hamilton’s hearing.

• No employee of Hamilton’s same race holding Hamilton’s job title has been promotedin the last 2 years.

• But, Hamilton allegedly sent Thomas Jefferson several racially-inappropriate textsduring his employment. Unfortunately, Jefferson deleted the texts last week.

12

WILL HAMILTON’S CONSTRUCTIVE DISCHARGE CLAIM SUCCEED?

A. Yes. The facts uncovered by Independence, along withthose surrounding his resignation, would result in asuccessful constructive discharge claim.

B. No. These facts could never be severe enough to formthe basis of a constructive discharge claim.

C. Maybe. I don’t know. My head hurts. This is whatjuries are for!

WAIT, WAIT … THERE’S MORE!

• Hamilton and Independence came to the agreement that Hamilton wouldresign 314 days before he filed his EEOC charge.

• Hamilton returned his formal resignation paperwork to Independence 299 daysbefore he filed his NEOC/EEOC charge.

Can Independence argue the claims are time-barred?A. Yes, the time period has expired. The 300-day period in which to file a charge begins

running for a constructive discharge claim from the time of the employer’s lastdiscriminatory conduct: in this case, the agreement that Hamilton would resign.

B. No, Hamilton filed in time. The 300-day clock begins running for a constructivedischarge claim from the time of the employee’s notice of resignation.

THIS SCENARIO WAS BASED ON:GREEN V. BRENNAN, 136 S. CT. 1769 (2016)

• A federal government employee filed a constructive discharge charge with the EEOCupon his retirement from the USPS.

• The employee had only 45 days to initiate contact with the EEOC.

• The postal worker filed his charge 41 days after he formally left employment fromthe USPS, but 96 days after he signed an agreement indicating that he had agreedto retire rather than face federal criminal charges for “delaying the mail.”

• The U.S. Supreme Court ruled that the claim accrues at the date of “notice ofresignation” rather than the date of the last act of discrimination by the employer.

o Even though this case analyzed a federal government employee’s claim, theSupreme Court extended its decision to private-sector employees as well.

• The U.S. Supreme Court did not define “notice,” leaving the question open as towhether an agreement to resign is sufficient to start the clock.

13

MORAL OF THE STORY

QUESTIONS?

JASON [email protected]

TARA [email protected]



Documents

PRESENTS THE 18TH ANNUAL EMPLOYMENT LAW FORUM · 2016-09-19 · The 18th Annual Employment Law Forum presented by Cline Williams Wright Johnson & Oldfather, L.L.P. has been approved