Final #3 employment law 101

1

ONE HOUR LAW SCHOOL

EMPLOYMENT LAW 101Premier date: November 18, 2016

ONE HOUR LAW SCHOOL 2016

EMPLOYMENT LAW 101

Premier Date: November 18, 2016

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meet the facultyPANELISTS

Charles Krugel Charles Krugel’s Labor & Employment Law & Human Resources Practices GroupPaul Mollica Outten & Golden LLPSarju Naran Hoge Fenton

MODERATOR Robert Sieland

DeVry Education Group


Practical and entertaining education for business owners and executives, accredited

investors, and their legal and financial advisors. For more information, visit

www.financialpoise.comDISCLAIMER: THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD

NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

http://www.financialpoise.com/


about this webinarHuman capital. Ultimately, businesses grow and thrive- or can die- based on the performance of their employees. Hiring, training, and retaining good employees is critical. At the same time, so is getting rid of bad people caution must be taken when ending an employment relationship. In this webinar, Financial Poise explores time-tested approaches to performance management and terminating employment relationships. We'll also explore best practices for recruiting and managing employees.


about this seriesWhile the basics about virtually anything- the law included - seem accessible with a few clicks of a mouse, understanding how to use the law practically is another thing. The webinar series, One Hour Law School 2016, explores some of the most common issues faced by business owners, viewed from the real world. The series will jumpstart your understanding of key legal issues and, importantly, discuss practical approaches to dealing and thinking about these matters. You'll learn how to start a company, work with employees and partners, and protect your business's interests.

As with all Financial Poise webinars, each episode in the series is designed to be viewed independently of the other episodes, and listeners will enhance their knowledge of this area whether they attend one, some, or all of the programs.

episodes in this series

EPISODE #1

EPISODE #2 Splitting the Pie: Basics of the Cap Table

10/21/2016

EPISODE #3 11/18/2016

EPISODE #4 Protecting Assets

12/16/2016

Dates above are premier dates; all webinars also available on demand

Forming a Company 9/23/2016

Employment Law 101



Legal Framework• FEDERAL LAWS

• Protecting Fair Workplace• Anti-Discrimination

• Title VII of the Civil Rights Act of 1964 • Age Discrimination in Employment Act of 1967• The Equal Pay Act of 1963• The Genetic Information Nondiscrimination Act of 2008

• Family and Medical Leave Rights• Family and Medical Leave Act (FMLA)

• Accommodations for the Disabled• Americans with Disabilities Act (ADA)

• Background Checks• Fair Credit and Reporting Act (FCRA)

• Employee Safety• Occupational Safety & Health Act (OSHA)


• Protecting Right to Unionize• National Labor Relations Act (NLRA)

• Fair Compensation• Wage and Hour Standards

• Fair Labor Standards Act (FLSA) and Equal Pay Act (EPA)• Standards for Employee Benefits

• Employee Retirement Income Security Act (ERISA)• STATE AND LOCAL LAWS

• Often mirror federal laws but can be often MORE onerous than federal laws (e.g., wage and hour standards

Legal Framework


Employment relationship has three stages:1. Hiring2. Managing/Compensating3. Termination

Stages of Employment


1. Discrimination/Disparate Treatment• Claims typically come from: • failing to hire someone• failing to promote or retaliating against someone• firing someone

2. Policies/Activities Interfering with Organizing Efforts

3. Misclassification of Employees (exempt/non-exempt)

Principal Sources of Risk


MOST PROBLEMS CAN BE AVOIDED BY ESTABLISHING, UPDATING AND FOLLOWING CLEAR, COMPLIANT HR POLICIES

Managing Employment Risk


The “Protected Classes”: • Race• Color• Religion or creed• National origin or ancestry• Sex (including pregnancy/sexual

orientation/gender identity)• Age (over 40)• Physical or mental disability• Veteran status

Anti-Discrimination Laws


Follow anti-discrimination laws:• Keep track of recruiting funnel – advertisements, inquiries,

screening calls, hiring manager interviews, hires – to document non-discriminatory practices

• always have (1) legitimate, nondiscriminatory reasons for adverse employment action or terminations and (2) adequate supporting documentation, even if employees are employed at will

General Rule: do not screen/consider/ask about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information (protected classes)

Hiring


Hiring inquiry should be limited to soliciting information essential for determining if a person is qualified for the job

Key Point: Make sure each position has a detailed Job Description with listing of skills/experience/qualifications necessary, preferred and/or desirable to establish framework for employment decision.

If requirements change over course of hiring process, be sure to update Job Description

Except for genetic information, inquiries about protected class status not always forbidden, but serve as strong evidence of discrimination

Avoid inquiries that could be interpreted as searching for information about protected class status

Hiring cont.


Employee ClassificationEmployee vs. Independent Contractor• Thrust of recent guidance and decisions from Department of

Labor and IRS favors classifying workers as employees• Employee classification requires

• Employer contributions to Social Security and Medicare and Withholding for same

• Rights to participate in employer-sponsored benefit plans (health/401(k), Life/ADD, etc.) at same employer contribution levels

• Companies that fail to appropriately classify employees risk substantial back-taxes and penalties

• IRS applies “20 factor test” – key question is whether worker is free to make his or her own decisions regarding the performance of services – i.e., is the worker truly “independent”

Hiring cont.


Importance of Employment Policies• Establishes standards for workplace and

shared understanding of company’s standards, legal requirements and procedures for compliance

• Must be updated regularly to respond to changing legal landscape

• Must be followed• Don’t establish standards/processes that are not followed;

will be used as evidence of wrongful intent

Managing


Performance Management• Document reasons for promotion, demotion, reprimand

or termination of employment to document decisions• Not only management process; evidence of compliance

with anti-discrimination lawsLayoffs – • analyze for “disparate impact” – • if more employees who are members of one or

several protected classes are terminated, without documented performance-based rationale, can be used as evidence of discriminatory environment

Managing cont.


“Reasonable Accommodations” required for • Religion• Disabilities

Managing cont.


Harassment in the WorkplaceNot limited to sexual harassment – • Precludes harassment because of race, color, religion,

sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information

• Also precludes retaliationStandard is “reasonable person” • Irrelevant if 9/10 unaffected persons believe

behavior/environment is acceptable• Standard looks at views of similarly affected

individuals in similar work environments

Managing cont.


• Employers are liable for harassment in the workplace (whether by employees, vendors, or customers).• To rebut employer liability, employer must

demonstrate actions to prevent harassment (i.e., employee actions were not sanctioned) by:• having clear anti-harassment policy• training employees on anti-harassment• providing multiple channels (hotlines, other

colleagues, etc.) for employees to complain• investigating and, where appropriate, taking

appropriate disciplinary measures

Managing cont.


• Strong Protections for Union Organizing (aka “Protected Concerted Activity”)• “Protected Concerted Activity” is broadly

construed; not just formal union campaign• Two or more employees acting together to improve

their terms and conditions of employment• Implication is that employee workplace

complaints can be protected• Applies even to social networking outside of work.

Union Protections


• Best Practices• Document basis for termination• Document exit interview• Investigate any claims that could be basis of later suit

• Secure company resources (laptops, files, etc.)• Pay all accrued salary, vacation/PTO in accordance with

law and company employment policies• References for Former Employees• Bad references can serve as basis of employer liability

(retaliation)

End of Employment

More About The Faculty:

D

ROBERT P. SIELAND

[email protected]

Robert Sieland is Senior Counsel, Corporate & Securities, at DeVry Education Group Inc. (NYSE: DV), a global provider of educational services. Rob serves as lead counsel for all of DeVry’ Groups’ corporate and securities matters, including mergers and acquisitions. Prior to joining DeVry Group, Rob was an associate at Schiff Hardin LLP and McDermott Will & Emery LLP where he represented public and private companies, including private equity firms and their portfolio companies, in connection with mergers and acquisitions transactions, securities offerings, bank financings and corporate governance matters.


mailto:[email protected]


D

CHARLES KRUGEL [email protected]

As a management side labor & employment attorney & human resources (HR) counselor, Charles Krugel has 20 years of experience in the field & has had his own practice for 15 years; www.charlesakrugel.com. His clients are small to medium sized companies & not-for-profits in a variety of industries. His practice is equal parts prevention, negotiation & litigation. He earned his JD from Ohio Northern University. His MA degree in I/O psychology is from the University of North Carolina at Charlotte. His BS degree in psychology is from Bradley University. He serves on numerous boards & continue to actively participate in many organizations. Presently, he’s on the following boards of directors: Latinos Progresando, the Lakeside Community Committee, Youth Outreach Services, the Kelly Hall YMCA, & the Chicago Bar Foundation's Advocacy Committee. 26© 2016 DailyDAC, LLC d/b/a/ Financial Poise™



D

PAUL MOLLICA [email protected]

Paul Mollica joined Outten & Golden LLP as Of Counsel in 2010. Mr. Mollica has wide appellate experience, including dozens of appeals in state and federal courts, and has often authored or co-authored amicus briefs in the U.S. Supreme Court and U.S. Courts of Appeals for such national organizations as the Lawyers' Committee for Civil Rights Under Law, ACLU, NAACP, AARP, People for the American Way, and the National Employment Lawyers Association. He is also a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He served as executive editor on the Fourth and Fifth Editions of Lindemann and Grossman's Employment Discrimination Law (BNA 2007, 2012), and worked as associate editor on all supplements since 2000. Since 2004, Mr. Mollica has authored the "Daily Developments in EEO Law" law blog.

In 2011, Mr. Mollica was elected to membership in the American Law Institute (ALI), a limited-enrollment organization devoted to publishing scholarly work to develop the law (including Restatements of the Law, model statutes, and principles of law). Previously, in 2008, he was elected as a Fellow to the College of Labor & Employment Lawyers. He was named an Advisor to the ALI's Employment Law Restatement. He is also a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York.




D

SARJU NARAN [email protected]

Sarju Naran is a zealous advocate for his clients, and approaches litigation with creativity and strategy. Chair of the Employment Law Group, Sarju’s experience spans from representing family-owned and mid-size closely held businesses to large multi-national companies. He regularly litigates and provides advice and counsel to companies on:

• Wage and hour issues • Wrongful termination• Trade secret misappropriation • Performance management• Employee mobility • Other high risk matters• Leaves of absence

Sarju appreciates that litigation can be an unwelcome distraction to business operations, and often comes at a high financial and emotional cost. As such, Sarju is committed to representing his clients with an eye toward prevention, compliance, mitigation, and efficiency. Sarju spent his first five years of practice with Hoge Fenton, then was an associate with Paul Hastings Janofsky & Walker, LLP in Palo Alto for four years before rejoining Hoge Fenton in May 2010.




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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.