© 2008 Dinsmore & Shohl LLP W W W. D I N S L A W. C O M OVERVIEW OF EMPLOYMENT LAWS AND EMPLOYMENT PRACTICES December 9, 2008 Presented to: Cheviot/Westwood Kiwanis By Robert J. Reid Dinsmore & Shohl LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n The Americans With Disabilities Act (“ADA”) – Prohibits discrimination against otherwise qualified persons because of their impairments or disabilities. – Requires reasonable accommodations that enable a disabled employee to perform the central or core functions of a job, unless the accommodations would result in an undue hardship on the employer.

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n Title VII of the Civil Rights Act of 1964 – Prohibits discrimination in employment because of an employee’s race, color, religion, sex, or national origin. – Enforced by the Equal Employment Opportunity Commission. – After EEOC consideration, an employee may bring a private cause of action. Also, the EEOC may bring an action if it chooses to do so. – Remedies, procedures, and burdens of proof are now covered by the 1991 Civil Rights Act.

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n Age Discrimination in Employment Act – Prohibits discrimination in employment because of the age of an employee who is 40 or older. – Enforced by the Equal Employment Opportunity Commission. – Some procedures and burdens of proof are now covered by the 1991 Civil Rights Act, and are similar to those that involve Title VII. Jury trials are available. – Remedies are defined by the Fair Labor Standards Act and include back pay, reinstatement, a double-damage provision for willful violations, and attorneys’ fees

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n National Labor Relations Act – Prohibits discrimination against employees engaged in protected, concerted activity. Generally, union activity. – Governs the relationships between employers and unions, including the selection of unions as collective bargaining representatives and the duty to bargain in good faith.

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n Workers Compensation Statute – Protects employees against discrimination because they have filed a claim for workers’ compensation. – There are procedural notice requirements which an employee must meet before bringing an action in state court.

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP n The Family and Medical Leave Act of 1993 (“FLMA”) – Provides up to 12 workweeks of unpaid leave during any 12 month period for an employee to care for a new child or deal with a serious health condition afflicting the employee or the employee’s parents, spouse, son or daughter. – Leave granted under the Act may be unpaid.

© 2008 Dinsmore & Shohl LLP STATE AND FEDERAL STATUTES AFFECTING THE EMPLOYER-EMPLOYEE RELATIONSHIP – The Act requires that an employer restore an employee returning from leave to the position he/she held when the leave commenced or that the employee be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. – Taking leave shall not result in the loss of any employment benefit accrued prior to the leave. – Each of the state and federal statutes above also prohibit retaliation.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES n Application Forms – Application forms must be reviewed and sanitized to ensure they contain no illegal questions. Inquiries, whether direct or indirect, into the applicant’s race, color, religion, sex, national origin, handicaps, age or ancestry must be eliminated. In addition, under the ADA the employer’s inquiry must relate to whether the applicant can perform the essential job functions. No inquiry into the nature or severity of the disability is permitted. Likewise, no inquiry can be made concerning past filing or existence of workers’ compensation claims.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES – Some common improper inquiries include: n Date of high school graduation n Age or sex of applicant n Listing of disabilities or medical conditions n List prior arrests n Inquiry into type of military discharge n Requiring photographs before hiring

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES – At Will Disclaimers n Every employment application should contain comprehensive employment-at-will disclaimers. These disclaimers should specifically indicate the employment relationship will be on an at-will basis such that either the employer or employee can terminate the relationship at any time for any or no reason. Additionally, the disclaimer should indicate that no one other than a specifically listed company official has the authority to change the relationship.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES – Falsification Statements n The application should state that the applicant verifies the statements are true and recognizes and agrees that providing any false information may result in termination.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES – Drug Tests n If the employer is going to do drug testing of either applicants or employees, the application should provide authorization for the testing and the release of the test results to the employer. Also, there should be a release of all liability for the testing and any action taken based on the results.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES n Interviews – The individual performing employment interviews should receive training to ensure that improper inquiries are not made. Note that inquiries that are illegal on applications also generally are illegal in interviews. Thus, do not inquire into the applicant’s age, children and other personal family matters. Under the ADA, you can require an applicant to demonstrate how he is going to perform the job for which he applied.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES n Employment Contracts – Consider using specific employment-at-will contracts, especially if you are a smaller employer. This can be done easily by sending the applicant a letter reflecting the pay and benefits and including an at-will statement. Have the employee sign the letter and return the original to you.

© 2008 Dinsmore & Shohl LLP APPLICATION OF LEGAL PRINCIPLES n Reference Checks – If you plan on checking applicants’ references, it is a good safeguard to get authorizations specifically permitting the references to release information to you. – If you use an investigative agency, get an indemnification agreement protecting you from any liability resulting from the agency’s conduct. – Lastly, avoid word of mouth hiring. It perpetuates the “good old boys” network with the result being a discriminatory impact on protected classes.

© 2008 Dinsmore & Shohl LLP EFFECTIVE DISCIPLINE n Administer discipline to employees as you would like to have it administered to you by providing them the following: – Specific examples of shortcomings or infractions. n Provide detailed descriptions, dates, production data, and any other facts that will help employees precisely comprehend the problem.

© 2008 Dinsmore & Shohl LLP EFFECTIVE DISCIPLINE – An opportunity to present their own case. n Give employees the chance to explain their actions and to describe the causes behind problems, including your performance as a supervisor. Listen to them and make sure to take into account their version.

© 2008 Dinsmore & Shohl LLP EFFECTIVE DISCIPLINE – Respect. n In discipline, as in every other aspect of supervision, you should deal with your employees in a mature fashion. Avoid condescension, lecturing, and scolding; and above all, do not lose your temper. – A clear understanding of the consequences. n If you are asking for improved performance, make sure employees understand what benefits they can expect as a result of improvement and what risks they run if their performance remains unchanged. These consequences should be clear and specific and tied to measurable criteria.

© 2008 Dinsmore & Shohl LLP EFFECTIVE DISCIPLINE – Specific recommendations to correct performance. n Employees often need extra coaching and guidance in order to improve their performance. Be sure to offer this assistance to help employees meet expectations. Remember that you must work with employees to help them meet expectations. This means that you must be as committed to their success as they are, sometimes more.

© 2008 Dinsmore & Shohl LLP EFFECTIVE DISCIPLINE – A positive attitude from management. n Remember that positive reinforcement is always more effective than negative. Note all improvements in an employee performance and encourage continued efforts to meet expectations. – A second chance. n One-time performance problems can disappear for good if you deal with them in a positive manner and leave them behind. Be careful not to hold a grudge against an employee simply because he/she has demonstrated a performance problem in the past. As much as possible, start with a “clean-slate” after corrective action has been initiated.

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n This summary checklist sets forth several advance steps an employer may consider in its personnel practices, particularly before terminating an employee.

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Sanitize your employment documents (at-will vs. just cause). – Applications – Handbooks – Offer letters – Evaluations

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Train your supervisors/top management (at-will and discrimination laws).

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Conduct investigation (do not accept second or third hand information). – Suspend employee pending outcome. – Interview witnesses. n Obtain written (witnessed) statements. n Document oral statements. – Interview employee (have a witness present). n Obtain written (witnessed) statement. n Document oral statements.

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Document results of investigation. Just the facts. Do not editorialize. n Preserve statements, evidence, and documentation.

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Have decision reviewed by some other management person or local counsel not involved in the matter, if possible. – Timing (does discharge recently follow safety/discrimination complaint, worker’s compensation claim)? – Consistent with policies, procedures and practices. – Consistent with discipline for similarly situated employees. – Consult legal counsel

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n Announce the decision only on a “need to know” basis. Handle termination message in an effective and respectful manner.

© 2008 Dinsmore & Shohl LLP PERSONNEL PRACTICES/DISCIPLINE AND TERMINATION CHECKLIST n If claim, charge or suit filed, notify legal counsel immediately. – Do not communicate (orally or in writing) with opposing counsel or administrative agency with which charge was filed.

© 2008 Dinsmore & Shohl LLP THE EMPLOYEE FREE CHOICE ACT OF 2007 This proposed legislation, if passed into law, would amend the National Labor Relations Act to alter the way employees decide whether to unionize, as well as alter the procedure for employers and unions negotiating an initial collective bargaining agreement.

© 2008 Dinsmore & Shohl LLP What is the current law? n Secret Ballot Election n 45-day timeframe before election n Bargain in good faith

© 2008 Dinsmore & Shohl LLP What is the status of the proposed legislation? n This bill was passed in the House on March 1, 2007, but has not been considered in the Senate. n The election of Barack Obama strongly favors the enactment of the Employee Free Choice Act.

© 2008 Dinsmore & Shohl LLP How does the Employee Free Choice Act streamline union certification? If a majority of the employees in the bargaining unit sign authorization cards, the Board does not direct an election. Instead, if the Board finds that these employees are in a unit appropriate for bargaining and are not currently represented by a union, the Board shall certify the union as the bargaining representative.

© 2008 Dinsmore & Shohl LLP How does the Employee Free Choice Act facilitate initial collective bargaining agreements? The Act would require the following procedure: n The parties shall meet to bargain n Federal Mediation and Conciliation Service (FMCS) mediation n Arbitration panel n Decision by the arbitration panel will be binding on the union and the employer for 2 years

© 2008 Dinsmore & Shohl LLP How does the Employee Free Choice Act create stronger penalties? n back pay plus 2 times that amount as liquidated damages (i.e., treble damages) n civil penalty of up to $20,000 for each violation.

© 2008 Dinsmore & Shohl LLP What do opponents say about the Employee Free Choice Act? n face-to-face demands by union organizers n employers are deprived of valuable campaign time and could receive no notice of union representation n binding arbitration would greatly restrict an employer's ability to bargain effectively n treble damages

© 2008 Dinsmore & Shohl LLP ADA AMENDMENTS ACT OF 2008 n The ADA Amendments Act of 2008 ("ADAAA") amends the Americans with Disabilities Act of n The ADA Amendments Act reverses several holdings by the United States Supreme Court in the last 10 years, regarding what constitutes a disability, how the term "substantially limits" should be interpreted, and provides a list of per se "major life activities."

© 2008 Dinsmore & Shohl LLP What is the status of the proposed legislation? n The ADAAA passed by a landslide in the U.S. House of Representatives. n The Senate passed its version of the ADAAA on September 11, President Bush signed the law and it takes effect on January 1, 2009.

© 2008 Dinsmore & Shohl LLP (1) DISABILITY - The term 'disability' means, with respect to an individual – (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

© 2008 Dinsmore & Shohl LLP IN GENERAL - For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. (2) MAJOR LIFE ACTIVITIES

© 2008 Dinsmore & Shohl LLP (2) MAJOR LIFE ACTIVITIES MAJOR BODILY FUNCTIONS - For purposes of paragraph (1), a major life activity also includes the 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.

© 2008 Dinsmore & Shohl LLP An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. (3) REGARDED AS HAVING SUCH AN IMPAIRMENT - For purposes of paragraph (1)(C):

© 2008 Dinsmore & Shohl LLP The “Lilly LedBetter Fair Pay Act of 2007/ Fair Pay Restoration Act” n Amend Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the American With Disabilities Act, and the Rehabilitation Act to impose a new “paycheck rule”—each paycheck that reflects the discriminatory decision restarts the statute of limitations. n Effectively eliminates the statute of limitations period—each new paycheck starts the SOL again.

© 2008 Dinsmore & Shohl LLP The “Lilly LedBetter Fair Pay Act of 2007/ Fair Pay Restoration Act” n Expands the class of people who could sue by allowing anyone who was “affected” by the alleged improper action to sue—would mean that children or heirs would have standing. n Apply to both intentional discrimination, and disparate impact claims. n Takes effect retroactive to May 28, 2007—date of Supreme Court decision. n Status: On July 31, 2007, the House passed H.R by a vote of , on April 23, 2008 the Senate blocked cloture on the House bill (60 votes needed to proceed).

© 2008 Dinsmore & Shohl LLP The Healthy Families Act n Requires employers with 15 or more employees who work 30 or more hours a week to provide seven paid sick days to care for themselves and their family’s medical needs, and pro-rated coverage for part-time employees. n Requires employers to provide this leave in addition to their current paid sick leave policies.

© 2008 Dinsmore & Shohl LLP The Healthy Families Act n Creates a right of private action for employees (or their representatives) to sue their employer. n Creates a benefit that could be used for an employee’s sickness or sickness of child, parent, family member or anyone “whose close association with the employee is the equivalent of a family relationship.” n No activity yet—Kennedy “legacy” bill.

© 2008 Dinsmore & Shohl LLP The “Civil Rights Act of 2008” n Eliminates the cap on damages under Title VII and ADA claims. n Amends the Equal Pay Act to limit employer defenses and add compensatory and punitive damages for even unintentional equal pay violations. n Amends the Federal Arbitration Act to void pre-dispute binding arbitration. n Provides that the NLRB may award back pay to undocumented workers fired for their support of union representation in violation of the NLRA. n No activity yet.

Robert J. Reid Robert J. Reid is a Partner in the Labor and Employment Law Department. Rob's practice includes the defense of private and public employers in labor and employment issues, including discrimination and civil rights issues, breach of employment contracts, employment-at-will, OSHA matters, wage and hour questions, collective bargaining negotiations, labor arbitration, and unfair labor practice issues under the National Labor Relations Act and corresponding state law. Education J.D., University of Cincinnati College of Law (Law Review, 1993) B.A., Xavier University (summa cum laude, 1990) Bar Admissions Ohio, Kentucky Court Admissions U.S. Court of Appeals for the Sixth Circuit, U.S. District Court for the Eastern District of Kentucky, U.S. District Court for the Southern District of Ohio, U.S. District Court for the Eastern District of Michigan, U.S. District Court for the Eastern District of Wisconsin Selected Professional & Civic Organizations Cincinnati Bar Association, Labor and Employment Law Committee Industrial Relations Research Association, Past President Ohio State Bar Association, Labor and Employment Law Committee Western Economic Council Westside Lawyers' Association Cincinnati Academy of Leadership for Lawyers, Class V Inductee Business Networking International Awards & Recognitions Certified by the Ohio State Bar Association as a Specialist in Labor and Employment Law Named Ohio Super Lawyer by Law & Politics Dinsmore & Shohl LLP 255 East Fifth Street Suite 1900 Cincinnati, Ohio (513)

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© 2008 Dinsmore & Shohl LLP W W W. D I N S L A W. C O M Robert J. Reid Partner Dinsmore & Shohl LLP 255 East Fifth Street Suite 1900 Cincinnati, Ohio (513)