1. © 2009 Baker & Hostetler LLP 2009 Ohio Public Transit Association Conference and Trade Show May 20-22, 2009 Jean McEntarfer Sharon Gitman Greater Dayton RTA Dan Guttman, Esq. Baker & Hostetler 65 East State Street, Suite 2100, Columbus, Ohio 43215 Telephone: (614) 462-4740 dguttman@bakerlaw.com www.bakerlaw.com

2. Baker Hostetler 2 Counsel to Market Leaders “It’s Time to Ride, But Where Are the Operators?” Presented by: Sharon Gitman, HR Director Greater Dayton RTA Dan Guttman, Labor and Employment, Baker Hostetler Jean McEntarfer, Sr. HR Administrator Greater Dayton RTA

3. Baker Hostetler 3 Counsel to Market Leaders RTA’s Challenges with Attendance & Accountability What were the obstacles?  Internal processes unclear, not centralized  No fault attendance policy administered department by department  When challenged by union: often “settled” attendance discipline arbitrations

4. Baker Hostetler 4 Counsel to Market Leaders RTA’s Challenges with Attendance & Accountability  Employees calling off without any fear of consequence; co-workers and even supervisors driving routes; overtime costs  Declining revenues  Union contracts expiring

5. Baker Hostetler 5 Counsel to Market Leaders RTA’s Challenges with Attendance & Accountability  Executive Director (“ED”) transition June 2005 – January 2006  Recognition that a problem existed at RTA – no fault of anyone in particular  Interim ED began absence policy clarification, attendance expectation and enforcement process

6. Baker Hostetler 6 Counsel to Market Leaders Problem Identification and Solution Implementation  New ED 1/06  Developed an integrated attendance and absence control strategy with a long term focus

7. Baker Hostetler 7 Counsel to Market Leaders Problem Identification and Solution Implementation  Immediately began using labor and employment legal counsel to audit all aspects of attendance process  Focus on absenteeism and understanding employee/employer rights and obligations under FMLA, collective agreement and arbitration case law

8. Baker Hostetler 8 Counsel to Market Leaders Problem Identification and Solution Implementation  Discontinued “settling” any union attendance termination grievances and went to arbitration  Began working on accountability and verification processes for sick and FMLA leave abuse  Met with DOL and established a relationship

9. Baker Hostetler 9 Counsel to Market Leaders RTA’S Integrated and Coordinated Approach to Attendance Accountability  Legal and HR assistance in company-wide supervisor education/training  Process improvements across departments

10. Baker Hostetler 10 Counsel to Market Leaders RTA’S Integrated and Coordinated Approach to Attendance Accountability  Centralized HR employee to handle all leave, including FML  All attendance keeping functions moving to HR

11. Baker Hostetler 11 Counsel to Market Leaders RTA’S Integrated and Coordinated Approach to Attendance Accountability  “Casual absenteeism” decreased dramatically over 3 years  Open communication with DOL, Legal, across and up/down organization

12. Baker Hostetler 12 Counsel to Market Leaders RTA’S Integrated and Coordinated Approach to Attendance Accountability  Frequent meetings with union to discuss absence concerns  Winning most arbitrations!

13. Baker Hostetler 13 Counsel to Market Leaders EDUCATION TRAINING DOL LEGAL COMMUNICATION CONSISTENCY DEPARTMENT INPUT CENTRALIZING

14. Baker Hostetler 14 Counsel to Market Leaders Absence Tracking

15. Baker Hostetler 15 Counsel to Market Leaders Absence Tracking

16. Baker Hostetler 16 Counsel to Market Leaders Why is curbing attendance abuse so difficult?  Employees understand “the system”  Intermittent FMLA leave abuse

17. Baker Hostetler 17 Counsel to Market Leaders Why is curbing attendance abuse so difficult?  Strong unions willing to fight all discipline  No, or little, employee fear of consequences Why is curbing attendance abuse so difficult?

18. Baker Hostetler 18 Counsel to Market Leaders Why has the GDRTA been a success story?  Willing to change “past practice”  Willing to spend time, human resources and money now to add value later  Adopted a comprehensive program

19. Baker Hostetler 19 Counsel to Market Leaders Comprehensive Program  Policy Review – Policies should: Discourage abuse “Have teeth” Easy to Understand Easy to Explain

20. Baker Hostetler 20 Counsel to Market Leaders Comprehensive Program  Specific review and revision to the FMLA Policy:  Encourage legitimate usage, discourage abusive usage  Use all of the arrows in your quiver  Emphasize not only employee rights, but employer rights

21. Baker Hostetler 21 Counsel to Market Leaders Comprehensive Program  Perfect practice makes perfect  GDRTA went well beyond just surface level FMLA training  Weekly telephone calls and constant communication with legal when implementing new policies and practices

22. Baker Hostetler 22 Counsel to Market Leaders Comprehensive Program  Standardize the leave management process form letters checklists consistent response centralize the human resource representative

23. Baker Hostetler 23 Counsel to Market Leaders Communicate New Procedures and Expectations  “Straight talk” to your employees  Outline expectations and failure to meet specific rules

24. Baker Hostetler 24 Counsel to Market Leaders Communicate New Procedures and Expectations  Inform the union of new practice and “strict enforcement”  Bargain, if necessary, to establish long term gain  Inform union you will stand behind and enforce your policy

25. Baker Hostetler 25 Counsel to Market Leaders Communicate New Procedures and Expectations  Eliminate unnecessary settlements and only compromise when necessary  Don’t be afraid to communicate with DOL

26. Baker Hostetler 26 Counsel to Market Leaders Arbitration  The real “game-changer”  The most effective way to change a culture of abuse and of “beating the attendance system”

27. Baker Hostetler 27 Counsel to Market Leaders Arbitration  Consistent arbitration victory will not be possible unless: –your policy is strong –consistently enforced –no mistakes from dispatch to frontline supervisor to HR

28. Baker Hostetler 28 Counsel to Market Leaders Arbitration  Over the last 24 months, GDRTA has won 13 out of 16 attendance termination arbitrations  Termination arbitration victory has immediate effect of establishing consequences for attendance abuse

29. Baker Hostetler 29 Counsel to Market Leaders Jean McEntarfer Sr. HR Administrator Seven Tips for Success in Implementing Attendance Accountability from the HR Perspective: 1.Don’t expect to be liked  It’s only business, it’s not personal  Be consistent

30. Baker Hostetler 30 Counsel to Market Leaders HR Administrator Perspective 2.Expect a lot of work  Know the FMLA regulations and other applicable laws  Keep resources at hand – don’t shoot from the hip

31. Baker Hostetler 31 Counsel to Market Leaders HR Administrator Perspective 3.Understand the FMLA Certification  Really, really read over the documentation  Don’t make assumptions  Don’t do the work for the doctor or the employee – it’s their burden

32. Baker Hostetler 32 Counsel to Market Leaders HR Administrator Perspective 4.Document and follow up with employees – I’ve never met a tree worth saving  Document your conversations  Follow up with letters to the employee

33. Baker Hostetler 33 Counsel to Market Leaders HR Administrator Perspective 5.Make contact with the local DOL Representative  Call and touch base every once in awhile  Ask what other companies/agencies have reported

34. Baker Hostetler 34 Counsel to Market Leaders HR Administrator Perspective 6.Get upper management support  Communicate, communicate

35. Baker Hostetler 35 Counsel to Market Leaders HR Administrator Perspective 7.Be patient  Can’t solve all the issues in one day, week or year  Step back -- see the whole picture; look at all the options; chose what you and the employee are dealing with

36. Baker Hostetler 36 Counsel to Market Leaders QUESTIONS?

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