Employers today encounter more and more restrictions on the management of their workplace. An effective employee relations program is crucial for managing your most valuable asset, your employees. “Managing Labor & Employee Relations” specifically addresses the issues facing employers. This half-day session will provide information to better equip you in dealing with workplace management issues including reasonable accommodation end employee benefits to OSHA inspection survival and an overview of how the NLRB affects non-union employers.

2. Be Reasonable?!? - An Update On Leave As A
Reasonable Accommodation Under The
Americans With Disabilities Act
presented by Margeaux Kimbrough
Kegler, Brown, Hill & Ritter
Labor & Employee Relations Seminar
March 6, 2012

3. Requirement
• Americans with Disabilities Act (“ADA”) requires
employers to provide reasonable accommodations to
qualified individuals with disabilities who are
employees or applicants for employment, unless
doing so would cause undue hardship

4. Definition of Reasonable Accommodation
• Any change in the work environment or in the way
things are customarily done that enables an
individual with a disability to enjoy equal
employment opportunities

5. Categories of “Reasonable Accommodations”
1. Modifications or adjustments to a job application process
that enable a qualified applicant with a disability to be
considered for the position such qualified applicant desires;
2. Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held
or desired is customarily performed, that enable a qualified
individual with a disability to perform the essential functions
of that position; or
3. Modifications or adjustments that enable a covered entity’s
employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other
similarly situated employees without disabilities.

6. Purpose
• Removes workplace barriers for individuals with
disabilities

7. Undue Hardship
• Means significant difficulty or expense
• Focuses on the resources and circumstances of the
particular employer in relationship to the cost or
difficulty of providing a specific accommodation

8. Leave as a Reasonable Accommodation
• Permitting the use of accrued paid or unpaid leave is
a form of reasonable accommodation, when doing so
is necessitated by the employee’s disability

9. Modification of Attendance Policies
• Employer may need to modify attendance policy as a
reasonable accommodation, absent undue hardship
• Such as…
– Adjusting arrival/departure times
– Providing periodic breaks

10. “No-Fault” Leave Policies
• If an employee with a disability needs additional
unpaid leave as a reasonable accommodation, the
employer must modify its “no-fault” leave policy
• Exceptions
– There is another effective accommodation that would
enable the person to perform the essential functions of
the position
– Undue hardship

11. Indefinite Leave
• Employers need not grant indefinite leave
• However….
– Approximate date of return
– Time period for return

12. Intermittent Leave
• An employee may take intermittent leave as a
reasonable accommodation, if doing so does not
cause an undue hardship on the employer

13. Example
• Ms. Krabappel has epilepsy and is ineligible for
FMLA
• Ms. Krabappel has 2 seizures at work within a
3-month period. Every time Ms. Krabappel has
a seizure, she must take off the remainder of
the day. She is able to return to work the next
day.
• Dr. Hibbert provides documentation which
states that Ms. Krabappel will have seizures
once every 2 to 4 months, that there is no way
to predict when they will happen, and Ms.
Krabappel will need to take off the remainder
of the day when she has one.
• Reasonable Accommodation

14. Example
• Comic Book Guy has multiple sclerosis and
works for a small comic book store that is not
covered by the FMLA, but is covered under the
ADA
• Comic Book Guy requests intermittent leave as
a reasonable accommodation
• Comic Book Guy has already taken 5 days off
• He requests a 2-day and 3-day leave of
absence
• Dr. Nick provides documentation showing that
Comic Book Guy will need intermittent leave
for at least several months of 1 to 3 days each
time
• Reasonable Accommodation

15. What Employers DON’T Have to Accept
• Employers need not completely exempt
an employee from time and attendance
requirements, grant open-ended
schedules, or accept irregular,
unreliable attendance
• Employers generally do not have to
accommodate repeated instances of
tardiness or absenteeism that occurs
with some frequency, over an extended
period of time, and often without
advanced notice

16. Example
• Homer works at the Springfield nuclear power
plant and has a severe case of asthma.
Homer’s job as a safety inspector requires him
to run safety audits every day beginning at
7:00 a.m.
• Homer’s asthma has gotten worse. As a
result, Homer has taken 12 days of leave
during the past two months. Homer suffers
symptoms at night, so he generally calls in sick
the next morning
• Dr. Hibbert is unable to predict when
symptoms will flare up and has not been able
to find treatments that will control the
symptoms
• The power plant has no positions available for
reassignment
• The power plant does not have to retain
Homer

17. Example
• Maggie grows up and becomes a wedding coordinator for
David Tutera
• Maggie is out of FMLA leave due to a disability and requests
additional intermittent leave as a reasonable accommodation
• Maggie cannot predict when she will need leave or how much
leave she will need
• David Tutera agrees to give Maggie 14 days of leave over a
period of two months
• Dr. Hibbert provides documentation showing that Maggie will
need similar amounts of intermittent leave over the next 6
months
• David Tutera does not have any vacant positions
• David Tutera is not required to retain her

18. EEOC Guidance
?

19. Thank You!
Margeaux Kimbrough, Associate
mkimbrough@keglerbrown.com
(614) 462-5437

20. Hot Topics for Employee Benefits
presented by Tom Sigmund
Kegler, Brown, Hill & Ritter
Labor & Employee Relations Seminar
March 6, 2012

21. Status of Healthcare Reform
• W-2 reporting
• Amendments to HSA, FSA, and HRA
• Small business wellness programs
• Form 1099 reporting
• Uniform explanation of coverage (SBCs)
• Medicare payroll tax increase
• Automatic enrollment
• Vouchers
• Non-discrimination rules for non-grandfathered plans
• Preventative health services and cost-sharing limitations
• Claims and appeals process

22. Maintaining Grandfathered Status
• Effect of being grandfathered
• How to maintain or lose grandfather status
• Collectively bargained plans
• Provisions affecting non-grandfathered plans:
– Nondiscrimination rules
– Dependent coverage to age 26
– Coverage of preventative health services and cost-sharing limitations
– Choice of primary care provider
– Claims and appeals process
– Emergency department services
– Transparency in coverage disclosures (HHS submissions)

23. Welfare Benefit Plan
Disclosure Rules
• SPD
• SBC (summary of benefits and coverage)
• 60-day Notice
• Penalties

24. Qualified Retirement Plan
Fee Disclosures
• Fiduciary Duties Under ERISA
• Prohibited Transactions
• Service Provider Fee Disclosures
• Participant Fee Disclosures

25. Wellness Programs
• Health Benefits and Discrimination
– ERISA
– ADA
– GINA
• Non-discriminatory Wellness Plans
• Best Practices
• Legal Principles

26. Thank You!
Tom Sigmund, Director
tsigmund@keglerbrown.com
(614) 462-5462

29. How To Survive An OSHA Inspection
presented by Timothy A. Kelley
Kegler, Brown, Hill & Ritter
Labor & Employee Relations Seminar
March 6, 2012

30. Who/What Is OSHA?
OSHA!
BUT: the OSHA C.O. is Not
• “to assure safe and your friend.
healthful working
conditions for working men
and women by setting and
enforcing standards and by
providing training,
outreach, education and
assistance”

31. Why?
• Since 2006, OSHA has been more active.
– Bigger budget.
– More inspections.
– Harsher citations.
– Bigger fines.

32. From 2006 To 2010:
• OSHA’s budget increased by 7.68%.
• Total number of inspections increased by 6.2%.
• Whistle-blower inspections increased by 8.8%.
• Programmed inspections increased by 15.1%.

33. Who Is Targeted For
Programmed Inspections?
Heavy industry? Yes. Nursing homes…yes!

34. From 2006 To 2010:
• Total violations increased 15.3%
• Total SERIOUS violations increased 22.1%
• Total WILLFUL violations increased 217.1%

35. What Does A Willful Citation Mean For
You?

36. What Should You Do
BEFORE An Inspection?
Implement and enforce a
Train your supervisors. disciplinary program.

37. Train Your Supervisors
• Prepare them for what to do during an OSHA
inspection.
• Ensure they know the safety/compliance issues
specific to their department.
• Make sure they inform their employees of their
rights, duties, and obligations during an OSHA
inspection.
• REMEMBER: the OSHA inspector is not your friend.

38. Implement And Enforce
A Disciplinary Program
• Why: to preserve the employee misconduct defense.
– existence of program;
– communication to employees;
– steps to discover violations;
– enforcement.
• Secretary v. Skanska Koch, Inc.
– “ground inspection” of tie-off rule insufficient.
• Secretary v. CB&I Constructors, Inc.
– employees lied about compliance=insufficient.

39. What To Do When The OSHA C.O. Knocks
On Your Door?
• Call your attorney.
• Why is OSHA here?
• Will you let OSHA
inspect without a
warrant?
• Be proactive during the
inspection.
• Seek immediate
resolution.

40. Call Your Attorney
• Your attorney can assert
your rights during an
OSHA inspection.
• Your attorney can help
you decide
if/when/where you will
allow the inspection to
proceed.

41. Why Is OSHA Here?
• Ask for credentials.
• Designate an employer representative.
– advise employees that access is denied until the employer
representative is present.
– all communications go through the representative.
• Determine the reason for the inspection.
– programmed, complaint, incident, follow-up.
• Determine the scope of the inspection.
– entire facility, or just one piece of equipment?

42. Will You Let OSHA Inspect
Without A Warrant?
• OSHA cannot conduct a warrantless search without
employer consent.
• OSHA should be able to get the warrant, but it will
take time.
• Factors to consider:
– possibility of a repeat violation (i.e. bigger fine).
– more thorough/detailed inspection once warrant is
procured.

43. BE PROACTIVE DURING THE INSPECTION.
• Employer representative should accompany C.O. at
all times.
– control the route (“plain view” doctrine).
• C.O. may speak to employees privately, but
employees may be informed that they are not
required to talk, or that they may request the
presence of the employer representative.
• Do NOT concede anything to the C.O.

44. REMEMBER: the C.O. is not your friend,
AND he might not know what he is doing.

45. Do NOT Concede
Anything To The C.O.
• Do not offer superfluous information
(“I don’t know” is ok).
– except for obvious answers.
• Do not admit to violations.
– ask why inspector believes there is a violation, and what
actions should be taken to correct it.
• You are not obligated to run a machine that is not
currently operating.
• Enforce facility rules restricting photography when
possible.

46. Do NOT Concede
Anything To The C.O.
• But: be polite,
proactive, and
conscientious to
employee safety/OSHA
compliance.
• “Keep your friends
close, but your enemies
closer.”

47. Seek Immediate Resolution
• If possible, correct alleged violations immediately.
– may demonstrate good faith.
– but remember, do not ADMIT to the violation.
• Use the closing conference to your advantage.
– seek information, but do not engage in speculation.
– clarify any mistaken impressions the C.O. may have formed
during the inspection.
– demonstrate willingness to comply with standards, but be
resolute in position that no violations exist.

48. What Is Your Goal?
• Show the C.O. your good-faith commitment to
employee safety and OSHA compliance.
• Determine strength or weakness of any alleged
violation.
• Begin to decide if you want to contest the citation(s).

49. What If Your Business Isn’t Subject To
Specific OSHA Standards?
• You are still subject to the General Duty Clause.
• “Each employer shall furnish to each of his
employees employment and a place of employment
which are free from recognized hazards that are
causing or are likely to cause death or serious
physical harm to his employees….”

50. Black Friday Stampedes
• 2008, a Wal-Mart
employee was killed by a
stampede of shoppers.
• Wal-Mart cited for
exposing workers to the
“recognized hazard” of
being crushed by a crowd.
• Wal-mart fined $7,000
spent approx.
$2 million defending.

51. Insane Patient Shooting
Nurse In A Hospital
• 86 year-old hospital patient
pulled a revolver on a nurse
and shot him 3 times.
• Hospital cited for “failing to
provide a workplace free
from recognized hazards
…in this case the hazard of
employees being injured by
violent patients.
• Union president: “this
validates us, 100%.”

52. Questions?
Timothy A. Kelley, Associate
tkelley@keglerbrown.com
(614) 462-5407

53. The NLRB for the Non-Union Employer
presented by Brendan Feheley
Kegler, Brown, Hill & Ritter
Labor & Employee Relations Seminar
March 6, 2012

54. Every New Beginning Comes From Some Other
Beginning’s End
• NLRA passed in 1935
– Major component of New Deal Legislation
– to protect the rights of employees and employers, to
encourage collective bargaining, and to curtail certain
private sector labor and management practices, which can
harm the general welfare of workers, businesses and the
U.S. economy
– Mission accomplished???

55. Who Are You (I Really Wanna Know)
• NLRA enforced by NLRB
• Current NLRB
– Mark G. Pearce, Chairman
• union and plaintiff side labor and employment lawyer (Buffalo NY)
– Brian Hayes
• Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor
and Pensions. 25 years experience representing management in employment law
– Sharon Block*
• Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for
Senator Edward M. Kennedy.
– Terence F. Flynn*
• Chief Counsel to Board Member Brian Hayes and former NLRB Board Member Peter
Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the
National Labor Relations Act.
– Richard Griffin*
• General Counsel for International Union of Operating Engineers (IUOE).

56. We’re Not Gonna Take It
• We’re not union, we’re not gonna be, this don’t
apply to me
Wrong!
– Section 7:
“Employees shall have the right to self organization, to form, join or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection …”
– Section 8(a)(1) forbids employers:
“to interfere with, restrain, or coerce” employees in the exercise of
Section 7 rights.

57. 4 Critical Areas To Be Aware Of
• Elections
– Who’s in, Who’s out, Timing, rules & rights
• Protected Concerted Activity
– Employee speech and communication
• Handbilling, Demonstrating
– What employees can and can’t do
• Handbooks
– Social media, confidentiality, Open door etc…

58. Election Rules
Old Rule New Rule
• Prior to an election, the Board • Hearings will only be held to
could hold a hearing pre- resolve questions regarding
election issues, such as the
supervisory status and “whether a question of
classifications representation exists.”
• After a pre-election hearing, • Hearing Officers have
parties could submit post-
hearing briefs advocating their
discretion to allow or not
respective positions regarding allow the filing of post-
the issues litigated hearing briefs.

59. Election Rules (cont.)
Old Rule New Rule
• Parties could appeal certain pre- • Pre-election rulings by Regional
election rulings to the full, 5-member Directors can only be appealed to the
NLRB pre-election. full NLRB post-election.
• In the event a pre-election hearing • A Regional Director no longer must
was held, no election could take wait until a decision has issued from
place until 25-30 days after the a pre-election hearing before
Regional Director issued a decision directing an election
regarding the issues litigated at the
hearing
• The NLRB has discretion to review
• Appeals of Regional Director election Regional Director rulings.
rulings generally had to be reviewed
by the full NLRB

60. What do these changes mean
• Faster elections
– Helps Unions win.
• Train your supervisors
– Know what this is
• Strategize
– What is the Company’s
position on a Union

61. Social Media: The NLRB’s Attack
On Your Brand
• Section 7 vs. Section 8(a)(1)
• What’s in play
– Employer’s interest in protecting image on-line and brand
– Employer’s desire to keep dirty laundry “in-house”
– Employee’s legal right to discuss terms and conditions with
other employees and with Company
– Employee’s legal right to engage in activity, with or on behalf of
other employees.
• Board has to weigh the competing interests
– How do you think they’re doing?

62. Collect (Your Belongings)
• Employer is a collection agency
• The Employer’s rule prohibited “*m+aking disparaging
comments about the company through any media,
including online blogs, other electronic media or
through the media.”
• Employee updates status
• Other employees make comments about Company
• First Employee fired.

63. Bring Out The Caviar
• Employee criticized the dealership for serving hot
dogs and bottled water to customers at a luxury-car
promotion and followed an earlier discussion among
workers in person that commissions could suffer.
– Did employer know about earlier discussion?

64. How Far Is Too Far?
• Supervisor reprimands employee in front of the Regional Manager for
failing to perform a task that she had never been instructed to perform
• Employee uses cell phone during her lunch break to update her Facebook
status with a comment that consisted of an expletive and the name of the
Employer’s store
– Four individuals, including one of her coworkers, “liked” that status
• 30 minutes later, the Charging Party posted again, this time commenting
that the employer did not appreciate its employees.
– the four coworkers who were her Facebook “friends” did not respond.
• Firing ok?

65. Threats = Termination
• Supervisor says employee will lose attendance points if he left work
early because he felt unwell. Employee writes on Facebook he is "a
hair away from setting it off in that b—," apparently referring to the
warehouse where he worked.
• A human-resources manager later told the employee the comment
sounded like a threat to shoot everyone in the warehouse,
according to the NLRB's written account of its investigation.
• The employee, told HR he was just venting and "setting it off"
meant swearing at someone or walking out on the job, according to
an NLRB report.
• The NLRB said the comments weren't protected.

66. Comments About Employer Service... Gray Area
• Employee protests over the quality of service provided by
an employer are not protected where such concerns
have only a tangential relationship to employee terms
and conditions of employment.
• On the other hand, when employees engage in conduct
to address the job performance of their coworkers or
supervisor that adversely impacts their working
conditions, their activity is protected.
• Bartender opinion

67. Problems With Social Media Policies
• The Employer’s rule prohibited “*m+aking disparaging comments about the company through
any media, including online blogs, other electronic media or through the media.”
• “in external social networking situations, employees should generally avoid identifying
themselves as the Employer’s employees, unless there was a legitimate business need to do
so or when discussing terms and conditions of employment in an appropriate manner.”
• “insubordination or other disrespectful conduct” and “inappropriate conversation” are
subject to disciplinary action.
• prohibits employees from using social media to engage in unprofessional communication that
could negatively impact the Employer’s reputation or interfere with the Employer’s mission
or unprofessional/inappropriate communication regarding members of the Employer’s
community.

68. Holding Your Hand(book) To The Fire
• Non-disclosure policy
– employees have a right to discuss their wages and other terms and
conditions of employment
• Policy that limits that= not ok
• Open door policy
– If says don’t communicate with other employees then not ok
– Board says only relates to individual grievance not group, Court says
no
• Working hours policy
– “*p+erforming activities other than Company work during working
hours”
• Personnel Files
– Any unauthorized disclosure of information from an employee’s
personnel file is a ground for discipline, including discharge.”

69. So What Can We Do?
• Wait, watch, pay attention...
• Make sure your policy includes disclaimer language.
• Define conduct that is appropriate, and
inappropriate.
– Vulgar, obscene, threatening= inappropriate.

70. Handbilling
• Test:
– “*T+he property owner may lawfully exclude such
employees only where:
• the owner is able to demonstrate that their activity significantly
interferes with his use of the property or
• where exclusion is justified by another legitimate business reason,
including, but not limited to, the need to maintain production and
discipline (as those terms have come to be defined in the Board's
case law).”
• Simon DeBartolo Group (Dec. 30, 2011)192 LRRM
1231

71. You Don’t Have To Go Home, But You Can’t Stay
Here (Off Duty Access)
Saint John's Health Center (Dec. 2011) 192 LRRM 1249
• Policy ok if :
(1) limits access solely with respect to the interior of the
plant and other working areas;
(2) is clearly disseminated to all employees; and
(3) applies to off duty employees seeking access to the plant
for any purpose and not just to those employees
engaging in union activity.”

72. Articles Of Clothing
St. John’s Hospital
• Here, the Respondent banned the Union's ribbon stating, “Saint John's RNs for
Safe Patient Care,” but allowed employees to wear a hospital endorsed ribbon that
was almost identical to the one issued by the Union.
– In addition, the Respondent allowed other union insignia and political buttons to be worn
throughout the hospital including in immediate patient care areas.
AT&T Connecticut
• technicians who conducted service calls at customers’ homes wore shirts
resembling prison uniforms as a statement about a bargaining dispute between
the union and the company. The text “INMATE #” appeared on the front of the
shirts. One the back were bars and vertical stripes with the text “PRISONER OF
AT&T.”
– Employees have a protected right to make known their concerns and grievances pertaining to
the employment relationship, which includes the wearing of union insignia while at work.

73. Don’t You Move! (And We Mean It)
• The NLRB had charged that Boeing decided to open
the plant, in order to punish the union for past
strikes that shut down the aircraft maker's
production lines.
• Boeing officials argued that no union member was
hurt by the new plant since it was maintaining full
employment at its union-covered plants in the Pacific
Northwest.
– But it said the need to protect itself from the threat of
future strikes was a reason for the new plant.

74. Boeing (con’t)
• The union said its members' future job security
depended on them handling all the assembly of the
787, the company's groundbreaking plane that
improves fuel economy through its construction from
composite materials rather than aluminum.
• In December, the union and Boeing reached a deal to
keep production of another new plane, the 737 MAX,
at union-represented plants in the Pacific Northwest.

75. Closing Time
• The NLRA applies to you
– The NLRB doesn’t want to allow you to run your business
or monitor your brand
– They don’t even want to let you choose where you open
your facility
• Investigate the circumstances surrounding any
postings.
• Before you take any disciplinary action talk with your
favorite employment lawyer...

76. Thank You!
Brendan Feheley, Associate
bfeheley@keglerbrown.com
(614) 462-5482