CLEVELAND SHRM LEGAL AFFAIRS CONFERENCE...complete drive allows for detailed forensic analysis as needed ESI Beyond Email •Smartphones – Smartphones are primarily valuable for

CLEVELAND SHRM LEGAL AFFAIRS CONFERENCE

DECEMBER 1, 2017 Baldwin Wallace University

www.beneschlaw.com

TRADE SECRET PROTECTION: BEYOND

THE BASICS

Matthew D. Gurbach Partner and Co-Chair of Products Liability Practice Group

Benesch Friedlander Coplan & Aronoff LLP 200 Public Square, Suite 2300

Cleveland, Ohio 44114 (216) 363-4413

[email protected]

CLEVELAND SHRM LEGAL AFFAIRS CONFERENCE

DECEMBER 1, 2017 Baldwin Wallace University

GOALS

• Share what jurors, mediators and judges are thinking • Consider trade secret rights and enforcement from a

perspective beyond a typical recitation of law • Identify the threats to your company’s trade secrets • Examine data harvesting from a new perspective • Discuss strategic decisions relating to trade secret

enforcement before the dust has settled

Threats to Your Trade Secrets: Identification and Implications • State court misappropriation cases almost always involve business partners

or employees (93%) • Five states heard 49% of all misappropriation appeals: California, Texas,

Ohio, New York, and Georgia • Trade secret owners have tough record of success on appeal: 41% win on

appeal • The vast majority of information alleged to be a trade secret include

customer lists or information, internal numbers, and technical programs or formulae

• The states rely less on each others’ law for persuasive effect (only 7% of state courts cited other jurisdictions’ decisions on trade secrets)

Sources: A Statistical Analysis of Trade Secret Litigation in State Courts, 46 Gonz. L. Rev. 57; A Statistical Analysis of Trade Secret Litigation in Federal Courts, 45 Gonz. L. Rev. 291

The Fox is in your Henhouse

Sources: A Statistical Analysis of Trade Secret Litigation in State Courts, 46 Gonz. L. Rev. 57; A Statistical Analysis of Trade Secret Litigation in Federal Courts, 45 Gonz. L. Rev. 291.

Recognizing the Personal and Organizational Factors that Put You at

Risk

Personal Factors that Create Risk

• Greed, financial need (excessive debt or overwhelming expenses), or vulnerability to blackmail (gambling, fraud)

• Feelings of anger/revenge against the organization. This can stem from problems at work, a lack of recognition, disagreements with co-workers or managers, dissatisfaction with the job, a pending layoff, etc.

• Divided loyalty – allegiance to another person, company, or country • Compulsive or destructive behavior, or family problems: drug or alcohol

abuse, other addictive behaviors, marital conflicts, or separation from loved ones

• Employees who are laid off, subject to a reduction in force, passed over for a promotion, terminated, demoted, or required to follow a performance improvement plan Source: The Insider Threat: An Introduction to Detecting and Deterring the Insider Spy published by the Federal Bureau of Investigation.

Organizational Factors that Create Risk • The availability and ease of acquiring proprietary, classified, or other protected

materials. Providing access privileges to those who do not need it • Proprietary or classified information is not labeled as such, or is incorrectly labeled • The ease that someone may exit the facility (or network system) with proprietary,

classified or other protected materials • Undefined policies regarding working from home on projects of a sensitive or

proprietary nature • The perception that security is lax and the consequences for theft are minimal or

non-existent • Time pressure: Employees who are rushed may inadequately secure proprietary or

protected materials, or not fully consider the consequences of their actions • Employees are not trained on how to properly protect proprietary information

Source: The Insider Threat: An Introduction to Detecting and Deterring the Insider Spy published by the Federal Bureau of Investigation.

Judges and Juries want to see a “Culture of Confidentiality”

• Know your trade secrets • Implement a written trade secret policy • Educate your employees • Restrict access to information (both internally and externally) • Mark documents • Be very careful with third parties (NDAs and Confidentiality

Agreements) • Maintain computer security • Consider physically isolating trade secrets • Control public/third-party access to your facility or process • Customer Information – How is it protected?

The Colonel Did it Best

The Most Critical Time

When you have discovered that the recipe is gone: Now What?

Step 1: Assemble Your Team

• Human Resources • Information Technology/Litigation Support • Legal

YOU!

• The HR Team will assemble the entire personnel file • The file should include the latest versions of Confidentiality,

Technology, Non Disclosure, and Trade Secret Policies, Procedures, and Agreements

• Of particular importance are acknowledgments signed by employees

One-Dimensional View of the IT Department/Electronically Stored Information (“ESI”)

Change Your Perspective – Offensive use of ESI

Information Technology/Litigation Support

• Shift the paradigm: ESI is a weapon • Act quickly (with the right people) • Preservation with nothing more is a half-measure. Place a

premium upon (and demand) in-depth analysis of ESI • An antiquated mindset: “Let’s preserve the mailbox” • A proactive and modern mindset: “Let’s take a holistic approach

to preserving and analyzing the entire digital footprint” • IT departments are rarely forensics experts, but they do work

with the appropriate forensic professionals

“Old School” ESI

• Traditional Data Preservation (Email, File Server Documents) – Recommended for fact analysis regarding business operations,

nature of the proprietary data in question, etc. – Unlikely to lead to “smoking gun” evidence of illicit behavior since

offending employees seldom document such behaviors – Valuable information is obtained mainly through data created by

the computer systems, the existence of which may be unknown to most users

ESI Beyond Email

• Preserve Employee Hard Drives and Devices – Valuable “fingerprints” of employee activity are usually found

on individual workstations, not servers or corporate Email – Employee computers are often re-purposed when an

employee departs and key evidence can be quickly lost – IT departments should pull hard drives from employee

devices upon departure. The hard drives can be labeled and placed in secure storage for later use

– Hard drives are inexpensive to replace but having the complete drive allows for detailed forensic analysis as needed

ESI Beyond Email

• Smartphones – Smartphones are primarily valuable for text messaging – Texting is becoming a routine method of business communication – In trade secret cases, texts are likely to be more valuable than email

due to the perception of privacy and disconnection from corporate systems

– Texts may not be stored on the phone itself. This depends on the device and preferences of the user

– Other valuable information from smartphones can include contact lists, call logs, photographs, video, GPS location tracking information

– GPS location data can be particularly useful in determining when an individual was at the workplace or perhaps even at a competitor’s location

ESI Beyond Email

• Other Non-Traditional Electronic Data Sources – Logs of employees security swipe cards/dongles – Parking garage logs – Copy machine hard drives (these often capture images of

scanned/copied documents along with date and time information related to the activity)

– Security system information such as camera footage

Legal

• Quarterback and coordinate HR, technical, and business professionals

• Evaluate all of the data that has been both preserved and analyzed

• Determine what data has been compromised – Locate accomplices and additional defendants – Evaluate the potential causes of action – Suggest and execute a strategy of enforcement

Step 2: Enforcement - The Enforcement Spectrum

Litigation Reminder Letter to

Employee

Cease & Desist Letter

Litigation +

TRO

INFORMAL FORMAL

LOW COST HIGH COST

A jury of your peers

What juries want…

• What Plaintiff did in the immediate aftermath of the departure (or theft) is supremely important to triers of fact

• Jurors are keenly interested in efforts to mitigate loss • Jurors want to know what a Plaintiff did to proactively

protect its proprietary data • Jurors want to know that the employer did not sit on its

hands after it learned that its information had been compromised

Concluding Thoughts

• Think proactively • When it is time to react, do so quickly • ESI will make, or break, your case • Mitigate your losses (and when you are done with that,

mitigate them some more)

Matthew D. Gurbach Benesch Friedlander Coplan & Aronoff

200 Public Square, Suite 2300 Cleveland, Ohio 44114

[email protected] (216) 363-4413

The Contingent Workforce: What to Know and How to Implement

Presented by:Meredith Shoop

Agenda

• Defining the Contingent Workforce(and Why We Care)

• Independent Contractors• Joint Employment Disputes• Managing Co-Employment in

Staffing Relationships

Introduction: Defining the Contingent Workforce

• Not a legal term• Workers who are not

employees of the “using” organization


• May include:– Temporary employees– Leased employees– Independent contractors– Consultants


• What it’s not: “employees”– Part-time employees– Seasonal employees– Anyone improperly classified as an independent contractor, temp,

leased employee, or consultant


• Bottom line: employer status matters

• Imputing liability for wrongful employee conduct

• Employers’ duties to their employees


• Contingent workers may or may not have rights with respect to:– Benefits– Workers’

compensation– Anti-discrimination– Unemployment

compensation– Labor union laws– Safety violations


• Bottom line: there are a variety of tests to determine whether a worker is an “employee”

• Statute by statute• That analysis should be

undertaken when contingent workers are used.

Independent Contractors

• Employee vs. Contractor• Multiple standards (federal tax law, federal wage & hour law, federal

benefits law, federal anti-discrimination law, and individual states’ tests)

• Economic realities test (FLSA)• IRS 20-factor test• Common law tests

Independent Contractors

Contingent workers’ classification may be challenged by the IRS, DOL, employees seeking claims or benefits, or others.

Joint Employment Disputes

• The legal theory here is not new• “Joint employment” exists when a person is employed by two or

more entities• In those circumstances, the two entities may be held jointly liable

for violations of federal, state, and local laws.


• Joint employer tests apply to otherwise unrelated entities

• Single entity or “integrated enterprise” tests apply to parent/subsidiary/affiliate companies


• NLRB reversed long-settled rules• DOL issued expansive interpretation• OSHA• Fair Employment Laws

Managing Co-Employment in Staffing Relationships

• Co-employment duties are divided by contract.• Don’t assume more responsibility than you have negotiated• Do carefully negotiate your agreements and review them as needed

Managing Co-Employment: Best Practices

• Make sure your compensation, benefits, and other policies and plans clearly distinguish direct employees from temps and exclude all but direct employees.

• Obtain temporary employees only through reputable staffing firms.

• Include temps in business and social events, except for gatherings specifically for direct employees only. Funnel social invitations through the staffing firm

Managing Co-Employment: Best Practices

• Let the staffing firm do the recruiting, screening, selection, and assignment.

• Let the staffing firm determine wages and benefits, even if you exercise oversight of pay levels generally.

• Bring performance and discipline issues to the staffing firm. Allow it to deal with its employees.

• Have distinctive badging and identificationfor temporary employees.


• Refer separately to the temp group in announcements, memos, etc. that affect them.

• Don’t require staffing firm employees to report tardiness or absences to your supervisors.

• Don’t change a temporary employee’s work assignment without consulting with the staffing firm.

• Have temps acknowledge exclusive employment by staffing firm.

• Temps’ waivers of your benefits help immunize against retrobenefit damages claims.


• It is better for direct employees to be blended into the general population of temps than for them to be segregated and treated differently.

• Special fringe benefits (employee discounts, health facility privileges, etc.) could be “purchased by the staffing firm for temps rather than afforded outright by you.

• On-site presence by the staffing firm is helpful.• Stated end-dates for assignments, when known, are helpful.• Orientation brochures and other communications can disclose

and reaffirm the staffing firm’s role as principal employer.

Questions?

Meredith C. ShoopLittler Mendelson, P.C.

1100 Superior Ave. E, 20th FloorCleveland, OH [email protected]

216.623.6098

Seeing Through the Fog: Safely Navigating the Uncertain Waters of FMLA, ADA, and Emerging Compliance Issues

Presented by:Christopher J. Lalak – Benesch, Friedlander, Coplan & Aronoff LLPShannon Byrne – Littler Mendelson, P.C.

Christopher J. LalakBenesch, Friedlander, Coplan & Aronoff LLP200 Public Square, Suite 2300Cleveland, OH 44114‐2378

Part I: Intersection of the Various Leave Laws

• Family and Medical Leave Act of 1993 (FMLA)• Americans with Disabilities Act of 1990 (ADA)• Pregnancy Discrimination Act (PDA)

– Amending Title VII of the Civil Rights Act

• R.C. 4112• Workers’ Compensation – R.C. 4123

Laws Governing Leave

• Applies to employers with 50 or more employees• Employees entitled to 12 work weeks of unpaid, job‐protected leave within 12‐month period

• Leave for specified family and medical reasons• Eligible employee entitled to 26 work weeks of leave during 12‐month period when:– Leave is to care for a servicemember– Employee is spouse, son, daughter, parent, or next of kin of the servicemember

• Employee may sometimes utilize FMLA leave on intermittent or reduced schedule

Family and Medical Leave Act

• Employee eligibility– Worked for employer at least 1,250 hours in last 12 months

– Employed at location with at least 50 employees in 75 mile radius

• Reason for taking leave is:– Employee’s serious health condition– Employee’s immediate family member’s serious health condition

– Qualifying exigency arising out of employee’s immediate family member’s active military duty

– Covered service member with serious injury or illness

FMLA Leave Required When:

• Applies to employers with 15 or more employees• Prohibits discrimination based on disability• Employers must provide reasonable accommodations toapplicants and employees with disabilities

• Reasonable accommodations– Changing the work environment so that an individual with a disability can enjoy equal employment opportunities

– Includes modifications to leave policies or providing leave as needed

Americans with Disabilities Act

• Applies to employers with 15 or more employees– But not applicable to independent contractors

• Employers must treat women affected by pregnancy, child birth, or related medical conditions the same for employment‐related purposes

• Employer violates PDA if it:– Intentionally discriminates against pregnant employees– Maintains a policy that adversely affects pregnant employees

Pregnancy Discrimination Act

• “Pregnancy” includes:– Current pregnancy, past pregnancy, potential pregnancy, intended pregnancy

– Abortions (Turic v. Holland Hospitality, Inc., 85 F.3d 1211 (6th Cir. 1996))• “Related medical conditions” includes pregnancy complications requiring bed rest, gestational diabetes, after‐effects of C‐section, and lactation

• Protection extends to spouses of male employees– Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)

PDA Definitions

• Both govern leave for pregnancy and pregnancy‐related conditions

• FMLA includes leave for:– New child, by birth, adoption, or foster care placement– Employee’s immediate family member’s serious health condition

• Pregnant child only covered if under 18 or unable to self‐care due to disability• Pregnancy complications usually too short in duration for FMLA coverage

• FMLA potential interruptions– Fielding occasional calls and emails does not interfere with FMLA leave– Employers should be cautious about allowing work during FMLA leave– Coercing employee to work during FMLA leave and then reassigning

employee for poor performance during FMLA leave is a clear violation of the FMLA

• Evans v. Books‐A‐Million, 762 F.3d 1288 (11th Cir. 2014)

Relationship Between FMLA and PDA

• PDA entitles pregnant employees same leave as other employees

• When accommodations available for various other circumstances and conditions not reasonably distinguished from pregnancy, genuine issues of material fact employer has disparate leave policies– Young v. United Parcel Serv., Inc., 135 S. Ct.

1338 (2015)• Pregnant employee must provide employer

with opportunity to remedy a problem– Ames v. Nationwide Mut. Ins. Co., 747 F.3d 509

(8th Cir. 2014)

Court Interpretations of the PDA

• Employer not required to make additional accommodations not afforded to non‐pregnant employees– Arizanovska v. Wal‐Mart Stores, Inc., 682 F.3d 698 (7th Cir. 2012)

• Comparison to other leave policies unnecessary if employee can present sufficient evidence of discrimination based on pregnancy– Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249 (11th Cir. 2012)

Court Interpretations of the PDA

• Both require employer to grant leave in certain circumstances• FMLA provides leave for serious health condition of:

– Employee– Employee’s immediate family

• Serious health condition requires inpatient care or continuing treatment• ADA mandates reasonable accommodation and may involve leave

– “Disability” substantially limits 1+ major life activity, to be construed broadly– “Major life activity” includes caring for oneself, seeing, hearing, eating, etc.– “Major life activity” can also include major bodily functions

Relationship Between FMLA and ADA

• Some FMLA serious health conditions are ADAdisabilities– Cancer– Serious strokes

• Some serious health conditions not ADA disabilities– Pregnancy

• To be a disability, serious health condition must be:– An impairment and substantially limiting– However, ADAAA of 2008 has lowered threshold

“Serious Health Condition” and “Disability”

• Alone not a disability• Pregnancy‐related impairments can be

– Severe morning sickness not substantially impairing enough on its face• But could if more severe complications or side effects• Wonasue v. Univ. of Md. Alumni Ass’n, 2013 WL 6158375 (D. Md. Nov. 22, 2013)

– Complication with risk of miscarriage possibly within ADA• But difficult to establish, may not be substantially limiting• Pregnancy of limited duration• Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011)

Pregnancy Under the ADA

• Employee with disability requires it, and it does not put undue hardship on employer– Undue hardship is significant difficulty or expense

• Relative to resources and circumstances of employer• Not just financial—also extensiveness and level of disruption• Assessed on case‐by‐case basis

– Leave cannot be indefinite (Maat v. Cty. of Ottawa, 657 Fed. App’x 404, 412 (6th Cir. 2016))

– See also Severson v. Heartland Woodcraft, Inc. (7th Cir. 2017).

ADA Leave Required When:

• FMLA – 12 weeks unpaid• ADA – no time limitation• PDA – provide if leaves are provided to individuals with temporary disabilities

FMLA, ADA, PDA INTERSECTION

• Telecommuting not necessarily a reasonable accommodation– Must be able to perform essential functions of job “with or without reasonable accommodation” (Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998))

– Telecommuting unreasonable when regular on‐site attendance essential for position (EEOC v. Ford Motor Co., 782 F.3d 753, 757 (6th Cir. 2015))

Telecommuting as Reasonable Accommodation

• Company leave policy, FMLA, worker’s compensation, or other state and local laws can be used if applicable

• If another program cannot grant the requested leave– Employer should engage in “interactive process” with employee– Employer should obtain relevant information to determine feasibility

• Employer may obtain information from employee’s healthcare provider to confirm or elaborate on employee’s information– Requires employee permission

• Employer may ask questions to healthcare provider to help to understand:– The need for leave– The amount and type of leave required– Whether other accommodations can supplement or substitute for leave

Communication is Key

• Light‐duty assignments encouraged– Transition

• No job protection– No right to reinstatement

• Employee must notify employer of workplace injury

WORKERS’ COMP

• FMLA – cannot require employee to accept light dutyin lieu of leave

• ADA – no requirement to create light duty assignment butmay be reasonable accommodation

• WC – refusal of light duty assignment no longer entitled to wage replacement

FMLA, ADA, WC INTERPLAY

• Remember company policies, including Short‐Term Disability, Long‐Term Disability, and Personal Leaves of Absence

• Employers must provide employees with disabilities with access to leave on same basis as similarly‐situated employees

• If employee requests leave because of a disability, and leave falls within a company policy– Treat the employee the same as employee requesting the same leave for non‐disability reasons

Company Policies

• Maximum Leave policies and “No Fault” Attendance policies may need to be adjusted or modified for individuals with disabilities– General rule: employees from disabilities not exempt– Policies may need to be modified as a reasonable accommodation for disability‐related absences• Unless employer can show undue hardship

Company Policy Adjustments

• An employee has a serious health condition under the FMLA, and the serious health condition is also a disability under the ADA. – Do you have to return the employee to his or her position?– If yes, to what position?

REINSTATMENT

FMLA ADA PDA WC

COVERAGE 50 or more employees and public employers

15 of more employees 15 or more employees

All employers

EMPLOYEEELIGIBILITY

Worked at least 12 months and 1,250 hours in 12 months preceding leave at facility with 50 employees in 75 mile radius

Qualified individualwith disability

Women affected by childbirth, pregnancy, or related conditions

All employees

CONDITIONS Serious health condition of employee or immediate family, birth or adoption, qualifying exigency, military caregiver

Substantially limits major life activity, record of impairment, regarded as

Pregnancy, childbirth, related medical conditions

Work related injury or occupationaldisease

FMLA ADA PDA WC

PROTECTION 12 weeks unpaid leave in 12 month period (26 weeks for military)

Reasonable accommodation

Equal treatment for all employment purposes and benefits

Wage replacement during incapacity

NOTICE 30 days if foreseeable; as soon as practicable if not

Notice of disabilityand need; no magic words

N/A Notice of a work‐related injury

REINSTATEMENT Original or equivalent position

Original position absent undue hardship

Depends on company policy and other leave

N/A

• Tom is a leaving work, Tom slips in the parking lot, gets up, shakes it off, and goes home.

• The next day, Tom calls off work saying he hurt himself in the parking lot.

• Two hours later, Tom calls and says his doctor believes that he tore an MCL and will be off work for 6 weeks. His next appointment is in 6 weeks.

• Employer offers Tom a light‐duty job processing paperwork at minimum wage.– Workers comp? FMLA? ADA?

Hypothetical

• Tom took the light duty job. • Six weeks later, his doctor reports that Tom needs another 6 weeks of conservative care.

• Tom’s doctor refers Tom to an allergist for asthma, which was exacerbated by the light duty job. Tom’s allergist opines that Tom can no longer process paperwork the way the Department requires and writes him off work.– Workers’ comp? FMLA? ADA?

• Tom went on leave. • Six weeks later, his doctor reports that Tom needs another 2 weeks of conservative care. Tom’s allergist continues to believe that Sam’s asthma was exacerbated by the light duty job.–Workers’ comp, FMLA, ADA?

• Dave was not so safe when responding to a call and injured his back, requiring surgery and physical therapy.

• Is he eligible for WC?• Does he qualify for FMLA? • If so, after 12 weeks, what if Dave can return to work but has to attend physical therapy and abide by certain restrictions?

Hypothetical – Dave

Part II:Service Animals –Coming To A Cubicle Near You?

Shannon ByrneLittler Mendelson, P.C.

© Littler Presentation | 2017 Proprietary and Confidential

“I need to bring my dog to work because she helps me to control my

anxiety”

Sample Employee Request


1. Does the employee have a disability?2. Is the medical documentation adequate?3. Is the animal a service animal or an

emotional support animal?4. Is bringing the animal to work a reasonable

accommodation for the employee?5. Does bringing the animal to work

constitute an “undue hardship” for the employer?

Employee Requests: Five Questions


1. Is The Employee Disabled?

A DISABILITY is:

A Physical orMental Impairment…

…that Substantially Limits…

…a Major Life Activity.


• If the disability is not obvious, employer may require reasonable medical documentation confirming:– The existence of the disability; and– The need for reasonable accommodation

• Employees and applicants must cooperate in good faith and provide reasonable medical documentation

2. Is The Medical Documentation Adequate?


3. Is The Animal A Service Animal Or An Emotional Support Animal?


• Title III of ADA: – “Service animal” is “any dog that is individually

trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition”

• But Title III only applies to places of public accommodation

Federal Law (ADA): Service Animal


• Federal regulations do notrecognize emotional support animals as “service animals”

• However, federal regulations do recognize as service animals dogs that help people with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors

Under The ADA, “Service” Animal Does Not Include “Emotional Support” Animal


• Ohio does not use the term “service animal”; instead, the term “animal assistant” is used.

• “Animal assistant” is defined as: “any animal which aids the disabled.”

Ohio Law

41


Case by Case Analysis RequiredNo: Doctor’s statement disclaims his ability to predict whether the dog would actually solve the problems of which the employee complained and, instead, merely states “[i]t certainly cannot hurt.”

– Edwards v. EPA, 456 F. Supp. 2d 72 (D.D.C. 2006)

4. Is Bringing The Animal To Work A Reasonable Accommodation?


Case by Case Analysis RequiredYes: Evidence shows that the service dog assisted the employee in the workplace by pulling her wheelchair, opening/closing doors, picking up and retrieving items, bracing plaintiff when she needed to lean out of her wheelchair.

– Branson v. West, No. 97‐C‐3538, 1999 U.S. Dist. LEXIS19392 (N.D. Ill. Dec. 10, 1999)

Accommodation Required Where Reasonable


• Nature of the disability.• How the animal enables the employee to perform job.• Type, size weight of the animal assistant.• Any specific training, and if so, what type.• Whether the animal constitutes an undue hardship, difficulty, expense, disruption, or alters the business.

• Whether the animal assistant poses a clear, non‐speculative safety or health risk to other employees.– Ohio Civil Rights Commission Technical Policy T‐31.1

Factors to Consider For Reasonableness (Ohio)

44


• Employer has the burden of proof.– The dog might bite someone!

• A “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

• The employer must engage in “an individualized assessment” based on “the best available objective evidence.”

5. Does Bringing The Animal To Work Constitute An Undue Hardship?


• In public accommodation case, hospital patient brings a service dog to the hospital.

• Witnesses: Dog caused a “putrid odor” to permeate the entire floor.

• Some staff developed allergic reactions to the dog.

The Case Of The Putrid Pooch


• The dog (a St. Bernard) was so big that it was not always possible to step over her.

• At least once, the dog growled at a nurse who was attempting to rouse the plaintiff.

• Nursing staff had difficulty assisting the patient in and out bed because the dog would block the way.

Assistive Dog Was Smelly AND BIG


• Hospital’s epidemiologist was concerned that the dog’s odor indicated that she suffered from an infection that could spread in the hospital.

Assistive Dog Was Smelly, BIG, And Sick?


• Court: Employer met its burden of proof; hospital collected extensive evidence over the course of five years, during which the dog visited the hospital 29 times.

• Hospital did not discriminate against patient.• Injunction issued barring dog from returning to hospital.

– Roe v. Providence Health Syst., 655 F. Supp. 2d 1164 (D. Or. 2009)

Case Closed – Go Dog Go!


• Say “I’ll look into it” before saying “No.”

• Then, make sure to look into it and get back to the employee.

• Document what you did (or didn’t) do!

Practical Guidance Re Service Animals

This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment‐related dispute.Although this information attempts to cover some major recent developments, it is not all‐inclusive, and the current status of any decision or principle of law should be verified by counsel.

Thank You!


Christopher J. LalakBenesch

[email protected]

Contact Information

Shannon ByrneLittler Mendelson216.623.6136

[email protected]

fs

Presented by: George J. Asimou, Esq.

Walter | Haverfield LLP The Tower at Erieview

1301 East Ninth Street, Suite 3500 Cleveland, Ohio 44114

Telephone: (216) 781-1212 December 1, 2017

How the Trump Administration Has Changed the Labor and Employment Landscape

One by one, the factories shuttered and left our shores, with not even a thought about the millions upon millions of American workers left behind. The wealth of our middle class has been ripped from their homes and then redistributed across the entire world. But that is the past. And now we are looking only to the future. We, assembled here today, are issuing a new decree to be heard in every city, in every foreign capital, and in every hall of power. From this day forward, a new vision will govern our land. From this moment on, it’s going to be America First. Every decision on trade, on taxes, on immigration, on foreign affairs, will be made to benefit American workers and American families. We must protect our borders from the ravages of other countries making our products, stealing our companies, and destroying our jobs. Protection will lead to great prosperity and strength. Inaugural Address of President Donald J. Trump Friday, January 20, 2017

Equal Employment Opportunity Commission (EEOC)

• Created by Title VII (1964); • Responsible for enforcing federal laws that make it illegal to discriminate

based on race, color, religion, sex, national origin, age (40 or older), disability or genetic information

• Bipartisan commission structure: Comprised of five presidentially appointed members

• The President appoints a General Counsel to support the commission and provide direction, coordination and supervision to the EEOC's litigation program


Personnel is policy. • Currently, there are four

commissioners and there is no general counsel

• Current chair: Victoria Lipnic was named acting chair by President Trump on January 25, 2017

• Nominated chair: Burlington Stores General Counsel Janet Dhillon

• Also nominated to commission: Retired Army Lieutenant Colonel Daniel Gade


Show me your budget, and I'll tell you what you value. • EEOC funding relatively stable in the President’s FY18 budget, but… • Proposed consolidation of EEOC with Office of Federal Contract Compliance

Programs (OFCCP) • Significant headcount reductions


Strategic Enforcement Plan for FY2017-2021 • Eliminating barriers in recruitment and hiring • Protecting vulnerable workers, including immigrant and migrant workers, and

underserved communities from discrimination • Addressing selected emerging and developing issues • Ensuring equal pay protections for all workers • Preserving access to the legal system • Preventing systemic harassment


Enforcement Trends • 84,254 charges being filed in FY17 (91,503 in FY16) • In FY17, the EEOC resolved 99,109 charges and reduced the

charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years

• Filed 184 merits lawsuits, including 124 suits on behalf of individuals, 30 non-systemic suits with multiple victims, and 30 systemic suits. This is more than double the number of suits filed in FY16.


News You Can Use • EEO-1 pay data reporting requirements blocked in August • Select Task Force on the Study of Harassment in the

Workplace Report published • LGBTQ rights debate rages on at circuit court level • Severson v. Heartland Woodcraft, Inc.: Inflection point or

idiosyncrasy?



"ADA is an anti-discrimination statute, not a medical leave entitlement.”

Victoria Lipnic Acting Chair, EEOC

November 9, 2017

U.S. Department of Labor (DOL)

• Founded in 1913 “to foster, promote and develop the welfare of working people, to improve their working conditions, and to advance their opportunities for profitable employment”

• Responsible for a broad amalgam of federal laws, including FLSA, FMLA, ERISA, OSHA, USERRA, and the WARN Act

• Cabinet-level agency with secretary of labor appointed by the president


Personnel is policy. • R. Alexander Acosta sworn in as the 27th

United States Secretary of Labor on April 28, 2017

• Nominated deputy secretary: Patrick Pizzella • Nominated solicitor: Kate O’Scannlain • Nominated WHD administrator: Cheryl

Stanton


Personnel is policy. “We’re a democracy, which means that Congress should take the lead…. It’s very easy for the executive branch through guidance documents to say ‘this is what we think,’ but that’s not the way democracy works. You don’t make laws through executive fiat, you make laws through the legislative process.” Labor Secretary Alexander Acosta November 9, 2017



Department of Labor Regulatory Agenda – Spring 2017 (selected)

• Drug testing by states for purposes of determining unemployment compensation eligibility

• Improve tracking of workplace injuries and illnesses

• Request for information defining and delimiting the exemptions for executive, administrative, professional, outside sales and computer employees

• Tip regulations under the Fair Labor Standards Act (FLSA)


Enforcement Trends • Opinion letters in;

administrator interpretations out

• Withdrawal of 2015 and

2016 informal guidance on joint employment and independent contractors (reversion to prior enforcement position)


News You Can Use • Improve tracking of workplace injuries and illnesses rule kicks in.

Sorta. • Rulemaking continues in wage and hour arena • Congress contemplates doing something. Maybe.

U.S. Department of Labor (DOL) Improve tracking of workplace injuries and illnesses rule kicks in. Sorta. • Establishments with 250 or more employees in

industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by December 15, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.

• Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by December 15, 2017 and their 2017 Form 300A by July 1, 2018.

• Retaliation provisions took effect in December 2016 – but enforcement appears to be lax.

• Further rulemaking now in process.

U.S. Department of Labor (DOL) Rulemaking continues apace in wage and hour arena. The sorry demise of the Obama overtime rule at the hands of the Honorable (if questionably mustachioed) Amos Mazzant (abridged) • In March 2014, the Obama administration started the process to “modernize and

streamline the existing overtime regulations for executive, administrative and professional employees.”

• EAP Exemption: salary-basis test; minimum salary level test; and a duties test. • DOL issued a new rule increasing the minimum salary level test from $455 per

week ($23,660 annually) to $921 per week ($47,892 annually). • The new rule was to take effect December 1, 2016.

U.S. Department of Labor (DOL) Rulemaking continues apace in wage and hour arena. The sorry demise of the Obama overtime rule at the hands of the Honorable (if questionably mustachioed) Amos Mazzant (abridged) • On October 22, 2016, the Hon. Amos Mazzant, U.S. District Court judge for the Eastern District

of Texas, issued a preliminary injunction enjoining the new overtime rule. • “It is clear that Congress intended the EAP exemption to apply to employees doing actual

executive, administrative and professional duties.” • “[N]othing in the EAP exemption indicates that Congress intended the department to define

and delimit with respect to a minimum salary level.”

U.S. Department of Labor (DOL) The Mazzant matter concludes. Sorta. • Secretary Acosta suggests in March that a higher threshold

may be advisable, observing that “the world has gotten more expensive, and salaries have changed since 2004.”

• In late August, the federal case down in Texas “concluded” with Judge Amos Mazzant issuing a final ruling that, while the DOL may have had the statutory authority to set a salary floor for exempt status, the specific salary floor set by the Obama overtime rule was invalid.

• George Asimou, September 2017: “The DOL promptly abandoned its prior appeal of Mazzant’s earlier preliminary injunction – and the Texas case is now over.”

• DOL files notice in late October of its intent to appeal the Mazzant opinion to the Fifth Circuit; now held in abeyance pending rulemaking.

U.S. Department of Labor (DOL) Rulemaking continues apace in wage and hour arena. • DOL issues Request for Information for purposes of

rulemaking in August; receives 140K comments • The RFI strongly suggests that the DOL is

considering an inflation-based approach to raising the floor. According to the DOL’s CPI inflation calculator, an adjustment to the rule to account for inflation between 2004 and 2017 would result in a new threshold of somewhere between $30,000 and $33,000, depending on regional differences.

• Further rulemaking now in process.


Congress contemplates doing something. Maybe. H.R.3441 - Save Local Business Act This bill amends the National Labor Relations Act and the Fair Labor Standards Act of 1938 to provide that a person may be considered a joint employer in relation to an employee only if such person directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.


Congress contemplates doing something. Maybe. S. 1549 - NEW GIG Act of 2017 This bill amends the Internal Revenue Code of 1986 to provide a safe harbor for determinations of worker classification. H.R.1180 - Working Families Flexibility Act of 2017 This bill amends the Fair Labor Standards Act of 1938 to authorize employers to provide compensatory time off to private employees at a rate of not less than 1 1/2 hours for each hour of employment for which overtime compensation is required, but only if it is in accordance with an applicable collective bargaining agreement or, in the absence of such an agreement, an agreement between the employer and employee.

National Labor Relations Board (NLRB)

• Created by Wagner Act (1935) • Responsible for enforcing the National Labor Relations Act • Bipartisan board structure: Comprised of five presidentially-

appointed members • The president appoints a general counsel who is responsible

for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases


Personnel is policy. • Philip A. Miscimarra was named chairman of the NLRB on April

24, 2017. • Marvin E. Kaplan was sworn in as a member on August 10,

2017. • William J. Emanuel was sworn in as a member on September

25, 2017. • Peter B. Robb was sworn in as general counsel on November

17, 2017.



Enforcement Trends • Management-side prerogatives will rule the day. • “Employee-free choice” will be the lodestar.

o Election process o Public and private sector


News You Can Use Handbook authors rejoice. “[M]y colleagues find that the Hospital violated Federal law by maintaining a rule against conduct that impedes ‘harmonious interactions and relationships.’ … Under [current law], reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name. Nearly all employees in every workplace aspire to have ‘harmonious’ dealings with their coworkers. Nobody can be surprised that a hospital, of all workplaces, would place a high value on ‘harmonious interactions and relationships.’ There is no evidence that the requirement of ‘harmonious’ relationships actually discouraged or interfered with NLRA-protected activity in this case. Yet, in the world created by [current law], it is unlawful to state what virtually every employee desires and what virtually everyone understands the employer reasonably expects.”

Philip A. Miscimarra, (now) Board Chair, in William Beaumont Hospital and Jeri Antilla, Case 07–CA–093885, April 13, 2016 Fn5 In the Harry Potter series, authored by J. K. Rowling, Lord Voldemort (whose name, at birth, was Tom Marvolo Riddle) was the archenemy of Harry Potter and was so feared that almost no witch or wizard dared speak his name, referring to him instead as “You-KnowWho” or “He-Who-Must-Not-Be-Named.” See Wikipedia, Lord Voldemort (https://en.wikipedia.org/wiki/Lord_Voldemort).

What we’re hearing about A Year Later … How The Trump Administration has Changed the Labor & Employment Landscape