This is the PowerPoint presentation from Kegler Brown's "2011 Managing Labor and Employee Relations Seminar," held on March 1, 2011, at the Fawcett Center on the campus of The Ohio State University. Topics included recent case law updates, social media in the workplace, distracted driving policies, an update on workers' compensation from ODJFS, an update on complying with healthcare reform and much more.

2. 2 Employer Overview of Unemployment Compensation Presented by Office of Unemployment Compensation March 1, 2011 2/28/11

3. 3 Background of Unemployment Compensation (UC) Fully established in the U.S. during late 1930’s Supported by President Roosevelt U.S. Dept. of Labor stated in 1955: “Unemployment insurance is a program established under Federal and State law for income maintenance during periods of involuntary unemployment due to lack of work, which provides partial compensation for wage loss as a matter of right, with dignity and dispatch, to eligible individuals…” 2/28/11

4. 4 Objectives of UC Temporary and partial wage replacement to involuntarily unemployed workers Equitable collection of taxes from employers to fund the program Stabilization of the economy during high periods of unemployment Reemployment as soon as possible 2/28/11

5. 5 Objectives of UC (cont.) “… It helps to maintain purchasing power and to stabilize the economy. It helps to prevent the dispersal of the employers’ trained workforce, the sacrifice of skills, and the breakdown of labor standards during temporary unemployment.” 2/28/11

6. 6 What Happens When Former Employees File? Displaced workers apply by phone (to a call center) or online at unemployment.ohio.gov. Information is entered into the Ohio Job Insurance (OJI) benefit system. 2/28/11

7. 7 Handout 2/28/11

9. 10 Monetary Requirements The claimant must have a minimum of 20 weeks covered employment in the base period. There is a required minimum Average Weekly Wage for the base period weeks of covered employment. (In 2011, the minimum is $215.) 2/28/11

11. 12 Monetary Requirements (cont’d) If claimant has a prior claim, he/she must meet “intervening employment” requirements. Must have worked in “covered” employment for 6 weeks and earned 3 times the prior claim’s average weekly wage. This work must be after the first day of the previous benefit year. May be part-time and/or and odd jobs. 2/28/11

12. 13 Monetary Requirements (cont’d) If the reason for being unemployed is other than a lack of work layoff, Processing Center staff conduct fact-finding and adjudicate the separation issue. If claimant says lack of work and employer does not respond, we allow the reason for separation. A written decision is sent to all interested parties whether the claim is allowed or denied. Interested Parties include claimant, separating employer(s) or other authorized representative (e.g., a third party administrator). 2/28/11

13. 14 Number of Benefit Weeks Individuals may receive 20 to 26 weeks of basic benefits. Payable during a 52 week benefit year. Benefit Weeks 20 21 22 23 24 25 26 Qualifying Weeks 20 21 22 23 24 25 26 or more 2/28/11

14. 15 2011 Maximum Weekly Benefits Average Weekly Wage - $215.00 2/28/11

15. 16 Ongoing Adjudication(Non-Monetary Issues) If the claim is allowed, it is still possible for weeks affected by an eligibility issue to be disallowed. If specific weeks are denied the employer may or may not be an interested party. All interested parties are given a 21-day appeal period. 2/28/11

16. 17 Payments Ohio law requires a one week waiting period to be served after filing the initial application. A waiting week is the first claimed, payable week held back and not paid. Should not delay in filing. The first benefit payment may be received within3-4 weeks of the application, if the claim and the waiting week are allowed. 2/28/11

17. 18 2/28/11

18. 19 Weekly Eligibility Issues Earnings & Deductible Income: Benefits may be denied or reduced. Monies need only be payable to be deductible. Benefits reduced or denied if claimant receives certain types of payments during any week claimed. The type of payment determines the formula for payment and charges. Distinction between income & earnings is important. 2/28/11

19. 20 Weekly Eligibility Issue (cont’d)Earnings Claimants are required to report their “gross” earnings during the week in which the service was performed, regardless of when paid. A 20% earnings exemption applies to deductible earnings (but not to deductible income). Example of 20% earnings exemption follows . . . . 2/28/11

20. 21 Earnings - Example Based on a weekly benefit amount of $200.00 2/28/11

21. 22 Weekly Eligibility Issues (cont’d) Deductible Income There are other types of income or payments that must be deducted from the weekly benefits. These are not subject to the 20 percent exemption. They must be deducted in their entirety when allocated to a week claimed. 2/28/11

22. 23 Weekly Eligibility Issues Deductible Income (cont’d) Types of Deductible Income: Payment in lieu of notice (e.g., WARN pay). Workers’ compensation benefits (compensation for wage loss only). Pension, retirement, annuity or similar periodic payments. Vacation pay allocated by the employer (normally time off from work for vacation purposes and may include plant shutdowns) 2/28/11

23. 24 Weekly Eligibility Issues Deductible Income 2/28/11 Types of Deductible Income (cont’d): Severance pay - - Two main criteria for severance pay to be deductible from unemployment. Must be allocated to specific weeks of unemployment. Must be paid in a timely manner.

24. 25 Weekly Eligibility Issues Refusal of Suitable Work Employer directly extends a specific job opportunity to the claimant, either verbally or in writing to their last known address. Employer communicates a bona fidejob offer. Employer’s offer includes specific duties, expectations, and wages. Employer’s proposal must be clear that a definite acceptance or rejection is required. 2/28/11

25. Messages left on a telephone answering machine or with a relative/friend does not meet the requirements of a bona fide offer of work. Former worker has the responsibility to keep their employer advised of any change in address and/or telephone number. If a notice was not received by the claimant because the individual failed to keep the employer informed of their current address, the claimant will be considered as having received the offer of work. 26 Weekly Eligibility Issues Refusal of Suitable Work (cont’d) 2/28/11

26. 27 Detecting IssuesEmployer Eligibility Notice (cont’d) Any base period or subsequent employer who has knowledge ofspecific facts that affect a claimant’s rights to receive benefits may notify agency. For example, an employer’s eligibility notice could include information about a claimant’s receipt of deductible income/earnings, ability to work, availability for work or refusal of offer to work. 2/28/11

27. 28 Detecting IssuesEmployer Eligibility Notice (cont’d) ValidityRequirements The information must be provided in writing. The informant must have first-hand knowledge of the information. The notice must provide the name and a method for contacting the informant and, if different, the source. The notice must provide specific and detailedinformation that is potentially disqualifying. The notice must appear to be reliable and credible. 2/28/11

28. 29 Detecting IssuesEmployer Eligibility Notice (cont’d) Interested Party to Determination The employer who raised the issue(s) may be an interested party to resulting determination only if notice is valid and timely. Valid only if all 5 validity requirements were met. Timely only if: Postmarked prior to, or received within 45 calendar days after, the end of the week affected by the issue. NOTE: Issues such as potential fraud will be investigated even if the notice is filed beyond 45 calendar days.) 2/28/11

29. 30 Detecting IssuesEmployer Eligibility Notice (cont’d) Reporting Potential Claimant Eligibility Issues 2/28/11

30. Report Potential Claimant Eligibility Issue 2/28/11 31

31. 32 2/28/11 Step 2 of 3 Step 3 of 3

33. If you disagree with an initial decision, you may file an appeal within 21 calendar days of the date the determination was issued.

34. With that appeal, include the date of determination, the determination ID number, and the reason(s) for disagreement.2/28/11

36. Appeal may be filed online at unemployment.ohio.gov, by mail, or by fax and must be filed timely.

37. Written notification will be sent to all interested parties upon receipt of an appeal.2/28/11

39. Appeals must be in writing.

40. Submit all necessary documentation with the initial appeal.

41. Include a complete rationale as to why the decision is wrong. If sufficient reasoning is not provided, the decision will normally remain unchanged.

42. Be careful to submit your appeal on time. 2/28/11

44. There is a 21-day appeal period.

45. Once appeal is filed a notice that an appeal is filed is sent to all interested parties.2/28/11

47. UCRC for a full commission review

48. The Court system2/28/11

50. If further appealed, all interested parties will receive a notice of transfer to the UCRC.

51. A request for an in-person hearing must be received within 10 days of the notice. You must agree to travel.

52. Most hearings are conducted by telephone.2/28/11

54. At that time, you should provide:

55. Any witnesses

56. Documentation

57. Relevant policies and procedures, etc.2/28/11

59. At the review level, the commission may affirm, modify, or reverse a hearing officer’s decision or remand the decision to the hearing officer level for further hearing.2/28/11

60. 41 UCRC WEBSITEwww.web.ucrc.state.oh.us What is available: Law Abstract: UCRC position on various unemployment compensation subjects, including links to leading court cases Video of hearing process, including two mock hearings UCRC Reassignment Policy 2/28/11

62. Court of Appeal

63. Ohio Supreme Court

64. U.S. Supreme Court2/28/11

65. 43 Employer Charges Under Ohio law, workers do not pay the cost of their unemployment insurance. Ohio Unemployment Compensation Trust Fund is funded from payroll taxes paid by Ohio employers. Covered Employment - Contributory Employers - Reimbursing Employers 2/28/11

66. 44 Employer Charges (cont’d) Contributory Employers Pays unemployment taxes every quarter Benefits paid to separated workers are charged to employer’s account. An employer’s tax rate is determined by that employer’s total account balance and the amount of benefits charged. 2/28/11

67. 45 Employer Charges (cont’d)Reimbursing Employers Nonprofit organizations or public employers Do not pay quarterly payroll UI taxes Billed monthly for benefits charged Never mutualized unless finally determined by a court of appeal 2/28/11

68. Employer Charges (cont’d) Single vs. Multiple Employers Claimant with one base period employer. Total amount chargeable will be the same as the total benefits payable. Claimant with multiple base period employers. Total amount charged proportionately to each base period employer. 2/28/11 46

69. 47 Employer Charges (cont’d)Example of two base period employers 2/28/11

70. 48 Employer Charges (cont’d) Mutualized Account Separate and apart from the accounts of the individual employers. Based on a mutualized tax collected at a uniform rate from all contributory employers. Benefits paid to claimants that are not properly chargeable to individual employers are deducted from this account. 2/28/11

71. 49 Overpayments Fraudulent - Overpayments issued due to willfulmisrepresentation on the part of the claimant. Non-fraudulent – Overpayments resulting from some cause other than willful misrepresentation on the part of the claimant. State income tax offsets any overpayment due to the state. 2/28/11

73. 10% is due to eligibility tips and informers.

74. Outstanding overpayments beyond 45 days of the final decision date are now certified to the Attorney General’s office for more aggressive collection.

77. Fax: (614) 466-2148

78. Fraud Hotline: 1-800-686-1555

79. Write: Benefit Payment Control/Investigation Ohio Dept. of Job & Family Service P.O. Box 1618 Columbus, OH 46216-1618 2/28/11

81. Tax Information: 614-466-2319

82. Fraud/Investigations: 614-466-2148

83. Fraud Hotline: 1-800-686-1555

84. Redeterminations and Appeals: 1-877-574-0015

85. Technical Services: 1-866-733-0025

86. Trade: 1-866-288-09892/28/11

88. Healthcare Reform: An OverviewStaying Prepared in 2011 and Beyond Presented by Kristy N. Britsch Kegler, Brown, Hill & Ritter Annual Managing Labor & Employee Relations Seminar March 1, 2011

89. GINA Title I of GINA Prohibits discrimination in health coverage based on genetic information as well as the collection of such information in certain circumstances Prohibits group health plans and group health insurance issuers from: Increasing premiums or contribution amounts based on genetic information Requiring an individual or family to undergo genetic testing Requesting or requiring genetic information prior to or in connection with enrollment for underwriting purposes

90. GINA Title II final regulations became effective January 10, 2011 Prohibits an employer from using genetic information to make employment related decisions, from requesting or requiring genetic information, with limited exceptions, from retaliating against individuals based on genetic information and from disclosing genetic information Provided certain requirements are met, an employer will NOT be liable under Title II of GINA for acquiring genetic information if it is: Acquired inadvertently; Acquired as part of health or genetic services provided on a voluntary basis, including a voluntary wellness program; Family medical history acquired to comply with FMLA certification; Acquired through commercially or publicly available sources; Acquired by an employer that conducts DNA testing for law enforcement purposes (forensic lab, identification of human remains).

91. Extended Effective Dates Under PPACA Nondiscrimination Requirements Was effective for plan years on or after September 23, 2010 Effective date has been delayed until regulations are issued Comments on new rules are due by March 11, 2011 a non-grandfathered fully-insured plan is prohibited from discriminating as to eligibility or benefits in favor of highly compensated employees Penalties for Noncompliance $100 per individual per day for as long as violation continues Compare to self-insured penalty, which is the loss of tax benefits for the HCE who benefited from the discrimination Employer W-2 Reporting (Delayed until 2012) Employers must calculate and report the aggregate cost of applicable employer sponsored health insurance coverage on the employee’s W-2

92. Extended Effective Dates Under PPACA 60-day Notice for Material Modifications effective for plan years on or after March 23, 2012 Clarified by DOL; originally believed to have been March 23, 2010 However, until federal agencies provide standards on benefits and coverage explanations, employers are not required to comply with this requirement Automatic Enrollment Effective January 1, 2014, employers with 200 or more full-time employees offering health coverage must enroll new full-time employees with the opportunity to opt-out In a FAQ in December 2010, DOL indicated that until EBSA issues regulations, employers will not be required to comply with this rule

93. PPACA Impact on ALL Health Plans:September 23, 2010 No rescission of coverage except for fraud or intentional misrepresentation of a material fact Elimination of lifetime limits for “essential health benefits” Elimination of pre-existing conditions for children under age 19 This prohibition will be extended to ALL individuals effective January 1, 2014 Medicare Part D donut hole will be eliminated Retiree Reinsurance Program Effective June 1, 2010 Only available to early retirees defined as individuals between the ages of 55 and 64 who are not eligible for Medicare and who are not active employees of the employer who maintains the plan

94. PPACA Impact on ALL Health Plans:September 23, 2010 Extend dependent coverage to age 26 Coverage is required even if dependent is married Coverage must be provided even if dependent does not otherwise qualify as the employee’s dependent for tax purposes Children who were previously dropped because of age from dependent coverage will also be able to re-enroll Re-enrollment option only applies to plans that already offer dependent coverage For non-grandfathered plans, coverage must be offered to dependent even if eligible to enroll in another employer group health plan Grandfathered plans need not offer coverage to adult children who are eligible to enroll in another employer group health plan until January 1, 2014. Cost of employer provided health coverage with respect to an adult child is tax-free until end of calendar year in which the child turns age 27 Ohio dependent coverage is extended to age 28

96. $750,000 limit per individual for plan year on or after September 23, 2010. Increases to $1,250,000 on or after September 23, 2011

98. PPACA Impact on ALL Health Plans:September 23, 2010 Preventative Health Services and Cost-Sharing Effective for plan years on or after September 23, 2010, a non-grandfathered plan may not impose cost-sharing requirements (such as co-pays, co-insurance, or deductibles) for certain preventative services Four types of preventative services will be covered at no charge to the individual, including: Screenings such as colon cancer tests, breast cancer screenings, screening of pregnant women for vitamin deficiencies, smoking cessation services, tests for diabetes, high cholesterol and high blood pressure tests Routine vaccines, including child immunizations and tetanus boosters Well-child visits, vision and hearing tests for children and weight counseling Preventative care for women (breast cancer screenings)

99. PPACA Impact on ALL Health Plans:September 23, 2010 A non-grandfathered plan may not impose a pre-authorization requirement for a person seeking obstetrical or gynecological care A non-grandfathered plan that covers emergency department services: May not impose a pre-authorization requirement Must cover services regardless of whether the health care professional is a participating provider May not impose greater coverage restrictions for non-participating provider services than are imposed for participating providers May not impose greater cost-sharing requirements for out-of-network services than are imposed for in-network emergency room services

100. PPACA Impact on ALL Health Plans:September 23, 2010 Choice of Primary Care Provider A non-grandfathered plan that requires or provides for an individual’s designation of a health care provider as “primary,” must permit an individual to designate any participating primary care provider who is available to accept that individual Plan must permit the designation of a pediatric physician as the child’s primary care provider

102. Expanded definition of “adverse benefit determination”

103. Notice of benefit determinations for urgent care claims must be provided within 24 hours of receipt of claim

104. Avoid conflicts of interest

105. Upon review of a claim denial, claimants must be allowed to review their file and present evidence/testimony. Plans/insurers must provide, free of charge, any new or additional evidence considered, relied upon or generated by the plan or insurer in connection with the claim, and a reasonable opportunity for claimant to respond

106. Notices regarding claims and appeals must be provided in a culturally and linguistically appropriate manner

107. Detailed notices of adverse benefit determinations and the availability of internal and external appeals

108. Coverage must be provided pending outcome of an internal appeal

110. PPACA Impact on ALL Health Plans:September 23, 2010 Federal External Review Process: DOL Technical Release 2010-01 provides a safe-harbor and outlines the procedures for the federal external review process (standard and expedited external review) Standard External Review Process Requests for external review must be allowed under the plan and a claimant must file the request within 4 months after notice of an adverse determination of final internal adverse determination A preliminary review must be conducted by the plan within 5 days of receiving an external review request Within 1 day after completion of the preliminary review, the plan must issue notification in writing to the claimant Plan must assign an accredited Independent Review Organization (“IRO”) to conduct the external review. The IROs decision is binding except for other remedies available under state or federal law. IRO will review claim de novo (i.e., will not be bound by previous decision of plan sponsor). IRO will make final decision within 45 days. Upon receipt of notice of a final external review reversing an adverse benefit determination or final internal adverse benefit determination, the plan must immediately provide coverage or payment

111. PPACA Impact on ALL Health Plans:September 23, 2010 Transparency in Coverage Disclosures Effective for plan years on or after September 23, 2010, a non-grandfathered plan will be required to submit to the HHS information regarding the following: The plan’s claims payment policies and practices; Periodic financial disclosures; Data on enrollment; Data on disenrollment; Data on the number of claims that are denied; Data on rating practices; Information on cost-sharing and payments with respect to any out-of-network coverage; Information on enrollee and participant rights.

112. PPACA Impact on ALL Health Plans:September 23, 2010 Uniform Explanation of Coverage (Mini-SPDs) Must be written in culturally and linguistically appropriate manner to explain health benefits under the plan Must include uniform set of definitions and medical terms and must describe cost-sharing requirements and plan term limits and exclusions Must be provided to participants at time of enrollment Uniform Explanation of Coverage is in addition to the SPD Distribution deadline of 24 months after the enactment of healthcare reform (i.e., March 23, 2012) HHS is to issue guidance addressing the Mini-SPDs by March 23, 2011

113. PPACA Impact on ALL Health Plans:January 1, 2011 HSAs, FSAs, HRAs: Expenses for over-the-counter medications will no longer be eligible for reimbursement HSAs, FSAs, HRAs: Eligible medical expense = prescription or insulin Plans must be amended by June 30, 2011 Simple Cafeteria Plans: Effective for tax years after December 31, 2010, small employers may adopt a new type of cafeteria plan

114. PPACA Impact on ALL Health Plans:January 1, 2013 Medicare Payroll Tax Increase Increase in Medicare Part A tax from 1.45% to 2.35% applicable to single individuals earning more than $200,000 and married individuals earning more than $250,000 Small Business Tax Credit Eligible employers (less than 25 full-time employees) will get a tax credit equal to a portion of its health insurance premiums Phase I: 2010 – 2013: May claim a credit of up to 35% of health insurance premiums for each tax year if employer contributes at least 50% of total premium cost Phase II: After 2013: May claim tax credit of up to 50% of employer’s contribution toward employees’ premiums if employer contributes at least 50% of total premium

115. PPACA Impact on ALL Health Plans:January 1, 2013 FSAs: Salary reduction contributions to a health FSA are limited to $2,500 per year Contributions to dependent care FSAs remain at $5,000 per year

116. PPACA Impact on ALL Health Plans:January 1, 2014 Elimination of pre-existing conditions for all individuals No annual limits on dollar value of coverage on essential health benefits Grandfathered plans that offer dependent coverage must offer coverage to adult children until age 26 regardless of whether or not the child is eligible to enroll in another employer health plan Waiting Periods Cannot impose coverage waiting period that exceeds 90 days Out-of-Pocket Limits Effective January 1, 2014, a non-grandfathered group health plan cannot impose a total cost sharing for a year that exceeds the out-of-pocket limits that are applicable to high-deductible health plans. Currently, these limits are $5,950 for individual coverage and $11,900 for family coverage.

117. PPACA Impact on ALL Health Plans:January 1, 2014 Mandate to Provide Health Insurance Employers with 50 or more full-time employees are required to offer health coverage or pay a penalty Penalty for failure to provide coverage is $2,000 per full-time employee (applicable if at least one full-time employee receives insurance on the Exchange) Penalty for failure to provide affordable coverage is $3,000 for each employee enrolled in Exchange coverage Part-time employees are included and calculated as full-time employees

119. States must establish “Health Insurance Exchanges” to offer qualified health benefit plans

120. Exchanges are initially limited to individual markets and to employers with 100 employees or less

121. Effective January 1, 2017, States may allow employers with over 100 employees to access coverage through Exchanges

123. PPACA Impact on ALL Health Plans:January 1, 2018 Excise tax on Cadillac Plans Insurers (employer if self-insured) will pay 40% excise tax on high value Cadillac Plans with values exceeding $10,200 limit for individual coverage and $27,500 for family coverage

124. Grandfathered Plans Under PPACA A “grandfathered plan” is any group health plan or health insurance coverage in effect as of March 23, 2010 Grandfathered plans are not required to comply with all of the requirements under PPACA To maintain grandfathered status, a plan must include a statement in any plan materials to be provided to participants that describes plan benefits and must include a statement that employer intends the plan to be grandfathered Plan sponsors must retain all plan documents in effect on March 23, 2010 to prove terms of plan at this time A grandfathered plan will lose its exemption from some of PPACA’s requirements if a plan significantly reduces benefits or increases employee premium contributions by more than 5% points.

125. How to Lose Grandfathered Status Elimination of benefits (elimination of all or substantially all benefits to diagnose/treat a particular condition); Increase in co-insurance (i.e., increase in cost-sharing); Increase in co-payment (increase in a co-payment for any service by more than the greater of (a) $5.00 or (b) medical inflation plus 15%); Increase in deductible or out-of-pocket maximum; Decrease in employer contribution rate; Changes to annual limits; Issuance of new (not renewed) insurance policy; Transfer of employees (transfer of employees to another plan); Change of insurer (Effective Nov. 15, 2010, was removed as an event to lose grandfathered status); Merger, acquisition, restructuring anti-abuse rules (if principal purpose of merger, acquisition, or restructuring is to cover new individuals under a Grandfathered Plan, the plan will lose grandfathered status).

126. Grandfathered Plans The following WILLNOT cause a loss of grandfathered status: Change in plan premiums; Adjustments to employer contributions, premiums, co-payments and deductibles; Adding new benefits; Changes required to comply with state/federal law; Changes to comply voluntary with the Healthcare Reform law; Change in self-insured plans’ TPA; Renewal of a previous policy, certificate, or contract of insurance; Decrease in employee contribution rate. Change of insurer (Effective November 15, 2010)

127. Constitutional Challenges to PPACA 26 States have challenged the constitutionality of PPACA Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Indiana, Idaho, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, Virginia, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming 2 Federal Judges have upheld law under Commerce Clause (Western District of Virginia and Michigan) 2 Federal Judges have ruled PPACA unconstitutional (Florida and Virginia)

128. Constitutional Challenges to PPACA Principal Challenge to PPACA is the Commerce Clause States challenging PPACA argue that the Commerce Clause does not give Congress the authority to mandate that every American buy health insurance or pay a fee/penalty Other Challenges are Spending Clause and Taxing Power Related to Medicaid program; PPACA greatly expands eligibility rules under Medicaid and imposes unprecedented costs and burdens on states, and this exceeds Congress’s authority under the Spending Clause Tax Issues: Penalty imposed for noncompliance with PPACA’s individual mandate is unconstitutional as an improperly apportioned direct tax

129. Constitutional Challenges to PPACA Federal District Judge, Judge Vinson, in Florida ruled on February 1, 2010, that the individual mandate and the entirety of PPACA was unconstitutional Federal government cannot regulate inactivity through the Commerce Clause and refusing to buy health insurance is inactivity The individual mandate is so thoroughly interwoven into PPACA as a whole that the FL court could not sever that provision and rule only to its constitutionality First time a federal court has ruled the entirety of PPACA to violate the Constitution Federal government has already filed its appeal from the Florida ruling by Judge Vinson with the Court of Appeals for the 11th Circuit

130. Constitutional Challenges to PPACA The matter will eventually reach the U.S. Supreme Court There has been no injunction against the implementation of PPACA so nothing practical has changed for employers, insurers and individuals Remains to be seen whether states will put the brakes on the implementation of PPACA, particularly on states’ preparation for the creation of Exchanges

131. Thank You! Kristy N. Britsch Kegler Brown Associate kbritsch@keglerbrown.com (614) 462-5412 65 East State St., Suite 1800, Columbus OH 43215

133. R U my BFF? Social Media and Employment Relationships Presented by : Margeaux Kimbrough, Esq.Kegler, Brown, Hill & Ritter

134. Social media and my employees?...Huh? Common misconceptions about social media: Just for young people Connect with friends Share information with family members It’s all innocent, right?WRONG!

135. It’s the end of the world as we know it

136. Convinced Yet? Federal Trade Commission (FTC) Regulations Genetic Information Nondiscrimination Act (GINA) Stored Communications Act (SCA) E-Discovery National Labor Relations Act (NLRA)

137. FTC Regulations Guides Concerning the Use of Endorsements and Testimonials in Advertising Sets restrictions on employees’ use of social media to discuss a product or service offered by employers “Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.” 16 CFR 255.1(d). “endorser” is the party whose opinions, beliefs, findings or experience the message appears to reflect “endorsement” means any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings or experience of a party other than the sponsoring advertiser

138. What in the world does that mean? Any time an employee endorses your product or service, the employee must disclose his or her employment relationship “Speedy Cars Mfg., Inc. makes the fastest cars on the market today!” “The Burger Shop has the best hamburgers because they’re always made of 100% angus beef.” Failure to disclose the employment relationship could lead to liability for employer and employee if the statement is false or unsubstantiated.

139. FTC Smack Down Ann Taylor Loft case

140. GINA What is GINA? Genetic Information Nondiscrimination Act GINA prohibits employers from acquiring genetic information with respect to an employee or an employee’s family member EXCEPTION: inadvertent acquisition

141. Examples: A supervisor receives an unsolicited communication about the medical history of an employee’s family member A supervisor and employee are Facebook friends. The employee posts a status update containing family medical history GINA

142. SCA The Stored Communications Act (SCA) 18 USC §2701 Prohibits unauthorized intentional access to wire or electronic communication Does not apply to owner of wire or electronic communication service

143. SCA Pietrylo v. Hillstone Restaurant Group (D. N.J. 2009) Employee MySpace page created for airing grievances Issue: Did employer violate SCA by accessing stored information without consent? Jury verdict for Plaintiffs on claims for violation of SCA Jury could reasonably conclude that employer unlawfully accessed the page

144. E-Discovery Now, some good news! Sometimes benefits employers

145. E-Discovery Romano v. Steelcase, Inc. (N.Y. Super. Sept. 21, 2010) Employee’s personal Facebook and Myspace profiles discoverable (both public and private portions) by Company Evidence relevant to “loss of enjoyment of life claim” and damages

146. E-Discovery Ledbetter v. Wal-Mart Stores, Inc. (D.C. Colo. 2009) Protective order denied for Facebook, Myspace and Meetup.com accounts

147. E-Discovery EEOC v. Simply Storage Management, LLC (S.D. Ind. May 11, 2010) Facebook and Myspace profiles, postings, messages and photos are discoverable

148. But… Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010)

149. NLRA NLRB v. American Medical Response of Connecticut Employee suspended and then terminated the employee after she posted, from her personal home computer, a negative comment about her supervisor on her Facebook page. This posting led to supportive statements from her co-workers, which then gave rise to further negative postings about the supervisor. The employee was fired for her Facebook postings, and because the postings violated the company’s policies on Internet usage and Standards of Conduct. Section 7 of the NLRA protects employees abilities to communicate with each other about wages, hours and other terms and conditions of employment. NLRA only applies to Unions right?

150. NLRA ?

151. Now what? Create an effective social media policy

152. Your social media policy: who to involve HR Awareness of types of employees Marketing/PR Knowledge about what role social medial will play in disseminating the company’s message Legal Shameless plug Track changes in the law

153. Your social media policy: components Purpose Applicability Definition of “social media” List of Dos and Don’ts Who to contact with questions

154. Purpose Clearly define what you want employees to take away from reading the policy Why this is so important Use some psychology

155. Applicability Who it applies to All employees Contractors When it applies Work Home

156. Define “social media” What the policy covers Social networking Facebook, Myspace, LinkedIn, Twitter, etc. Blogs Photo sharing sites Wikis

157. Dos and Don’ts

158. Do Remember that the internet is like an elephant… it never forgets Exercise good judgment Use common sense Be responsible Understand that diamonds aren’t the only things that last forever

159. Don’t Be a jerk Disclose confidential or proprietary information Use the company’s logos or trademarks without written consent Endorse the company’s products or services without using a disclaimer (if at all) Use your company e-mail address to create personal blogs, list serves, profiles, etc. Feel the need to “friend” everyone in the universe

160. Final Thoughts

161. Thank You! Margeaux Kimbrough Kegler Brown Associate mkimbrough@keglerbrown.com (614) 462-5437 65 East State St., Suite 1800, Columbus OH 43215

162. I’ve Fallen and Can’t Get Up…Managing your employees medical conditions. Presented by : Brendan FeheleyKegler, Brown, Hill & Ritter

163. It’s not all bad… I have suggested that he loosen his pants before standing, and then, when he stands with the help of his wife, they should fall to the floor. The patient has no past history of suicides. The patient had waffles for breakfast and anorexia for lunch. Between you and me, we ought to be able to get this lady pregnant. The patient was in his usual state of good health until his airplane ran out of gas and crashed.

164. Overview Employee’s medical conditions involve various laws: FMLA ADA Workers Compensation OSHA COBRA

165. Am I supposed to remember all of those? How these laws work with one another… They don’t Strategies for handling overlapping conditions Tips for using the information you can get under one law to help you with another…

166. Here we go Hypo Jim is an employee at Widgets Inc. One day while making Widgets Jim slips. As he is falling he lunges for a rail nearby. Jim hits the railing, causing a deep laceration on his wrist, he is unable to stop his fall and crashes into the cement floor. Immediately he complains of pain in his back.

167. Immediate actions FMLA Workers Compensation ADA OSHA

168. FMLA Eligibility? 1250 hours 12 months Serious health condition? Which one? an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. "continuing treatment by a health care provider" must include either (1) a period of incapacity lasting more than three consecutive calendar days and treatment two or more times by a health care provider, or (2) treatment by a health care provider on one occasion resulting in a regimen of continuing treatment under the provider's supervision Notice and Certification

169. FMLA If Jim is incapacitated for 3 or more days, or has a regimen of continuing treatment then this qualifies as a serious health condition What evidence is sufficient? Medical documentation? Lay testimony? Combination? Assume Jim is eligible and his condition qualifies…

170. Workers Comp… Compensable injury? Not so fast. Idiopathic injuries not compensable. More than one injury? Back Wrist Investigation Witnesses…? D & A Objective evidence

171. OSHA Reportable injury? An occupational injury or illness that requires medical treatment more than simple first aid must be reported. What happens if he doesn’t report the injury until 7 days later? Recordable? Loss of consciousness Days away from work Restricted work Job transfers Affects routine (essential) job functions "Significant" injury's or illnesses diagnosed by physician such as cancer. Medical treatment beyond first aid Investigate Location of railings, possible fluids on floor.

172. ADA Disabilty (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; What do we know now? Qualified for position?

173. The Show Goes on After a day Jim is released from the hospital. He has a herniated disc in his back which will require treatment and eventually surgery. The condition of his back makes it difficult for him to do his job and requires him to miss work periodically, for appointments and sometimes due to pain.

174. Analysis FMLA Periodic need to miss work… Intermittent leave Begin counting… Need to ensure that entire medical certification form is filled out. Specifically the portion regarding how often and for what duration work will need to be missed. Don’t let doctor off hook. Treatment schedule… § 825.203 Scheduling of intermittent or reduced schedule leave. then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations. Transfer?

175. Workers Compensation Herniated Disc… Additional condition Probably substantial aggravation. Looking for objective evidence of change in the condition caused by work. Make sure you’re reviewing the FMLA documents to determine if they help you. Temporary Total Disability? If transferred to part-time then wage loss. Can you accommodate restrictions? Light duty? Temporary total

176. ADA Herniated disc… ADA condition? ADAAA Walking Standing Lifting Bending Working But surgery will fix condition… Old cases temporary conditions not disabilities EEOC regulations “someone could have disability if back condition requires 20 lb. lifting restriction and lasts for several months or more” Time for “Interactive Dialogue?” Performance issues?

177. ADA (cont.) Examination? Job related? Have job description. Safety concern? Document performance problems that create safety concern. If exam is done can it be used for FMLA Yes new regulations permit use of information obtained under other laws.

178. Jim’s Condition Continues Jim’s surgery is 8 weeks out. He comes to you and states that he is unable to continue doing his job due to the pain that he suffers on a daily basis. He believes that he will be able to return to work after his surgery.

179. FMLA 8 weeks off work. Forseeable leave time. Substantial change in condition? Recertification? If so check to see if date of return is definite. Also try and determine what Jim will be able to do when he returns (will he need restricted duty). Transfer possibility? Need to check to see exactly what problems are, exactly why employee can’t work. Wages and terms and conditions of employment

180. Workers Comp Temporary total. Fight it early, get an IME Might help with ADA issues. Determine what root of problem is and what caused it. Was he working within restrictions, were restrictions accurate. Surveillance? Expensive, may depend on what you’re seeing.

181. ADA Reasonable accommodation? Engage in Interactive process. Ask Jim if there is any way you can assist him in doing his job. Get documentation from the doctor of problems. Check against job description. Transfer Only to vacant positions Where employee is qualified or could become qualified with reasonable amount of training.

182. Condition After Jim’s surgery his back is in a condition that would allow him to return to work, however the cut he got has become infected and his arm now needs to be amputated. He will miss an additional 6 weeks. Can he come back at all?

183. FMLA New condition. Start the process over again. Eligibility Make sure the letter to Jim states how much time he has remaining Definitely less than 4 weeks because missed time for treatments and then missed 8 weeks. Make sure documentation indicates when Jim is expected to return (ADA). Roll over to Company offered medical leave? Job restoration?

184. Workers Comp. New condtion Additional allowance Key issue, what caused infection (remember Jim wasn’t working). No evidence work caused infection. Scheduled Loss Amputation of arm is going to result in a loss of use award if claim is allowed. Possible PTD??? Pre 2006 statutory Modified duty off site.

185. ADA Can you accommodate? Extension of leave time… Interactive Dialogue again Key question: What does Jim need in order to be able to do his job. Key word NEED not WANT. Changing workstation? Changing job? Examination? Important to have good job description.

186. COBRA If can’t return to work Expired leave time Can’t accommodate Employee may be eligible for an additional 11 months of cobra (beyond 18) But SSA needs to find the employee is disabled.

187. Conclusion 3 tips Identify early and coordinate What comes in as workers comp may well be ADA, FMLA, OSHA. Take advantage of information from all sources Different laws allow for examinations at different times Communicate with the employee Early and often Assists with coordination of strategy/defense.

188. Thank You! Brendan Feheley Kegler Brown Associate bfeheley@keglerbrown.com (614) 462-5482 65 East State St., Suite 1800, Columbus OH 43215