MISHRM 2014 Annual Conference

1. MISHRM 2014 Annual Conference HR Amplified: Driven to be…

2. structuring a 21st century business environment Thomas Brady – Clark Hill PLC Tracy Leahy – Clark Hill PLC

3. Overview Changes in Workforce Hiring for Success Flexible Workplace Legal Issues for a Changing Workforce

4. The Changing Workplace

5. Four Trends in the Changing Workplace • Diversity/Demographics • Technology • Government Regulation • Globalization

6. Diversity

7. Diversity • By 2050, the U.S. population is expected to increase by 50 percent, and minority groups will make up nearly half the population • Immigration will account for almost two-thirds of the nation’s population growth • The population of older Americans is expected to more than double • One-quarter of all Americans will be of Hispanic origin. • Almost one in ten Americans will be of Asian or Pacific Islander descent. And more women and people with disabilities will be on the job

8. Generation Changes

9. Generation Changes

10. Technology Trends • A company’s intellectual property is one of its most important assets • The use of computers and the Internet in workplaces will become more pervasive and the functions performed using computers will dramatically increase • The influence of technology will go beyond new equipment and faster communications, as work and skills will be redefined and reorganized • Technology will increase the company’s exposure to lost intellectual property and confidential information

11. Governmental Regulations • Labor Regulations • Make it easier for unions to organize • Expand the Board’s reach in the workplace to non-union employers • Equal Employment Opportunity • Expand Title VII to cover sexual preference and gender identity • Expand coverage of the Americans With Disability Act • Expand leave rights • Wage and Hour issues • Promote equal pay • Prevent “Wage theft”

12. Globalization Trends • Increased global competition will continue to affect the type of work being done in American workplaces, creating new high-skilled jobs and lessening demand for low-skilled work • The impact of globalization on all Americans will continue to grow as more of the economy is involved in producing exports or competing with imports • Three trends: • Employees will develop skills to avoid being stuck in low paying or obsolete jobs • Employees will want more flexibility and a balanced family life • The workforce will become more diverse

13. Hiring for Success

14. Pre-recruitment Process • Know the position’s: • Job title and classification • The purpose of the position • Key accountabilities • Specific duties and responsibilities • Essential functions • Minimum qualifications and preferred qualifications

15. Background Checks • Perform a complete background check including were allowed: • Criminal history records checks • Sex offender registry check • Department of motor vehicles records checks • Google the Applicant • Do not require the employee to provide passwords or access to applicant’s social media account • Can consider information that is publically available on the internet • In jurisdictions which have “ban the box” laws, review the law, some allow criminal background checks if the employer has a justifiable reason

16. Michigan’s Internet Privacy Protection Act • Cannot require applicants/employees to grant access to, allow observation of, or disclose information allowing access to personal internet accounts • Cannot retaliate against employee/applicant who fails to grant access • Employees must disclose information regarding an electronic device: • Paid for by employer • To an account/service provided by employer or obtained by virtue of employee’s employment, or • Used for employer’s business purposes • May require employee to cooperate in investigation concerning unauthorized transfer of employer’s confidential/proprietary/financial data

17. Hiring Process • Document expectations for employee • Document special conditions: goals, hours of work, bonus, anything unique to the employee—but include employer reservation to amend, modify, or cancel • Have employee execute standard documents: employment agreement, non-compete, non-solicitation, confidentiality agreement, acknowledgment of receipt of handbook • Have employee complete the I-9

18. Flexible Workplaces

19. Flexible Workplace Defined • Workplace flexibility is a mutually beneficial arrangement between employees and employers in which both parties agree on when, where and how the employee will work to meet the organization’s needs. This may include: • Time • Location and connectivity • Amount of work • Continuity and time off

20. Business Advantages of a Flexible Workplace • Increased job satisfaction • Expanded availability to clients • Attract and retain good employees • Increases employee loyalty, engagement and performance • Reduces negative outcomes • Reduced cost • Increase company’s ability to meet the demands of globalization

21. Employee Advantages of a Flexible Workplace • Improved work/life fit • Less time commuting

22. Flexibility in Time • Flextime • Compressed workweeks • Flexible shift work • Part-year or seasonal work schedule • Self scheduled breaks

23. Flextime Tips for HR • Determine how department or office coverage will be maintained • Determine how effective channels of communication will be established and maintained • Determine how work hours will be tracked. • Determine how performance will be measured • Determine how tasks will be assigned during times when a supervisor or manager is absent

24. Compressed Time Tips for HR • How office coverage will be maintained • Determine how schedules will be coordinated • Determine how effective channels of communication will be maintained • Determine how tasks are assigned during times when supervisors or managers are absent • Determine how equity will be maintained by measuring work accomplished rather than hours worked to avoid conflicts • Determine how performance will be evaluated. • Determine how negative perceptions of flexibility will be handled

25. Flexible Shift • Schedule employees outside standard work hours to ensure 24/7 coverage • Tips • Determine how department or office coverage will be maintained • Determine how effective channels of communication will be established and maintained • Determine how work hours will be tracked • Determine how performance will be measured • Determine how tasks will be assigned during times when a supervisor or manager is absent • Evaluate if the flexible shift has adverse effect on the employee’s health

26. Flexibility in Location and Connectivity • Home based telework • Satellite offices • Remote worksites

27. Flexplace Tips for HR • How work will get done and how meetings and joint projects will be handled? • How communication with co-workers, supervisors and managers will continue within core hours? • How much time will be spent in the office and when? • What equipment and technical support will be needed and who will provide it? • How the arrangement will be supervised and evaluated in comparison with onsite workers to ensure equity? • Which employees or teams should be available during core work hours?

28. Teleworking Tips • Determine if the employee is self-directed and comfortable working without close supervision • Determine if the employee manages her time well • Determine if the employee is comfortable working alone for long periods of time • Determine if management can effectively manage work interactions with coworkers, clients, supervisors and subordinates working flexibly or virtually

29. Flexibility in the Amount of Work • Part-time work • Transitional part-time work • Reduced workloads • Job sharing

30. Flexibility in Work Continuity and Time Off • Long-term breaks and sabbaticals • Family Medical Leave Act (FMLA) • Vacation time • Paid sick time and leaves • Compensatory time off

31. Legal Issues in a Changing Workplace

32. Essential Policies in a Diverse Workplace • EEO policy that prohibits discrimination based on all federal, state and local EEO laws. This may include protection for sexual preference and gender identity • Anti-Harassment policy that forbids all harassment based on protected classifications contained in the EEO policy • Disability and request for an accommodation procedures • Religious accommodation. • Whistleblower protection. • No retaliation policy • Investigation policy

33. Reasonable Accommodation • Increasing numbers of highly qualified applicants with disabilities will enter the workforce • To attract and keep employees with a disability, employers will have to provide accommodations which allow the employee to perform the essential functions of the job • To determine the appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation • This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations

34. Undue Hardship • Employer need not accommodate if it would create an “undue hardship”: • To determine if an accommodation creates a significant difficulty or expense to an employer, consider the following factors: • The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding • The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources • The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities

35. Direct Threat • Employer need not accommodate if it would create a “direct threat:” • 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 determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job • Assessment based on a reasonable medical certainty that relies on the most current medical knowledge and/or on the best available objective evidence • Factors to be considered include: (1) The duration of the risk (2) The nature and severity of the potential harm (3) The likelihood that the potential harm will occur (4) The imminence of the potential harm

36. Priority of Accommodations • Must try to accommodate in current job first • If no accommodation available, then must place in open (or soon to be vacant) position for which employee is qualified and able to perform (with or without reasonable accommodation) • Look at current level first, then at lower level; no duty to promote • Pay and benefits reduced to that of new position. • If nothing available then may terminate employee (or possibly place on leave)

37. Home Work Policy • Require employees working from home accurately record their time: • Time sheets that must be completed daily • Employee signs the time sheets to authenticate the information • Require approval of overtime: • Require employee’s supervisor to authorizes the overtime in writing before it is incurred • If the employee works unauthorized overtime, pay the overtime and discipline the employee for working unauthorized overtime • If possible, periodically audit the employees time records by comparing them with computer logs, telephone records and other electronic records

38. OSHA Safety Issues • Home Office • Employers must provide employment and a place of employment that are free from recognized, serious hazards • OSHA will not inspect employee’s home offices. • OSHA will not hold employer liable for employee’s home office and employers are not required to inspect the home office • If a complaint is filed, OSHA will inform the employee that it does not inspect home offices • If requested by the employee, OSHA will let the employer know about the complaint

39. OSHA Safety Issues • Other home-based worksites • OSHA will only inspect if it receives a complaint or referral that indicates that a violation of a safety or health standard exists and threatens physical harm or that a imminent danger exists, including reports of a work-related fatality • OSHA limits the scope of home work site inspections to the employee’s work activities • Employers are responsible in home worksites for hazards caused by materials, equipment or work processes which the employer provides or requires to be used in the employee’s home • Employer may have to report work related injuries and illnesses and maintain records if the injury are work-related

40. Workers’ Compensation and the FMLA and ADA • Not all WC injuries or illnesses are disabilities under the ADA or FMLA: • The injury would need to result in a physical or mental impairment that substantially limits one or more major life activities to be covered under ADA • If a leave is needed for a work related illness or injury, whether the leave is intermittent or long term, both laws will likely apply and should be coordinated, unless the leave is for short term illness or injury of less than three days and there is not a chronic condition involved • Employers may have a duty under the ADA to accommodate an employee who is on workers’ compensation leave or FMLA leave with additional time off beyond FMLA leave and even the employer’s normal leave policy, depending on what its terms are • Employers may have a duty under the ADA to accommodate an employee returning from workers’ compensation leave or FMLA by modifying the non-essential functions of the employee’s job

41. Security Issues • Security breaches of information • Third party hacker • Employee’s family • Lost information in company computer or thumb drives • Security breach of employees’ personal information • Misappropriation of the employer's confidential and proprietary information

42. Trade Secrets Tips • Use reasonable, affirmative measures to protect the information -- simply categorizing documents as trade secret is probably insufficient • Some examples: • Check employee backgrounds • Mark documents “confidential” or “trade secret” • Discuss the issue with staff, and identify documents and processes you consider secret • Segregate trade secrets • Lock up trade secret documents after use

43. Confidentiality Agreements Tips • Obtain a confidentiality agreement from employees and third parties to whom you give confidential information • Protect the information in practice • Mark confidential documents “confidential” • Segregate and lock up confidential documents, if possible • Restrict access • Restrict dissemination • Require immediate return after use • Require employee to clear removal of confidential information • Do not publicly disclose confidential information

44. Reporting Breach of Database • Employer must give notice to employees whose personal information was accessed in an unauthorized security breach • Must notify Michigan residents (other state residents if the other state has a similar law) of the security breach and inform them how to contact credit reporting companies • Under Michigan law, the notice may be given: • Written notice sent to the recipient at the recipient's postal address in the records of the agency or person • Written notice sent electronically to the recipient; • If not otherwise prohibited by state or federal law, notice given by telephone • Substitute notice

45. Zoning Laws • Local zoning laws may require the resident to obtain permission to conduct business out of the employee’s home • Check the local zoning laws to determine if the law requires that an individual obtain a license or permit before engaging in work at home • When considering a work-at-home request, employers should ascertain whether zoning requirements may apply, and should clarify whether the company or the employee will be responsible for compliance

46. Questions

47. Thomas P. Brady (313) 965-8291 tbrady@clarkhill.com Tracy A. Leahy (313) 965-8533 tleahy@clarkhill.com