Legal Aspects of Managing Others

1. Legal Aspects of Managing Others ”The more you are willing to accept responsibility for your actions, the more credibility you will have.” -Brian Koslow

2. Introductions

3. Ground Rules • Please leave work outside as much as possible • Cell Phones / Blackberry's off/on silent • Respect opinions of others • Actively participate • Maintain confidentiality during and after class

4. Course Objectives: Legal Aspects of Managing Others • Upon completion of this course you will be able to: • Identify and mitigate legal risk in the workplace • Understand obligations regarding confidentiality of medical information • Know your role in driving compliance with EEO and affirmative action requirements • Respond appropriately to concerns of sexual harassment, employment discrimination, or hostile work environment • Manage employee FMLA leaves • Describe wage and hour classifications and pay obligations

5. ATK Leadership Framework As global competition and business complexity increase, the need for leaders to achieve results in quick order produces a requirement to perform in every element of their work. • It is essential that ATK leaders demonstrate superior performance in: • Business Leadership • People Leadership • Self Leadership

6. ATK Leadership Framework (continued) Each dimension of ATK’s leadership framework can be further defined by specific leadership capabilities:

7. Quiz • The Americans with Disabilities Act (ADA) protects qualified individuals with physical disabilities, not mental impairments. T or F • ATK does not have to accommodate employee work restrictions, unless they are related to a workplace injury. T or F • Reasonable accommodations include job restructuring, such as moving marginal duties to other employees. T or F • ATK must take affirmative action to recruit and advance minorities, women, individuals with disabilities, and what other group? • A determining factor in defining "sexual harassment" is; • Whether the behavior is unwelcome • Whether the behavior is intended to be offensive • All of the above • None of the above

8. Quiz • As a supervisor, if you ask one of your subordinate employees out on a date, you could lose which of the following: • Your job. • Your new fishing boat. • Both. • Neither. • If an employee tells you about an incident that could be discrimination or harassment, but asks you not to do anything, then you do not need to do anything about it.T or F • For what reasons can an employee take time off under the Family Medical Leave Act? • An employee can choose whether time off is FMLA leave or not. T or F • Non-exempt (hourly) employees are paid based on their scheduled hours, it is irrelevant whether they work outside of those hours. T or F • Exempt employees earn their full salary each week regardless of: • How many hours they work • The quality of their work • Being sent home due to inclement weather for one day • All of the above

10. Medical – Americans with Disabilities Act (ADA) • ADA defines “Disability” as: • A physical or mental impairment that substantially limits one or more major life activities. • A record of such impairment. • Being regarded as having such an impairment. • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. • Mental Impairments: The regulations define “mental impairments” to include “emotional or mental illness.” Examples: blindness, deafness, arthritis, back injury, epilepsy, carpal tunnel, asthma, alcoholism, drug addiction (not use, but addiction), major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia and personality disorders

11. Medical – Americans with Disabilities Act (ADA) • If you “regard” an employee as disabled, you may inadvertently give the employee protection under the ADA, even though the employee may not actually have a disability. • Inappropriate Comments: After learning of a employee suffering a back injury, you say to the employee… • Remember: any statements to or about what a physically or mentally impaired employee can or cannot do must be based on written medical documentation, not on what you think or observe. “Well, I certainly do not see how you can do any lifting now” • “You look like you are in a lot of pain, maybe you should apply for disability”

12. Medical – Americans with Disabilities Act (ADA) • The ADA defines disability discrimination to include: • Failing to make reasonable accommodation; • To the known physical or mental limitations; • Of an otherwise qualified applicant or employee with a disability; • Unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business. • The ADA also prohibits harassment and retaliation. • Potential reasonable accommodations: • Making existing facilities used by employees readily accessible to and usable by individuals with disabilities • Job-restructuring (shifting “marginal duties” to other employees, modifying how or where work tasks are performed) • Part-time or modified work schedules (unpaid leave, flexible hours) • Reassignment to vacant position • Acquisition or modification of equipment or devices • Adjustment or modifications of examinations, training materials, or policies • Provision of qualified readers or interpreters

13. Medical – Americans with Disabilities Act (ADA) • Four-step interactive process to identify a reasonable accommodation:

14. Real Life Example - Reassignment to a vacant position • The largest ADA settlement in a single lawsuit. • The U.S. Equal Employment Opportunity Commission (EEOC) record-setting consent decree resolving a class lawsuit against Sears, Roebuck and Co. (Sears) for $6.2 million and significant remedial relief. • Inflexible workers' compensation leave exhaustion policy. • Terminated employees instead of providing them with reasonable accommodations or seriously considering a brief extension. "The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over," the EEOC’s attorney said.

15. Medical – Keep it Confidential • As a Supervisor, you may get information that is considered medical information that needs to be kept confidential, for example: • Drug screen results • OSHA recordable events • Work comp first reports of injury • Work restrictions (not the underlying medical condition) • The ADA requires medical records and medical information be maintained in confidential files separate from the employee’s personnel file. • Access to medical information must be limited only to those with a reason to know (medical staff, HR, Legal) • Also, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that Supervisors not have access to protected health information • If an employee requests help with a health care of medical claim or coverage issue, direct the employee to the insurance provider or ATK Employee Solutions • Your role: Keep all medical information confidential, never seek medical information from an employee or an employee’s health care provider. Failure to do so can lead to: • invasion of privacy claims • defamation claims • claims that the medical information was considered in making employment-related decisions such as promotion, raises, transfer opportunities, layoff, etc.

16. Medical – Keep It Confidential Scenario • Your employee is going on a leave of absence (short-term disability) due to a medical issue. • How do you communicate this with others? • Your employee was in an accident (car, home repair, etc). • How do you communicate this to your team? When an employee is going to be out due to medical, the manager, nor any of the employee’s co-workers should discuss the reason for the employee’s absence.

18. Diversity & EEO We consider a diverse workforce to be essential to our success as well as an important social responsibility. We are a company that values and respects all people for who they are, for their differing opinions and viewpoints, and for the way they do things. You can support an environment of respect by recognizing the value of diversity. We have an equal employment opportunity policythat is established to ensure that the workplace at ATK is free from discrimination on the basis of race, color, religion, sex, national origin, age, disability, veteran’s status or any other basis prohibited by applicable law. Policies are located on Employee Solutions - Policies

19. Driving EEO and Affirmative Action Program Compliance • Three main employment related laws that apply to government contractors, like ATK – these laws promote the advancement of women, minorities, individuals with disabilities, and veterans in employment: • Executive Order 11246 (Nondiscrimination in Government Employment, signed by President Lyndon Johnson on Sept. 24, 1965 requiring affirmative action to ensure equal employment opportunity without regard to race, color, religion, sex, or national origin) • Section 503 of the Rehabilitation Act of 1973 (“Section 503”) (affirmative action and reasonable accommodation for qualified individuals with disabilities) • Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) - 1) disabled veterans; 2) Armed Forces service medal veterans; 3) recently separated veterans, and; 4) other protected veterans. • The Office of Federal Contract Compliance Programs (OFCCP), which is an agency within the United States Department of Labor has responsibility for the enforcement. • These laws require ATK to establish Affirmative Action Plans that set forth specific steps that it will take to identify and remove barriers, and recruit and advance minorities, women, persons with disabilities, and veterans

20. Real Life Example – Fair Pay OFCCP recently settled with AstraZeneca over unfair pay for women: • 124 women will recover $250,000 following a pay discrimination lawsuit filed by the DOL against AstraZeneca, a provider of pharmaceutical products to hospitals around the country. • The action follows an investigation conducted by OFCCP and resolves allegations that female sales specialists at the corporation's Wayne, Pa facility were unfairly paid, on average, $1,700 less than their male counterparts for equal work. • Under a consent decree and order filed with the department's Office of Administrative Law Judges, in addition to making financial restitution, AstraZeneca has agreed to conduct statistical analysis of the base pay of 415 sales specialists and adjust salaries accordingly where females continue to be underpaid.

21. Your Role • When hiring, always follow theselection process and know whether the group into which you are hiring has a placement goal in the AAP • Ensure that training, development, and mentoring opportunities are equally available to all employees • Make all decisions regarding pay, performance evaluation, promotion, and hiring without regard to race, gender, disability, or veteran status • Maintain a work environment free of harassment, intimidation, and coercion • Recognize and avoid using language that reinforces stereotypes • Promote diversity, which brings unique skills, experiences, and perspectives to the work place - driving innovation and successful outcomes

23. What is Discrimination?

24. What is harassment or hostile work environment? Harassment and Hostile Work Environment claims can be based on any legally protected characteristic: • It occurs when the conduct constitutes an offensive job interference – such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive work environment • Harassment does not require the person engaging in the conduct to intend to harass. Harassment can occur even when a person intends the behavior to be friendly or funny. The law focuses on the conduct’s impact on the person affected. Sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” • Quid pro quo harassment typically occurs when a person with the power to influence an employment decision or condition seeks a sexual favor in return for a positive outcome. (Sexual favors in exchange for work-related benefits - often involves abuse of authority or power). • Hostile environment sexual harassment occurs when there has been unwelcome sexual conduct that is sufficiently “severe or pervasive” so as to alter the conditions of employment. (Interferes with employees’ ability to do their job).

25. Offensive behavior, harassment, or hostile work environment? • Avoiding offensive behavior, harassment, or creating a hostile work environment • means avoiding the following behavior: • Inappropriate Jokes (including e-mail) • Inappropriate pictures (including screen savers) • Teasing or disparaging comments referencing weight, age, race, national origin, or religious garb or religious practices • Comments referencing protected characteristic • Sexual innuendos or requests • Suggestive remarks about a person’s clothing or body • Physical touching • Office gossip • Facebook/Twitter (other social media) • Intimidating conduct (shouting, swearing at, blocking someone’s path, slowing down their work) • Staring • Invading personal space • Hugging, patting, brushing up against

26. Real-Life Example Stevens v. Vons Companies • Male inventory control clerk complained that his female manager made inappropriate sexual comments and falsely claimed that he was calling her at home and was a “pervert.” • Internal investigation found that manager had made inappropriate comments but that there was no sexual harassment. • Employee was transferred to another store; manager was not transferred or disciplined. • Nearly two years later, employee was terminated after violating policy regarding donating merchandise. Result? • A jury found that employee had been sexually harassed and then retaliated against for complaining about the harassment • Awarded $172,988 in economic losses for retaliation; $500,000 in nonecomonic losses for harassment, and $1,000,000 in noneconomic losses for retaliation. • Also awarded $16,729,880 in punitive damages and $560,000 in attorneys’ fees • Court reduced punitive damages award to $1.2 million. • Appellate Court affirmed damages awards. California Supreme Court and U.S. Supreme Court refused to review.

27. Responding to harassment and discrimination It is important to immediately address concerns of harassment and discrimination. • Harassment and discrimination are: • Against the law. • Against ATK’s policies. • Damaging to a company’s reputation and financial success. • Harassment and discrimination also: • Devastate individuals and work groups. • Cost millions of dollars in lawsuits. • Impact employee morale, productivity and satisfaction. • Lead to increased resentment, absenteeism and turnover. • Cause uncomfortable tensions in the workplace.

28. Responding to Harassment and Discrimination Don’t wait for a complaint • Stop questionable behavior before people complain. • Victims may be reluctant to report harassment because of embarrassment or fear of conflict, humiliation, ostracism, or retaliation. • It is your duty to monitor your workplace and identify potential harassment or retaliation even if it is not reported to you.

29. Responding to Harassment and Discrimination Take Complaints Seriously: • Do not agree to “do nothing,” as a supervisor, you are required to escalate any concerns about harassment or discrimination to Human Resources. • Complaints can come from co-workers • Refer the employee to Human Resources. Offer to accompany them. • Save any relevant documentation – like e-mails • Take the opportunity to get information; do not validate the complaint, but validate the act of coming forward • Do not promise confidentiality. Tell the complainant that ATK has a duty to investigate all claims of harassment and discrimination. Do keep the complaint confidential to those who have a need to know (HCM, legal). • Document the complaint: documentation should be factual (no opinions), legible, and complete (including names, date, and specific allegations)

30. Responding to Harassment and Discrimination As soon as you receive a complaint or otherwise suspect harassment is occurring in the workplace, you must: • Contact Human Resources • Fully cooperate with Human Resources in investigating • Participate in the resolution of the investigation • Implement disciplinary action, when necessary • Ensure the conduct has ceased • Follow up appropriately to ensure that employee is satisfied with the process • Watch for and immediately address any retaliatory actions against the complainant or anyone participating in the investigation

31. Your Role As a Supervisor you have a special role as a leader in the company: • Leaders must take a proactive approach to prevent, identify, and eliminate harassment and discrimination in the workplace. • Do not participate or look the other way when intimidating or harassing behavior happens. • You should act as a role model for others. • Remember: We all have different tolerances for certain kinds of language and behavior – things you talk about with your friends or family might not be appropriate for work. Understand ATK’s Anti-Harassment and Offensive Behavior Policy • You are expected to comply with the Policy. • You must be able to identify behavior that violates the policy. • Remember, this Policy applies to anyone conducting business with ATK or coming on to ATK premises (customers, vendors, consultants, etc.) • You are not expected to reach legal conclusions about whether behavior meets the definition of “harassment” under the law; our policy is more strict that what the law requires.

32. Key Takeaway Report any concerns about harassment to Senior Leadership and HCM immediately!

34. FMLA Leaves The Family Medical Leave Act (FMLA) is a federal law passed in 1993. It requires covered employers to provide unpaid leave to eligible employees for certain qualifying events. • IMPORTANT NOTE: A direct supervisor is prohibited from contacting employee’s health care provider • FMLA leave is unpaid leave. • Employees are required to use PTO the first week of FMLA leave. After the first week, employee may choose to use available PTO to receive pay. • If for own serious health condition and leave qualifies for STD or work comp, then employee may receive pay through one of those programs.

35. Leaves of Absence (LOA) Types of Leave of Absence Personal • Employee needs to be away from work for extended period of time. Short and Long Term Disability • Employee is unable to work due to an approved disabling injury or illness Family and Medical Leave (FMLA) • Employee needs to take leave take leave for his or her own serious health condition, for the serious health condition of a family member, for the serious injury or illness incurred by a family member in the line of active duty in the Armed Forces, for the birth, adoption, or placement of a child, or for qualifying exigencies relating to a family member’s active duty or call to active duty status. Worker’s Compensation • Employee needs to take leave due to an approved work-related injury/illness

36. FMLA Scenario • Employee Notice? • Joe calls in sick on Mon. and Tues. and returns to work on Wednesday. • Joe has no PTO available and has been having attendance issues • As it turns out, Joe was sick in bed from Fri. night thru Tues. with food poisoning. Was in the emergency room Fri. night and saw doctor for follow-up on Mon. morning. • these facts qualify as a serious health condition under the FMLA because he was incapacitated for three calendar days, was in the hospital, and saw a doctor for follow-up • Periods of incapacity can include weekends, vacation, and holidays. • Protected FMLA leave – no discipline.

37. Your Role • As soon as you learn that an employee is out for a reason that may qualify for FMLA leave: Keep in mind the need for confidentiality of medical information when communicating an employee’s absence to your team and leadership.

39. Wage and Hour Classifications and Pay • The Fair Labor Standards Act (FLSA) requires that most employees be paid at least the federal minimum wage for all hours worked ($7.25 per hour) and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. • Calculating Compensable Hours Worked Employees "Suffered or Permitted" to work: • Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. • For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

40. Wage and Hour Classifications and Pay Calculating Hours Worked: • Waiting Time: Whether waiting time is hours worked depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait." • On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

41. Wage and Hour Classifications and Pay • Calculating Hours Worked: Rest and Meal Periods: • Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. • Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. Lectures, Meetings and Training Programs: • Attendance at lectures, meetings, training programs and similar activities are counted as working time, unless: it is outside normal hours, it is completely voluntary, not job related, and no other work is concurrently performed.

42. Wage and Hour Classifications and Pay • The FLSA provides an exemption from both minimum wage and overtime • pay for employees employed as bona fide: • Executive • Administrative • Professional • Outside sales employees • Certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding: • Job duties • Salary basis • Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations.

43. Your Role Ensure that non-exempt employees are paid for all hours worked. Manage your non-exempt employees to ensure that they are not working before or after their scheduled clock-in and clock-out times or working unpaid hours from home (blackberry, laptop).

44. Questions?

45. Quiz • The Americans with Disabilities Act (ADA) protects qualified individuals with physical disabilities, not mental impairments. T or F • ATK does not have to accommodate employee work restrictions, unless they are related to a workplace injury. T or F • Reasonable accommodations include job restructuring, such as moving marginal duties to other employees. T or F • ATK must take affirmative action to recruit and advance minorities, women, individuals with disabilities, and what other group? • A determining factor in defining "sexual harassment" is; • Whether the behavior is unwelcome • Whether the behavior is intended to be offensive • All of the above • None of the above

46. Quiz • As a supervisor, if you ask one of your subordinate employees out on a date, you could lose which of the following: • Your job. • Your new fishing boat. • Both. • Neither. • If an employee tells you about an incident that could be discrimination or harassment, but asks you not to do anything, then you do not need to do anything about it.T or F • For what reasons can an employee take time off under the Family Medical Leave Act? • An employee can choose whether time off is FMLA leave or not. T or F • Non-exempt (hourly) employees are paid based on their scheduled hours, it is irrelevant whether they work outside of those hours. T or F • Exempt employees earn their full salary each week regardless of: • How many hours they work • The quality of their work • Being sent home due to inclement weather for one day • All of the above

47. Thank You!