Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

1. Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Presented by Robert S. Turk April 28th, 2005

2. TEN Difficult HR Problems AND PRACTICAL SOLUTIONS !

3. #1 Dealing with a Mental Disability • Bipolar Disorder • Manic/Depressive Disorder • Depression • Brain Tumor

4. Dealing with a Mental Disability • FMLA • ADA • Co-Worker Complaints

5. Dealing with a Mental Disability • Reasonable Accommodations – Case by Case • Flex Time • Quiet Time • Reduce Stress • Supervisory Training • Reassignment • Time off for Counseling • Document Performance Issues

6. # 2 Florida’s

7. Florida Whistleblower’s Act of 1991 (Private Sector)

8. Florida Whistleblower’s Act An employer with 10 or more employees may not take any retaliation against an employee (law excludes independent contractors) if the employee has disclosed or threaten to disclose to a governmental agency under oath and writing some practice or policy of the Bank that is a violation of a law, rule or regulation.

9. Florida Whistleblower • Written Disclosure to “GUBMINT” – Under Oath • Testifying before “GUBMINT” Agency, etc. • Objecting to or refusing to participate in violation of the law

10. “SOX”

11. Sarbanes-Oxley “SOX” • It’s not just for public companies • SOX covers private employers doing business with public companies as a contractor or subcontractor • Complaining about any conduct reasonably believed to be violation of federal law concerning frauds or SEC rules

12. #3 The (+) Factor • Workers Compensation + Performance Issue = Retaliation • EEOC Charge + Performance Issue = Retaliation • Workers Compensation + FMLA = The Forgotten Employee

13. The (+) Factor • Temporal Proximity • Decision made before Claim • Decision made after Claim but with Documentation • Decision maker Did Not Know about Claim

14. Workers Compensation • Co-Ordinate FMLA, COBRA, Workers Compensation, ADA with other LOA’s, Carrier, Supervisor • What’s The Prognosis ? • Is There Light Duty ?

15. #4 Transsexual Status Miami Beach Ordinance July 7th, 2005 Prohibits GENDER Discrimination

16. Miami Beach Ordinance #62-31: “GENDER INCLUDES……….. gender related self-identity, self-image, appearance, expression or behavior whether or not such gender-related characteristics differ from those associated with the individual assigned sex at birth.”

17. THE LOCKER ROOM: • Private room • Use a lookout • If transition is complete, use of locker room of gender

18. #5 Use of Technology

19. Use of Technology • Cell phone Policy • Driving • Photos • Email Policy – No right to privacy • Blackberry Policy – We are tracking you • Blogging Policy – We found you, you criticized us, we are mad, you are fired !

20. Use of Technology Union Issues - • Soliciting by E mail, cell phone • Cell phone pictures • Instant cell phone messages • What is your Solicitation/Distribution Policy ?

21. #6 Wage and Hour Issue

22. Help THE THANKSGIVING CONUNDRUM Thanksgiving Week Assume: $400/weekly salary Non-Exempt Employee MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY 14 HOURS 14 HOURS 12 HOURS HOLIDAY HOLIDAY

23. COMPANY HANDBOOK SAYS: • This Handbook is not a contract…. • Full-time employees are to receive their regular rate of pay for Holidays, including Thanksgiving and day after

24. How Much To Be Paid ? • $400 Straight salary for 40 hours (including holiday) Salary covers all hours worked • $400 Straight salary Plus $80 16 hours at $5 per hour (half time) $480 • $400 Straight salary Plus $160 16 hours at $10 per hour for holiday $560 • $400 Straight salary Plus $240 16 hours at $15 per hour (time and a half) $640 for Holidays

25. How Much To Be Paid ? • $400 straight salary plus $240 16 hours at $15 per hour (time and a half) for holidays $5,500 attorney’s fees from lawsuit $6140

26. Help The Thanksgiving Conundrum Thanksgiving week Assume: $400/weekly salary Non-Exempt Employee Monday Tuesday Wednesday Thursday Friday Holiday but must work 8 hours 14 Hours 14 Hours 12 Hours Holiday

27. Arrgghh !!!

28. Best Answer Is 2 ½ Times the Regular Rate of Pay-8 Hoursat 1 ½ for the Overtime Work and 8 Hours of Straight TimePay for the Holiday!

29. #7 The Senior Executive Mid-Life Crisis Why do things explode when I am on vacation?

30. Dating the subordinate employee • Do you have a non-fraternization policy ? • Love contracts • Divorce • Employee morale

31. #8 “ERISA !” “Who is She?”

32. ERISA • Benefits in Handbook which conflicts with SPD or PLAN • SEVERANCE Payments in handbook • Was that just a question or a claim ? YIKES !

33. ERISA • Make it short and sweet in the handbook – no details • Do not list severance payment formulae in handbook • Document employee complaints • Tell employee how to pursue claim • Get ERISA counsel

34. #9 “Who are these people ?” Administrative Exempt of course

35. Administrative Exempt • Job changes as duties increase • Don’t let VP’s push HR into exemption • Get employee to document their independent judgment and discretion

36. # 10 THE Most Difficult HR Problem: Supervisors and Managers • Do not know how to document or why • Do not trust HR • HR is the enemy

37. Seek assistance from Human Resources

38. DOCUMENTATION • “FOSA” not “SOFA” • Get off the SOFA and FOSA!

39. WHAT IS FOSA? • F - FACTS (not conclusions) What happened? • O – OBJECTIVE What are we trying to correct? • S – STRATEGY How do we do it correctly? • A - ACTION What will happen if it is done incorrectly? What will happen if it is done correctly?

41. THE END