LRA Employment Law 101

– All right, we’re gonna get started Wanna thank you on behalf of the LRA for coming to Employment Law 101 This is something that we have done for the last few years It’s never been this well-attended but we are awfully happy to have you here today to share with you some information and some things that are important As you know, first of all, I think you guys have met most of our LRA team that is here Wendy Waren in the back who coordinated this event for us and Pam St. Pierre who’s our VP of member services and the rest of our communications team Steve Queyrouze, our CEO and I’m Stan Harris, I’m the CEO of the restaurant association I call myself a recovering restaurateur I got to spend 30 years in the business I’m on my 12th step, I’m gonna get a coin soon Of late, when I got out of the business, always said I wanted to have two things No inventory and no employees Well, I’m halfway there But our industry of late has been under attack There’s no question about it And it’s been under attack for the way it engages with its employees The media inquires regularly to us what’s the LRA doing? Thinking that we’re some sort of regulator, not realizing that we’re the advocate for the industry And we always give the same comment It says that we encourage all of our LRA members to be compliant with any law or regulation as it relates to employment discrimination or harassment Now that’s never been in the media because that’s just not the kind of meat that the media is looking for Today, we put this gathering together to just share some information in three areas First, we’ll welcome our LRA employment law firm, Fisher Phillips Ably represented by two partners, Michelle Anderson and Steve Cupp Both of them have presented with us before And one thing that we will share with you is an aside that I know Michelle will cover but in the event that you need an employee handbook drafted or something reviewed, they have a very good structured fee, structure to be able to take care of that and assist you as an LRA member So it’s something that you certainly wanna avail yourself of They helped us with ours and I didn’t know there was bone marrow leave in Louisiana for under 20 employees So that kind of shocked me We also welcome Postlethwaite & Netterville In addition to being a large CPA and tax firm, as they said, the needed pa and the dreaded tax guy They also provide HR and other consulting services, audits, consulting in third-party resources We’re pleased to have Helen Wall who’s somewhere back here, that is gonna present today and she’ll walk you through some ideas about what you should be looking for in your third-party provider or what you should be doing to protect your business And finally, John O’Brien with Arthur J. Gallagher & Co He’s the area director of hospitality and program insurance John’s one of my go-to guys when we need to talk about interesting risk situations And he’ll review specific insurance coverage and practices that you might wanna consider There’ll be ample time for questions and answers and as you know, we’re shooting video of this so if you’d like to share it with some of your colleagues that aren’t able to attend today, it’ll be on the LRA website at some point before too long We do ask that if you’re in the room, you silence your mobile device If you need to step out and take a call or make a call, just step out of the room so we won’t disrupt what’s going on And then just to share with you a little bit about how we look at the job that you give to us is the restaurant association and looking out for your interest and advocating on your behalf We really do believe that restaurants are the fiber and part of the fabric of America And whether you walk through the doors for a first date or a first job or a family meal or celebration, it all comes back into this experiential piece You, as employers, provide fundamental skills and values that help people pave a positive path for their future and it’s our people, not just profits or assets, that are most important, our most important element in what we do and they’re our greatest asset But we’ve got to get people that wanna talk about personal responsibility, hard work, being disciplined and having integrity It’s what our employees want and value and it’s certainly what you value and it’s what they deserve So what we hope today that we help you provide a better understanding of your responsibilities as an employer and to have an engaged workforce in the hospitality workplace So without further ado, we turn it over to Michelle and Steve and welcome you Thank you (attendees applauding) – Okay, well we’re so happy that you’re here today For those of you who I have not met before, I’m Michelle Anderson I’m a partner with Fisher Phillips I work here in our New Orleans office but I also practice in our Tampa office as well Some of you may have talked to me over the phone or even by email over the last several years As you may know, part of your membership to the restaurant association gets you access to us If you have some quick simple questions, you’re not sure how to do a tip credit, tip pool,

you’ve got a question about overtime, you’ve got a difficult employee We handle all kinds of questions for you guys all the time and that’s that’s part of your membership and we’re happy to do that and really enjoy this relationship that we have Again, Steve is with us and he is from our Gulfport Mississippi office but also practices here in Louisiana and he will be chiming in We’ve sort of divided this and I’m gonna take the harassment discrimination side and that he is going to talk more about the ADA, FMLA, pregnancy discrimination aspects which will happen after the break Because we have about 50 minutes and a lot to cover, normally, the stuff that Steve and I are gonna talk about is almost a full day of training So I’m gonna say lace up your shoelaces and hang on tight because we’re gonna go quickly There will be time for questions at the end And this presentation will be made available to you so don’t feel like you need to sit there and jot a bunch of notes or take screenshots I really just want you to listen and process the information and if you have a question toward the end, then we will get to those Just a little bit of background about me I have not always been a lawyer And actually, you probably don’t like lawyers from who the same reasons that you don’t like lawyers But my background was in workforce development so I was on the management side and I used to put people to work I also a former bartender so I have worked in your industry as well Several years ago, I decided that I wanted to go do employment law and this is all I have done for over 10 years So I bring to you my practical experience from the HR and the workforce development world, couple that with the legal experience of working with businesses solely to help try to get you in compliance and keep you out of hot water Often times, I joke that if I work my way out of a litigation job, I’m okay with that because that means that employers are taking the time and they are investing in themselves and their businesses and their employees to make sure that they don’t become the next headline And ironically, I have started to work my way out of a litigation job because people are calling me before they make that termination decision They’re calling me when they get that harassment claim and we’re working through an investigation to try and limit your risk So with all of that background, let’s talk about trying to keep out of the employment discrimination and harassment news line So we’re here to reinforce the zero tolerance You should have a policy in place if you have, I would say if you have any employees at all Even if you are not technically covered by the law because you don’t even have 15 employees yet I think that it’s still a good idea to have a policy in place So we wanna reinforce that message Part of what today is about is I think we have to start reframing the culture of the hospitality industry I recognize having worked in it myself, many of us were very young when we started out It was our very first job A lot of us didn’t know what it meant to be professional And people who continue on in that industry over the years, a lot of times, the things that we learn, whether they’re good or bad, but sometimes bad habits continue to replicate themselves over time And so we don’t ever improve upon the culture of making sure that people are treating each other with respect, that we’re doing things the right way, that were being respectful and over time, what has happened is the culture has become, I think problematic where a lot of things are going on that we know shouldn’t be going on but we don’t know what to do to make it better So hopefully today, we will help you find ways to supervise and train and have a good productive workforce to make sure that these issues of harassment and discrimination are not occurring in your workplace because quite frankly, if you have ever been through any kind of litigation, whether it’s a harassment or discrimination claim or even something worker’s complaint, you know how time-consuming and expensive those are, you know how stressful that is and you know how much of a distraction it is from your business when you’re trying to fight a lawsuit So we wanna try and keep that from happening Of course, you should care ’cause it’s the right thing to do Right, we don’t want people to come to work I always say this because plaintiffs, lawyers always say, “Oh well, employers are so bad “and they hire these employees “and they don’t wanna pay him right “and they wanna treat him well “and kick them out on the curb.” I said think about that statement Does it really make sense that I’m going to spend all of my time trying to find the right person to make that job match, to bring them on, only to treat them poorly and to not pay them and then put them back on the street? Turnover is time-consuming and expensive And the more turnover you have, the less business that is getting done So the right thing to do is to obviously have a good productive working environment Of course, there’s the numbers aspect There’s personal liability involved with many of these claims Even if the company is considered the employer for purposes of a discrimination statute,

there are all kinds of state laws that will allow an employee or even an applicant or a customer to sue you personally for some other kind of tort It can result in people losing their jobs, it can result in people losing their businesses, the financial cost, particularly if you don’t have an insurance policy to help cover some of those costs can be exorbitant And then, of course, I think we all know that unhappy employees are unproductive employees At one point, I read a study that says it takes 21 positive comments to counteract one negative So think about how much negative stuff we hear during the day on the news from our friends, our family, other sources and think about how many do we really hear the 21 positive comments to counteract that one negative So if you’ve got someone in your work environment who is harassing your employees, whether it’s a customer, a manager, an owner, another employee, a vendor, are they really getting those 21 positive things to counteract that one negative each day? Probably not Lots of laws We could spend day talking about all of these laws that would bore you to tears But some of the ones that you need to be aware of that you’re covered by are listed here on the screen The main ones that we’re going to be talking about today are the federal discrimination law which is Title VII We’ve got the age discrimination law, the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Equal Pay Act Those are the main ones that will be sort of in the background of our conversation today Louisiana also has its own employment discrimination law as well Covers many of the same classes but has some different remedies to it and some different prerequisites before you bring a lawsuit So who is covered by the discrimination laws? Everybody is Applicants, employees, your managers, your vendors, your customers, your clients, everybody is covered So even if the person doesn’t work for you If they are a third party and they come into your business and her and are harassing your employees, your staff, you could still be responsible for preventing a workplace that is free from harassment and discrimination And I know, having worked in a bar myself years ago, it was not uncommon to get hit on by customers It would happen, particularly the more that the drinks and I could make a really good drink and sometimes, they just didn’t realize that their inhibitions were going down so my tip would go up We know how it works But at time, we, as the employer, unfortunately, once we become aware that there is a situation, it is our duty to step in, to investigate and remediate the conduct so protected categories Again, these are a lot of categories but a lot of what we’re looking at today, of course, will be the sex and the gender which has been one of the most prevalent issues that we’re seeing in the news But as I’ll show you in a minute, actually, not the most prevalent claims being made Age, over 40, race, national origin, religion, disability, pregnancy and then of course, we have a slew of other federally and state-protected categories as well – Michelle, can I mention something? – Do that – When I was gonna school and going through the taking classes in law school, we were always taught that gender, sex discrimination and protection of females in the workplace, race discrimination and protection of minorities, an African-American in the workplace, it’s not what it is these days The law says that you’re protected on the basis of race and sex And that means both men, women, Caucasians, African-Americans and all ethnicities are protected in the workplace – Right, exactly – So the EEOC is the Federal Equal Opportunity Employment Commission and some of you may be very familiar with the EEOC for a variety of reasons but this is the federal agency that has been tasked with the enforcement efforts for several of those laws that I just mentioned Title VII, age discrimination, disability discrimination, pregnancy, Equal Pay Act and the genetic information non-disclosure act We don’t see that a whole heck of a lot so I’m not going to talk about that today But they most recently released their statistics of charges filed for fiscal year 2017 So there were over 84,000 charges filed around the country That is actually down about 6,500 charges from the previous year Retaliation claims are now, for the eighth year in a row, the most highest percentage of claims filed, nearly 42,000 And what retaliation means is I complained about something I engaged in protected activity I said I was being harassed, I said I was being discriminated against and you did something bad to me You fired me, demoted me, you docked my pay, you switched my shift, you did something bad to me The reality is, and Steve and I both find this, because we do a EEOC charges and the litigation that comes afterward, oftentimes, the person did not complain and they really don’t understand what retaliation means

But we’ve also seen where the person has complained and the company didn’t take it as seriously as they should have and there may be some other performance issues going on with this person because I have seen this, the oh, I’ve got written up for the third time Oh, oh, I was harassed And so now we’ve got someone who is complaining now that they’re in trouble, now they’re trying to get someone in trouble and the company doesn’t wanna take that seriously because they think that the employee is saying this just to kind get a pound of flesh out of the company The reality is that even if we think that’s the case, it is still our duty as the employer to investigate that claim and determine if there’s validity to it and to remediate the conduct Now that does not mean the person is bulletproof that if they are breaking your rules and they’re doing things they shouldn’t be that they can’t be disciplined but we just have to be very careful about how we handle those discussions So– – Yeah, I do wanna mention that You may look at the percentages and that adds up to more than 100% Anybody who’s seen an EEOC charge knows that you can check multiple boxes So there may be a age, sex, disability and a retaliation box marked – I call him the kitchen sink case – Kitchen sink case, yeah – I’ve had people, I had one several years ago, the gal checked every box but she was like 19 and so age didn’t apply and she was white Anyway, so you just never know but Steve is right You can check more than one box and so we do typically see an underlying claims such as sex or gender discrimination and then the retaliation checked as well The EEOC does also file lawsuits and I will tell you that I’ve litigated against the EEOC and won And it costs my client a lot of money because when you litigate against the EEOC, it’s like litigating to get somebody with a blank checkbook So being sued by the EEOC is not a lot of fun But last year, they brought 184 lawsuits Between all the various arms of the EEOC that does recovery so that would be their litigation arm, their mediation arm, their conciliation, they had various processes but they recovered $484 million for the claimants in the last fiscal year That’s a lot of money So Steve kind of already touched on this but unlawful discrimination is treating an employee or an applicant differently because of their protected category So to piggyback on what Steve said, everybody’s protected The way these laws started was it was to protect African-Americans and other minorities In fact, they threw women into the bill thinking that no one would want women to have equal rights so we hope that it would tanks the bill Well, it didn’t tank the bill and the Civil Rights Act passed and 1964 And then you would hear these things such as reverse discrimination Well, white men aren’t covered Everybody is covered It doesn’t matter what your race is, what your gender is if we are making a decision about you because of those things, then we might have a problem with discrimination So think about it broadly when you think about what could be discrimination Variety of examples It could be a difference in pay where we are performing the same work but we’re not being paid equally when you look at apples to apples Part of the problem with the equal pay movement has been we’re not always comparing apples to apples but there are some studies out there showing that when you do compare apples to apples that there can be some disparities Failure to hire And this could be on a variety of fronts I’ll give you an example I had an individual was hard of hearing and was applying for a helicopter mechanic job Well, guess what? Being able to hear is not an essential function of the job but the person assumed that we didn’t hire them because they were deaf Well, there were 250 applicants for one job We hired the most qualified person But the individual filed an EEOC charge claiming that we failed to hire them because they were hard of hearing Of course, the EEOC found in our favor that know, number one, we could prove that through all the applicants, we picked the most qualified one and secondly, being able to hear was not an essential function of the job and third, we actually had a helicopter mechanic who was deaf that already worked for us But again, the problem is that applicants don’t often know why we don’t pick them, right? Because most employers don’t tell them why they weren’t hired So if you have somebody who’s out there thinking well, all these employers keep rejecting me It must be because of my race or I showed up in a hijab so it must be because my religion, at some point, businesses start to draw these failure to hire claims So you could get sued by an applicant Failure to promote I had a slew of these for a company several years back where the progression within the company was not clear How you could apply for internal openings to be promoted or how you could get additional training so when those openings became available, you would apply And so the appearance was that a particular race and gender was getting the opportunity to get promoted and others weren’t because they weren’t in on the process

So again, if those things need a level of transparency because when they’re ambiguous and you start looking from the outside in, it might appear that one class of people are getting passed over for another – [Steve] Keep in mind that any notes you take during the hiring process or promotional process may be discoverable in litigation – Absolutely and never write on their job applications Never, never, never write on their job applications Okay, examples of other, more examples Differences in job assignments, giving people better shifts, or worse shifts depending on which the case may be You might be denying one person overtime and giving more to another or more overburdening one group of people with overtime versus another Giving one group of people the dirty work and not the other or the training opportunities Differences in respect How one group of employees are talked to versus how another group of employees are talked to by differences the tone or respect A different name calling, things of that nature, that can be a problem But the bottom line is if we are treating employees differently under similar circumstances, that’s really gonna start calling your judgment into question if it looks like we’re treating one group of employees one way who failed to come to work repeatedly and we give them umpteen chances before we write them up and fire them and then we have another group of employees over here of a different protected class and the first time they failed to show up to work or calling, we fire them So we have to look at when you have these disciplinary situations, have we had this situation before? Are the facts the same? Are these people in the same job? Are they doing the same kind of thing? How do we how did we handle that situation before? If we’re gonna handle it differently this time, is there a reason we’re gonna handle it differently this time? I would say the facts make the law walk and talk So sometimes we have some extra facts that maybe we didn’t have before But oftentimes, we’re going so fast, things are moving so quickly that we don’t stop and pull back that institutional memory to think what did we do before when the situation arose and then all of a sudden, we might find that, and it wasn’t intentional You’re not intentionally particularly taking one race or gender of people and treating them differently than another but we might not really be looking at the whole picture about what we’ve done in the past and it could be a hidden bias for all that we know So you’ve got to think those things through – One of the things that’s important there is the different treatment based on a protected characteristic And I think, Michelle, if you have a somebody, if you have a probationary guideline that says someone’s on probation for 90 days of their employment and they’re frequently, and then they miss two or three days in the first week or first two weeks but you allow someone that’s been with your five or six years have a little bit more leeway with discipline, that’s not based on a protected characteristic because one’s a probationary employee and one’s not Now, it could look bad if all the ones that you are disciplining are African-American and all the ones you’re not disciplining are Caucasian, that could call into it but it has to be a protected characteristic– – Right, and that’s why I say we need to look at the situations when they when they’re presented to you We have a disciplinary situation You kind of need to look at the global perspective and say what has happened before? How did we handle this? Did we treat someone differently? Would there be even the appearance that we’re treating someone differently because they’re pregnant or because they have a disability Why are we doing things differently this time? Obviously, termination is a very common claim that we see in discrimination cases Sometimes, because they’ll say “Oh, we’re an at-will employment state “I don’t have to tell people why I’m firing them.” Technically you don’t have to but the problem is when you don’t When people are surprised that they’re being terminated and you don’t tell them why they’re being terminated, guess where they’re gonna go? They’re gonna go to the EEOC, they’re gonna go to Louisiana Workforce Commission, there gonna go the labor board, the Department of Labor and a plaintiff’s lawyer They’re gonna go find out why they were fired So and often times, what they’ll say is, well that’s not the real reason The real reason you fired me is because of my race The real reason you fired me is because I’m pregnant or because I have a disability or I need to go on leave, not because I stole from you and then I quit coming to work Again, sometimes, we have to say really, you wonder why you were fired? And sometimes they really just don’t understand why they were fired – We recommend that you always be truthful to the person Don’t make up a false reason If you have trouble getting the language together, call us and we’ll help you out But it’s much easier to defend the truth – And one problem we see often times is on the unemployment claim Because a lot of times, employers don’t wanna fight the unemployment and so they tell the employee one reason why they were fired and they think they’re helping them by filling out the unemployment paperwork differently so they won’t lose their benefits Let me tell you how many times that’s backfired and called into question why an employer

really fired the person when you’ve got an EEOC charge going on at the same time So you’re not doing yourself any favors by filling out one set of paperwork one way telling an employee something else If you really don’t wanna fight the unemployment claim, you don’t give very much information, quite frankly – We don’t even turn in it – Because here, you’re supposed to turn it in within 72 hours but quite frankly, they’re not gonna take your way your birthday if you don’t So you can always wait for them to reach out to you to give the information and then you can either not respond or for example, I had one recently where the person walked out and there’s a little bit more drama attenuated with it but we could just say quit and not say anything else That person will probably get denied the first time out for benefits They’ll appeal within 15 days and what I tell employers is if you really don’t wanna challenge it, when they call for that phone hearing at 9 a.m on a Thursday morning, you’re out having a cup of coffee Like you’re just not there to participate because at the end of the day, getting someone just qualified from unemployment benefits is very difficult and it’s usually not going to be worth your time and there can be a lot of damaging things that come out in those unemployment appeal hearings because they are sworn under oath before an administrative law judge and it’s not uncommon for an employee to get a lawyer to jump on those calls and start questioning you under oath and you don’t have counsel So you’ve got to really think these things through when you’re filling out your paperwork Sorry, on a tangent these are these things that just come out as I’m thinking about them All right, harassment We’ve heard a lot about that lately Who can be sued? The company, obviously, these statutes define employer as the company but sometimes, some of these statutes are actually broader and can also encompass the management and the supervisor But there also can be individual, tort liability under state laws for managers and supervisors so we’re talking assault, battery, intentional infliction of emotional distress, defamation – Tortious interference with employment – Tortious interference with employment There’s all kinds of things that you, personally, could be sued Other employees could be sued, the owners could be sued There’s also a federal race-based statute where anybody could be sued Whereas Title VII would limit race discrimination claims under that to the company there’s a claim is called 42 U.S.C. 1981 and you could be sued as an individual for interfering with a racial minorities ability to contract as an individual So I have seen business owners and managers sued under that statute as well in race discrimination cases So harassment covers not just sex harassment but sexual harassment and other kinds of unlawful harassment based on the protected categories that we looked at earlier So sex harassment is a form of sex discrimination and it’s because of the person gender So because you’re male because, you’re female So it can be same-sex Again, where these things originated from? Was it was meant to protect women? But the law evolves over time And as I said, the facts make the law walk and talk So over time, courts have looked at at cases saying, oh well, actually that would fall within the umbrella of sex discrimination So for example, sexual orientation and gender identity are not covered under federal law However, there are cases where, they’re called gender norming cases where a female employee was not meeting the feminine standards of the employer’s workplace and she sued on the basis that she was being discriminated against because of sex And they said yes, if you are treating someone differently because they are not conforming to gender norms, then you are discriminating against somebody based on sex So that– – And there are cases working themselves up to the circuit courts dealing with sexual orientation, discrimination and we predict, probably not this term, probably the next term, the Supreme Court’s gonna decide that – Yeah, they may take that on But what has happened is many states have gone ahead and covered those protected categories anyway and so, and some businesses have just said, you know what? A lot of people that work in our industry happen to be gay or lesbian, bisexual, transgender and we just really don’t care and we don’t want that to be an issue in our workplace So some businesses have just gone ahead and added that into their EEO classifications even though by law, they wouldn’t have to because at the end of the day, we want people to come to work and feel comfortable about being there and be productive and make us money, right? Because if they’re not there, and if they’re there and being unproductive or they’re suing us all the time, well we’re not making money, so – I would recommend definitely include LGBT protections in your policy – Right, yeah – That’s the bottom line – Yeah, I do it all the time I do 50 state handbooks all the time

I have clients that I update them twice a year because if they’re in California, the laws change like every time you blink your eyes So but a lot of them, again, have just done that because they’re like it’s just something we really don’t care to make an issue in the workplace Let’s just be all inclusive and recognize that this is a way it is and just let’s focus on the positive aspects of the business All right, sexual harassment There’s two different kinds You’ve got the quid pro quo or the this for that and then you’ve got a hostile working environment So quid pro quo is reserved typically to those who would have the ability to affect someone’s terms and conditions of employment So a manager, a business owner, a co-owner, supervisor Someone that could actually take action on that So this is an unwelcome sexual advances, request for favors Basically saying if you sleep with me, I will hire you, I’ll promote you or I will fire you, whatever the case may be But basically, the person who is propositioning that employee or that potential employee has the ability to make it happen And so that would be the this for that You do something for me, I will do something for you well, not do something for you – I mean these are not that common anymore – Well, they probably are not as common but we see this come up in issues where managers are just dating subordinates And this is what I always say Look, I know we spend a lot of time at the workplace and there are people who have met the love of their life at work I have worked with married couples for years and you wouldn’t even know because they’re so professional It does happen However, most of us have exes for a reason, right? They are our exes and will remain our exes and most relationships end and most relationships end badly And so before you decide you’re gonna date somebody in the workplace, you really need to think it through and before, you, as a manager would do that, you probably wanna say no, I shouldn’t because the reality is you’re gonna probably try and keep that relationship a secret, right? Because you don’t want everyone else to know And as soon as someone gets their feelings hurt and there’s a breakup, it’s gonna be oh, oh, she made me sleep with her because she said I would get the best shifts if I did or I would get more money or I get promoted You know how that’s gonna end So don’t date your subordinates and don’t let your managers date the subordinates And I don’t even like managers dating managers but at least, when that happens, at least, we might be on some equal footing but I also say if there’s gonna be a relationship in the workplace, it needs to be disclosed to, if you have an HR department, it should be disclosed or if you don’t have an HR department then to the business owner, manager because there needs to be a determination made about whether or not this is appropriate and there might need to be a love contract in place And a love contract is where we say we have entered in this relationship consensually We recognize that the employer has a non-harassment, non-discrimination policy and that this relationship should it go south, we are not gonna claim that we were harassed and discriminated against or forced into this relationship and we’re also not gonna let our drama when the relationship falls apart play out in the workplace and we’re also not gonna canoodle in the corner and text love emojis to each other on our breaks – Like the B-52’s song – That’s right – We are not gonna be the Love Shack – Probably, yeah – Yes, yes All right, yes, a love contract – That’s what it’s called – Okay, so a hostile working environment can be anybody It could be a supervisor who is permeating an offensive, unwelcome, severe or pervasive conduct, sexual conduct in the workplace that a reasonable person would find intolerable But it could be coworkers, it could be you’ve got, you know, the guy that thinks he is like the hottest thing ever since sliced bread and he’s like hitting on all the ladies or you could have a customer that thinks that he or she is quite the Casanova and they’re always hitting on your people or can be a vendor a supplier but somebody in your work environment, whether they’re a third party or someone that works for you or yourselves, you shouldn’t be doing this either, is engaging in some conduct that severe, could be one time is enough So one time like exposing yourself, rape and assault, anything that– – Really, any touching These days – Yeah, harmful, yeah, touching Not like I’m patting on the shoulder, oh, you’ve had a bad day, not like that

but egregious touching or pervasive which means when you look at the course of time that these things have occurred, it’s pervasive that the workplace is permeated with sexual whatever, tension and harassment because of this person or this group of people So a supervisor could be a part of that but it could be coworkers doing it to each other It could be customers, it could be vendors, could be anyone So sexual harassment can be the unwanted sexual advances versus asking out on a date Again, don’t like a lot of dating in the workplace but it’s gonna happen If you ask them out once and they say no, I’m not interested then you need to stop asking them out because if you continue to ask them out and say, “Oh, you might change your mind “I really am a nice person to hang out with.” at some point, you’re crossing the line into potentially harassing them So being flirtatious, propositioning, asking for sexual favors, suggesting some kind of bad thing will happen to them if they don’t take you up on it, gestures, displaying suggestive pictures, emails, things in the workplace I have had that happen where someone has something up on their cell phone screen or on their computer screen and it really shouldn’t be there because it would not be in line with having a harassment, discrimination-free workplace and somebody who they didn’t intend to see it sees it And so now, we’ve got a problem because they saw something that they shouldn’t have Now, does that mean that you’re gonna be sued for millions and millions of dollars and lose because you had one inappropriate picture on the computer? Probably not but what you do with that once you find out about it, it’s gonna be the issue and we’ll get to that in a minute So talking about sex and sexuality It’s common particularly again, we’ve got a lot of young folks in our work force, we have a lot of people who have never worked anywhere else We have people working late nights and weekends and a lot of times, there’s sort of an after culture that goes with the industry too where people are going out at night and they’re hanging out and so they talk about their dates and their sexual experiences and all these things while the business is slow for the day And at some point, that can become a problem I mentioned exposing oneself I will tell you, probably every year to two years, we get a call about someone exposing themselves in the workplace I’m sorry to say it’s always a man Not trying to pick on you I’m fairly certain that if a woman had exposed herself in the workplace, no man has ever complained about it but I’m it could very well happen But I will tell you The only cause finding I have ever had from the EEOC was on an exposure case and here’s what happened So we had, it was it was an auto dealership and we had a cashier, a young gal in the cashiers booth and there was a mechanic who was good 20-plus years older than her, was hitting on her, asking her out, saying some inappropriate things She goes to some very low level lead Not even in my mind someone who’s truly a manager but because that position was not well-defined and he had the name manager in his title, it was good enough for the EEOC to call this person a manager She said, “Hey, I just want you to know “So-and-so is hitting on me and asking me out “and saying some things “I don’t wanna get into in trouble “and I don’t wanna make a big deal out of it “but I just want you to know it’s happening.” Okay, so what little manager should have done is said thank you very much for telling me that I do have to tell human resources because now that you’ve complained to me, I have a duty to take it forward I understand you don’t wanna get him in trouble We’re gonna handle this role responsibly and as confidentially as we can but I can’t keep it quiet Thank you for coming to me What do you think he did? Nothing Nothing, he does nothing about it So fast forward, six, eight months later and this this team lead guys even gone at this point, and now this technician exposes himself to the woman in the workplace Well, of course, HR’s on it like that The managers on it, they call the police, they have the guy arrested, they participate in his trial to get him convicted They take care of her, whatever needs to be done and then she sues them for discrimination And the EEOC said “Yep, you screwed up “because you had this low-level manager “that when he was told at the earlier point in time “that we could have gotten in there, “we could have investigated and remediated the conduct “and you didn’t do anything about it “and that little manager who didn’t even work for us anymore “made us liable.” so that’s the scary reality

that you need to take back to your supervisors When I train supervisors and Steve and I do this all the time I do supervisor training a lot And I always tell supervisors, you are the company brain Anything that you do as a supervisor, if you break the law, if you harass somebody, you discriminate against somebody, it’s as good as if the owner did it themselves because it’s strict liability It goes straight up to the top, so– – A supervisor is not an employee and a lot of them don’t realize that – Right, they don’t understand And again, most of our supervisors and in my background too, I’ve worked my way up through the ranks so I got promoted because I did a good job, right? I was very fortunate that the nonprofit I worked for when I got into management at a very young age, they actually had me trained properly as a manager, as a supervisor, how to deal with employees But I will tell you most businesses don’t have the time or the resources to invest that kind of money into the people that they promote from within So how do we learn our supervisory skills? We learn our supervisory skills from the people that supervise dust before, right? And sometimes, we learn from those supervisors Well, these are things I don’t wanna do Like I don’t wanna be a jerk to my employees but we might not realize there are some other things that we’re doing as supervisors that we still shouldn’t be doing So things that we need to be aware of Again, shouldn’t be touching folks at work But there are times when it might be appropriate There’s been a death in the family, there’s a sick family member, they find out they have cancer You see, I had someone today that had recently had a, they had a pet died and they’re just completely distraught and I first stayed back to work and I said, are you okay? Can I give you a hug? And she’s like yes, I could really use a hug right now It’s not sexual harassment but it was me being a compassionate human being So– – I’m not compassionate I have to know you 20 years before I do that Especially people in the workplace – So again, you’ve gotta use some common sense but when these things, the touching, the hugging, the kissing, the, I call the hotboxing when you could easily get by them but you try and brush up against them anyway Those kinds of things And I’ve had some charges where a gal said he brushed by me when I was at the photocopier Okay, first of all there’s this much room between you and the wall and the photocopier I’m fairly certain he wasn’t trying to brush by you I’m like did he grope you, did he? “No, no, no, he just brushed by me.” Okay, well that’s not gonna be sexual harassment but maybe we tell him to ask you to step out of the way next time So things like that But when it starts to become excessive, pervasive, we might have a problem Harassment based on any other categories It’s the same idea The only difference is there’s no quid pro quo when you’re talking about race, age, disability You’re only talking about the hostile working environment standards So again, it’s severe or pervasive, unwelcome conduct that rises to the level of permeating the workforce and a reasonable person would find it unreasonable So other harassment could be certainly racial slurs, epithets, jokes where you’re making fun of a particular race or gender I get this question all the time What about the N-word? My rule is no one uses it No one uses it in the workplace I don’t care what your background is, I don’t care what color you are, I don’t care if you feel that you’re entitled to use that word Nobody uses that word in the workplace Let’s just make it that simple and then we don’t have to worry about someone taking it the wrong way, saying it the wrong way, someone being offended We just don’t use that word But being vulgar, telling jokes, name-calling, being abusive, sending text messages and emails My rule is you don’t text with your subordinates I don’t like text messaging with subordinates First of all, I can’t keep track of those I can keep track of an email I can probably even keep track of a voicemail but let’s face it, we change our phones a lot Our phones get broken, they get lost, they get stolen and your text messages Other than pulling your phone records that I can see a text message occurred on a date and time to a phone number from a phone number, I can’t see the substance of those text messages And so if you are texting with subordinates or your managers are texting with subordinates, it becomes open to interpretation about what that stuff was in the text, right? That the text may or may not be there anymore, so – But if it’s there, it’s discoverable – Of course, if it is there it’s discoverable but you have to realize too that the life of a charge of discrimination is long So right now, the EEOC is so backed up that I have charges that have been pending between two and three years I have one that’s been sitting for six years That is how long these things will sit Well, what happens in that period of time? Evidence disappears, employees turn over, our memories fade

All these things happen Certainly, our text messages from five or six years ago are probably not gonna be around So if you do have text messages, I always say download them, print them, put them in the file if you do have them but I think one of the easiest ways is to not be texting with your subordinates Because, again, it could be a problem So you got to be careful about mocking, using stereotypes, that’s a whole other thing And again, a lot of times, people don’t realize it and they’ll say oh, I didn’t mean it that way or they start the joke with don’t be offended but have you heard If you’re going to start something with I don’t, or my favorite, I’m not a racist but If you have to qualify what you’re about to say with I’m not a racist, I’m not a homophobe, I’m not a sexist If you have to– – Well, I probably shouldn’t say this – Or I probably shouldn’t say this or, then that should be the end of it You probably shouldn’t Okay, so there’s our sound – [Supervisor] Well, we got a new guy I don’t know if he knows how to do anything So don’t ask him do anything complicated – [Coworker] You’re an idiot, aren’t you? Come on! Figure it out! (gritty rock music) (man laughs) You are the absolute worst! – So we get a lot of questions about bullying and is bullying harassment? Sometimes bullying can be illegal harassment It can be based on someone’s category and sometimes, you just have an equal opportunity jerk Now, the equal opportunity jerk is as big of a problem as the person who is actually harassing or discriminating against your employees because they are creating negativity in the workplace and they’re still creating liability, because how do we discern where you’re a jerk about this because of my race or my gender or you’re just a jerk And I will tell you, I had 14 lawsuits about three years ago with the equal opportunity jerk defense And you have to go before a jury hoping that they do not like the plaintiff more than they don’t like your client because you can’t deny things were said or things were done, you just basically have to take the position that well, but what would they do it to everybody It’s not because of their race or their gender, their religion or because they were pregnant That’s just how this person was And I always tell my clients, please, let’s find who those equal opportunity jerks are now and let’s work with them because I don’t wanna have to defend your business saying yeah, we were bad but the plaintiff is worse It’s a very tough road to hoe So bullying in the workplace can be just as bad as harassment So conduct that can create liability Obviously, if you, yourself or your managers are engaging in the harassing or discriminatory behavior, that’s liability If you, as a company, knowingly allow it to occur or you fail to properly investigate and respond to a complaint, the focus then shifts away from what really happened to how did you respond And I see this a lot on the way out the door complaint So you’ve got someone you fired and they say, “Oh, well, I just want let you know that so and so “harassed me and asked me out on dates “and grabbed my rear end in the kitchen “over the last six months.” And of course, in your mind, you’re thinking how true is this? Why would you wait till now? But you still have a duty, even if that person is on the way out the door to get, and I would stop and say, okay, I’m glad you told me I wanna get your statement I wanna find out exactly what happened Because if they are telling the truth, it’s not gonna change the fact that they’re fired Like you’re still fired, honey That’s not gonna change that but what will change is if you do have an employee or a manager who has been harassing folks, we don’t want that to continue just ’cause that person is gone So a lot of businesses will say well, the person was on their way out the door I don’t need to do anything about it No, you still need to do something about it because you still could have a person working there that is the harasser And I’ve said this for years Don’t be the story Even well before the whole Me Too movement came along

Don’t be the story Manager standard, strict liability If a manager, owner, supervisor, someone in a position of authority is doing the bad acts, it’s straight to the top, strict liability As good as the owner did it themselves If it’s a co-worker or it’s a customer or vendor, once you know or have a reason to know, you have a duty to act So if you observe the conduct and you think it’s in violation of the policy, you now have a reason to know If an employee comes forward and complains about a customer, a vendor, a co-worker, a manager, you now know or and have a reason to know and now we have a duty to act – The only exception is strict liability is if it’s welcoming And well, they cost a lot of money to show something is welcoming – Right, well and again, that’s the whole unwelcomeness of it and so we get into the situations where they say, “Oh, I was offended by these comments and these jokes.” And then you find out that the person was also engaging in the same kinds of conducts and jokes Again, at the end of the very long expensive road of litigation, we might win But even when you win these cases, you’ve lost because you’re never gonna get your money back The plaintiffs lawyers, they’re gonna get all their money back for the most part – If they win – If they win because these statutes are written to be employee-friendly They are not employer-friendly Most of these statutes are written where, you, as the employer will never be able to recover your fees and costs And you certainly won’t get your life back in the time that you’ve spent litigating exhaustively these claims So like I said, even if you win, you lose You get the pat on the back that you defeated someone who brought a wrongful claim against your business but quite frankly, even if you could get money, a judgment against them, could they satisfy it? Of course not because if they have the money, they probably have sued you to begin with So it’s kind of a vicious cycle – It’s a fee-shifting structure So when Congress put these laws in place, they did so thinking that the only way to get attorneys to represent these folks was to give them some incentive An incentive was that they win the case, then they get to ask the court for fees from the company So, you know – Right Because these cases are generally taken on contingency by plaintiffs lawyers So– – Doesn’t work the opposite way – Doesn’t work the opposite way for you You have to pay your bills every month as they come and the plaintiffs don’t have to generally have to pay anything because their lawyers gonna take their cut from whatever they either get in a settlement or a judgment toward the end of the case or at some point in the case So properly responding to a harassment complaint is obviously, if you’re gonna share any of this with your managers, I’ve included don’t do the investigation without guidance So if you are an HR person, you obviously probably have the guidance you need but you might also need outside counsel You might need to pick up the phone and call me and say, “Hey I’m getting ready to do an investigation “do you have a checklist of things I can follow “or some tips that I could follow?” But we don’t wanna have happen is managers just running them up, trying to conduct an investigation and taking statements from people, and half the time, these things that are in these statements, we don’t want written down in a statement because they’re discoverable So you need to get guidance before you go running off and doing an investigation but don’t wait to do it because time is of the essence Once you know or have reason to know, you’ve got to jump on it because at some point, if it takes you months and months and months to get to the end of the investigation, there’s gonna be a lot of question about what was taking you so long, what were you doing Don’t tell him to go work it out with a harasser That is not the way Do not send them back and say, it’s unwelcome Years ago, there was actually case law that said that the employee was supposed to tell the alleged harasser that it was unwelcome and to stop At some point, someone wised up and said, quite frankly, if the person was comfortable with the conduct, then they probably wouldn’t be unwelcoming to it So we don’t tell them to go back and work it out with the harasser – Sure, the fox guarding the hen house is how it’ll go – Yeah, exactly Don’t take a position on whether or not they have a claim Don’t write in an email to other managers Your emails are all discoverable Don’t say, “Hey, Sally was being harassed by Mark.” That email is gonna show up in the lawsuit down the road where you have already said so and so was harassed Now if we are having privileged emails, that’s a whole other thing If you hire us as your counsel, there can be privileged emails but don’t tell them that they have a claim, don’t tell them they don’t have a valid claim – Don’t use the terms of art Don’t say this is sexual harassment Describe the conduct The who, what, when, where, why of what occurred but avoid jumping to what we would refer to as illegal conclusion – Right, yeah Don’t tell them they should go see a lawyer or they should go to a government agency That is the last thing we want these people to do although we can’t stop them from doing that if that’s their choice to do it

And I don’t know how many of you in here have heard this from an employee your terminating I’m gonna have my lawyer on this I always laugh Like how do you all have all these lawyers? Like I don’t even have a lawyer and I am a lawyer So they always have a lawyer But we don’t want to push them into the arms of these lawyers and government agencies Never agree to keep it quiet We can agree to handle an investigation confidentially but we’re not gonna keep it quiet Once you know, you’ve got a duty to act We can’t retaliate against the person Again, we can’t take a negative action I wanna get to that screen here in a second Again, don’t be talking about it with other managers, employees, customers, only people that need to know and they’re intimately involved We got to keep it confidential If you’re going to handle an investigation, these are my basic steps You’re gonna get their full statement, the initial complaint You’re gonna interview them You’re building a timeline The who, what, where, when, how When did this happen? Where did this happen? Because if you have cameras, you’re gonna wanna go back and pull that video footage if you can I can’t tell you how many times we’ve relied on video footage recently when we’re dealing with these investigations You got to decide do we need to put someone on in a paid leave of absence or an unpaid leave of absence? Do we need to suspend somebody? Do we need to call a lawyer? Who’s gonna be part of the formal investigation? How are we gonna do it? Who’s gonna conduct the interviews? What questions are we gonna ask? We got the documentation Then we’ve got to come to a conclusion What’s our conclusion? Do we got to fire somebody? Do we need to demote somebody? Do we need move somebody? We don’t know, firing the harasser is not always the solution Sometimes it is but it’s not always because again, depending on whether it’s a manager or coworker, sometimes, remediating the conduct might be something short of termination With a final written warning that if you do X again, then you will be fired But these are things that– – Suspension – Yeah, suspension – Michelle, and I’d like to make a point on documentation if you don’t mind A couple a couple of best practices of documentation If you are gonna do documentation, please make sure it’s legible because as Michelle pointed out, we get these claims a year, a year and a half, two years afterwards and we can’t make out some documentation sometimes We can’t read the handwriting And if you’re gonna get a witness statement, I think the best practice is from, if you’re getting a witness statement, that witness conduct, rather than you take the statement down and having that person to sign it, have that witness put that statement in their own handwriting And I’ve seen that be very helpful because it’s too easy for a witness two years down the road to this say, “Well, my manager put that in front of me “and I just signed it “I didn’t know what was on it.” They can’t disclaim it if it’s all in their own handwriting Couple of best practices there – Okay, so I think we’re pretty much about out of time I already talked about retaliation Again, you don’t wanna take an adverse action against somebody because they complained Now there might be things going on that you have to take an adverse action against somebody It has nothing to do with the complaint Sometimes, there are things paralleling That’s what you definitely wanna get with HR or your legal counsel and make sure that you’re crossing the Ts and dot in Is because we got to fire somebody while there’s an ongoing complaint or investigation We just wanna be able to show that the complaint was not the catalyst for it And even people who participate in the investigation So witnesses, they can also bring retaliation claims too So you wanna keep those things in mind that it’s not just the person who complained but those who are engaged in the investigation as well – [Steve] Yeah, as with all things in life, timing is so important particularly in retaliation cases – [Michelle] And so I’ll leave you with this as we go to break Basically, you got to ask yourself, would I do this if my spouse were present, my grandma, my children? Would I do say or engage in this conduct? Would I do these things or say these things if the person was in the protected class that I was talking about was there? What if I’m being recorded? Because these phones that people have, they record everything and it’s nothing to like turn your phone on and be recording So if you were being recorded, would you wanna hear that back? Would you wanna have to defend your words to a jury? If any of you ever had jury duty, I have If you’re been on jury duty, your what? With 12 people, all different backgrounds, all different perceptions Some of them don’t know anything about anything but they think they do because they watch a lot of Court TV You always got to get that least one person on your jury that watches Court TV and knows everything But if you’ve been on a jury, you know that the humor of the witnesses, the background Those things do not play to a jury and so it’s very hard who you’ve got 12 people who don’t know you and know your personality, your background, your good character are judging something that you did or said or did not do So if you would not wanna have to answer to a jury and had 12 people judge you and what you did or did not do, then don’t do it – On recordings

When coming on recordings Surreptitious recordings are admissible evidence The court of law Louisiana, if I’m not mistaken I know Mississippi’s a one-party state I think Louisiana is too That means only one party to the conversation has to know that conversation is being recorded If we were a two-party state, then both parties would know, otherwise, it’d be an illegal recording So we’re faced with that quite a bit We get surreptitious recording, an employee recording their supervisor You may have a policy prohibiting reporting in the work, recording in the workplace but that doesn’t mean that that recording, if it’s brought forward becomes inadmissible in a piece of litigation So I always tell managers when you’re talking to your employees, just assume you’re being recorded – Okay, great, well thank you – We’ll take a break – I think we’re would probably taken measure break 10-minute break – All right, everyone My name is Steve Cupp I wanted to give you a little bit about my background I’m an Algiers kid, I was raised in Algiers, went to, I told Pam St. Pierre earlier, I was a I’m a proud graduate of O. Perry Walker High School which no longer exists in that current form I went to University of New Orleans and graduated Found myself to University of Georgia law school and got out in 1990 And since that I got out of school, I’ve been practicing management side labor and employment law And it’s really hard to think that 28 years have passed Time flies by, especially in our area, law, ’cause is it is a lot of fun as Michelle covered a lot in the first half of this But it kinda brings me to, a good segue into the slide here What I’m gonna talk about in the second half of the presentation today is really the leave law that you have to comply with What we find in the restaurant and hospitality industry is that these can be difficult laws because a lot of facilities don’t have dedicated HR managers to pay attention to them and to comply with the paperwork requirements or other requirements that are set forth in the law So we thought we’d take three today and talk about them The Family Medical Leave Act, the Americans with Disabilities Act and Americans with Disabilities Act Amendments Act That’s what the extra A stand for and the Pregnancy Discrimination Act The FMLA was enacted in 1993 and it’s gone through various changes over the years with regulations and different changes The Americans with Disabilities Act is a 1990 law that was substantially changed in 2009 and it really changed to the extent that it’s much more employee-friendly than it had been in the past And of course, the Pregnancy Discrimination Act was passed in 1978 and when that was passed, of course, the Civil Rights Act was passed in 1964 When they passed this law, they amended it into the Title VII of the Civil Rights Act So these are the three general ones we’re gonna talk about today And I sort of lump them together because I know there’s a lot of words on this board I’m not gonna read these slides to you I just do wanna point out some highlights Give me a show of hands How many in here have at least 50 employees within a 75-mile radius? Maybe about a half Okay, how about if you have multiple units, you have to aggregate those employees, okay So I don’t know if that changes in the hand count but we have about half in here If you don’t have 50 employees within a 75-mile radius, you don’t have to worry about the Family and Medical Leave Act (attendee speaking off mic) No – In the employees – It’s in the employees And so you may have different units, you may have several restaurants and they may be under different corporate structure for corporate tax purposes but under our area law, it’s different It’s sort of, it’s what they call enterprise coverage If they’re controlled by the same corporate group, you gonna have to count all those employees for those 50 employees So we were laughing at lunch today We know some employers that are staying right at 48, they don’t wanna get to 50 Because then, they have to comply with the Family and Medical Leave Act But of course, it provides 12 weeks of non-paid job protected leave for an eligible employee Eligible employee has to have worked for at least one year Doesn’t have to be for consecutive year and they could have worked for you six months in the past, left and come back to work for you for seven months That’s gonna qualify But when that employee requests leave, they must have worked for you for at least 1,250 hours during the preceding 12-month period And that’s a standard for that Again, the law prohibits discrimination, harassment or retaliation against employees just as a laws Michelle spoke about in her presentation The ADA prohibits discrimination, harassment, retaliation against employees who have a disability, okay A record of a disability or who are regarded as disabled Those two those second two prongs become tough sometimes Frankly, sometimes, it becomes tough to tell if someone has a disability especially if it’s a hidden disability, if it’s a mental disability, a mental impairment

We have to figure that out The law has a reasonable accommodation requirement which we’re gonna talk about today And that includes what they refer to as engaging in the interactive process So if an employee asked for a reasonable accommodation, you’ve got to figure out if they have a disability and in most cases are gonna have some type of disability You have to figure out what reasonable accommodation you’re gonna have to think about for the workplace And it could, as I note here, it could include an extension of the 12 weeks of unpaid FMLA leave By the way, going back to the FMLA, y’all may have heard the news that there’s gonna be some law proposed coming forward with the current administration that’s gonna make paid leave, federal paid leave So we’ll see what happens there The ADA applies to employers with 15 or more employees How many in here have at least 15? I would suppose everybody, right? So if you have 14, don’t hire that 15th You won’t be tied by Title VII Or I’ve had the opposite true I had a small client with 16 employees asked me how they could fire two to get below 15 I don’t really care for that but – The problem is the definition is 15 or more employees within 20 calendar weeks in the current or preceding calendar year, so– – Yeah, there’s a count back – You have to get out a couple years before you would no longer be covered – There’s a look back And obviously, under the ADA, there’s no wait time for an employee to be covered Once they come on, not obviously, the applicant can be covered as well The Pregnancy Discrimination Act prohibits the same conduct against pregnant employees because of pregnancy, childbirth-related medical conditions Okay, in all three, these are federal laws As with most Title VII laws, it applies to employers with 15 or more employees and again, there’s no wait time The FMLA is enforced by the Wage and Hour Division of the Department of Labor They come out with these stats every year I think the fiscal year in September 30th of each year if I’m not mistaken Yeah, so they come out with the stats So last year, they processed 1,165 complaints dealing with some sort of FML issue and they found this I thought this was pretty striking They found violations in 50% of the complaints they investigated And contrast that with the EEOC, Michelle, they usually issue a no cause determination to what? 97% of the cases? – [Michelle] Probably – So we’re still seeing a lot of trouble with employers complying with various aspects of the Family Medical Leave Act The most common complaints are someone was terminated because they took leave The employee was discriminated against somehow or the refusal to grant leave I haven’t had too many refusal cases Where I’d litigate this mostly when they come to my desk is the termination because of taking leave Because invariably, someone’s gonna go out on the FMLA leave and then you’re gonna find out how crappy of a job they’ve been doing because the replacement does a lot better and you’re gonna say, well I didn’t know that they weren’t paying invoices or doing their job and now, I’m finding out now that they’re out that there’s a bunch of stuff that hasn’t been done That becomes the very tricky question about what you do at that point And if you are gonna discharge the employee, when do you do it and how do you go about doing it? – And I think we both spend a fair amount of time answering questions about how do you handle when you find that someone needs FMLA, how do you handle the paperwork, what kind of notices We actually have an FMLA packet and if you email me, I can send it to you as part of your benefit as being an LRA member So I did put cards back there today but my email is also in the screen but we can provide that to you It has a sample policy, has a copy of the poster, it has the forms and it gives you a checklist of everything that you need to do And I spend a lot of time moving the chess pieces, helping employers deal with FMLA leaves like Steve has described – I’ve just discovered that Michelle has a treasurer trove of forms on our desk site system at work And we’re not gonna tell anybody else that It’s just between us and a few other attorneys – It’s a secret – Under the Department of Labor, unlike Title VII where someone has to go to the EEOC first before they can file a complaint of lawsuit against you, here they can go straight into court They can go to the Department of Labor and file a complaint against you and the Department of Labor will investigate it but they don’t have to There’s no what we call the exhaustion requirement under this law and what really makes it troublesome too is that the employee has two years to file a lawsuit Impossible at the three years if it’s a willful violation So what we see when we have these these older type lawsuits is someone takes leave, they come back within a month, they get fired but then they get another job and then they get fired from that six months later and then they can’t find another job and go, I’m gonna assume my employer because I think they discriminated against me or retaliated against me for taking leave

So it can be problematic Again, you see this elongation of the litigation period and lots of times, Michelle and I are really Monday morning quarterbacking If we weren’t involved in the discussions at the front end trying to figure out what happened several years down the road Let’s look at the ADA ADA is enforced by the EEOC Before the employee can’t file a lawsuit under this federal law, they have to file a charge within 300 days of the adverse action That’s in Louisiana In Mississippi, it’s 180 days and it’s 300 days in Louisiana because Louisiana has a state agency as well For states that have a state agency, the period is lengthier My experience with the EEOC I deal with and I deal with the mostly out of Mobile, Alabama and Jackson, some out of New Orleans They take about six to eight months I do have some that have been pending longer but after the agency processes to charge and issues what they call a right to sue notice to the employee which has issued well over 95% of the time, the employee then has 90 days to go in and file a lawsuit against you from getting that notice So a lot of times, when we get lawsuits in, we’re looking closely at that timing to see if they missed various deadlines to sue In 2017, I think Michelle threw these up earlier, there were 88 charges accounted for 31.1% of all charges or at least that was a claim made in 31.1% of them and the last one is the most common impairments So there’s a whole list If you go on the EEOC website and dig in a little bit, you can get to these impairments and there’s probably about 40 or 50 that are listed I listed the most common Orthopedic problems, back problems, anxiety disorder, some stuff we would think clearly are disabilities Cancer, depression, diabetes But look at the last two which are very interesting, or three You’re regarded as, you may not have a disability but your employer regards you as having one It could be covered by law You have a record of a disability You’re a rehabilitated drug user You are no longer using drugs You could have a record of a disability or the relationship or associational type of disability if you have a disabled child, a disabled spouse You’re not disabled yourself but you’re related to someone who’s disabled and you need some sort of accommodations because of that issue All right – It’s called caregiver discrimination – Yeah, yeah Pregnancy Discrimination Act is really the same as the Americans with Disabilities Act as far as how it’s enforced They must follow charge before going into the courthouse, same restrictions apply and as you see, that there were significantly less charges filed last year for pregnancy discrimination I think that’s a good sign that people understand they can’t discriminate against a pregnant employee But it does happen and a lot of times, it’s stray remarks or a lot of times, I mean I’ve had situations, I know Michelle has too, where the employer took some action that was detrimental to the pregnant employee It really out of a good heart because they thought that if that employee was gonna have to carry that 40-pound tray or 30-pound tray that it could cause some harm to the baby Okay, and they could be liable for that That’s not the way it works You can’t you can’t discriminate against that employee because of that issue They have to be able to perform the essential functions of the job Again, you may have to accommodate their pregnancy So again, that’s where those laws overlap – But we do get a lot of questions like I’ve got a pregnant employee, what do I do? It’s like okay, women having babies for a long time and it’s not like you become a delicate flower as soon she get pregnant but we do get a lot of calls of concerns about women not being able to perform certain aspects of their job and the woman hasn’t even said anything yet that they can’t do that aspect of their job so we have to be careful about imparting what we think a woman can’t do when she’s pregnant versus when she comes and says I need an accommodation My doctor has said I can no longer do these certain functions So appreciate the concern when someone says they’re pregnant but a lot of times, we have seen employers go overboard the wrong direction – I had a client that said, “Well, you can no longer work here if you’re showing.” That wasn’t good We had a problem with that FMLA, I think most people know what the leave is, like type of leave you can get By far, the most commonly I’ve dealt with is the employee taking leave for either for the birth of a child, pregnancy-related or to care for their own serious health condition Those are the most common and again, these slides are gonna be available for you to get and mull over a little bit more But one thing I think it’s interesting in the third paragraph that leave can be taken in one block at full 12 weeks, okay Or it can be intermittent or we do schedule

The one that drives me the most crazy is intermittently and I’ll throw it out there I’ve never been afflicted with migraine headaches by know people who are, I know they’re debilitating And migraine headaches are gonna be considered a disability but it also suggests itself to the most abuse because the employees calling in on a Friday and a Monday morning saying they have a migraine and can’t come to work until later that day And it’s tough to deal with But once you start seeing that pattern of absences, we can we can deal with that If it’s always a Friday, always a Monday Maybe things we could do there – This is what I tell employers about FMLA and ADA accommodations It’s a chess game So you find out that a person may have a need for leave and we make our move, we give them the notice They then may have to bring back a healthcare certification form if it’s for that reason and so they bring that back and we look at it and we make our next move and we decide whether it’s designated as leave or not and then the person goes out And if the person is out consecutively, then we know about nine, 10 weeks in, we’re gonna start reaching out to that person Hey, you’re gonna be coming back at the end of 12 weeks or if you can’t, we need a know from your doctor We start that dialogue They can’t come back, then we make another move and we give them a little more time and then they still can’t back and we make another move or they’re on intermittent leave, and the intermittent leave covers so many absences or so many appointments and they start abusing it So we make another chess move and we say we need a new certification So the it really is a chess game when you’re dealing with these There’s no like one right answer every single time It’s very fact-intensive and so HR or legal counsel who can really guide you through that process but I mean even today before I came here, I was writing a letter to a doctor, ghost writing a letter to a doctor to do a safety evaluation for someone under the ADA, being concerned that they were not safe to perform their job and how we had to make that move to get that information before we can then take our next step So just to think of it as a chess game or a checker game and you’re always looking at the way your next move and how you’re gonna move forward – It’s complicated, can be complicated – The people that wrote these laws are not the ones that are implementing these laws and having to live with them every day I assure you, if they did, they would rethink the way they have set all of this up, so – Look, the law is complicated enough If you go through each text of the law but what’s really important for us as practitioners, it goes to the regulations There’s a whole lengthy list of regulations that govern, that define various things and tells you what you have to do Again, that can be found online but it’s not the easiest thing in the world One thing I’ve noticed of late, I deal with a lot of automobile dealerships in particular in Mississippi that they have the requisite number of employees They have a poster on the bulletin and they have a handbook but they don’t have the FMLA notice in their handbook That has to be, there’s a requirement that it has to be in your handbook Michelle was kind enough to send me one that was less than three pages long the other day because some of these handbook provisions can get up to seven and eight pages particularly when we had to add the military caregiver leave And we’re not gonna discuss that today but as you see in the first paragraph, if you’re dealing with a military leave with qualifying exigencies, the leave can be up to 26 weeks in a year And again that’s– – To piggyback what Steve is saying, you are not required to have an employee handbook, though, I highly recommend that you do have one because how are you gonna set forth your expectations for your employees if you don’t have one? How are you gonna govern the conduct? But if you have 50 employees, regardless of whether there’s 50 within 75 miles, once you hit 50, by law, you have to put the poster on your board and you have to have an FMLA policy, whether it’s a standalone policy or in your employee handbook Even if you have nobody who’d be eligible to take it because you don’t have 50 employees within 75 miles, you still have to have a written policy – It’s really a technical compliance issue If you’re doing everything else right with respect to the employee, you’re not gonna get dinged too badly by the Department of Labor if they come in and find that you don’t have the policy in your handbook but they’re gonna ask you to put one in there And so that’s that’s what we do And Michelle touched on the paperwork I call it paperwork-intensive But one thing that you have to remember is that there’s no magic words for the employee to invoke the request for leave And this is kind of frustrating It would be great if the law says you have to go through your employer and say you won’t FMLA leave before that employer’s under an obligation to go through this process That’s not the case It could be a situation where you know that an employee has been in the hospital for five days or for four days or whatever They’ve had a lengthy hospital stay You have to be thinking in your mind and more importantly, your manager, your frontline manager who manages that employee has to be thinking this may trigger some sort of FMLA leave provision that we have to look into assuming the employee is eligible and you’re a covered employer So there’s really three primary forms that I look at Again, we have forms They’re taking from these but these are wage and hour forms

The 380-E and a 380-F is really the employee’s only obligation under this law One of their few obligations anyway And that’s for them to take this form and bring it to their doctor and get their doctor to fill it out certifying that they’re in need of this leave for whatever reason It has languishes, what’s the expected, duration of leave and that employee has 15 days under the regulations to get that back to you That 15 days could be extended for various reasons One of the issues I’ve had with this is that a lot of times, the employer will say just fax it to my doctor No, no, no, you take it to your doctor We’re out of this certification issue Well, I think I can’t pay for it Who’s gonna pay for my doctor bills? Well, that’s the employee’s responsibility It’s not the employers responsibility to pay for this visit Okay, so that question frequently comes up from employees that say they can’t afford a doctor’s visit to get the certification Did you have to insist on it? That’s their responsibility The other 380 form is for a family member serious health condition It’s very, very similar rather than the employee’s So what that triggers are the next two notices which are the most critical notices And as I mentioned in the bottom paragraph, these two notices provide notice of the, you know, if you’re gonna approve it, what are the responsibilities of the employee to continue to pay their health care premiums while they’re on leave or their portion of it? Whether accrued paid leave will be paid concurrently, will be paid and will run concurrently with the unpaid leave under the FMLA It deals with periodic reports It also has a section on there if you’re gonna deny it, you’ve got to provide this notice to the employee So there’s a lot of opportunities for missteps along the way with the FMLA paperwork – And remember that FMLA can run concurrently with the worker’s comp leave A lot of businesses forget that that if someone is out on a leave of absence because of a work-related injury, you can run this simultaneously but you got to do the notices and do the tracking properly because otherwise, these workers comp leaves can become an abyss I have employers call me and say, “They’ve been out on workers comp leave for two years.” I’m like why? Why do we still have this employee? – Why they’re still on the system? – But they hadn’t done the FMLA And so now, I’m like okay, now we’ve got to clean up our mess here and we got to figure this out, so – And we can be aggressive in that sometimes by saying, no, 12 weeks means 12 weeks regardless of whether, but you just don’t wanna get into that argument within the court system or with the Department of Labor so it’s always better to comply with this notice And I found myself, at least of late, getting calls saying, “Steve, I got this guy “and this lady, they wanna go out on leave “Well, what am I supposed to do? “They don’t even have the forms there.” So we gotta just give them the forms and instruct them on how to use it, so very critical for FMLA compliance Let’s talk about some ADA basics Again, Michelle touched on some of this but you have to be a qualified individual with a disability in order to be protected under the ADA And that’s defined as someone with the physical or mental impairment that substantially limits a major life activity These are all terms of art under this law and have various meaning under law I think one of the most important things here to take away is that when the Amendments Act was passed in 2009, that Act was passed because Congress thought that the courts were too badly restricting the ADA, that it was very hard for someone to successfully bring a disability act claim So the Amendments Act expanded it, okay and they make it easier where the focus is no longer on whether someone has a disability and trying to determine that, we almost have to assume or in most cases, that they do have a disability The focus then becomes on the reasonable accommodation you’re gonna make for them And that can, of course, take many forms And to get through that reasonable accommodation, you have to be equipped and trained and comfortable enough to engage in what’s called the interactive process I get the supervisors or other, sometimes, I don’t wanna talk to them about it Well, you have to because we have to talk about what they believe, accommodation they believe they could use to perform the essential functions of the job It doesn’t mean that we’re gonna give them that accommodation because it may be impractical or there may be some other accommodation you can give them to allow them to perform the essential functions of the job One thing that’s pretty cool about it, still, is that the courts have pretty much have come out and said that attendants that work is an essential function of the job I hear some chuckles That would make sense, right? Regular attendance at work But this is more and more important these days because of the, what’s the term? I’m thinking of when you work off-site – Remotely – Remote, yeah, just remote work And Michelle and I work remotely all the time I mean we can do it in our job but a lot of jobs, you can’t do it

– Let me say one thing about the interactive process and reasonable accommodations So part of my backgrounds I actually used to work with people with disabilities I actually used to put them to work I would go learn the job and then I would job coach them and train them and then I’d help them retain the job And so I have learned through that line of work and this line of work that when there’s some need for accommodation, generally, to accommodate somebody with a disability will cost a business less than $500 In fact, most of the time, it doesn’t cost you anything to accommodate someone with a disability But a lot of times, there are so many disabilities particularly ones that we can’t see and we don’t really know how to help people There’s a great resource called the Job Accommodation Network, JAN network and if you go on there, it talks about all different kinds of disabilities and it talks about different ways that you can accommodate people with those disabilities So if you’re in a situation where you’re having an interactive process dialogue with the person and they’re like, “I don’t know what you can do to help me.” Maybe you’ve gotten some documentation from the doctor that gives some suggestions but that’s not really gonna work either You go to this resource and maybe you get some ideas and help come up with an accommodation plan for them using that – Let me tell you how easy it can be and we’ve all seen it because we’ve all been to a Walmart, right? So you the people greeters at Walmart occasionally are sitting or have a stool right there that they sit on And that was because of that’s an accommodation that allows that person who may or may not have a disability A lot of times they do if they’re in that position that they give them to be able to perform their jobs Take a little respite every once in a while So the providing of the stool in that case would be a reasonable accommodation Of course, there are some accommodations that are requested that may pose an undue hardship upon you But like with everything in life, well, your gonna try to defend something or try to not do something that you may be supposed to do under the law, the burden’s gonna be on you to prove or to show that is an undue hardship Most of the time, we think about litigation is the plaintiff having the burden to prove but there are certain defenses that if you’re gonna bring as a company that you’re gonna have to bring on burden You gonna have to show that it is an undue hardship As Michelle mentioned, I think, overwhelmingly, it’s the overwhelming amount of accommodations aren’t that expensive to implement – So you’d have to show An undue hardship means that it’s gonna be economically unfeasible Generally, that’s where you have to look at it at So would I have to hire another person in order to accommodate this employee, would I have to then hire another employee to do their other half of their job? That would be an undue hardship Would I have to change out the management? Would I have to remove walls and things like that? Then it might be an undue hardship – Let me bring it closer to home What if someone says I can’t, I have a disability that doesn’t allow me to carry that 20-pound tray But I can take the order at the table, maybe someone else can bring that tray for me – [Michelle] But they even make trays for wheelchairs I mean even if you had someone in a wheelchair who was a server, they actually made trays that clamp on so they can serve at the table I mean typically, if an employer calls me and says I’ve got this person with a disability and I don’t know what to do, we can usually figure something out We get a lot of times can come up There’s so much cool creative technology and businesses out there that do this for a living There’s a lot of ways to bring people with disabilities into your workforce and support them I think we might be out of time – [Steve] Well, we are out of time? Okay – [Wendy] We’re out of time – [Michelle] Wendy’s eyeballing us – [Steve] Okay, I didn’t see you eyeballing, Wendy – [Wendy] Thank you, guys, very much – [Steve] Okay, you’re welcome – [Wendy] For all of you in the audience, we are recording this session, videoing it Max over here is videoing it for us and we’re gonna provide you with all the PowerPoint presentations immediately afterwards so that you can go through them and if you have any further questions beyond today’s session, you can call us anytime at the LRA as members You can ask for me or Erica or you can call Michelle and Steven directly That’s one of the benefits and that’s the most used benefit, actually, that we find We handle a lot of these calls every day so – Wendy, can I mention one thing? – [Wendy] Sure – And this is very quickly because where really getting to, we were gonna transition into last three slides, I just wanna mention it We thought it important Anytime we get restaurant and hospitality people together, there’s three primary wage and hour things we want you to concentrate on Tip credit compliance, tip pool compliance and making sure you’re paying the proper, making sure people are reporting tips that you’re paying minimum wage and you’re playing to proper amount for overtime for tipped employee Okay, I know most of you in here comply with that but we just see it over and over again where people are not complying in those three areas So if you have questions about those, come see us before you leave – [Michelle] Overtime for your tipped employees is not based on 2.13, it’s based on the full minimum wage so don’t do 1 1/2 times 2.13 and think that you’re paying the overtime right

We can still take a tip credit on it but you’re not paying it right if you’re using 2.13 as your base wage – [Steve] And we see that repeatedly even today – [Michelle] Repeatedly And don’t assume your payroll companies and your accountants It’s your duty as the employer to make sure that you’re paying them properly and that the wages are getting paid properly because you’re the employer, so – Right, I think we’re transitioning now? – [Wendy] All right, Helene Wall with Postlethwaite & Netterville is going to share with us the role of an HR consultant and how they can augment your staff And while we – So Wendy, thank you First I wanna thank Stan for letting us come today and I apologize for the allergies in my voice I think everybody here has probably got a little bit of that lately But I’m here today as a representative of Postlethwaite & Netterville We are a tax, accounting attest services and consulting firm in Baton Rouge, Metairie and seven other locations And so I want to go through, in a very short amount of time, some things that we do to help our restaurant and hospitality clients that I think might be very beneficial to you So a little bit about Postlethwaite & Netterville 65-year-old firm We’re in seven locations, nine locations In the top 100 accounting firms We have got people that help in all sorts of areas for our business clients Whether it’s tax, accounting, technology and consulting which is what we’re gonna talk about today We do something that’s very, very unusual We have a very holistic approach when we work with our clients because we find that many times, it’s more than just one area of the business that needs attention So when we work through these things, we get into consulting which is where I am The consulting role wears a lot of different hats just like you guys do So we’re gonna talk a little bit about that today The way we do it is very, very unique We get involved with our clients at the base level and we talk about people, processes and technology because what we find is it’s not always just one area We get in and we start looking at things like employee behavior, we look at things that escalate up to the law firm So when you get in touch with Michelle and Steve, you need to be prepared because they’re gonna do the best they can when you’re prepared Today’s special for you guys is all about risk management These are things that I think you guys, Steve, you and Michelle touched on these very, very broadly and giving them some great information When we work with our clients and I’m able to speak a little bit better, we get in and talk to you about how did you deal with these things on a day to day basis What is your infrastructure look like? What is it like when you hear these things being talked about in the restaurant, in the office, among your customers? Things that get your attention I get harassed every day Don’t wanna get anybody fired but some of the things that Michelle touched on earlier He keeps asking me out, what do I do? I don’t know who to talk to If you don’t have human resources in your organization, I strongly encourage you don’t go to bed tonight until you figure out a way to make a good business case to get the help you need We work with quite a few of you in the audience here and I’m really glad to see you here today You guys know that these things happen every single day It’s an integral part of dealing with people That’s what we do You’re in the restaurant hospitality business You’re with people all day long These things happen all day long The compliance side So I like to talk a lot about preparation My job as a consultant is to make you be the best prepared client that can ever call Michelle and Steve So when it comes to that documentation, to the paperwork, to making sure you’re onboarding your employees correctly, the I-9 forms, the employment paperwork All of those things that go into rolling up to asking for legal advice So I am not a labor attorney nor do I play one in my videos I know where that line is drawn and it’s very important that we keep that line in place These things come up day to day And if you’re shooting from the hip and you really don’t have good procedures in place, you haven’t trained the managers that are funneling these things up to the CFO, the CEO, the general manager, whomever You’re gonna get different decisions made with different people involved and guess what, we’re human

So the decision I make may be different than a decision my partner makes Now, you potentially have some discrimination Now it rolls up the hill to legal We wanna help you not have to go that far if you can Those policies and procedures that were talked about as well If you have your handbook, do people actually know how to use it? Do you have the right information the handbook? If you’re in multiple states and you have multiple locations, does everybody have the same version? Are those versions legal? Have they been looked at it by labor council? Have they been looked at? All of the things that go into that on the day to day attendance issues How do people call in when they’re gonna be late? What happens if they use their cell phone when they’re working? What are those policies look like? If you don’t get that stuff in front of your employees, how do you really expect to hold them accountable to it? Turn that around for just a minute Would you wanna be held accountable to something that you had never seen in print? Never had presented to you so that you understood how to deal with it and really didn’t know who to go talk to if you had a problem That’s the kind of in the weed stuff that Postlethwaite & Netterville is great at We get down in there and we help you lay that groundwork to make sure that when it gets out to legal, they’re ready and they can look at it and say this is gonna be a slam dunk because you’ve got all your ducks in a row On the administration side, there’s a lot of transactional day-to-day things that take place, you know that Recruiting is probably, wouldn’t y’all say one of the hardest things to do in the restaurant business? I mean it’s like a revolving door, right? And there’s so much paperwork in so much documentation If you don’t have good technology and good systems to make that seamless, steps get skipped especially if you have numerous people involved in the process If technology is a problem, if the reporting that you get from the technology is non-existent, if it’s difficult for you to do all of these tasks because you don’t have skilled or qualified human resources people helping you, that’s the trifecta for disaster That’s the last thing you want When you need help, there are ample people within the LRA to help you It’s amazing what you guys have available to you as a member of this organization So you can go to the LRA’s website and get a lot of good information, education, helpful tips I’ve been looking at it the last few days and it’s really very good You get to your own membership here with the LRA The resources and information that is available to you is really tremendous Legal guidance is there when you need it In between your resources, your education and information and legal is where Postlethwaite & Netterville can fill in for you We can be the boots on the ground We can be the staff augmentation, we can be your outsourced service provider whether it’s an HR, technology, processes, whatever you need Somebody’s got to get in there and get the grunt work done and we’re really good at that I love this stuff Don’t know why, it’s just a thing I really like it, I like it getting organized I like it so that you can do your job and get out of these weeds This is how we do it It’s a real detailed process that we go through and we find it very helpful because it’s interactive with you We don’t come in there and look around and say okay, this is what you need to do and send you a great big bill We get in there with you and we work through all of the details The first thing we start with is an assessment What is going on? Where are your pain points? Where do we see risk? Where do we see opportunities for improvement? What’s the culture like? What is going on that you need to get fixed right now? And then we’ll put together a plan for you And all of this goes to some of those compliance things that make sure you’re on the right track to start with Getting the file straight, getting the I-9s done How many people love to do I-9 forms? Right? It’s difficult I mean I think they’ve self defeating the form itself Those things can cost you money if they’re wrong So you need to make sure that you have a system and a procedure in place and people are trained If you have a lot of turnover in your administrative group so the person doing onboarding and I-9s yesterday is not there tomorrow and oh well, somebody left some notes so we’ll just do it the way she did it or he did it and that was wrong So now you’re just building a hill and it’s gonna be a long ride down, I can tell you So building that infrastructure is what we do whether it’s manual processes, technology, doesn’t really matter We need to see what you need so that we can help you build it Once we understand what your needs are in that assessment, then we can come up with a roadmap, then we can come up with a plan that you can develop and implement and do it in stages

because you don’t wanna roll out a bunch of changes all at once That’s hard It’s hard on employees, it’s really hard on the administrative staff But looking at all of those things that build who you are, whether you need a compensation plan total reward system, what do your benefits look like? What does your comp structure look like? How is your tipping going? Do you have management involved in that? Are you following the rules the right way? All of those things that go into the developmental piece Do you have the right system to control all of this data? Is it secured? Do you have paper files scattered in five file cabinets in four different restaurants? Love that one That’s tough to get your arms around You guys have reporting requirements to do for equal employment. your EEO forms If you don’t have all of that applicant and employee data in your system where you can quickly and accurately generate those forms and reports, you’re gonna have a problem come reporting time So we look at systems, we look at who’s getting the data, how it’s coming in, how it’s being managed, collected, secured and then how you can best use it Once we know the wheels are firmly on the bus and not until, then we start looking at Postlethwaite transitioning out Do you need to us to help you recruit for an HR person? Do you need to keep us onboard in kind of a staff augmentation role? Do you need one of our accountants to come in and work with you periodically? Or a new system selection or implementation? So our team works together, it’s not just HR I’ve always been a firm believer that it’s never just human resources when it comes to trying to get a company going right Yes, we deal with the human side and the employees all day long But the key is that all of these pieces have to work very, very cohesively to make this function so that you’re not driving yourself crazy all day long You guys have other things to do So making sure that we put that secondary piece, that plan in place that makes sense for you and that can continue when we’re there to help you periodically or when we’re gone The really cool thing about what we do especially in the human resources arena is we work a lot with organizations that have a full HR team Those of you who do payroll or accounting or recruitment or HR functions know that you really can’t tackle big projects along with the day-to-day stuff that goes on So we can come in and supplement and help you do those big projects We’ve never done an audit of our employment and I-9 files and we’ve got four thousand to go through We’ll never do that but we know that is a ticking time bomb We can come in and do that, we do that a lot We’ve compiled the information, we train you on the right process and then we’ll get in touch with legal with you to say hey, this is what we found We need a legal opinion now to make sure that these guys know what to do Whether they should try to fix this stuff, leave it as is, keep moving That’s where we pass it over to Michelle and Steve So keep in mind that we’re kind of the middle ground to help you when you’re in the weeds, getting all of this stuff pulled together We had a very short time for me to speak to you today and again, I appreciate your patience with my voice problems I’m having I’m gonna be here force questions and answers in a little while If you need to get in touch with me, we have some really good materials in the back I encourage you to pick them up Wendy, I think you said you’re gonna send the slides out to everyone, and so anything that we can help you with again My name is Helene Wall, I’ll be glad to answering questions that you have Thanks so much – Thanks Helene (attendees applauding) All right, John O’Brien, come on down John O’Brien is with Arthur J. Gallagher and he’s been working with our association for a number of years and he’s gonna talk to us about– – [John] The best topic – The best topic Insurance coverages you may want to consider – All right, let’s see, we’re good here? Everyone can hear me? All right, I’m John O’Brien, I’m with Arthur J. Gallagher We’re an insurance brokerage firm to Worldwide Company We have about 24,000 employees We do a little over five billion in revenues and I have been insuring restaurants for quite a while since 1987 in New Orleans Many of the local restaurants are my customers and I’m just gonna try to help you walk through quickly like going through Algebra III, insurance for employment practices liability And I thank the restaurant association and all of you during mental weakness I have participated in some ownership in some restaurants

It’s much harder than insurance I can assure you that Boy, I don’t don’t know why I did that but I’ve certainly learned the industry more than I wanted to Qualifications I have been doing employment practices liability insurance since 1997 We started a program in San Francisco and then a joint venture with New Orleans and the program’s grown in the 21 years to cover about 25,000 locations nationwide We currently have about 350,000 restaurant employees in the program and I’m just gonna go through you what I’ve seen since one of the Harveys Harvey Weinstein, my two Harveys Hurricane Harvey and Harvey Weinstein changed insurance So what we see in employment practice liability, our example, we’re gonna go through a few examples of actual claims, typical claims, what is an EPL insurance policy? What and how do we protect my businesses from civil rights violations? General insurance conditions and usual limits Important policy coverages and costs Listing, listing of, where am I? Oh, okay, listing of Louisiana EPL ensures that you can go to or have your agent go to, I’m gonna give you our go to insurance companies and what has always been competitive for us that you can go to your agent and probably get the best quality coverage at the lowest cost And just resources that your employment practices liability insurers will provide you as buying their policy It’s free resources, 800 numbers Human resources, types of tools, Spanish, English, those type of things So here we go All owners, this is what I’ve seen All owners, executives of insurance companies are now like celebrities I don’t care if you’re in Franklinton, Monroe or New Orleans, you are celebrity What comes out of your mouth is very important The media is looking for you They’re looking for you to try to sell papers They’re looking for you to see if anything is gone wrong because what we’ve seen and as we saw today Just look at the Mississippi state coach and Ford Motor Company president stepping down because he had sexual misconduct The media is out fishing for you and you are a celebrity in your community I don’t care how big or small it is You are a celebrity and they’re looking for you You have to look at yourself like that and understand whatever you do, whatever action you have, it can have an impact Brand management EPL has now become brand management In other words, your restaurant is a brand Again, even it’s in a small community Everybody knows who you are, everybody knows what your restaurant is and if you don’t take the proper steps to protect yourself and do the right things not to have violations, you’re gonna hurt your brand And then you can hurt it, you can devastate it It’s been bone-crushing I’ve been involved in three of the major sexual harassment restaurateur issues in the nation, and it was brutal So you are to manage your brand by doing the proper steps, your brand will continue on Moral turpitude I’m seeing a lot of this out of New York If you have contracts, mortgages, leases If you’re a franchisee, if you’re in a hotel There’s there’s a little clause usually in those contracts which is turpitude which means they can immediately terminate your contract because you had allegations of sexual harassment And in New York which is a state which we ensure many restaurants If people have favorable leases, they’re looking to terminate contracts You could have your loan called sometimes because of a moral turpitude contract because of a sexual harassment allegation It’s very important that you take what Steve and Michelle did and then put that into practice because at the end result, you can lose a lot Owners and executives are held to a much higher standards Okay, I can’t tell you what I’ve been through No taxes, no emails, no Snapchat, no Facebook, no discussions, nothing involving sexual type issues or anything with your employees Just can’t happen Cannot happen, cannot happen because it will ultimately hurt you There’ll be consequences Weigh the consequences of getting romantically involved with any employee in your organization It is a serious, serious decision The sensitivity of the media and the courts and the EEOC is at the highest that I’ve seen it in 22 years You do not generally wanna do that It’s a major consequence and then we tell our clients, if you’re involved in something, you better have sit down and discuss

and weigh what the consequences and your exposures are because they could be significant and you’ve seen what’s happened in the media It is a serious, serious issue You’re probably putting your brand at risk and you can put everything you’ve worked for 20, 30, 40 years at risk We have not seen a significant increase in severe, large claims It’s media-driven We have 25,000 restaurants covered Our large claims continue to be sort of in the same pattern You’re seeing a lot of media-driven issues related to it but when it comes to actually reviewing what the losses are and how much they have actual quantified factual evidence of things that we’re gonna pay on, it’s not as big as we had anticipated We are seeing a frequency of nonsense claims I mean we are seeing nonsense claims literally, probably doubled every week We’re seeing things oh, I bumped in her breast A server was bumped in her breast by a waiter She put in a claim Those types of things are just coming It’s nonsense claims and I think that will go away with the tide when the media hype goes down Let me just tell you There will always be back of the house, front of house on the line talk And we know that, your insurers know that, the courts know that This is something that you’re not gonna eliminate When we go in and we talk to people who have these large claims and they have the EEOC charges and everything and they’re just freaking out because they think that they’re gonna be paying hundreds of thousands of millions of dollars, it’s a nature of the beast and you all know that You’re not gonna eliminate a lot of that line talk It’s just it’s part of it You do your best you control it, you do what you do with the documentation, following your attorneys and your human resources But we know it can’t be eliminated You talk about tip sharing That’s a big deal Follow your attorneys and what not about tip sharing, never do anything off the clock, stop any cash payment, trying to not to do favoritism and again, communication is vitally important between you and your staff These are some just recent lawsuits that we’ve had A restaurant in the French Quarter 200,000 for race discrimination because of jokes It was jokes Kitchen jokes, kitchen jokes, African-American jokes and it was prevalent They made the supervisor aware they didn’t stop Ended up in $312,000 New Orleans restaurant, Fair Labor Standards Act class, action lawsuit in New Orleans restaurant bar Tip pooling issues It was tip pooling, again, issue and it wasn’t proper notification of the tax credit The owners ended up having to pay $250,000 There was over $100,000 worth of defense costs and attorney’s cost related to that Baton Rouge restaurant Sexual harassment, allowing sexual discussions, touching and things going on We ended up paying up with the $450,000 for that loss This is a paraplegic man sues numerous, it was numerous restaurants This wheelchair-bound paralytic paraplegic man was targeting restaurants that were not ABA compliant And he would go in, he would tell him, he would write the letter, many of them didn’t respond He would put in an EEOC claim and of course, they weren’t ADA compliant and ultimately, you’ve got some violations so we ended up paying that and he’s got tens and tens of thousands of dollars from numerous locations that he targeted and found out about This is the huge one This was a discrimination in Georgia $8.7 million, actively discriminating, African-Americans being actively discriminated against It was known, they were doing it on purpose and they didn’t do anything about it and they got crushed, so did we Typical claims, restaurant owners Yeah, I think you’ve been to this race discrimination, hostile environment That the new the new buzzword you’re gonna get is mental trauma It’s mental trauma I had the discrimination, the jokes or the harassment or that the being cornered to a sexual talk is giving me mental trauma and that’s what we’re seeing a lot of the basis of some of our claims and litigation Sexual harassment in a hostile environment Again, wrongful termination, equal pay violations, failure to promote, non-compliance for the American Disabilities Act Again, the mental trauma that keeps going on Third parties You can have third parties Your vendors, your guests, your clients that actually you have some clients that have demand the same servers each time and if they’re stating different things Betty, I really like you, you have a beautiful body

I really like to go out with you and they bring those things up, man You’ve got to address those issues and you have to address them with your clients because it is an absolute violation of their civil rights Failure to hire due to discrepancy ADA access which we went through with the wheelchair individual What is employment practices liability insurance? It’s an insurance that provides a funding to cover the legal costs and settlement of claims related to civil rights violations EPL insurance provides resources to support your human resources department to help your business to comply with civil rights laws So it’s basically transferring the risk We hire the attorneys and the we pay the settlements and judgment should you be found to be guilty of violation EPL is a controllable exposure This isn’t like a hurricane, fire or anything If you file what your attorneys do or Postlethwaite & Netterville, this is controllable You will not be in violation If you do what you’re supposed to do, your claim will not escalate to some massive amount if you have the proper documentation So you have the correct employment applications, you have the correct handbooks and compliance with current state of the laws You have with Steve or Michelle and your attorney make sure that they’re reviewed properly You have an EPL insurance I split my exposures Again, when I’m sitting with any of my restaurant clients, I sort of see it in two ways You have your back of the house and front of the house employees which are your hourly workers And because there’s an enormous amount of turnover usually in that, what I harp on with my clients is to make sure you have that documentation Have that documentation Did they sign the handbook? Is the handbook in compliance? Did you have the proper application? Is this sexual harassment thing? Did they all signed? Because within two years, usually half of them are gone but they can come back to you years later and if you don’t have that documentation, it’s very difficult to do that Then I look at your management executive and owners And when I document training, training, training and family and spouses are included in that, a lot of my claims involve family coming on the premises and doing things because they’re their dads, sons, sister, the wife comes on and she’s doing things It’s very important that they’re included because they can create serious issues in your restaurant And they have and it’s been very difficult Sometimes, telling hey, don’t come in and you can’t tell the employees what to do in these instances So your spouse and family have to be involved because it can cost you hundreds and hundreds of thousands of dollars and numerous amounts of time getting documentation and discovery and everything else And of course, purchase of proper insurance That’s always, always a good thing EPL general conditions and limits I’m not trying to go too deep EPL insurance is a little different in that you have to be aware that the defense costs of your attorney lower your limit Most insurance policies don’t do that so when you’re selecting a limit, you have to account for generally your claim is going to be at least 50 to 60% attorney’s fees and that lowers your limit So that’s very expensive to go through some of these things So when you’re selecting a limit, remember that other insurance policies, their unlimited EPL, it reduces it EPL policies are claims made Your policy has to be alive and in force for you to make a claim If you stop that policy and let it expire, it’s done unless you do some extended advice on other things You cannot put in a claim a year later It’s over with, you’re on your own Switching from one EPL insurance company, to travelers, to farmers, whatever It is a complex transaction because you have to have extension of deadlines and retroactive dates that you have to work out with your agents So when you’re changing insurance, make sure that you work with your agent to get through the proper extensions and deadlines or else, you could be left holding the bag and there’s no coverage EPL insurance can normally be bought in limits of 300, 500, a million, two million and that’s about it Over two million, you have to get into some complex groupings and whatnot because we have clients that have 15, 20 million but it’s much harder It’s hard to get higher limits and you have the sort of group LLCs together and ownership and it gets a little bit more complex But generally speaking, most of our clients, most of our policies are 500,000 or a million, generally speaking out of the 25,000 restaurants that we covered Important policy terms and costs EPL policies, the application that you sign is a warranty So you better make darn sure you hit those questions correct because when you have that big claim, that plaintiff attorney’s gonna blow that application up and make it 24 feet in front of that courtroom

and they’re gonna say, Michelle, did you answer this square yes? And it’s actually no and it’s gonna be heard It’s a warranty application and if you don’t answer those questions accurately, it could void coverage and it’s part of the policy Where other auto insurance and other things, it’s not part of the policy So it’s a warranty application Be sure your policy includes in these three endorsements Third party, again, that third party is for any other person wording any other person So if any other person comes in and harasses, discriminates, says jokes or whatever it is and your employee feels that their civil rights are violated, you have coverage And probably 25% of our claims are from the beer guy, delivery guy and the plumber and the electrician So you must have that coverage It’s worth a few more dollars but it’s worth it Raise your deductible in your property insurance and buy it Wage and hour You can get only defense for that but obviously, we’re seeing an increase in wage and hour We went through that, the French Quarter place that had a significant wage and hour loss and we’re seeing an increase, god knows, and certainly don’t go to California but it’s out of control out there And the immigration extension So if you have people who are properly documented, well, the insurance will pay up to 50 to 100 thousand to defend you for the violation of that Name insured includes against spouses and family members I can’t harp on that more We have so many spouses and family members who are truly, maybe even not employees that create losses for the restaurant Clause for defense counsel selection I highly recommend that your local attorneys, whoever it makes, Steve and Michelle are usually better well-versed in the courts and what’s going on in New Orleans versus, we had a large claim here in New Orleans and we had some attorney on in New York and it did not work out Boy, it did not work out So there’s a clause and the policy If you tell your agent, I just wanna make sure I can select my own defense counsel They’ll be usually approved by your insurer And then the definition of defense costs It needs to be reviewed especially if you’re a larger restaurant because the defense costs lower the limit There’s a clause in there that says how the defense costs are calculated and sometimes, you get screwed because guess what? Insurers are sometimes not the most scrupulous thing to you, people you wanna deal with So watch out for those defense clause Cost of policy based It’s based on full-time and part-time workers Again, these policies start out from the the most minimal cost, probably $1,700 a year for $300,000 and of course, they can get up to tens of thousands of dollar and we have people with two, 3,000 employees full-time, part-time workers Make sure you include your interns and leased, make sure it’s a duty to defend That’s important Versus indemnification, that means the insurance company has to defend you no matter what While they’re doing discovery, while they’re researching it, while you’re getting all this documentation together Their attorneys have to be on staff defending you versus indemnification language that says you’re gonna pay the money first and insurance companies gonna reimburse you Yeah, that’s great – [Wendy] John, I hate to stop you But to keep us on schedule – [John] Okay, these are the insurance companies Right here, you can pick this up and this is a great chart for all the 800 numbers and what that you can get from the insurance companies Thank you very much – [Wendy] So all of John’s presentation is on the back table Postlethwaite & Netterville has information as Fisher and Phillips on the back I say Fisher and Philips still, it’s Fisher Phillips, on the back table as well as some information from the LRA about the different things that we offer But if you have any questions right now If Helene and Michelle and Steve and John, for John, you can go ahead and ask them We have videoed this for future viewing by you and your other employees and we will send you the PowerPoint presentation So does anybody have any questions? Yes, we will email Yeah, anybody got any questions? Yes, sir – [Attendee] Hi, I have a tip pool bar environment and my question is if my trainers have paid a higher hourly rate than everyone else in the bar, is there a legal concern there? – Say that again You have you have trainers? – [Attendee] Yeah Bar trainer and service trainers get a higher hourly rate than the rest of staff Is there a concern that they’re on the same level of tip pool with everyone else? – Yeah, I would you say as long as, we can we can look at those trainers and say they’re not supervisory or management personnel

as long as they’re employees, yes, that’s fine You can pay them a higher rate and you’re not gonna have an issue with your tip pool in that regard – [Wendy] Is my mike still on? My mike Yes, sir – [Attendee] There’s lots of the issues about 50 employees or more If I have 65 employees, operate a hotel and a restaurant under the same business, if I was to sub sell that restaurant or lease it, would I be now with 20 motel employees and 40 restaurant employees, would that be two separate employers? If I sell the business out completely to someone else – Are you managing at all? – [Attendee] I manage everything – You’re still managing it? – [Attendee] Yes – Do you have people that go there share employees? – [Attendee] From all these issues, it seems that you’re a lot better off if you got less than 50 employees – Particularly FMLA – Only from FMLA I mean that’s only for FMLA Even if someone, you’re still covered under the ADA if you have 15 employees and if somebody had a disability that required them to have a period of absence for reasonable accommodation, you would still have to do it So once you hit 50, FMLA is your additional obligation but you’re still on the hook for the rest of the law – [John] It doesn’t eliminate all – Yeah, it doesn’t, yeah – Everything else still applies – [Wendy] That’s a whole different animal – But I would have to know more in order to know whether you would have to aggregate those employees – Right There’s a few things that as I was sitting here while we wait to see if there’s any more questions, a few things that I wrote down to remember to say, two of them piggyback on this last presentation Again, if you have counsel that you’re using or you wanna use Fisher and Phillips, you’ve got to make sure they’re either on the panel for the insurer or you can ride them in because it is really unfortunate when we have worked with a business to tee up the situation and an EEOC charge comes in, they go nope, sorry You didn’t pick Fisher Phillips when you signed your policy for EPL and now, it’s got to go down the street to someone else who doesn’t know you, doesn’t know your business and doesn’t know the facts of the claim And a lot of times you end up paying twice because you’ve already paid your regular lawyers to help you and now, you’ve got to pay somebody else to learn everything all over again The other thing is the wage and hour writer A lot of these policies do expressly exclude it unless you get it included and you are more likely to be sued for wage and hour claims then you are, in my experience, than the harassment discrimination right now because the wage and hour is so easy It’s like you either paid the person right or you didn’t You either have the documents to back it up or you don’t And these cases are so easy for the plaintiff’s lawyers because they know they’re gonna get their fees if they get one penny for their client, they’re gonna get their fees They’re almost always pled as a collective action so it’s not one server that’s suing you, it’s a collection of servers that are going to sue you for the last three years – And they’ll make you go back years – And you’d go back three years is the maximum amount a federal claim – I recheck your pay – And it’s in those cases are always more expensive to litigate than they are to settle or that they end up costing you in the end And even if all you have is a hundred thousand dollar cost of defense policy and you had to pay a $10,000 retention, it is worth its weight in gold because I’m telling you, you will spend that kind of money So make sure your EPL has that wage in our writer A couple other things you need to know Under the new tax law, sexual harassment, settlements with a confidentiality provision can no longer be written off on your taxes So that’s that was a little-known thing that sort of slid under the radar And other things that were brought in the last presentation about the ADA compliance So this is your Title III compliance meaning do you have compliant bathrooms? You have ramping and parking spots I handle a lot of those cases here for restaurant owners and again, they are super easy They don’t have to go to the EEOC first, they don’t even have to really be a customer They can literally roll by your restaurant, they can go in to use your bathroom and then before you know it, you’ve got a lawsuit from a lawyer They haven’t even told you there was a problem And the thing that’s attractive about these lawsuits is that there’s no money to the plaintiff because they’re not injured The money goes to the plaintiff’s lawyers That’s what this is about Their attorneys fees and costs And so typically, it’s something simple like your light switch was too high, your mirror was too high, you don’t have your pipes wrapped under your sink, you have knobs on your doors and your faucets instead of the levered handles It’s things that are easy, easy, easy to fix and restaurants and businesses are being sued all over the state There are a couple of real common cast of characters They don’t like to see my name on the other side because they know who I am but we do handle these cases and so that’s another thing that we can help you get in compliance with

– One thing – I’m sorry – I’m sorry, Michelle One thing I wanted to mention too, someone did mention to me Remember last year, there was a lot of noise being made about the overtime rule change and what constituted that threshold before overtime would kick in for certain employees? We know that was put on hold, it’s not dead It’s gonna come back at some point but making sure that you understand what your compensation structure is for those people you consider exempt from overtime is a real thing that takes them digging around and making sure you’ve got all your ducks in a row and the job duties in place and the salary policy So don’t forget about that because it could come back and your general managers and those supervisory roles are gonna be impacted by that so don’t forget about that– – [Wendy] And that’s something that the LRA I don’t know if you remember when that was hot last fall That was something that we were sending out constant information on and waiting for the, I think it was in December, we were supposed to get the– – November, yeah – [Wendy] November, we’re supposed to get the final– – Final ruling – [Wendy] And that got delayed – So here’s the status on that right now So the comment period closed in September of ’17 They are now projecting that we will not have anything on that until October of ’18 – And what are you guessing? I’m guessing that the minimum salary level is going to $33,000 – Well, Acosta said during his appointment hearings, he thought somewhere in the $30,000 range So somewhere in between the 455 in the 913 a week But here’s the bottom line It doesn’t matter what you’re paying these people If you have them improperly classified as exempt from under the job duties test, it doesn’t matter whether you’re paying them the right salary because just because you pay someone salary does not mean their example over time And I do a lot of advice with collegiate sororities on paying employees and whether they’re exempt or non-exempt and this is a common issue where just because someone has the same job title as somebody else, doesn’t mean they’re doing the same thing, doesn’t mean they’re gonna meet the test for exemption So from the pay perspective, yes, we need to know what they’re gonna set that pay at And there’s still a debate whether or not the Department of Labor has the right to even set the pay ’cause that is still being litigated But assuming that they can set the pay we don’t need to wait for that to happen, we can be getting our ducks in a row right now and making sure that our people who are classified as exempt are proper because there are lots of suits around the countries with assistant managers Assistant managers are typically not going to be exempt but lots of restaurants and businesses have been classified improperly as exempt – Yeah, let me put it differently So my client calls and says, a little bit differently, says, “Steve, well, I don’t have to pay this person overtime “because I pay him a salary.” I’m like well, that’s good you pay on a salary but what are their duties, what are they doing? And so they go, “Well, what are you talking about?” Then we find out that they don’t meet one of the duties test The common ones are executive, administrative, professional, there’s some others for exemptions So just again, don’t take out of this and just because you’re paying someone a salary then you don’t have to pay them overtime – There’s three parts to that test – Yeah, multiple parts, yeah – Salary’s just one piece – Yeah, salary’s just the one piece Now, it’s not to say that if you wanted to pay someone who isn’t technically exempt a salary, there is a way to do it but we still have to track their time and we still have to pay them the overtime, the half time and I’ve worked with restaurants to do that There’s all different ways we can structure pay It’s just we got to know what you need and we can help you do it, so – [Wendy] Any other questions? All right – [Steve] Thanks, everyone – [Helene] Thank you so much – [Wendy] Thanks so much