Diversified Management Group

MISCLASSIFICATION OF EXEMPT VS. NON-EXEMPT EMPLOYEES:
BEST PRACTICES AND PREPARING EFFECTIVE JOB DESCRIPTIONS TO AVOID COSTLY LAWSUITS

Claims filed by "salaried" employees improperly classified as "exempt" for unpaid overtime, missed meal and rest periods, on-call pay, etc., have sky rocketed. Wage and hour claims and worker misclassification lawsuits are on the rise due to sustained high unemployment, increased US Department of Labor (DOL) investigations and enforcement, and greater public awareness of these issues stemming from high profile cases netting large settlement amounts. Understanding the criteria for exempt versus non-exempt status can help safeguard employers against costly mistakes of this kind. This program will examine key differences under federal and state laws on what constitutes exempt versus non-exempt status. We will review the criteria for each of the exempt categories of Executive, Administrative, Professional, Computer Worker and Outside Salespersons. We will discuss recent cases brought by employees who claimed that they were misclassified as exempt and therefore entitled to unpaid overtime and other damages.

To ensure that you avoid costly pitfalls, we will provide a set of best practices and teach you how to prepare effective job descriptions that accurately reflect the employee's duties, time spent performing essential functions and the degree of independent judgment and discretion exercised. Having accurate job descriptions that reflect employees' current titles, responsibilities, and how an employee actually spends his or her time (and whether s/he is "primarily engaged" in performing work of an exempt nature) may help safeguard against government audits and employee lawsuits. We will also present examples of job descriptions that would qualify under each of these exempt categories and teach you what mistakes to avoid. Ultimately, a set of best practices that includes proper documentation is the key to an employer's defense against costly, but avoidable audits and lawsuits.

This session will review:

• Key differences under the federal Fair Labor Standards Act and California law in determining which employees are exempt
• Recent cases brought by employees claiming improper classification
• Definitions of Executive, Administrative, Professional, Computer Worker and Outside Salesperson exemptions
• Developing effective job descriptions that accurately reflect employee's essential job functions and time spent performing exempt duties

Handouts will provide a tool kit of forms and information designed to enable participants to prepare and update job descriptions in their organization, including:

• Industrial Welfare Commission Wage Orders for each industry and occupation
• Checklists for each exemption category to determine appropriate proper classification of employees
• Job description template forms and sample job descriptions
• Job qualifications (knowledge, skills and abilities) worksheets

PROVIDING REASONABLE ACCOMMODATIONS AND
DISCIPLINING EMPLOYEES WITH DISABILITIES

Disability discrimination and harassment claims filed with the Equal Employment Opportunity Commission (EEOC) have surged a whopping 75% in the past decade— the largest increase in the number of claims filed under any of the categories protected under federal and state anti-discrimination laws. Given this sharp spike in disability claims arising out of the workplace, employers must understand their obligations to provide reasonable accommodations for employees with disabilities and when it would be appropriate to take disciplinary action, including terminating an employee with a physical or mental disability who can no longer perform essential job functions, even after providing reasonable accommodations or a prolonged leave of absence.

Presented by two seasoned disability workplace consultants and sought after speakers, this program will review the recent amendments and regulations accompanying the Americans with Disabilities Act and changes in other laws, along with recent cases that illustrate the extent of employees' rights to an accommodation and employers' ability to take appropriate disciplinary action for violation of its work rules under both federal and California disability discrimination laws.

This interactive, step-by-step guide program will show participants how to determine whether an employee with a disability is qualified for employment and also how to properly engage in the "interactive process" to determine appropriate workplace accommodations after an employee is hired. This program will also address the thorny question of whether employers may take appropriate disciplinary action for poor attendance, performance and misconduct issues that may even stem from the employee's disability, including abuse of attendance policies, threats of workplace violence and working under the influence of medically prescribed marijuana.

This interactive, step-by-step guide will review:

• Definitions of "disability," which employees are covered, and the key differences under federal and state employment laws and regulations
• How to determine whether an employee with a disability meets job qualifications and whether they can be denied employment
• How to obtain critical information about an employee's work-related limitations and capabilities in order to determine reasonable accommodations without violating their rights to medical privacy or the newly enacted Genetic Information Non-Discrimination Act (GINA)
• How to assess whether performance issues are related to an employee's disability that may require accommodations and detangle attendance, performance and misconduct issues from disability related limitations
• How to determine when disciplinary action can be taken for violation of workplace rules, including poor attendance, use of medicinal marijuana and violent threats that may be the result of a disability
• What to do when all potential reasonable accommodations fail to enable an employee to perform their essential functions and determine whether the employee be terminated

Handouts will include copies of a comprehensive PowerPoint presentation, along with a tool kit of forms designed to enable participants to assess employees' essential job functions, limitations and capabilities, as well as detangle performance and misconduct issues from their disability-related symptoms.

ROBERTA ETCHEVERRY, CPDM

Roberta Etcheverry is the Chief Executive Officer at DMG: Diversified Management Group, a statewide network of Disability Management consultants providing training and assistance to employers on workplace ergonomics, job descriptions, essential functions, and job accommodations for employees with injuries and disabilities. The DMG network was developed in 1992 in response to employers' needs to coordinate workplace requirements brought on by the ADA as well as regulatory changes in California's workers' compensation system with an emphasis on early return to work and job accommodations. Under the direction of Ms. Etcheverry, DMG continues to assist employers with the myriad of regulatory requirements and best practices related to stay-at-work and return-to-work.

DMG has worked with Kaiser Permanente for over 17 years assisting with job accommodation efforts and the identification of essential job functions and job demands. DMG's current clients include Catholic Healthcare West, Whole Foods Market, Inc., Fosters Wine Estates Americas, Ghirardelli Chocolates and a range of public agencies and private employers.

Ms. Etcheverry received her education at West Point and Stanford University, and is a Certified Professional in Disability Management. Since 1992, Ms. Etcheverry continues to manage a statewide network of providers that educate employers on the obligations to employees with injuries or disabilities and the need to consider "reasonable accommodations". DMG assists with facilitating an "interactive process" to identify and assess the need for accommodations, to identify essential job functions, and to determine and evaluate accommodations that would be effective at allowing the employee to perform the essential functions of the job. In addition to regulatory compliance issues, Ms. Etcheverry recognizes the importance and value of employment for the employee with an injury or disability. Her goal is to promote ongoing employment of individuals with disabilities and assist employers in implementing best-practices and tools towards this end.

JANE KOW, ESQ.

Jane Kow is the principal and founder of Jane Kow & Associates, an employment law firm specializing in providing employers with advice, consulting, and training on all aspects of employee relations, with the aim of helping employers develop and implement sound personnel policies and practices to effectively reduce the risk of employment litigation. Jane Kow designs and provides customized employment law compliance training for clients on a variety of topics, including sexual harassment prevention, conducting effective workplace investigations, effectively documenting employee performance and misconduct issues, providing reasonable accommodations for employees with disabilities, and compliance with the myriad of leave of absence laws. Jane Kow has conducted scores of independent EEO and workplace investigations into employee misconduct, harassment and discrimination complaints for companies in a variety of industries, and also provides guidance to human resources professionals on how to conduct effective internal workplace investigations.

Jane Kow received her B.S. at Cornell University in 1984 and her J.D. at New York University School of Law in 1993. Before starting her own law firm, Jane Kow practiced employment law with prominent California and national law firms and as the sole in-house employment lawyer and Senior Counsel of a large Silicon Valley based company with over 75 locations worldwide. She has represented employers of all sizes and across industries against the gamut of employment discrimination and harassment claims, and draws on these experiences in developing her training programs for human resources professionals.

Jane Kow was an early contributor to the California Practice Guide on Employment Litigation published by the Rutter Group. She has taught "Employment Law" at the University of California at Berkeley and "Legal Issues of Supervision" at San Jose State University. She is a frequent speaker at seminars and conferences sponsored by various human resources, disability, government, small business, non-profit, professional and trade organizations, and bar associations, including: Business and Professional Women, CA Association of Equal Rights Professionals, CA Association of Social Rehabilitation Agencies, CA Consumer Employment Summit, CA Institute for Mental Health, CA Department of Mental Health and Department of Rehabilitation, Certified Employee Benefits Specialists, Disability Management Employers Coalition, Equal Employment Opportunity Commission, HR Champions, HR Star Conference, Judicial Council of California, National Human Resources Association, Northern California Human Resources Association, Silicon Valley Women in Human Resources, Tri-Valley Human Resources Association, San Francisco Small Business Development Center, CompassPoint Non-Profit Services, the Lawyers Club of San Francisco, Bar Association of San Francisco and the State Bar of California.