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Regulatory Updates January 2009

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Regulatory Updates And Legislative Outlooks January 2009
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Page 1: Regulatory Updates January 2009

Regulatory UpdatesAnd Legislative Outlooks

January 2009

Page 2: Regulatory Updates January 2009

04/08/23 2

Conference Call Agenda

• Review regulatory updates– ADAAA– FMLA

• Review outlook on EFCA• RESPECT Act• Identify next steps and on going

communication plan

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Regulatory Changes

ADAAA – Americans with Disabilities Act Amendments – Expands the definition of individuals who are considered disabled and

protected under ADA

– Restricts courts ability to consider mitigating measures

– effective 1/1/09

FMLA Amendments – Family Medical Leave Act– Several changes in process regarding how FMLA is determined and

qualified

– effective 1/16/09

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ADAAA Americans with disabilities act amendments act of 2008

• Congress has clearly expressed their intent to shift the focus of inquiry from “…does the individual have a disability?” to “…has the covered entity complied with their obligations?” As a result, protected classes of physical and mental disabilities will increase in scope and the number and duration of ADA claims will rise

• Three part test to determine if an individual is covered Physical or mental impairment that substantially limits one or more major life activities A record of such impairment Being regarded as having such an impairment

• Defined “Major Life Activities” and introduced a new term: “Major Bodily Functions” to further specify what is meant by Major Life Activities

Life Activities: Eating, Sleeping, Standing, Breathing Bodily Functions: Digestive, Circulatory, Respiratory, Reproductive

• Require broad construction of the terms “disability” and “substantially limits” to be as inclusive as possible

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

Migraine Headaches Epilepsy

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ADAAA continued

• The determination of “substantially limits” must be made without regard to mitigating measures such as medication, equipment, prosthetics, hearing aids, assistive technology, reasonable accommodations or learned behavioral adaptations (ordinary eyeglasses or contacts are excluded)

• Removed all limitations on the what is meant by “Regarded as having such an impairment.” An individual meets the requirement of being regarded as having such an

impairment if the individual establishes that he or she has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity

• This new definition specifically excludes “transitory and minor” impairments from coverage and defines transitory impairments as those limited to “6 months or less” actual or expected duration

Post-operative infection

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ADAAA continued

• Strong emphasis on recognizing when entering the interactive process is necessary will increase company supervisory personnel responsibility to know what to listen for and how to respond

Migraine Headache Sleep Disorder

• Greater scrutiny of the interactive process for good faith participation by the employer may require a new approach/procedure – (Guide to the interactive process in Appendix A.1 page 28)

• Limits employers ability to dismiss cases based upon the severity of impairment

High blood pressure• Additional care in approaching the way impairments are perceived

and regarded – do not treat an individual differently without a formal process

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ADAAA Summary

• ADAAA– Identify next steps where appropriate

• Job description reviewTo include physical requirements (see examples in Appendix A.2

pages 29 and 30)

• Handbook review Not necessary to reference but if there are references, it should

be reviewed.

• Procedures regarding reasonable accommodation• Training and education for management (see examples in

Appendix A.1 Page 28)

Page 8: Regulatory Updates January 2009

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FMLA Regulatory Changes

• Reorganized the rules and clarified many provisions

• Intention was to ensure the law is working for employees and employers

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FMLA Specific Provisions

• Military Caregiver Leave – eligible employees who are family members of covered service members are able to take up to 26 weeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred n the line of duty while on active duty

• Qualifying Exigency Leave – the normal 12 work weeks leave is available to eligible employees where the “qualifying exigency” arises out of the fact that the eligible employee’s spouse, child or parent is on or has been called to active duty in the US Armed Forces. Examples given: Short-notice deployment; Military events; Childcare and school

activities; Financial and legal arrangements; Counseling; Rest and recuperation; Post-deployment activities

Page 10: Regulatory Updates January 2009

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FMLA Specific Provisions Continued

• Light Duty – Under the final rule, time spent performing “light duty” work following FMLA leave does not count against an employee’s FMLA leave entitlement

• Waiver of Rights – Employees may voluntarily settle or release their FMLA claims without court or EEOC approval

All Separation Agreements should be revised

Page 11: Regulatory Updates January 2009

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FMLA Specific Provisions ContinuedSerious Health Condition • Added guidance regarding the definitions of serious health

conditions:– More than three consecutive, full calendar days of incapacity plus two

visits to a health care provider: the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit must take place within 7 days of the first day of incapacity.

Bicycling accident – two broken arms and in the hospital ACL tear – no visit in the first 30 days

– More than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment: the first visit to the health care provider must take place within seven days of the first day of incapacity.

Lifting – herniated disc – physical therapy

– Defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Asthma, Diabetes, Epilepsy, etc.

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FMLA Specific Provisions Continued

Substitution of Paid Leave

– Employees may take, and employers may require employees to take, any accrued paid vacation, personal, family, or medical or sick leave, as offered by the employer, concurrently with any FMLA leave.

– All forms of paid leave offered by an employer will be treated the same regardless of the type of paid leave substituted. The employee must follow the same terms and conditions that apply to other employees regarding the paid leave. Maternity is the same as a bypass operation

– An employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave. An employer may waive any procedural requirements for taking any type of paid leave in order to meet either the employee’s desire to substitute paid leave or the employer’s requirement of the use of paid leave.

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FMLA Specific Provisions Continued

Employer Notice Requirements• Employers will be required to provide employees

with a general notice (Poster and handbook at hire), an eligibility notice, a rights and responsibility notice, and a designation notice. In order to comply employers will be given additional time to provide notice (5 business days, increased from 2) The specific forms are not yet available. (See Appendix B.1 page which includes a handbook policy which conforms to the requirements of the final rule.)

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FMLA Specific Provisions Continued

Employee Notice Requirements • An employee must now follow the employer’s

usual call-in procedures for reporting an FMLA absence in unforeseen leave requests, unless there are unusual circumstances. The prior rule allowed up to two days before the employee had to report FMLA absence in unforeseen leave requests.

Car accident – in the hospital unconsciousBroken ankle while bowling

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FMLA Specific Provisions Continued

Medical Certification • The new rules limit what employers may request on the

certification to only what is required by the certification form. (Certification of Health Care Provider [WHO-380]; Updated forms are not yet available from the DOL) Additionally, the employee’s direct supervisor may not contact the health care provider. Contact must be made by HR or another manager.

• Employers may deem that the medical certification is deficient and issue a letter specifying the deficiencies to the employee. (Please work with Legal in preparing any letters sent for this purpose) The employee has seven calendar days to cure the deficiency.

Form does not indicate a return to work date• In “chronic” or unknown duration conditions, the employer may

request recertification every six months.

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FMLA Specific Provisions Continued

Fitness for Duty Certifications

• Employers may require that the certification specifically state that the employee returning to duty after an FMLA leave is able to perform the essential functions of the employee’s job.

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In SummaryFMLA

• Identify next steps where applicableUpdate policies and procedures as necessary

(see appendix B.2 on page 33 for FMLS policy example. See appendix B.3 and B.4 on page 34 and 35 for PTO Policy example )

Educate Leaders/Managers regarding changes (see appendix B.5 on page 36 for talking points to share with leaders)

Updated DOL forms will be distributed as soon as they are available (see appendix B.1 on page 32 for a tentative sample form which may change when the DOL releases the final version)

Page 18: Regulatory Updates January 2009

Employee Free Choice Act

January 2009

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Known as

• “EFCA”

• Employee Fair Choice Act

• Card Check Legislation

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What it is• Currently not passed but being considered as part of the

agenda for the first 100 days of Obama administration• Amendment to the National Labor Relations Act • Will end employees’ right to a secret ballot election for or

against union representation• Could Impose an arbitrator’s collective bargaining

agreement on employees and employers if the parties cannot agree to terms

• 90 days after bargaining commences either party may request mediation by they Federal Mediation and Conciliation Service

• 30 days after the request for mediation, the Service will refer the matter to an arbitration board which will render a decision settling the dispute. The decision will be binding upon both parties for two years.

• Strengthens penalties against employers for Unfair Labor Practices during the card signing campaigns

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Current Outlook

• Passed the House in 2007 by a wide margin and stalled in the Senate

• It is Big Labor’s number one legislative priority

• President-elect Obama has committed himself to the proposal and passing the house is virtually ensured

• Outlook in Senate is less certain but looking more possible

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RESPECT ActRe-Empowerment of Skilled and Professional Employees and Construction Trade Workers

• Organized Labor is pushing legislation to change the definition of supervisor as defined by NLRB

• Constricts the definition of “supervisor” to an employee who spends more than 50% of their time engaged in supervisory functions

• Could expand the Collective Bargaining Unit

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What should we do now?• Company executives, managers and supervisors should have common

philosophy towards unionization, and should be comfortable articulating it• Consider including language in new employee orientation materials,

employee handbooks, workforce training programs and other communications (see appendix c.1 page 38 for positive employee relations language)

Pass language by legal to ensure the language passes NLRB and applicable state labor laws

• Conduct Employee Issue and Satisfaction audits Analyze information and communicate results and action items (see appendix c.2

page39 for example)

• Review Employment policies Visitors in the workplace, open door policy, alternative dispute policy, non

solicitation policies, ensure everyone is aware and enforces the policies (see appendix c.3 page40 for handbook example of these policies)

• Get involved – contact your senators and representatives using SHRM HR Voice as a conduit (see appendix c.4 page 41 for more information)

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What should we do now?

• Strengthen Positive employee relations stance and educate leaders and employees– Explain to employees what the union authorization card is, what

it means when it is signed, and provide examples– Let employees know that organizers might approach them at

home, on property, in public places and in the presence of others employees, pressuring them to sign the card

– Discuss the fact that the union will provide little information about their track records in other workplaces, or about their business in general

– Educate them so they can ask the right questions before deciding whether to sign

– Let them know they will NOT have a chance to change their minds later, and the company will not be able to intervene

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Resources Available • Blyth Legal and HR teams

– Blyth Corporate Call late January

• SHRM HR Toolkits and Webcasts

• Local SHRM Chapter Meetings

• Local Legal Seminars– Jackson Lewis (http://www.jacksonlewis.com/) (See appendix C.5 page 42

for a recent Jackson Lewis Presentation)

– Local Law Firm Presentations regarding regulatory changes and legislative outlook

Page 26: Regulatory Updates January 2009

QUESTIONS

Page 27: Regulatory Updates January 2009

Appendix A

ADAAA Resources

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Appendix A.1ADA Interactive Dialogue When an employee can only work, or return to work, with medical restrictions that prohibit the employee from doing his/her job, the ADA requires an employer to communicate with the employee to try to identify a reasonable accommodation. This process is most commonly referred to as the “Interactive Process.” The purpose of this process is to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. The EEOC considers this process to be “…at the heart of the ADA’s process and essential to accomplishing its goals.” The exact shape of the interactive dialogue is not spelled out in any form by either the old ADA Act or by the new ADAAA. Meeting a legal requirement which is not well defined can be challenging for an employer. If the dialogue results in the employee being able to work in some capacity with accommodations, the interactive process is unlikely to be reviewed. However, if the employer decides that there is no position that the employee can perform with or without accommodation, the process used to come to that decision may be challenged and scrutinized. This has been an important issue under the old ADA, but it will become a critical issue with Congressional intent, clearly expressed in the ADAAA, to move the inquiry in all cases from whether an individual has a disability, to whether the employer has met is legal obligations under the Act. Employers need to be prepared for a challenge to their interactive process each time there is need for an ADA dialogue. I. Initiating the Interactive Process An employer’s obligation to enter into the interactive process is triggered by the employee’s request for accommodation or by the employer’s recognition of the need for accommodation.

1. The employee does not need to use specific language in making a request for accommodation. The EEOC guidelines state that an employee should inform the employer of the need for an adjustment due to a medical condition and “…need not mention the ADA or use the phrase ‘reasonable accommodation.’” What is important is that the employee provides the employer with enough information that, under the circumstances, the employer can fairly be said to know of both the disability and the desire for accommodation. Additionally, the request must be timely. An employee cannot make a request for accommodation after being terminated for circumstances associated with an unknown disability.

2. The EEOC has stated guidelines for when it believes it is necessary for the employer to initiate

the process. The employer should initiate the process if the employer:

a. Knows that the employee has a disability, b. Knows, or has reason to know, that the employee is experiencing workplace problems

because of the disability, and c. Knows, or has reason to know, that the disability prevents the employee from requesting a

reasonable accommodation.

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Appendix A.2 Sample Physical Requirements for Job Descriptions

Example 1: Maintenance Associate PartyLite

PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. This job requires heavy lifting and ability to work in high places. Must be willing to work overtime.

WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Duties involve working inside and outside year-round, in all types of weather

Example 2: Photo Shoot Merchandising Associate PartyLite

PHYSICAL DEMANDS: The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions. Physical demands. Must be able to lift 50 pounds.

WORK ENVIRONMENT: The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

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Physical Demands: How much on-the-job time is spent in the following physical activities? Check the appropriate amount of time.

Does this job require that weight be lifted or force be exerted? Check the appropriate amount of time weight.

Activity Amount of Time

Up to 10 pounds X

NONE

Up to 1/3 1/3 to 2/3 2/3 or more

Up to 25 pounds X NONE Up to 1/3 1/3 to 2/3 2/3 or more Up to 50 pounds X NONE Up to 1/3 1/3 to 2/3 2/3 or more Up to 100 pounds X NONE Up to 1/3 1/3 to 2/3 2/3 or more More than 100 pounds X NONE Up to 1/3 1/3 to 2/3 2/3 or more

Does this job have any special vision requirement? Check all that apply.

X

Close vision (clear vision at 20 inches or less)

Distance vision (clear vision at 20 feet or more) Color vision (ability to identify and distinguish colors) Depth perception (ability to judge distance) Adjust focus (ability to adjust the eye to bring an object into sharp focus) Peripheral vision (ability to observe an area that is up and down or left and right while eyes are ) No special vision requirements

How much exposure to these environmental conditions does this job require? Check the appropriate amount of time. Note: Normal working temperature is 55-85 degrees Fahrenheit

Activity Amount of Time

Wet, humid conditions X

NONE

Up to 1/3 1/3 to 2/3 2/3 or more

Work near moving mechanical parts X NONE Up to 1/3 1/3 to 2/3 2/3 or more Work in high or precarious places X NONE Up to 1/3 1/3 to 2/3 2/3 or more Fumes or airborne particles X NONE Up to 1/3 1/3 to 2/3 2/3 or more Toxic or caustic chemicals X NONE Up to 1/3 1/3 to 2/3 2/3 or more Outdoor weather conditions X NONE Up to 1/3 1/3 to 2/3 2/3 or more Colder than normal work temp X NONE Up to 1/3 1/3 to 2/3 2/3 or more Warmer than normal work temp X NONE Up to 1/3 1/3 to 2/3 2/3 or more Risk of electrical shock X NONE Up to 1/3 1/3 to 2/3 2/3 or more Noticeable vibration X NONE Up to 1/3 1/3 to 2/3 2/3 or more

How much noise is typical for the work environment of this job? Check the appropriate level below.

Activity Amount of Time

Standing X

NONE

Up to 1/3 1/3 to 2/3 2/3 or more

Walking X NONE Up to 1/3 1/3 to 2/3 2/3 or more Sitting NONE Up to 1/3 1/3 to 2/3 X 2/3 or more Talking or listening NONE Up to 1/3 1/3 to 2/3 X 2/3 or more Using hands or fingers, handle or feel NONE Up to 1/3 X 1/3 to 2/3 2/3 or more Climbing or balancing X NONE Up to 1/3 1/3 to 2/3 2/3 or more Stooping, kneeling, crouching, or crawling X NONE Up to 1/3 1/3 to 2/3 2/3 or more Reaching with hands and arms NONE X Up to 1/3 1/3 to 2/3 2/3 or more Tasting or smelling X NONE Up to 1/3 1/3 to 2/3 2/3 or more

Example 3 Christmas Card Consultant Miles Kimball

Page 31: Regulatory Updates January 2009

Appendix B

Family Medical Leave Act Resources

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Appendix B.1 Family and Medical Leave Act Request and Notice

The Family & Medical Leave Act is a federal regulation that allows eligible employees to take job-protected, unpaid leave for up to a total of 12 workweeks in a 12-month period due to an FMLA-qualifying reason. An employee is eligible for up to 26 weeks of leave in a single 12-month period to care for a servicemember. This military caregiver leave is available during ‘a single 12-month period’ during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave. This Request must be completed on each occasion that an employee notifies the _________ of the need for FMLA leave, including leave due to a serious health condition covered by worker’s compensation. Only one such Request is required in cases of intermittent or reduced schedule leaves, unless the circumstances regarding the leave change. In the event of unforeseen leave, this Request will be provided to the employee by mail or otherwise as soon as possibl e.

Section I – To Be Completed By Employee

A. Employee Information

___________________________________________________ ____________________________________________________ Employee’s Name—Printed Patient’s Name (if different from employee)

___________________________________________________ ____________________________________________________ Org Unit Name(s) and Number(s) Relationship to Employee

B. Expected Leave Dates

My leave is expected to begin _______________________ (date) and end on _______________________ (date).

Request is for: Continuous leave Intermittent leave Reduced Schedule

C. Reason for Leave

Requested leave of absence is due to the following FMLA-qualifying event:

Due to my serious health condition1 that renders me unable to perform one or more essential functions of my job

Birth of my child

The placement with me of a child for adoption or foster care

To care for my child during the twelve months following birth or placement

Because I am needed to care for my spouse2 (as defined by state law), who has a serious health condition;

parent (excluding in-law), who has a serious health condition; or child (under age 18, unless he or she is incapable of self-care because of a mental or physical disability), who has a serious health condition.

Military Family Leave (as amended by the National Defense Authorization Act for FY 2008) My spouse parent son or daughter is on active duty, or has been notified of an impending call to active duty in t he

Armed Forces in support of a contingency operation. NOTE: An eligible employee is entitled to up to 12 workweeks of leave for any qualifying exigency for this military family leave request.

I am the spouse parent son or daughter or next of kin of a covered service member who is recovering from a serious illness or injury sustained in the line of duty on active duty. NOTE: An eligible employee is entitled to up to 26 workweeks of leave in a single 12-month period to care for the service member. This military caregiver leave is available during a single 12-month period which an eligible employee is entitled to a combined total of 26 wo rkweeks for all types of FMLA leave.

D. Pay Status During Leave For the employee’s own serious health condition: available, unused paid sick leave must be used during FMLA leave.

Upon exhausting all paid sick leave, an employee has the right to use accrued, unused paid vacation, paid personal business days (for faculty or administrative and professional staff), or paid personal holiday (for clerical and service staff) according to the following priority order of use: _________________________________________________________________________________________________ For foster care placement: sick leave or paid parental leave may not be used. Both spouses are employed by ________ and are eligible for FMLA leave: per FMLA regulations, a husband and wife are limited to a combined total of 12 workweeks of FMLA leave for the birth of a child, placement of a child for adoption, and bonding with a child during the 12 months following birth or placement. Employees have the right to use accrued, unused paid vacation, paid personal business days, or paid personal holiday without supervisory approval. Special Consideration When Becoming a New Parent of a Newborn or Newly-adopted Child An employee may use a variety of paid and unpaid leaves such as sick leave, paid parental leave, vacation leave, personal business days (for faculty and administrative and professional staff), personal holiday (for clerical and service staff), and short -term disability benefits (for clerical and service staff).

1 For the FMLA definition of “serious health condition,” refer to Section IV.

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BLYTH, INC. FAMILY AND MEDICAL LEAVE POLICY

Blyth, Inc. (“Blyth”) recognizes the occasional need for time away from work for personal illness, to participate in early child rearing and for the care of family members who have serious health conditions. This policy is intended to assist employees of Blyth in better balancing those family needs with workplace demands. The policy allows eligible employees to take reasonable leaves of absence for the birth or adoption of a child, or placement of a foster child; for the care of a spouse, child or parent who has a serious health condition; or because the employee is unable to perform the necessary functions of his/her position due to a serious health condition. Federal and certain state laws may require employers to provide family and medical leaves of absence for most employees. Either of these or more may apply to a leave. Where both laws apply, the leave provided by each must be taken concurrently. This policy will be interpreted to comply with the law(s) that apply to a particular leave. To the extent state law mandates additional protection for pregnant employees, this policy also shall be interpreted consistently with such requirements. Blyth’s policy is intended to comply with any applicable federal and state law requirements. Where there is a difference in leave benefits between federal and state law, the employee will be granted benefits in accordance with the law providing for greater employee benefits. ELIGIBILITY Under this policy, you may be entitled to take twelve (12) weeks of unpaid leave in any twelve (12) month period if you have been employed with Blyth for at least a twelve (12) month period and have worked at least 1250 hours within the previous twelve (12) month period and are employed at a work site that has fifty (50) or more employees within seventy-five (75) miles. Employees applying for and granted a family/medical leave are required to meet notification and documentation requirements as outlined further in this policy. Failure to meet these requirements may result in the delay, denial or revocation of a leave pursuant to this policy. APPLY FOR A FAMILY LEAVE

1. Employees must complete and submit for Human Resources approval, a written request for a family/medical leave. This request should conform to the notice and certification requirements mentioned in Sections D and E of this policy.

2. A copy of any documentation concerning an employee’s leave will be placed in the employee’s personnel file. Documentation concerning an employee’s medical information will be maintained in confidence apart from the personnel file.

Appendix B.2

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Miles Kimball Full Time PTO Policy Appendix B.31/5/09

FULL TIME3.02 PAID TIME OFF (PTO)A team member can take PTO for vacation, illness, personal business, family emergencies, or any other reason. Sometimes team members need to take time off from the job for situations that do not always fit traditional time-off categories, such as when a child or parent is ill or attending school functions. When team members face these types of situations, they often need to make difficult choices between coming to work and taking care of others needs. Miles Kimball Company PTO is your time to use as you see fit.Our PTO program encourages team members to plan ahead and schedule time off, resulting in fewer unscheduled absences. This helps the company to avoid understaffing problems, lower service quality, lost revenue, customer dissatisfaction, and decreased morale and productivity from team members covering for absent co-workers.For every year you work, you earn PTO, determined by the following schedule:

Years of Service Days of PTO0-4 15 (120 hours)5-11 20 (160 hours)12+ 25 (200 hours)

PTO accumulates during the calendar year. Although team members earn PTO throughout the year, they are eligible to use PTO effective January 1st, of each calendar year. However, if a team member's employment is terminated with MKC, PTO will be pro-rated. Any used but unearned PTO will be deducted from a team member's final paycheck. Any earned but unused PTO will be paid out on the final paycheck. During the first calendar year of employment, PTO will be pro-rated by full weeks of service. Team members hired before July 1st will have that year accrue towards years of service for PTO. Team members hired after June 30th will not have that year accrue towards years of service. PTO does not continue to accrue while on an extended, four weeks or longer, absence.Any earned PTO not used by the end of the calendar year will be forfeited, with the exception of up to two days of PTO, which can be carried over into the first quarter of the next calendar year. Any PTO time carried over into the first quarter of the next year must be used by March 31st or forfeited.PTO should be requested from your team leader as far in advance as possible, with a minimum of 24 hours advance notice of the day you would like to take off. The team leader will then review your request for approval. Each department will have a pre-defined "blackout period" during its busiest season of the year, when no scheduled PTO may be granted. PTO can be taken in either four hour (half-day) blocks or eight hour (full-day) blocks, or other increments as approved by the team leader. PTO is not included as hours worked when determining overtime pay.

3.02.1 CHANGING STATUS FROM PART-TIME TO FULL-TIMEUpon being hired into a full-time position any earned year round part time (RPT) PTO from the prior year will be added to the prorated full-time PTO schedule, not to exceed 15 days (120 hours) of PTO eligibility.

3.02.2 CHANGING STATUS FROM FULL-TIME TO PART-TIMEUpon transferred into a RPT position the team member will receive the greater of the following two options:1. Prorated full-time PTO from current year, based off the date of transfer to part-time status.2. PTO granted based off of the RPT PTO schedule, which is based off hours worked in the previous calendar year.

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Miles Kimball Part Time PTO Policy Appendix B.41/5/09

PART TIME:3.02 PAID TIME OFF (PTO)A RPT team member can take PTO for vacation, illness, personal business, family emergencies, or any other reason. Sometimes team members need to take time off from the job for situations that do not always fit traditional time-off categories, such as when a child or parent is ill or attending school functions. When team members face these types of situations, they often need to make difficult choices between coming to work and taking care of others needs. Miles Kimball Company PTO is your time to use as you see fit.Our PTO program encourages team members to plan ahead and schedule time off, resulting in fewer unscheduled absences. This helps the company to avoid understaffing problems, lower service quality, lost revenue, customer dissatisfaction, and decreased morale and productivity from team members covering for absent co-workers.PTO will be prorated based on the number of hours worked in the previous calendar year, determined by the following schedule:

Hours of Service Hours of PTO1906 441733 401560 361386 321213 281040 24 866 20 693 16 520 12 346 8 173 4

RPT team members will be notified of their PTO balance in March. Team members must be actively at work as of March 1st to be considered a RPT team member. If a team member's employment is terminated with MKC, any unused PTO will be paid out on the final paycheck. PTO remaining at the end of February will be paid out.PTO should be requested from your team leader as far in advance as possible, with a minimum of 24 hours advance notice of the day you would like to take off. The team leader will then review your request for approval. Each department will have a pre-defined "blackout period" during its busiest season of the year, when no scheduled PTO may granted. PTO can be taken in either four hour (half-day) blocks or eight hour (full-day) blocks, or other increments as approved by the team leader. PTO is not included as hours worked when determining overtime pay.

3.02.1 CHANGING STATUS FROM PART-TIME TO FULL-TIMEUpon being hired into a full-time position any earned RPT PTO from the prior year will be added to the prorated full-time PTO schedule, not to exceed 15 days (120 hours) of PTO eligibility.

3.02.2 CHANGING STATUS FROM FULL-TIME TO PART-TIMEUpon transferred into a RPT position the team member will receive the greater of the following two options:1. Prorated full-time PTO from current year, based off the date of transfer to part-time status.2. PTO granted based off of the RPT PTO schedule, which is based off hours worked in the previous calendar year.

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Appendix B.5HIGHLIGHTS OF THE REGULATORY CHANGES IN THE FMLA FINAL RULE Military Family Leave: Section 585(a) of the NDAA amended the FMLA to provide two new leave entitlements:

1) Military Caregiver Leave (also known as Covered Servicemember Leave): Under the first of these new military family leave entitlements, eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty. Based on a recommendation of the President’s Commission on Wounded Warriors (the Dole-Shalala Commission), this 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

2) Qualifying Exigency Leave: The second new military leave entitlement helps families of members of

the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The Department’s final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave: (1) Short-notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Post-deployment activities; and (8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

Light Duty: At least two courts have held that an employee uses up his or her 12 week FMLA leave

entitlement while on a “light duty” assignment following FMLA leave. Under the final rule time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

Waiver of Rights: The final rule codifies the Department’s longstanding position that employees may

voluntarily settle or release their FMLA claims without court or Department approval. Although this is not a change in the law, the clarification is needed because a recent Fourth Circuit decision interpreted the Department’s regulations as prohibiting employees from either prospectively or retroactively waiving their rights. Prospective waivers of FMLA rights continue to be prohibited under the final rule.

Serious Health Condition: The final rule retains the six individual definitions of serious health condition while

adding guidance on three regulatory matters. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider.” Because the current rule is open-ended, the Tenth Circuit has held that the “two visits to a health care provider” must occur within the more-than-three-days period of incapacity. Under the final rule, the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit to the health care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of serious health condition under the current regulations involves more than three consecutive, full

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Appendix C

EFCA Resources

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Positive Employee Relations Language

• We believe in treating each other with respect and fostering an atmosphere of caring, open communication, and candor

• We believe in maintaining positive relations with our employees through open dialogue, valuing their contributions and recognizing their work

• As a team member, you will be a contributor to our success, no matter what your role is. In return, you can expect to join a winning organization that really cares about its employees. Our core value system is based on fairness and mutual respect. We believe in offering a positive working environment where employees and management work together by engaging and focusing on meeting our strategic goals

Appendix C.1

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Agree Strongly Agree Slightly

Undecided-Not sure Disagree Slightly Disagree Strongly

Team Member Feedback Survey – Submit through Kimball Konnection – Hard copies for Oakwood Only Circle or “X” the department you work in: Merchandising MK Creative Services CO Customer Relations Facilities Finance Fulfillment Merchandising WD Creative Services OSH Order Processing Human Resources Outlet Store Personalization Merchandising EXP Marketing Phone Center Information Systems Product Planning Printing Merchandising HMP ELT Warehouse

Circle or “X” one of the following: Team Member Team Leader Manager VP/Executive Leader Circle or “X” the shift you work: 1st 2nd 3rd Circle or “X” one of the following: Fulltime Year-round Part-time Seasonal Circle or “X” one of the following team leaders, if applicable: Order Processing Elizabeth Haines Jeanne Mahlke Luanne Pupeter Tiffany Stibb Diane Widener Jessica Witthuhm

Customer Relations Casey Hintz Barb Uecker

Phone Center Lorri Groeneveld Corey Hintz Ryan Link Mary Meyst David Morris Pam Pasko Alfred Petrie Mark Preston Blessing Skogstad Garth Spees Brady Stein Nancy Tumbarello

Fulfillment Leslie Bradley Brad Hawley Carol Manteufel Jeffery McAndrew Scott Merzlicker Jesse Slinger Mark Siebenaller Kari Wik Amy Wollerman

Warehouse Eric Bunes Eileen Heath Bruce Miller Sandy Szesterniak Printing Lynn Kinderman Vickie Piotter Cathy Schulze Doris Smoody

Personalization Rachel Haensgen Keli McKenzie Angie Peerenboom Gloria Wagner Kathy Zimmerman

1. I know what is expected of me at work.

2. I have the materials and equipment that I need in order to do my work right. If not, what do you need? ______________________________________________________

3. At work, I have the opportunity to do what I do best every day. If not, why not? ______________________________________________________________

4. In the past seven days, I have received recognition or praise for doing good work.

5. My leader, or someone at work, seems to care about me as a person.

6. There is someone at work who encourages my development.

7. At work, my opinions seem to count.

8. The mission or purpose of my company makes me feel that my job is important.

9. My coworkers are committed to doing quality work.

10. I have a good friend at work.

11. In the past six months, someone at work has talked to me about my progress.

12. This past year, I have had opportunities at work to learn and grow.

13. Team members on my team are well trained to participate in teams.

14. The flow of work in my area is logical and efficient.

15. I receive the necessary training to successfully accomplish my work.

16. There is a high level of cooperation between my department and other departments.

17. Work procedures for critical processes within my team are documented and shared with team members.

18. My team meets regularly to discuss important business goals and information.

19. Customer satisfaction feedback is used in my department to decide what to improve or change.

20. There are recognition practices and reward systems in place which encourage me and my team to effectively contribute to achieving goals and objectives.

21. Our work procedures allow us to respond to internal customers in a timely manner.

22. My team applies the principles (involvement, teamwork, and process improvement) of KIXS (Kimball’s Improvement and Excellence System) on a regular basis.

Other comments (use back of page if needed):

INSTRUCTIONS: In the following section, please read each statement carefully. Using the 5-point scale to the right, indicate your level of agreement with the statement by checking the appropriate box.

Appendix C.2 Miles Kimball Employee Satisfaction Survey

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Employee Handbook

North American Distribution

Appendix C.3

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Appendix C.4 SHRM HR Voice Information EFCA http://www.shrm.org/government/hrvoice/alerts_published/1CMS_020897.asp

SHRM Home > Governmental Affairs > HR Voice

Federal Legislative Action Alert!YOUR ASSISTANCE IS NEEDED! The U.S. Senate will soon consider the Employee Free Choice Act, a bill that would take away the private ballot voting rights of

American workers in union organizing campaigns.The U.S. House of Representatives has already passed H.R. 800, the Employee Free Choice Act, by a vote of 241-185 on March 1. However, the vote total was

actually much more favorable than expected, thanks to the more than 4,000 letters sent by SHRM members to their U.S. Representatives ! We are asking for your help again—this time, to express your views to the U.S. Senate.

Sen. Edward Kennedy (D-MA) is expected to introduce a Senate version of the bill as early as next week. Senator Kennedy is the Chairman of the Senate Health, Education, Labor and Pensions Committee, which is the committee that will consider the legislation in the next few weeks. Please take this opportunity TODAY to write

your senators and urge them to NOT CO-SPONSOR and to VOTE NO on the Employee Free Choice Act.Background

Under the National Labor Relations Act (NLRA), employees are currently able to form or join a union in two ways:1. Private ballot election administered by the National Labor Relations Board (the Board), or the

2. Submission of signed authorization cards to the Board from a majority of employees in a bargaining unit.The latter process is known as “card-check,” which is similar to signing a petition in favor of a union. In most cases, employees and employers agree to hold an election.

After an election, the Board reviews the results and certifies the union as the bargaining representative if a majority of employees voted in favor of the union.Legislation

The Employee Free Choice Act, the bill that will be introduced soon by Senator Kennedy, would amend the NLRA to change the way workers choose to become part of a union. The proposed measure would effectively eliminate the secret ballot election during union organizing campaigns by requiring the Board to certify any union that

secures a simple majority of signatures through the card check process.If the Employee Free Choice Act becomes law, employees would lose their right to a Federal government-administered, private ballot election. Moreover, since the bill

would make public an employee’s position on a union to both their co-workers and employer, it could make the workplace more hostile by exposing employees to coercion from both proponents and opponents of the union.

SHRM’s PositionSHRM opposes the Employee Free Choice Act because it would take away the right of employees to a federally supervised, private ballot in union elections.

SHRM is a member of the Coalition for a Democratic Workplace, a partnership of employee and employer organizations that are advocating on behalf of workers’ right to a secret ballot when they are deciding whether or not to join a union. Specifically, SHRM opposes the bill based on the following provisions of the legislation:

• Union Certification through Signed Authorization Card—The bill would force employees to make public their decision on whether or not to support a union. Under the bill, their decision would be made known to union officials, their employer and their co-workers. HR professionals are deeply concerned that, by eliminating the secret

ballot, the bill would actually take away an employee’s private and “free choice,” expose employees to coercion and promote a threatening work environment for employees.

• First Contract Arbitration—The bill would effectively send any bargaining disputes to binding arbitration after 120 days—90 days of negotiations and 30 days of mediation on a first contract. HR professionals believe that mandatory binding arbitration is unnecessary because it would provide motivation for either a union or

employer to engage in bad faith bargaining until the end of the 90-day period, thus allowing an arbitrator to impose unwanted employment conditions on both employees and management.Action Needed

Write or call your elected officials in Washington today! Your legislators need to know your views on this important matter before the private rights of employees are further harmed. To write your elected official using HRVoice, follow these steps:

1) Log onto SHRM Online by clicking here.2) Sign in using your member number and last name.

3) Click on “Governmental Affairs,” then go to “HRVoice” on the left side of your screen.4) Choose “Write your elected officials.”

5) Click on “OPPOSE the Employee Free Choice Act” under the heading “Take Immediate Action on these Hot Issues.”              

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Appendix C.5 Jackson Lewis “EFCA: The Time for Awareness and Prevention is Now


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