2014 Hot Employment Law Topics Third Annual Employment Law Summit Prince William SHRM and Vanderpool...

2014 Hot Employment Law Topics

Third Annual Employment Law SummitPrince William SHRM and Vanderpool Frostick & Nishanian PC

October 3, 2014

Presented by:Kristina Keech Spitler, Esq.

Copyright 2014 Kristina Keech Spitler All rights reserved. 1

DISCLAIMER

This presentation and information is designed to provide general information, is not intended to constitute legal advice and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.

Copyright 2014 Kristina Keech Spitler. All rights reserved. 2

Kristina Keech Spitler, Esq.

Kristina Keech Spitler, Esq. is a shareholder with the law firm, Vanderpool, Frostick & Nishanian, P.C., where she represents and advises businesses on business and employment issues and litigation including representing employers in court, in mediation, and before administrative agencies such as EEOC, assisting clients comply with laws on such issues as discrimination, disabilities and accommodations, wage and hour, leave, hiring and firing , and discipline. In addition, her practice includes drafting and updating handbooks and policies, providing management and employee training, performing internal investigations, and counseling on matters relating to breach of agreements, non-competes and restrictive covenant agreements. Ms. Spitler is a highly rated speaker and trainer on employment law issues.

Ms. Spitler has been recognized as one of one of Virginia’s “Most Influential Women” by Virginia Lawyers Media and as one of Virginia’s “Legal Elite” in Labor/Employment Law by Virginia Business Magazine.

Contact Ms. Spitler at [email protected] or (703) 369-4738.

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mailto:[email protected]

“You can’t connect the dots looking forward;You can only connect them looking backwards.”

- Steve Jobs

Big Picture


• Coming out of the worst recession since the Great Depression in 1930’s

• Analysis of the cause of this recession• Focus on corporate failure to comply with laws

(particularly financial and investment institutions) • Bernie Madoff’s undetected long-term fraud on

investors

New laws; revised regulations; efforts to encourage whistleblowers to bring corporate wrongdoing to light; and increased enforcement efforts

Big Picture


Shift from a culture in which corporations and individuals maximized their profitability, perhaps at the expense of complying with laws and which doing so was more accepted and rewarded:• the laws don’t apply to me • corporation or individual recognizes it was wrong

only if caught • I did not know that was wrong

Big Picture


Now, compliance with the law is more of a focus and expectation.

HR, new industry “compliance officers,” and attorneys will be needed to help businesses be proactive in complying with the laws including those on anti-discrimination, NLRA, FMLA, FLSA, Fair Credit Reporting Act, Sarbanes-Oxley Act, Foreign Corrupt Practices Act, good corporate governance ....

Big Picture


These trends effect both governmental entities as well as workers:• Increased regulatory activity by many governmental

agencies (Presidential Executive Orders, changing old interpretations of laws and regulations; new laws, more enforcement efforts)

• Increased knowledge of the laws and their rights by those working for businesses

Big Picture


Employment Law Hot Topics

Agenda


Employment Law Hot Topics

• Developments Regarding Discrimination Issues

• Challenges to Company Policies and Severance Agreement Language

• Continuing Focus on Violations of the Fair Labor Standards Act

Agenda


Counsel: Have you every been discriminated against, harassed, suffered in a hostile work environment, or had an action taken against you because of:

Discrimination Issues


• Race/skin color

• Age (40+ years)• National origin• Disability• Religion

• Genetic Information• Sex• Military Status• Pregnancy

Increased focus on discrimination against women

• Pregnancy Discrimination• Discriminatory pay and other practices that help contribute to

gap in pay between women and men• Increase in minimum wage for low paying positions as more

women are in low paying jobs



Pregnancy DiscriminationYoung v. United Parcel Service, Inc. - 2013• Female employee requested light duty after becoming

pregnant. UPS had policies that granted light duty to employees if injured on the job per CBA, if lost DOT certification per CBA, or if disabled under ADA. Since employee was not disabled, UPS denied employee light duty and provided her extended leave of absence instead.

• After birth of her child, employee returned and filed suit alleging discrimination in violation of Pregnancy Discrimination Act and violation of ADA (among other claims)



Pregnancy DiscriminationYoung v. United Parcel Service, Inc. - 2013• District Court in Maryland granted UPS summary judgment • 4th Cir. Ct. of Appeals affirmed the lower court’s decision to

grant UPS summary judgment and dismiss employee’s suit finding that the employee was not perceived as disabled and UPS’s light duty policy was pregnancy-neutral which is all that the PDA requires. Court rejected that PDA requires employers to provide pregnant women with every privilege and accommodation given to nonpregnant workers

• Ms. Young has appealed the case to the U.S. Supreme Court which on July 1, 2014 agreed to hear the case.



Pregnancy DiscriminationJuly 2014, EEOC issued a controversial “Enforcement

Guidance: Pregnancy Discrimination and Related Issues” which was supported by only 3 of the 5 commissioners.

It is controversial for its view that employers must modify job requirements for pregnant and lactating workers, even if the pregnancy is normal and the employee is healthy and not disabled under the meaning of either the Americans with Disabilities Act (ADA) or state law.



Pregnancy DiscriminationThe EEOC’s position on this is contrary to the 4th Circuit

Court of Appeal’s holding in Young v. UPS. With the Supreme Court getting ready to decide this issue, in the interim, you will have to decide which position you will follow if faced with a pregnant employee requesting light duty prior to its decision.



Pregnancy DiscriminationEEOC’s Guidance further provides:

• “Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.”

• In some circumstances, pregnancy related health restrictions may now qualify as a disability under the ADA and require reasonable accommodations.



Pregnancy DiscriminationEEOC’s Guidance further provides:

• “To comply with Title VII, an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.”

However, this is contrary to the US Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., (June 30, 2014) in which the Court held that, under the Religious Freedom Restoration Act, and irrespective of other federal mandates, certain employers may not lawfully be compelled to provide insurance covering all forms of contraception.



Example of Company’s Failure to Proactively Address Employment Law Issues

“Westat is one of the foremost professional service corporations of its kind—the gold standard of social science research, statistical analysis, and evidence-based communications.” However, during a scheduled compliance review, OFCCP investigators discovered that Westat used a selection process that systematically discriminated against 3,651 African American, Asian American, Hispanic and female job applicants at its Rockville, MD headquarters and seven additional sites.



It is also alleged to have failed to maintain and internally audit its own records.

Westat Inc. reached a conciliation agreement with OFCCP to pay $1.5 million in back wages and interest to the affected applicants and make 113 job offers as positions become available.

DOL Secretary Perez stated “For more than 50 years, Westat has effectively harnessed the power of data to produce ground-breaking research. That commitment to data integrity should also be applied to its employment practices so that every worker has a fair shot at getting a good job and company leadership understands exactly who is getting hired and why.”



Counsel: Has your company prohibited you from doing something that the law entitles you to do? Have they told you that they have a policy that states that you cannot talk with others in the workplace about wages, working conditions? Have they asked you to sign a severance agreement which includes unfair provisions?• NLRB• EEOC

Unlawful Policies and Severance Agreement Language


NLRB has increased focus on non-union workplaces and their policies and actions that may interfere with an employee’s Section 7 “concerted activities” rights.

As part of historic low participation in unions (approx. 8%) and changing work environments, NLRB started looking at company’s social media policies to see if they chilled or violated Section 7 of NLRA (i.e., considered “unfair labor practices”). This has expanded to include actively reviewing company handbooks and severance agreements.



The NLRA prohibits employers from interfering with, restraining, or coercing employees in the exercise of their “Section 7” rights. Section 7 rights are “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

“Concerted activity” for employees’ “mutual aid or protection” is protected with or without a union.

- Usually group activities involving 2 or more employees- Relates to working conditions including wages and

benefits



NLRB is concerned about broad policies and provisions in agreements that prohibit or would reasonably lead an employee to believe that they are prohibited from saying anything about the employer or that would restrict the employee’s right to concerted activity (i.e., communicating about wages, benefits and work conditions).



December 2013 – NLRB Judge ruled that a for-profit technical school’s policy prohibiting its employees from gossiping ran afoul of federal labor law and that the firing of an admissions employee for violating the rule was therefore also unlawful.



NLRB v. Noel Canning – U.S. Supreme Court decided President Obama’s recess appointments to NLRB were unconstitutional. Accordingly, the ruling called into question NLRB’s actions over the past two years (including GC’s Memos on unfair labor practices for disciplining employees for social media concerted activities) were unlawful as well.

Despite grave speculations, it was anticlimactic when NLRB, once properly reconstituted, approved and ratified all past actions in one fell swoop.



Questions raised about provisions in severance agreements that:• prevent the employee from disclosing the

contents of the agreement with anyone other than family, financial, or legal

• Prevent the employee from making statements or engaging in conduct that disparages, criticizes or otherwise causes a negative characterization of the company nor encourage or assist anyone else to do so



Similar issues also raised by EEOC

February 7, 2014, EEOC sued CVS Pharmacy alleging pattern or practice of unlawful conduct by having the following provisions in its severance agreement signed by its former employees over the past several years:• Non-disparagement and non-disclosure• Remedies including attorneys’ fees for

employee’s breach of the agreementCase is expected to be decided soon.



EEOC sued CollegeAmerica on April 4, 2014 challenging a severance agreement signed by an employee who was paid $7000. The severance agreement contained provisions that provided that:• employer would not contest employee’s

unemployment benefits• employee agreed not to contact gov’t agency• Employee would forward complaints to ER• Non-disparagement



The employee later filed charges with the gov’t agency. The employer sued the employee 7 days later for breach of the agreement. The employee filed two retaliation charges against the employer. EEOC filed suit against CollegeAmerica for the language in its severance agreement.

Case expected to be decided shortly.



Suggest review and consider revising language in your form severance agreement in which:• Employee agrees not to file any claim, action,

complaint, charge or other proceeding against the company (See 29 U.S.C. §626(f)(4))

• Employee agrees to reimburse Employer for all sums paid pursuant to the Agreement and pay Employer’s damages if Employee files any charge or proceeding (See 29 U.S.C. §1625.23)



• Employee agrees to not give testimony or cooperate with EEOC or any individual bringing a claim against the company (Basis: may run afoul of anti-retaliation provisions because they impose a penalty upon those who are entitled to engage in protected activity. See EEOC Enforcement Guidance on non-waivable employee rights.)

• Employee agrees to withdraw EEOC charge as condition of agreement (See 29 U.S.C. §623( d) and Title VII (42 U.S.C. §2000e-3(a))



• Include carve out language that covers all governmental complaints (EEOC, NLRB, state agencies, etc.) that nothing in agreement prevents employee from filing a charge or complaint, or participating in an investigation or proceeding conducted by EEOC etc.

• Include language that nothing in Agreement is intended to interfere with Section 7 rights.

• Narrowly draft confidentiality provisions and provisions that prohibit employee from talking with others



Counsel: Has your company in any way violated FLSA:• unlawfully paid you as a woman less than the men;• improperly classified you as a independent

contractor; • improperly classified you as exempt;• failed to pay you all of your wages; • failed to properly pay you overtime; • improperly deducted time from your pay?

FLSA Violations


DOL Strategic Plan for Fiscal Years 2014-2018• Strategic Goal 3: Promote fair and high-quality work

environments“When workers have a voice in the workplace – when they can communicate with management and seek to recover workplace issues at their source – the result is a safer, fairer, and better workplace. Yet too many workers, especially vulnerable workers, feel that reporting workplace violations or safety hazards threatens their job security.”

FLSA Violations


Strategic Objectives in support of Goal 3:• Break down barriers to fair and diverse workplaces and

narrow wage and income inequality• Protect workers’ rights• Secure wages and overtime

FLSA Violations


Focus on • OFCCP to strengthen enforce of affirmative action and

nondiscrimination in federal contractor workplaces (2012 year-long investigation by Senate Health, Education, Labor, and Pensions Committee found almost 30% of top wage and safety violators held federal contracts)

• Welfare of wage-earning women and workplace flexibility• WHD to concentrate on fair compensation to most

vulnerable workers – agricultural and young workers, workers in fissured industries, individuals with disabilities, and low-wage earners

FLSA Violations


Equal Pay for Women and Minorities• April 8, 2014 – President Obama signed Executive

Order 13665 instructing the Secretary of Labor to propose a rule within 160 days to require pay transparency among federal contractors

FLSA Violations


Equal Pay for Women and Minorities• Sept. 15, 2014 – DOL’s OFCCP announced proposed

rule that would prohibit federal contractors and subcontractors from maintaining pay secrecy policies (amend Executive Order 11246)- Federal contractors cannot fire or otherwise discriminate

against any employee or applicant for discussing, disclosing or inquiring about their compensation or that of another employee or applicant.

- Rule published Sept. 17 and open for public comment for 90 days

FLSA Violations


Independent Contractor Status• Sept. 15, 2014 – DOL awarded $10.2 million to fund

detection of worker misclassification enforcement activities in 19 states unemployment insurance programs- Enhance state’s ability to detect incidents of workers

misclassified as independent contractors and protect the integrity of unemployment insurance trust funds

- First time DOL awarded grant funds for this purpose- Based upon Congress wanting to address issue

FLSA Violations


• Some part “Brave New World” yet many of the laws have been in existence for 50-80 years.

Conclusion


• With the availability of information on the web and the changed business climate/culture after the great Recession, it is likely that the position “I didn’t know” will not work on any governmental entity, judge or jury.

• In addition, failing to proactively address these laws will show that the employer did not even value the issue enough to know what the law is and try to comply. This will likely impact penalties, damages and may cause significant damage to the company’s and individual’s reputations.

Conclusion


There is a lot you can do to comply with the laws and thereby avoid or reduce both

governmental investigations, enforcement, and penalties; and

employee charges, lawsuits, and damages.

Conclusion


• HR professionals and administrative personnel tasked with handling the “people” issues at work:– Understand the big picture of the culture in which we are

doing business and help educate your management team on the value of compliance with employment laws

– Learn and practice effective communication with your management people so you can get their buy-in and support for identified issues and proposed solutions

– Seek help when not sure how to handle an issue

Conclusion


• Business owners and managers:– Incorporate compliance with employment laws into your

business plan (along with how to sell your products or services) (Note that large companies are starting to hire “compliance officers” to help them comply with FCPA, corporate governance issues, employment and other laws)

– Provide resources and training to your managers, HR people and administrative staff tasked with handling your “people issues” so that they can help you comply with the law

– Listen to and appreciate what HR is trying to explain as to why some act is or is not a good idea in light of certain laws

Conclusion


Conclusion


Thank You

Kristina Keech Spitler, Esq.(703) 369-4738

[email protected]


2014 Hot Employment Law Topics Third Annual Employment Law Summit Prince William SHRM and Vanderpool...

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