Employment Law Update - Handout.ppt · Microsoft PowerPoint - Employment Law Update - Handout.ppt...

Joseph T. Clees

Employment Law Updates... and Wacky Cases 1

Employment Law Update … and Wacky Cases

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Presented by

Joseph T. Clees, Esq. (Phoenix)

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

Atlanta / Austin / Berlin / Birmingham / Boston / Charleston / Charlotte / Chicago / Cleveland / Columbia / Dallas / Denver / Detroit (Metro) / Greenville / Houston / Indianapolis / Jackson / Kansas CityLas Vegas / London / Los Angeles / Memphis / Mexico City / Miami / Milwaukee / Minneapolis / Morristown / Nashville / New Orleans / New York City / Oklahoma City / Orange County / Paris / PhiladelphiaPhoenix / Pittsburgh / Portland / Raleigh / Richmond / Sacramento / San Antonio / San Diego / San Francisco / Seattle / St. Louis / St. Thomas / Stamford / Tampa / Toronto / Torrance / Tucson / Washington, D.C.


Trends in 2018

Localization of employment law States, cities and counties

Ballot referenda

Ban the box ordinances

Salary history prohibitions

Credit check restrictions

Joseph T. Clees



Trends in 2018

Minimum wage and paid leave

Paid parental leave

Pay equity

Predictive scheduling

ADA


Make Employment Law Great Again?


Fair Pay and Safe Workplaces Order (“Blacklisting” rule)

Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness (“Volks” rule)

CRA Overhaul of Obama-Era Employment Regulations

Joseph T. Clees



Project Labor Agreement Return to contract neutrality

Right to (or not to) unionize Return to no notice requirement

$10.20 min. wage for federal contractors

Rescinding Executive Orders?


Preserving LGBTQ Executive Order

Gender identity and sexual orientation Protected categories for

federal contractors


Administrative Agencies

Joseph T. Clees



Alexander Acosta Former NLRB Board Member

Former DOJ Civil Rights Division Chief

Former U.S. Attorney S.D. Fla.

Expected to have balanced approach

“I think he’s going to be a tremendous Secretary of Labor” – President Trump

Secretary of Labor


What was required? Component 2 was added to include aggregate W-2 wages and

total hours worked across pay bands and EEO-1 categories.

What were employers’ concerns? Burden and cost of compliance; Lack of utility; and Confidentiality.

What happened to the revised reporting requirements? On August 29, 2017, they were stayed until further notice.

Revised EEO-1 Reporting Requirements


What does the stay mean for employers? You do not have to report compensation or hours worked

data to the EEOC.

Use the traditional EEO-1 form.

Delayed reporting deadline remains March 31, 2018.

EEO-1 Revised Reporting (cont’d)

Joseph T. Clees



What is likely to happen? The EEOC and the Office of Management and Budget have

not abandoned the concept of compensation or hours reporting.

But it is re-examining the appropriate process for any such reporting.

EEO-1 Revised Reporting (cont’d)


Cheryl Stanton Former Ogletree Deakins Shareholder

Former Executive Director of South Carolina Dept. of Employment and Workforce

Worked in White House for George W. Bush

Clerked for Justice Alito on Third Circuit

Administrator for Wage and Hour Division


What to expect Overtime rule Persuader rule (enjoined,

abandon appeal?) Increase minimum wage? Who is/isn’t an independent

contractor?

Department of Labor

Joseph T. Clees



DOL can set a salary level test Injunction should be reversed But DOL wants to revisit specific

salary level Acosta: $47,476 is too high, but

$30-35,000 is appropriate

DOL’S Current Position on Overtime


DOL Secretary Acosta Hearing Testimony Salary level higher than $23,660, but not $47,476

More reasonable level would be between $30,000 and $35,000

DOL announced on October 30 it would appeal Texas district court decision invalidating Obama rule and seek further rulemaking to determine what salary level should be

DOL – Overtime Rule Not Dead Yet


Victoria Lipnic, Acting Chair EEOC

Temporary Leadership

Joseph T. Clees



Janet Dhillon – New EEOC Chair?

June 28, 2017 - Nominated to lead the EEOC

Former lawyer for Burlington Stores, JC Penny, and US Airways

Former President of Retail Industry Leaders Association Supports retail industry with policy and litigation

supporting employers in court over labor and employment law issues.


Immigrant, migrant, and other vulnerable workers ADA qualification standards and leave policies Temporary workers, staffing agencies, independent contractors Gender-based pay discrimination Retaliatory practices Addressing selected emerging and developing issues Systemic harassment Access to legal system

EEOC Strategic Enforcement Plan (2017-2021)


Change in enforcement priorities

Slowdown in systemic litigation

Eliminate EEO-1 revisions

Merger with OFCCP?

EEOC – Potential Changes

Joseph T. Clees



“The EEOC remains committed to strong enforcement of our federalequal pay laws, a position I have long advocated… I do hope thatthis decision [to stay the revised EEO-1 reporting requirements] willprompt a discussion of other more effective solutions to encourageemployers to review their compensation practices to ensure equalpay and close the wage gap. I stand ready to work with Congress,federal agencies, and all stakeholders to achieve that goal.”

- Victoria Lipnic,Acting Chair of the EEOC

Pay Equity: A Strategic Focus


Conduct a confidential pay equity analysis – it is time to look behind the curtain.

Obtain senior management commitment to the audit and fixing any issues before auditing.

Transparent versus privileged audit?

Pay Equity: What Can We Do?


EEOC – HQ Directive

Decrease in number of charges to be investigated

Lack of resources & hiring freeze

Investigators responsible for screening out “no action” charges

Joseph T. Clees




Key Statistics - 2016 Filed charges up 2.4% to 91,503

Recoveries down 20% to $52.2MM

45.9% involved a retaliation claim (from 44.5%)

35.3% involved race (from 34.7%)

30.7% involved disability / 28,073 = most ever!

News! 40% of sex claims by LGBT persons.

EEOC litigation

Recoveries down 20% to $52.2MM

139 cases resolved = $375,500 avg.

Only 86 new cases filed; down 39% from 142 Recoveries through mediation and settlements down 2.4% to $347.9MM


Digital Charge System Effective January 2, 2016

EEOC is now providing the respondent’s position statement and non-confidential attachments to charging party upon request and is alsoproviding an opportunity to respond within 20 days

But respondents will not receive a copy of the charging party’s responseduring the investigation

Practical Tip: Respondents should provide confidential information inseparately labeled attachments

https://www.eeoc.gov/employers/position_statement_procedures.cfm

Joseph T. Clees



BIG Update… Early Dismissals Our inside sources tell us: new directive from Acting EEOC Chair, Victoria Lipnic Efforts to decrease the backlog (getting it down to 100,000)

Still obligated to take claims from anyone who files Screen out charges without a high probability of liability (e.g., little detail) If claims do not have merit, immediately dismiss the charge even without a position

statement from respondent Investigation: now received by investigator not intake personnel Telephonic meetings are encouraged. Putting more responsibility on the charging

party to provide evidence. Only charges that appear to have merit will be forwarded to respondent for a position

statement or other technique. We can anticipate that these will now be viewed as an “A” charge of the past

Bottom line – earlier rights-to-sue but less information for a plaintiff’s lawyer to evaluate.


Online Inquiry and Appointments On March 15, rolled out to five cities: Charlotte, Chicago, New Orleans,

Phoenix and Seattle

Available to charging parties within 100 miles of one of these cities

Designed to improve service to the public, streamline the administrative process, and reduce the use of paper submissions and files


NLRB: Current Board Composition

Mark Gaston Pearce Reappointed 2013

Term ends Aug. 27, 2018

Lauren McFerran Appointed 2014

Term ends Dec. 16, 2019

William Emanuel Appointed 2017

Term ends Aug. 27, 2021

Joseph T. Clees



The Transition: General Counsel and Open Board Seats

Marvin KaplanConfirmed

John F. RingNominated

Peter RobbGeneral Counsel

Confirmed


Class action waiver

Quickie election rule – RFI issued

“Mini” bargaining units – overturned

Joint employer – overturned

Handbook policies – overturned

NLRB – Potential Changes


Banner Health, D.C. Circuit (March 24, 2017)

Case held

− Upheld invalidation of overly broad confidentiality agreement

− Denied enforcement of sanction against Banner for maintaining a categorical nondisclosure rule

Record lacks substantial evidence of categorical investigative nondisclosure policy

Banner did not violate Section 7 of the NLRA

Confidentiality of Workplace Investigations

Joseph T. Clees



Purple Communications, 361 NLRB No. 126 (2014)

Whole Foods Market Group, Inc., 363 NLRB No. 87 (2015)

Use of Company Email and Audio and Video Recording


Immigration


Federal Sanctuary Cities Update

April 21: DOJ sent letters to 9 jurisdictions ordering proof of compliance before June 30 or risk losing certain grants

Chicago, Las Vegas, Miami, Milwaukee, New Orleans, Philadelphia, New York City, Sacramento

May 22: Attorney General Jeff Sessions issued DOJ memo

Narrows applicability of President Trump’s executive order

Applies solely to federal grants administered by DOJ or DHS and not to other sources of federal funding

Example: Office of Community Oriented Policing Services

Joseph T. Clees



Increased on-site enforcement

Document Audits, Raids

Mandatory E-Verify? (requires congressional action)

DACA/DAPA retained

Legal immigration

H-1B reforms – no qualified American worker (requires congressional approval)

Immigration - Compliance


6 weeks paid maternity leave?

Tax breaks for child care?

Paternity leave?

Parental Leave


President Obama’s Federal Circuit Court Legacy

Joseph T. Clees



Neil Gorsuch replaced Justice Scalia

Potential to fill another vacancy on the Supreme Court (Ginsberg, age 84, Kennedy, age 81, Breyer, age 78)

Potential to fill almost 100 vacancies in the federal judiciary – 39 nominated to USDC as of 10/31/17, 18 to Courts of Appeal

President Trump & the Judiciary


National Labor Relations Board ~

NLRB position: right to bring a class action is protected concerted activity under NLRA Section 7

Circuit Courts of Appeal are split

October 2, 2017: SCOTUS heard argument

Arbitration Agreements &Class Action Waivers


HOT TOPICS:

TOPIC 1: Leave of Absence Many Sources of Leave

FMLA

State Leave Laws

Sick Pay Laws – usually local

Pregnancy Laws

ADA

Joseph T. Clees



Leave Trouble Spots

Failure to follow FMLA process

Lack of awareness of State & Local laws

Lack of communication during leave

Leave Abuse

Confusion on how to address employment at end of statutory or policy leave

ADA considerations


HOT TOPICS:

TOPIC 2: Transgender and Sexual Orientation Issues Is it protected under Title VII?

EEOC Guidance

Protected under Federal Contractor guidelines

Bathrooms

Dress Codes – gender neutral


HOT TOPICS:

TOPIC 3: Background Checks FCRA

State and Local Laws

Forms Disclosures and Authorizations

Joseph T. Clees



HOT TOPICS:

TOPIC 4: Protected Concerted Activity Confidentiality

Handbooks and Policies

Solicitation and Distribution

Computer Usage

Social Media

Dress Codes


HOT TOPICS:

TOPIC 5: Accommodations ADA: For Disabilities

Assume Disabled Always

Engage in Interactive Process

Considerations for Accommodations

Document Steps


What is the Cause of Employment Lawsuits?

Poor Communication

Supervisor Mishandling

Employee Perceptions

Joseph T. Clees



What is the Cause of Employer Losses?

Inconsistency

Management did not know the facts or could not prove them

Hasty decisions or inadequate planning and attention to detail

Employment Law Update … and Wacky Cases

.

Presented by

Joseph T. Clees, Esq. (Phoenix)

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ogletree.com

Employment Law Update - Handout.ppt · Microsoft PowerPoint - Employment Law Update - Handout.ppt...

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