LEGAL HOT TOPICS AND STRATEGIES FOR STAYING OUT

OF HOT “LEGAL” WATERS

GREATER VALLEY FORGE HUMAN RESOURCE ASSOCIATION

NOVEMBER 1, 2007

JACQUELINE SHULMAN, ESQUIRE jacqueline.shulman@obermayer.com

HOT LEGAL TOPICS

1. Navigating EEO-1 Reporting Changes2. No-Match Letters Update3. Jobs For Veterans Act 4. Federal & PA Minimum Wage Update5. EEOC Revises ADEA Regulations6. TEVA Pharmaceuticals – FMLA Waivers7. Smokin’ Joes – Sex Harassment8. Best Buy – Security Searches/$$

1. EEO-1 Reporting Changes

100 or more employees or 50 or more and federal contracts of $50,000

Reports due by September 30 Used by EEOC and OFCCP Changes to Racial & Ethnic Categories Self-Identification Preferred Changes to Job Categories www.eeoc.gov/eeo1survey/howtofile.html

2. No-Match Letter Update

Letters sent to Employers when SS# doesn’t match up with employee’s name

August 19, 2007 – Final Rule expanded definition of “Constructive Knowledge”

Could now be a basis for taking action against employees (e.g. discharge) if cannot confirm

Fear it would lead to increases claims of discrimination if termed but eligible to work in US

Injunction in San Francisco froze new regs and the mailing of No-Match letters

3. Jobs for Veterans Act

For federal contractors (OFCCP) Requires affirmative action to hire vets

and refrain from discrimination $25,000 threshold raised to $100,000 for

contracts after Dec. 1, 2003 Can use the same AAP for both old and

new regulations Still requires listing of job openings Job Bank shut down on June 30, 2007 www.dol.gov/esa/ofccp/index.html

4. PA & Federal Minimum Wage

Pennsylvania – 11 or more employees – Current is $7:15– 10 or fewer – Current is $6.65 until 7/1/08– Trainee Exemption – under age 20 – first 60

days of employment only- not less than $5.15– Must notify at time of hire of both wages

Federal Currently below PA No impact until July 24, 2009 - $7.25 But must display poster now

5. New ADEA Regulations

ADEA does not bar employers from favoring older workers over younger ones, even when all are older than 40

Rule issued by EEOC after SC Case Rule notes that ADEA does not require

employers to prefer older individuals Limit collecting of age-identifying info

6. TEVA and FMLA Waivers

District Court- Eastern District of PA -2006 Legal for severance agreement to include

a waiver of past FMLA violations Not legal for employees to prospectively

waive FMLA right to take leave or right to sue

Retaining the severance payment does not make an illegal agreement enforceable

7. Smokin’ Joes Tobacco Shop District Court – Eastern District of PA - 2007 Employee’s sexual history/marital status relevant

in determining if hostile environment existed (to see if she was subjectively offended by comments)

Employee’s discussions with her co-workers about her sex life outside workplace showed she may not have been offended by supervisor’s comments.

Best to have Zero Tolerance for sex talk in workplace

8. Best Buy and Security Searches

Philadelphia Court of Common Pleas – 2007 Proposed Class Action lawsuit

Alleges hourly employees not compensated for daily security checks after punching out

Alleges hourly employees routinely forced to work through meal and break periods without compensation

Harkens back to Wal-Mart - $140 million in 2006 (for working OT and through breaks without proper compensation)

How to Stay out of Hot Water

1. “Smart” Supervising 2. Follow the Golden Rule

(Avoiding Harassment Claims) 3. 10 Tips for Termination

without Litigation

1. “Smart” Supervising

Know which hat you wear Fair and consistent treatment Each employee is an individual Be a good listener Respond promptly Be a good communicator Be Proactive with employee concerns Be Respectful (Follow the Golden Rule)

2. Follow the Golden Rule

Be a Professional Do unto others as you would have

others do unto you; or Don’t do anything to someone else

that you would not like done to you (or someone you care about)

3. Termination Without Litigation

Termination is Capital Punishment of the workplace

If it’s not in writing, it didn’t happen If it feels good, don’t do it If the employee is surprised, you

haven’t done your job Consistent and Fair Treatment Human Resources is your friend

IF ALL YOU REMEMBER…

Fair and Consistent Treatment It’s a Supervisor’s job to set the tone

for the staff (Act Professionally) Follow the Golden Rule Educate that Human Resources is

everyone’s Best Friend!!