Title goes here - c.ymcdn.comc.ymcdn.com/sites/ · PDF file2013 EMPLOYMENT LAW UPDATETitle...

Title Goes Here 2013 EMPLOYMENT LAW UPDATE

Presented By:

Ignacio J. Garcia, Esq. Ogletree, Deakins, Nash, Smoak &

Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

(813) 289-1247

[email protected]

Perez Confirmed As

New Labor Secretary

Perez Confirmed As

New Labor Secretary

On July 18, 2013, the Senate confirmed

Thomas Perez as labor secretary with a party-

line vote of 54-46.

Perez’s nomination was part of a Senate

compromise made to avoid changing the

chamber’s filibuster rules.

Perez is currently the head of the Department

of Justice Civil Rights Division and will replace

Hilda Solis, who resigned from the top labor

post in January 2013.

Perez – What to Expect Now

Perez has listed his top priorities as

reauthorizing the Workforce Investment Act

(WIA), ensuring safe and equal opportunity

workplaces, establishing pension security, and

providing even-handed enforcement of wage

and hour laws.

Expect Perez to push passage of the

controversial persuader regulations.

Health and safety-related rules once again

dominate the DOL’s regulatory agenda.

Regulatory Agenda: Persuader

Agreements Under the LMRDA

Office of Labor-Management Standards (OLMS) intends to issue a final rule by early 2014.

Would broaden the scope of reportable activities by substantially narrowing interpretation of the "advice exemption" in Section 203(c).

Would greatly expand the types of employer activity and legal advice in conjunction with a union organizing campaign that would trigger the LMRDA reporting requirement.

If finalized, the rule could have a drastic impact on the confidential nature of the attorney/client relationship.

Regulatory Agenda: Right to Know

Wage and Hour Division’s “Right to Know” Rule remains in “Long Term Actions,” meaning that the DOL likely will not take action on this issue this year.

“Right to Know” Rule will require employers to: Perform a written classification analysis for every worker that

is excluded from FLSA coverage

Disclose the individual analysis to each worker

Retain the documents in the event of a WHD investigation

Require employers to provide a wage statement each pay period to their employees

On January 11, 2013, public comments requested on DOL’s “proposal to collect information about employment experiences and workers’ knowledge of basic employment laws so as to better understand employees’ experience with worker misclassification.”

New FMLA Regulations

Currently Effective

Final Rule effective as of March 8, 2013.

Expanded caregiving leave to include covered

veterans:

-Expanded exigency leave to Regular Armed

Forces, in addition to National Guard and

Reserves.

-New clarification for definitions of “serious injury

or illness” and “serious health condition.”

Side-by-side comparison chart to previous

regulations can be accessed at:

http://www.dol.gov/whd/fmla/2013rule/

comparison.htm.

There’s An App For That!

DOL has launched

an app that allows

employees to record

their own time.

David Lopez, General Counsel

Equal Employment Opportunity Commission

Where We Are Now – Fiscal 2012 Statistical Analysis

EEOC Charge Statistics

95,402 charges in FY 2008 99,922 charges in FY 2010 99,412 charges in FY 2012 2008 2012 Race: 35.6% 33.7% Sex: 29.7% 30.5% National Origin: 11.1% 10.9% Religion: 3.4% 3.8% Age: 25.8% 23.0% Disability: 20.4% 26.5% Equal Pay Act: 1.0% 1.1% Retaliation (All Statutes): 34.3% 38.1% Retaliation (Title VII only): 30.1% 31.4%

EEOC filed 155 lawsuits in 2012, compared to 300 in 2011.

EEOC recovered $44.2 million in 2012, the lowest amount since 2006.

National EEOC Litigation Activity

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50

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1997

1998

1999

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20

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EEOC Filings

EEOC CHARGES

States with the highest number of charges:

Texas – 8,929 (9% total US charges)

Florida – 7,940 (8.0% total US charges)

California – 7,399 (7.4% total US charges)

Georgia - 5,903 (5.9% total US charges)

Illinois – 5,490 (5.5% total US charges)

EEOC 2013 Spring

Regulatory Agenda

Final FOIA rule issued in June 2013.

Plans to issue proposed rules by March 2014 that would revise procedures for filing complaints or charges of employment discrimination based on disability.

Plans to issue proposed rules that would revise the procedures for handling complaints/charges of employment discrimination based on disability filed against employers holding government contracts or subcontracts, as well as complaints filed against recipients of federal financial assistance.

EEOC Strategic Enforcement Plan

Fiscal Years 2013-2016

Priorities:

Eliminating systemic barriers in recruitment

and hiring

Immigrant, migrant, and other vulnerable

workers

Emerging issues: ADA Amendments Act;

Lesbian, Gay, Bisexual, and Transgender

issues; pregnancy and forced unpaid leave

Compensation & gender

Access to the legal system – retaliation &

releases

Harassment


Prioritization of charges: Category A charges will be those that raise

priority issues.

Individual disability, harassment and retaliation charges will only be included in Category A if they present strong vehicles for development of the law.

Priority issue and systemic cases will be given precedence for litigation. In 2012, the EEOC completed 240 systemic

investigations, leading to 46 settlements or conciliation agreements worth $36.2 million.

Also, the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits.

Delegation of litigation authority to the General Counsel.


Recruitment and Hiring

Exclusionary policies and practices

Channeling/steering of individuals into

specific jobs

Use of screening tools

Pre-employment tests

Criminal history and credit background

checks

Date of birth screens on online

applications


Criminal Background Checks

Focus on disparate impact

Race & National Origin

Blanket prohibitions on hiring convicted

felons may generate EEOC interest.

EEOC has pursued employers that have

broad prohibitions on hiring applicants

with conviction records.

Establishing the “Business

Necessity” Defense

Two ways for employers to establish the

“job-related and consistent with

business necessity” defense:

1. Validation of criminal conduct exclusion, by

using the Uniform Guidelines on Employee

Selection Procedures; or

2. Targeted screening process.

Targeted Screening Process

Takes into account the following 3 factors:

1) The nature and gravity of the offense or

conduct;

2) The time that has passed since the offense,

conduct, and/or completion of the sentence;

and

3) The nature of the job held or sought.

Individualized Assessment

EEOC Guidance: For any individuals

“screened out” by this targeted screening

process, employer’s policy should then provide

“an opportunity for an individualized

assessment”.

Individualized Assessment –

Factors

Notice to individual that he/she has been

screened out because of criminal conviction

Opportunity to demonstrate that the

exclusion should not be applied due to

his/her particular circumstance

Consideration by the employer as to

whether the additional information provided

by the individual:

Warrants an exception to the exclusion; and

Shows that the policy as applied is not job-

related and consistent with business

necessity.


Factors

1. Individual’s showing that he/she was not

correctly identified in the criminal

record or that the record is otherwise

inaccurate

2. Facts or circumstances surrounding

offense or conduct

3. Number of offenses for which individual

was convicted


Factors

4. Length and consistency of employment

history before and after the offense or

conduct

5. Rehabilitation efforts (e.g.,

education/training)

6. Employment or character references

and any other information regarding fitness

for the particular position

7. Whether individual is bonded under a

federal, state, or local bonding program

Guidance and State Law

Compliance with state and local laws does

not shield employers from violating Title VII

All 50 states and D.C. require criminal

background checks for certain occupations, such

as nurses, elder caregivers, daycare providers,

and school teachers

Counties, cities, and other municipalities

increasingly require background checks

This includes Level 2 screening required by

Florida agencies.

Employer Response to EEOC

Background Check Initiative

1. Develop process regarding background checks and

criminal convictions.

2. Should resemble credit check processes:

a. Notice to individual.

b. Ability to challenge accuracy of conviction report.

3. Link conviction to inability to perform job, if possible.

4. Conduct individualized assessment of applicant’s

conviction, explanation and desired job.

5. Document all steps.

6. Evaluate links between types of convictions, age of

conviction, and job duties. Elements could be different

for different jobs.

Credit Checks

EEOC asserts that using credit history data in hiring decisions can violate Title VII’s race discrimination prohibitions.

EEOC v. Kaplan Higher Education Corp., Case No. 1:10 CV 2882, 2013 BL 21834 (N.D. Ohio Jan. 28, 2013) Alleged “defendants' use of credit reports in the

hiring process has an unlawful disparate impact on Black applicants.”

Court granted summary judgment in favor of the defendant.

“Race rating” used by EEOC’s expert was not reliable.

EEOC failed to prove adverse impact.

EEOC Has Sued BMW

and Dollar General

BMW: policy has no time limit with regard to criminal convictions and “is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.”

Dollar General: policy has a disparate impact against African Americans applicants. Dollar General revoked a job offer to an African

American applicant who had “a six-year-old conviction for possession of a controlled substance.”

Another African American employee was terminated after Dollar General discovered a prior felony conviction, although the employee asserts that the report was a mistake.

The EEOC Gets “Checked” EEOC v. Freeman (August 9, 2013)

Federal judge dismissed action brought by EEOC alleging a disparate impact based on an employer’s use of criminal background checks.

The Court found that the EEOC failed to supply reliable expert testimony and statistical analysis that demonstrated a disparate impact from its criminal background check policy (national statistics not enough).

The Court stated, “…By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability.”

Although this dismissal is a setback for the EEOC, employers should still be mindful of the EEOC’s current guidance.

Lafe Solomon,

General Counsel

There’s An App For That!

NLRB has launched

an app that provides

information on rights

and obligations

under the NLRA.

NLRB – Compliance

Employers should review the following policies: No solicitation/no distribution

Off-duty access

Surveillance cameras

Bulletin board policy

Electronic communication/technology policy

Orientation statement

Statement on unions

Dress code/uniform policy Lanyards, buttons, hats, etc.

Visitor security policy

Social media policy

At will statement

Supreme Court Review

The Defense Of

Marriage Act And

Windsor

Section 2: Full faith

and credit clause:

one state does not

have to recognize a

same-sex marriage

from another state

Section 3: federal

definition of “spouse”

and “marriage”

(applied to over

1,000 federal laws)

Supreme Court Review: The

Windsor Decision

Case involved estate taxes.

By a 5-4 decision, Supreme Court ruled that Section 3 of DOMA is unconstitutional.

The Court did NOT address constitutionality of Section 2 of DOMA, which remains the law.

But significant changes were made to FMLA, COBRA, and HIPAA.

Supreme Court Review: Effects

of the Windsor Decision

FMLA

BEFORE Windsor

Employers were only required to extend these leave rights to an opposite-sex spouse; however, an employer could voluntarily extend rights to an employee’s same-sex spouse, domestic partner or civil union

AFTER Windsor

Appears employers must now extend these rights to an employee to care for a same-sex spouse (depending on domiciliary requirement)

The DOL Has Spoken

DOL made its first official post-Windsor

announcement regarding FMLA on Friday,

August 9 in an internal email to all DOL

employees from Labor Secretary Perez.

DOL has updated multiple guidance documents

to remove references to DOMA and “affirm the

availability of spousal leave based on same-sex

marriages” under the FMLA.

Secretary Perez noted that the amendment of

the guidance documents was just one of many

steps that the DOL will take to implement the

Windsor decision in a way that “provides the

maximum protection for workers and their

families.”

The DOL Has Spoken

Revised DOL Fact Sheet removed references to

DOMA and defines spouse to include same-sex

spouses where recognized by state law.

A “spouse” is a “husband or wife as defined or

recognized under state law for purposes of

marriage in the state where the employee

resides, including ‘common law’ marriage and

same-sex marriage.”

FMLA regulations also define “spouse” based

on the state’s legal definition of marriage.

Previously issued DOL materials also affirm

FMLA eligibility for an in loco parentis

relationship with a child, regardless of the

recognition of one’s same-sex marriage.

Do I Need to Revise My FMLA

Policy Immediately? Yes, but only if you have employees residing in

any of the 13 states that recognize same-sex

marriage or the District of Columbia.

Employees are entitled to take FMLA leave to

care for same-sex spouses if: the employees

are domiciled (e.g., state of primary residence)

is California, Connecticut, Delaware, Iowa,

Maine, Maryland, Massachusetts, Minnesota,

New Hampshire, New York, Rhode Island,

Vermont, Washington, or D.C.

The employees must be married to a same-sex

spouse recognized by their home state. It is not

a requirement that the marriage be

performed in that state.



COBRA

BEFORE Windsor

• No requirement to provide COBRA coverage to

domestic partners or same-sex spouses; but could

voluntarily continuation coverage

AFTER Windsor

• To the extent an employer offers health coverage to a

same-sex spouse, it appears that an employer will

need to extend COBRA coverage to such same-sex

spouse

• Still no requirement to provide COBRA coverage to

domestic partners but can provide such coverage

voluntarily



HIPPA – Special Enrollment Rights

BEFORE Windsor

• Employers were only required to extend those rights to

an opposite-sex spouse; however, an employer could

voluntarily extend enrollment rights to an employee’s

same-sex spouse or domestic partner

AFTER Windsor

• Appears employers must now extend these rights to

same-sex spouse (depending on the domiciliary

requirement), to the extent an employer provides

same-sex coverage generally


Vance v. Ball State, 133 S. Ct. 2434 (2013)

Issue: What is the definition of a “supervisor” for purposes of Title VII vicarious liability?

Held: A supervisor must be able to take tangible employment actions against the victim (such as the ability to hire, fire, demote, promote, transfer, or discipline).


University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)

Issue: What is the proper standard of causation for Title VII retaliation claims?

Held: Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

Court rejected the EEOC’s Compliance Manual, which endorsed a “mixed motive” burden of proof.


Genesis HealthCare v. Symczyk, 133 S. Ct. 1523 (2013)

Issue: Whether a plaintiff’s refusal of an offer of judgment for complete relief on a FLSA claim renders the case moot?

Held: The offer of judgment “mooted” plaintiff’s individual claim and her claim was dismissed.

Plaintiff also attempted to assert suit “on behalf of others similarly situated,” but because no other claimant’s had joined, the Court dismissed the collective action.

Arbitration American Express Co. v. Italian Colors Restaurant,

No. 12-133, 2013 BL 163177 (U.S. June 20, 2013) – A

contractual waiver of class arbitration is enforceable

under the Federal Arbitration Act when the plaintiff’s cost

of individually arbitrating a federal statutory claim exceeds

the potential recovery.

Oxford Health Plans LLC v. Sutter, No. 12-135, 2013

BL 151235 (U.S. June 10, 2013) – Parties agreed by

contract that “no civil action . . . shall be instituted before

any court” and that “all such disputes shall be submitted

to . . . arbitration.” The parties also agreed that the

arbitrator should decide whether their contract authorized

class arbitration. The Supreme Court decided that the

arbitrator did not exceed his authority when he

determined that the parties’ arbitration agreement

provided for class arbitration.

Arbitration – Lessons Learned In light of these two cases, every employer of

every size should reassess whether the

protections an arbitration agreement can afford

are worth the potential negative ramifications.

An employer can avoid class and collective

actions by adopting an arbitration agreement

that precludes arbitration on a class basis.

However, to ensure that happens, an employer

must be explicit about it.

With a carefully crafted arbitration agreement,

employers can gain the benefits of American

Express and Oxford Health.

Beware of attorney’s fee provisions in arbitration

agreements

What Else Should Employers

Be Looking Out For?

Pending Legislation…

The Employment Non-Discrimination Act

(ENDA) has been re-introduced.

Would add sexual orientation and gender identity

to list of protected classes where employment

discrimination is prohibited

Senate Committee on Health, Education, Labor

and Pensions voted 15-7 in favor the bill; to be

debated on Senate floor fall 2013

Companion bill still pending in the House

Will DOMA’s impact change the outcome?


Family and Medical Leave Inclusion Act

Would allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.

Failed to pass in the last session of Congress and has been re-introduced.

This bill was assigned to a congressional committee on April 25, 2013, which will consider it before possibly sending it on to the House or Senate as a whole.


Working Families Flexibility Act of 2013

Would allow workers who are entitled to

get overtime pay to choose instead to

receive compensatory time

1.5 hours of time for each overtime hour

Employee may bank up to 160 hours a year

Workers can request money later

Once 80 hours in the bank, the employer may

choose to pay overtime in cash

Approved by the House in May 2013, but

may not survive the Democrat-controlled

Senate


Social Networking Online Protection Act

SNOPA would protect individuals who

use social networking sites.

Would prevent employers from requiring

applicants or employees to divulge their

personal “profile” information,

passwords, or online accounts.

Reintroduced in February 2013, and is

pending in a House of Representatives

Committee.

Pay Equity May Resurface

Paycheck Fairness Act was reintroduced

this year.

Would have amended the Equal Pay Act,

requiring employers to demonstrate that any pay

disparity complained of is related to job

performance and not gender.

Prohibits retaliation and allows for punitive

damages.

Died in the Senate in June 2013.

An earlier version of this bill passed in the House

in 2009.

Stay tuned, this bill will likely show up again.

Title Goes Here

Presented By:

Ignacio J. Garcia, Esq. Ogletree, Deakins, Nash, Smoak &

Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

(813) 289-1247

[email protected]

?? Questions ??

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