There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.

1. Employment Law Update: New
Developments and Trends
in Employment Law
Christina M. Jepson
April 9, 2013
Salt Lake City
25th ANNUAL EMPLOYMENT LAW SEMINAR
parsonsbehle.com

2. Introduction
 The Obama administration continues to us
the administrative agency system
aggressively in the area of employment
law – overall expansion of employee rights
 Many developments this year which are a
continuation of what we’ve seen the last
few years
 We will just touch on them
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3. EEOC – National Stats
 EEOC has been very active in bringing its
own lawsuits against companies
 EEOC reported near record number of
discrimination charges in 2012
 $364 million paid by employers in EEOC
cases
 Important to make sure you have good
practices and address issues
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4. EEOC – Utah Stats
 Total charges trending up
– 2009 107
– 2010 204
– 2011 215
– 2012 247
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5. EEOC – Utah Stats
 Race charges trending down a little
– 2009 19.6%
– 2010 16.7%
– 2011 17.2%
– 2012 13%
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6. EEOC – Utah Stats
 Sex discrimination charges back up
– 2009 41.1%
– 2010 28.9%
– 2011 34.9%
– 2012 40.5%
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7. EEOC – Utah Stats
 National origin charges down a little
– 2009 10.3%
– 2010 14.7%
– 2011 11.6%
– 2012 7.3%
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8. EEOC – Utah Stats
 Religion charges trending down
– 2009 6.5%
– 2010 8.8%
– 2011 11.6%
– 2012 5.7%
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9. EEOC – Utah Stats
 Retaliation charges consistent and always
the biggest problem
– 2009 44.9%
– 2010 42.6%
– 2011 44.2%
– 2012 38.5%
 Very important to prevent retaliation
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10. EEOC – Utah Stats
 Age charges pretty stable
– 2009 29%
– 2010 32.8%
– 2011 27%
– 2012 25.1%
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11. EEOC – Utah Stats
 Disability charges up a little
– 2009 31.8%
– 2010 30.4%
– 2011 32.6%
– 2012 34.4%
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12. Wage and Hour Stats
 Employers paid more in 2012 to settle
wage and hour claims nationally
– $467 million
– Up 4.6 million from 2011
 Pay attention to wage and hour issues –
exemptions, overtime, independent
contractors
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13. EEOC – Utah Cases
 April 2012, company in Vernal which
operated nursing homes agreed to pay
$22,000 to settle pregnancy discrimination
lawsuit filed by EEOC
 Also agreed to provide training for 3 years
 Lawsuit alleged owner learned of assistant’s
pregnancy, kept asking her when she
planned to stop working, demoted her, and
effectively terminated her
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14. EEOC – Utah Cases
 October 2011, EEOC sued Utah medical
clinic for hostile work environment based on
national origin
 EEOC alleged two Mexican employees
routinely subjected to derogatory comments
and slurs and constructive discharge
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15. EEOC – Utah Cases
 January 2013, Utah construction company
agreed to pay $180,000 to settle EEOC race
harassment and retaliation lawsuit
 Also training, review and revise policies, and
post notices
 Allegations about two employees working on
Odd Fellows Hall project in SLC
 Alleged regularly used n-word, “boy,”
n-lovers, and racial jokes
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16. EEOC – Trends in Complaints
 EEOC is focusing on systemic
discrimination litigation – strategic plan
announced in February 2012
– Criminal background and credit checks
– Pregnancy and child care
– Age
– Pre-employment testing
– Disability
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17. NLRB – Social Media
 NLRB pursued a number of cases against
employers (regardless if unionized) who
fired employees for social media posts or
because the NLRB believed the
employer’s social media policy was
overbroad
 NLRB recently issued guidance on social
media policies and actions – some
decisions in your handbook
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18. NLRB – Social Media
 NLRB has made clear that employees are
entitled to engage in “concerted activity”
including on social media
 Social media policies cannot prohibit
“concerted activity”
 Other workplace policies cannot prohibit
“concerted activity”
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19. NLRB – Problems with Decisions
 On January 4, 2012, President Obama
mad three recess appointments (3 of 5)
 Various employers have challenged
recess appointments as unconstitutional
 DC District Court held appointments
unconstitutional (only one court)
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20. NLRB – Problems with Decisions
 Court found appointments void, so legally
they were never part of NLRB
 Every decision since then is subject to
attack
 Supreme Court will likely resolve
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21. Social Media
 Hot topic in social media – asking
employees or applicants for social media
(Facebook) passwords
 Not a good idea!
 Find out more than you want –
discrimination, ADA, GINA
 May violate federal laws regarding stored
communications
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22. Social Media
 However, court dismissed FMLA
retaliation case when employer showed
that it had reasonable belief employee was
abusing FMLA – Lineberry v. Detroit
Medical (Mich. 2013)
 Facebook postings of vacations pictures
(including riding motorcycle) while on
FMLA leave – terminated employee
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23. Social Media
 Co-workers saw postings and complained
 Talked to employee and she claimed she used
wheelchairs at airport
 Reminded that airports have cameras and of FB
postings
 She admitted she lied about wheelchairs
 Court used “honest belief” doctrine which allows
employer which honestly believes based on
facts that employee abused leave
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24. Social Media
 BYOD policies – hot topic
– Bring your own device – addresses problem
of employees using own equipment but
accessing company systems
– Implementing policies to address technology
and social media in the workplace
– Staying current
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25. EEOC – Background Checks
 4/25/2012 – reminder
 EEOC issued Enforcement Guidance on
use of Arrest and Conviction Records in
employment decisions under Title VII
 Concerns with disparate treatment and
disparate impact – uniform policies may
still have a disparate impact
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26. EEOC – Background Checks
 Criminal convictions may be relevant if
– Job related – specific and tailored
– Direct threat to public safety or property
– Business necessity – individualized assessment
 Fact of an arrest does not establish criminal
conduct
– May consider conduct underlying arrest if conduct
makes individual unfit for position
 This is not going away
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27. Gender Identity/Transgender
 April 2012 Macy v. Holder – EEOC case in
which employee transitioning from male to
female claimed she was denied a job by the
ATF because of her transgender status
 EEOC found Title VII intentional
discrimination because transgender status is
by definition discrimination based on sex
 Trend continues with some limitations
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28. Gender Identity/Transgender
 11th Circuit has supported the notion that
discrimination based on “gender identity”
is Title VII discrimination because it is
based on stereotypes about what it means
to be a man or woman
 Many states and local governments have
passed employment laws protecting gay
and transgender employees
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29. Gender Identity/Transgender
 Some push back
 5th Circuit held in July of 2012 that a male
employee (who was not gay) did not have Title
VII case even though he was called “faggot” and
“princess” and simulated sex with him – EEOC
v. Boh Brothers Construction
 Court found no discrimination because no proof
that plaintiff did not conform to stereotypes
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30. Gender Identity/Transgender
 Some push back
 8th Circuit rejected a transgender discrimination
claim in September 2012 – Hunter v. United Parcel
Service
 Court accepted the growing body of precedent that
discriminating based on applicant’s gender non-
conformity violates Title VII
 Court held that there was no evidence that company
knew applicant was transgendered even though
applicant had female name but dressed as male
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31. EEOC – Transgender Employees
 Supreme Court has accepted cert. and
has heard argument in two gay marriage
cases
 This area will continue to change
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32. DOL – New Regs
 February 2013 DOL published new rules
expanding coverage
 Qualifying veterans and caregivers of
qualifying veterans discharged within 5 years
 Amends definition of serious injury or illness
of veteran – includes psychological
 Exigency leave for military members and
family members
 Airline personnel
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33. DOL – Wage & Hour and
Worker Classification
 January 2013, DOL proposed $1.9 million
survey on independent contractor
misclassification – Right to Know Initiative
 Plan to interview 10,000 workers in next 2 years
 Survey may be next step toward requiring
employers to provide notice to employees of
their classification and reasons
 Time to audit your classifications and
“independent contractor” relations
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34. DOL – Wage & Hour and
Worker Classification
 In February 2012, the DOL published its
2013 budget request to Congress
 The Wage and Hour Division (which
enforces the Fair Labor Standards Act and
the Family and Medical Leave Act) has
indicated that it will continue to focus its
resources on vulnerable workers and
misclassified employees
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35. DOL – Wage & Hour and
Worker Classification
 “Vulnerable workers” – subcontracting,
franchising, temporary employment and
independent contractors
 Budget calls for increased investigations
and education in these areas
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36. DOL – Wage & Hour and
Worker Classification
 DOL announced it was joining forces with
the IRS and 11 states (including Utah) to
crack down on misclassification
 California has stiffened penalties
 Triggered by audit, unemployment claim,
worker’s comp claim, 1099 filings
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37. IRS – Wage & Hour Enforcement
 IRS recently announced temporary
expansion of Voluntary Worker
Classification Settlement Program
 Permits employers to reclassify employees
who have been improperly classified as
independent contractors
 Allows a fresh start and minimizes
exposure on taxes
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38. IRS – Wage & Hour Enforcement
 Criteria
– Consistent treatment and 1099s for 3 years
– No current audit regarding classification
– Must be in compliance with prior audit
 Temporary expansion modifies eligibility to
permit taxpayers who have not issued all
1099s for three years to participate
 If accepted, pay 10% of tax liability
 Deadline – June 30, 2013
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39. DOL – Unpaid Interns
 Under attack – April 2010 Fact Sheet
 Test (not as strict for non profits)
– Similar to educational training
– For the benefit of intern
– Does not displace workers
– Employer gets no immediate advantage and
may be impeded by intern
– Intern not entitled to job at end
– Intern understands no wages
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40. DOL – Unpaid Interns
 What can happen?
 Recently a class action was filed in federal
court in NY by a former unpaid intern for
Elite Model Agency seeking $50 million in
unpaid wages, overtime, and benefits
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41. Federal Labor Standards Act
 March 2013, 11th Circuit found that an
employee who was not authorized to work
in United States could still recover unpaid
wages under FLSA
 Consistent with trend in federal courts
 Minimum wage and overtime
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42. Department of Homeland Security
 As of March 8, 2013, employers must
begin using new I-9 form issued by
Department of Homeland Security
 This form has 3-year shelf life as it will not
expire until March 2016
 New instructions for the I-9 have been
published to help employers
 http://www.uscis.gov/files/form/i-9.pdf
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43. New Whistleblower Protections
 July 2013,National Defense Authorization Act
gave government contractors and
subcontractors whistleblowers substantial
additional rights – gross mismanagement, gross
waste, abuse of authority, violation of law or
regulation, danger to public health
 Mark’s presentation
 Take proactive measures to address employee
concerns and prevent retaliation
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44. OSHA
 OSHA very targeted and busy
 Has issued a record number of significant
enforcement cases including largest fine in
history
 Strengthened protections for whistleblowers
 Launched new inspection programs
 Focusing on high hazard, temporary workers,
and hospitals and healthcare
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45. OSHA – Workplace Violence
 In 2012, OSHA updated the Hazard
Communication Standard
 New label elements, new safety data
sheet format, and training requirements
that must be completed by December 1,
2013
 Go to website
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46. Immigration – Audits
 I-9 Audits experienced huge jump
– Multiplied over past decade
– 3 in 2004
– 500 in 2008
– 3,004 in 2012
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47. Courts: Handbooks
 January 2013, Utah Court of Appeals held
that pro se plaintiff had enough evidence to
move forward on his claim of breach of
contract – Tomlinson v. NCR
– At will statements in handbook were not solid
and did not clearly apply to all employees
– Handbooks included written warnings and
performance plan
– Claim that manual created an implied
contract
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48. Courts: FMLA
 March 2013, Tenth Circuit held employee
notifying employer of intent to take FMLA
leave is protected activity – Wehrley v.
American Family
 Adjustor hurt knee and back
 Couldn’t do roof inspections and was
terminated because essential duty
 Employee brought lawsuit for retaliation for
engaging in protected activity
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49. Courts: FMLA
 Employee has to show that
– He engaged in protected activity – in this
case notified employer of intent to take
FMLA leave
– He was subject to adverse action –
terminated
– Causal connection between notification
and termination
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50. Courts: Non-Solicitation
 January – Prepaid Legal v. Cahill (E.D.
Okla.) addressed new area of enforcing
non-solicitation agreements by trying to
stop social media posts
 Salesman left and went to competitor
 He made general posts on FB and Twitter
about his new company – went to many of
his previous sales force
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51. Courts: ADA
 September 2012, EEOC v. United Airlines
(7th Circuit)
– Held employer must reassign disabled
employee to vacant position if employee is
qualified and would not impose undue
hardship on employer
– Even if other employees are more qualified
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52. In the News
 Penn State
– Sexual abuse scandal
– Fired head coach Joe Paterno and University
President Graham Spanier based on
allegations that grad student saw assistant
coach assault boy and told officials
– Failed to report to police
– Negligent hiring and retention
– Addressing issues
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53.  Christina M. Jepson
direct: (801) 536.6820
cell: (801) 209.7805
email: cjepson@parsonsbehle.com
Thank You
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