Employment & Labor Seminar Presentation 2014 - Kansas City

© 2014 ArmstrongTeasdaleLLP© 2014 ArmstrongTeasdaleLLP
Dan O’Toole and Larry Tucker
Presented by
Employment &
Labor Law Update

© 2014 ArmstrongTeasdaleLLP
State ex rel. Sir v. Gateway Taxi Management Co.
400 S.W.3d 478 (Mo.App.2013)
 Plaintiff sued cab company for refusingto hire him as a taxi cab
driver because Plaintiff had suffereda stroke. Missouri
Commissionon Human Rightsfound in favor of Plaintiff and
awarded him damages.
 Cab company challenged Commission’sfindingsthat:
1. Taxi cab drivers are “employees”and not independent
contractors; and
2. Plaintiff was “disabled.”
 Drivers leased cabs from cab company but company paid insurance
and maintenance. Drivers kept all fares and tips and paid for gas
and cleaning cab.

Sir (cont.)
 The Missouri Human Rights Act does not define “employee.”
Cab company urged use of the 20 factor IRS test.
 Court applied dictionary definitions including “employ: to
provide with a job that pays wages or a salary or with a means
to earn a living.”
 Independent contractors typically are hired to perform a
“specific task, using their own tools, for a fixed sum and
without control except as to the result.”
 The MCHR’s conclusion that cab drivers are employees is
supported by competent and substantial evidence.

Sir (cont.)
 Court found that competent and substantial evidence
supported conclusion that Plaintiff is substantially limited in
major life activity of ambulation.
• Plaintiff was not required to show he was unable to perform
a broad range or class of jobs.
 The MHRA does not permit punitive damages in proceeding
before the MCHR. The MHRA permits “court” to award
punitive damages in a “civil action.”

State ex rel. Hollins v. Pritchett
395 S.W.3d 600 (Mo. App. 2013)
 Suit alleged that Beer, a Con-way Trucking manager whose
office was located in the City of St. Louis, persuaded a
manager in Poplar Bluff not to hire Plaintiff for a job in Poplar
Bluff because Plaintiff is a black female.
 Beer managed twelve (12) terminals in five states and was
out of the office about 75% of the time.
 Plaintiff alleged “upon information and belief” that Beer was
in his St. Louis office on at least one occasion when he
discouraged Plaintiff’s hiring.

Hollins (cont.)
 Plaintiff sued in the City of St. Louis but case was transferred
to Butler County at Defendant’s request based on improper
venue.
 Court of Appeals issues a writ of mandamus ordering the case
transferred back to the City of St. Louis.
 The record showed that Plaintiff had an honest and
objectively reasonable basis to believe that venue was
appropriate in the City of St. Louis.

Plengemeier v. Thermadyne Industries, Inc.
409 S.W.3d 395(Mo.App. 2013)
 Plengemeier resigned her employment on January 13, 2010
and on January 10, 2012 filed suit under the MHRA claiming
discriminatory pay, denial of promotion and failure to provide
a company car.
 The MHRA requires suit to be filed no later than two years
after the last discriminatory act. Trial court dismissed suit as
untimely.
 Court of Appeals reversed. Plengemeier’s suit was timely
under the continuing violation theory since the last act of
discrimination occurred within two years of the filing of suit.
Plengemeier’s last paycheck was dated January 22, 2010.

Farrow v. Saint Francis Medical Center
407 S.W.3d 579(Mo.banc 2013)
 Farrow given notice of discharge on December 10, 2008.
 Farrow filed a charge of sexual harassment and retaliation
with the MCHR on July 27, 2009 and thereafter files a lawsuit.
 MHRA requires charge of discrimination to be filed within 180
days of alleged discriminatory act.

Farrow (cont.)
 Circuit Court grants summary judgment against Farrow
because her claims are time-barred. Court of Appeals affirms.
 MCHR’s issuance of a notice of right to sue means that MCHR
found charge to be timely filed.
 Employer must challenge MCHR’s action in petition for
administrative review.
 Employer’s failure to file petition for administrative review
bars challenge to timeliness in action filed by employee.

Farrow (cont.)
 St. Francis claimed it was not an “employer” under the MHRA
and submitted letters from the MCHR in five prior charges
supporting this assertion.
 The MHRA defines “employer” to exclude “corporations and
associations owned and operated by religious or sectarian
groups.”
 Supreme Court finds that St. Francis does not satisfy the
exemption. St. Francis is a not-for-profit corporation and a
not-for-profit does not have any “owners.”

Farrow (cont.)
 Supreme Court dismisses public policy wrongful discharge
claim against doctor because he is not an employer.
 Supreme Court dismisses tortious interference claim against
doctor because doctor was Farrow’s supervisor acting on
behalf of the hospital. Tortious interference claim requires
third party.

Coyle v. City of St. Louis
408 S.W. 3d 281 (Mo.App. 2013)
 Coyle filed a denial of promotion claim under the MHRA after
he did not receive a promotion to Fire Chief.
 Coyle prevailed at trial but the Court denied (by failing to rule
on)Coyle’s motion to amend judgment to instate him as Fire
Chief or award him front pay.
 City did not dispute Coyle’s contention that the jury’s verdict
did not make him whole and conceded that limited front pay
should be awarded.

Coyle (cont.)
 Court of Appeals remands case so trial court can calculate
front pay and consider other equitable relief.
 Was it appropriate to concede that the judgment did not
make Coyle whole since it did not include a promotion or front
pay?
• Coyle only had to prove that race contributed to the denial
of promotion to prevail.
• A verdict in Coyle’s favor does not necessarily mean that he
would have been promoted.

State ex rel. Washington University v. Richardson
396 S.W.3d 387(Mo. App. 2013)
 Student sued University under the “public accommodation”
provisions of the MHRA alleging that she was sexually
harassed by her academic advisor and subjected to retaliation
after she complained.
 Circuit Court prohibited the MCHR from acting on student’s
complaint finding that the Master of Fine Arts program at
University was not a place of public accommodation.
 University was “open to the public” because term includes a
“subset of the public.”
 Doe v. Kansas City, Missouri School District, 372 S.W.3d 43
(Mo. App. 2012)

Hedrick v. Jay Wolfe Imports
404 S.W.3d 454 (Mo.App. 2013)
 Car dealership had policy requiring household members of
employees to either buy Honda from Wolfe or give Wolfe
chance to meet competitor’s price.
 Hedrick was discharged after his girlfriend bought a Honda
from a competitor. Hedrick then filed a wrongful discharge
lawsuit.
 Public policy must be expressed by constitutional provision,
statute or regulation.
 Court of Appeals affirms dismissal because Hedrick’s
discharge did not violate a clear mandate of public policy.

Clemmons v. Kansas City Chiefs Football Club, Inc.
397 S.W.3d 503 (Mo. App. 2013)
 Clemmons was fired after 38 years of employment and then sued for age
discrimination. Chiefs moved to compel arbitration based on agreement
Clemmons signed two years after he started working.
 Court must determine:
• Whether an arbitration contract exists;
• Whether the dispute is covered by the contract; and
• Whether the contract is subject to revocation under contract principles.
 Court of Appeals found the arbitration agreement invalid because there
was no consideration:
• No mutual promise to arbitrate;
• Continued at-will employment is not sufficient consideration.

Sniezek v. Kansas City Chiefs Football Club, Inc.
402 S.W.3d 580 (Mo. App. 2013)
 Sniezek was fired after 28 years of employment and then sued
for age discrimination. Chiefs moved to compel arbitration
based on an arbitration agreement Sniezek signed on her first
day of work.
 Court of Appeals found the arbitration agreement invalid
because there was no consideration.
 Employment-at-will relationship already existed at time
Sniezek signed arbitration agreement.

Johnson v. Vatterott Educational Centers, Inc.
410 S.W.3d 735(Mo.App. 2013)
 Plaintiff hired as Director of Admissions in June 2009.
 On March 15, 2010, Defendant gave Plaintiff an Employee
Handbook that contained a section titled “At Will
Employment and Binding Arbitration Agreement,” which was
signed by Plaintiff and Defendant’s HR director.
 Plaintiff was discharged and filed suit alleging racial
discrimination, harassment, and retaliation in violation of
the MHRA.
 The Circuit Court denied the motion to compel arbitration,
finding that the arbitration agreement was not enforceable.

Johnson (cont.)
 On appeal, the Missouri Court of Appeals affirmed.
 Although the arbitration agreement contained provisionsstating that it
was a binding and enforceable contract, other provisions of the handbook
made it clear that nothing in the handbook was contractual and that the
handbook could be changed at employer’s discretion.
 Additionally, the arbitration agreement was not executed by a
representative with authority to bind Defendant.
• The handbook explicitly stated that only Defendant’s President could
execute any “agreement . . . for employment other than at-will.”
• Other provisions indicated that “[n]o statement or promise by a
supervisor, manager, or department head . . . will constitute an
agreement with an employee.”

State ex rel. Hewitt v. Kerr
____ S.W.3d ____, 2013 WL 5725992
(Mo.App., Oct. 22, 2013)
 Arbitration agreement required disputes to be submitted to
the NFL Commissioner, who is elected by the NFL teams.
 Court finds the provision requiring disputes to be submitted
to Commissioner to be unconscionable.
 The Court strikes the provision from the contract and enforces
the remaining provisions of the arbitration agreement.

Central Trust and Investment Co. v. Kennedy
__ S.W.3d __, 2013 WL 268687 (Mo.App. 2013)
 Customer contact information is not a “trade secret” under
the Missouri Uniform Trade Secrets Act.
 The proper means of protecting customer contacts is a
noncompetition agreement.

JumboSack Corp. v. Buyck
407 S.W.3d 51(Mo.App. 2013)
 Buyck was a salesperson in 2003 at $70,000 plus a car
allowance and expenses. Six months later, Buyck signed a
non-compete agreement under threat of discharge.
 Non-compete said “Any changes in Employee’s compensation,
position or job…shall in no way void or otherwise affect the
remaining provisions of this Agreement.”

JumboSack (cont.)
 In 2005, Buyck’s salary changed to $57,000 plus 1.5%
commission. Later reduced to 1.25%.
 Buyck resigned when he learned of impending reduction to
$50,000 and a new policy requiring salespersons to repay
one-third of any unpaid invoice.
 Buyck joined competitor and was promptly sued for breach of
the non-compete agreement. Trial court granted summary
judgment for Buyck because of prior breach by employer and
lack of consideration.

JumboSack (cont.)
 Continued at-will employment, which provides continued
access to protectable assets and relationships, is sufficient
consideration to support non-compete agreement.
 Court recognizes prior breach doctrine as a defense but finds
that fact issues relating to the effect of compensation
changes precluded summary judgment.

Vance v. Ball State University
133 S.Ct. 2434 (2013)
 Cateringassistantsued for racial harassmentunder Title VII.
 Under Faragher/Ellerthdecisions,strict liability if supervisor
harassmentresultsin tangible employment action.
 Narroweddefinitionof “supervisor”for Title VII harassment
claims.
 Coworkerwho controlsemployee’sdaily activities but lacks
authorityto maketangibleemployment decisions(e.g., hire,
terminate,demote, promote,transfer,discipline) is not a
“supervisor.”
 If coworkerharassment,employer only liable if knew or should
have knownof harassmentand failed to take prompt remedial
action.

University of Texas Southwestern Medical Center v.
Nassar - 133 S.Ct. 2517 (2013)
 Increased burden of proof for retaliationclaims under Title VII and
similar statutes.
 Applied “but for” causationstandard rather than less demanding
“motivatingfactor.”
 Doctorof Middle Eastern descent complained about religiousand
ethnic discriminationby his supervisor at the University.
 Chair of Internal Medicine convinced hospitalnot to hire Dr. Nassar
based on prior agreementwith Universityregardingfaculty and to
punish him for discriminationcomplaintabout supervisor.
 Must showadverse action occurred because of protectedconduct
and no otherreason.

U.S. v. Windsor
133 S.Ct. 2675 (2013)
 Surviving spouse of same sex couple was denied spousal tax
deduction due to definitions of “spouse” and “marriage” in
the Defense of Marriage Act (DOMA).
 Definition of “marriage” as between one man and one woman
violates Equal Protection Clause of U.S. Constitution.
 Potential impact on application of FMLA which provides leave
for serious health condition of “spouse.”
 Consequences for other leave/benefit laws and plans.

Bennett v. Riceland Foods, Inc.
721 F.3d 546 (8th Cir. 2013)
 Two Caucasian maintenance workers complained to employer about
supervisor making racist comments about African-American workers.
 After minimal investigation, employer concluded complaints lacked
merit.
 Supervisor was angry about complaints.
 As part of cost cutting measure, supervisor proposed eliminating
complainants’ jobs.
 Two Caucasian employees sued claiming retaliation under Title VII and
Section 1981.
 Company liable under “cat’s paw” theory because althoughsupervisor
was not the ultimate decisionmaker, he influenced the decision.

Lucas v. Jerusalem Cafe, LLC
721 F.3d 927 (8th Cir. 2013)
 For three years six unauthorized aliens worked in a KC cafe.
 Some of the workers were paid less than minimum wage and
none received overtime pay.
 Workers sued the Cafe, its owner and manager for violating
the FLSA.
 FLSA applies to employers who illegally hire unauthorized
aliens and workers could recover lost wages, liquidated
damages and attorneys’ fees.

Wright v. St. Vincent Health System
730 F.3d 732 (8th Cir. 2013)
 Surgery tech received write ups for poor performance.
 Supervisor spokewith Human Resourcesabout terminating
employee.
 Next day employee complained about race discriminationand
harassment.
 Hospital terminatedemployee 48 minutesafter complaint.
 Tech sued hospital under Title VII allegingrace discriminationand
retaliation.
 Althoughtimingraised inference of retaliation,employer showed
that it had decided to dischargetech due to performance and
insubordinationbefore protectedactivity.

Dollar v. Smithway Motor Xpress, Inc.
710 F.3d 798 (8th Cir. 2013)
 Dollar worked for employer as a driver manager. Employer
threatened to reassign Dollar to a different position (driver
recruiter)because of attendance issues.
 Dollar was absent because of psychiatric issues but never
requested or was provided with FMLA leave. Employer
discharged Dollar before FMLA leave would have expired.
 Dollar admits she could not perform essential functions of
the “driver manager” job when FMLA would have expired but
claims she could have worked as a driver recruiter.

Dollar (cont.)
 Following FMLA verdict for Dollar, Employer claims that
Dollar’s admission she could not perform “driver manager
job” should have been dispositive. Employer notes that FMLA
does not impose a reasonable accommodation requirement.
 “While not a duty to provide reasonable accommodation, the
FMLA duty of restoration clearly and expressly broadens the
employer’s obligation beyond a narrow focus solely on the
actual position held by the employee before the onset of the
serious health condition and extends to equivalent
positions.”
 Verdict for Dollar affirmed but front pay award is reversed.

Owen v. Bristol Care, Inc.
702 F.3d 1050 (8th Cir. 2013)
 Nursing home administrator signed employment agreement
when hired that contained mandatory arbitration provision.
 Arbitration provision prohibited parties from arbitrating
class claims.
 Owen filed collective action on behalf of herself and other
administrators claiming they were improperly classified as
exempt under FLSA and denied overtime pay.
 Contrary to NLRB’s position, class action waivers are valid in
mandatory arbitration provision.

Knutson v. Schwan’s Home Service, Inc.
711 F.3d 911 (8th Cir. 2013)
 Location General Manager for frozen food delivery service
suffered eye injury.
 No longer DOT certified to drive delivery trucks.
 After termination, sued for violation of ADA.
 Driving delivery truck was an essential function of manager
job even though rarely performed.
 Relied on employer’s job description and offer letter which
required DOT certification to drive trucks.

Olsen v. Capital Region Medical Center
713 F.3d 1149 (8th Cir. 2013)
 Mammographytechnicianwith epilepsy sued for failure to
accommodateunder the ADA and MHRA.
 Employee had fourteen seizuresat worksome of which occurred
while attendingto patients.
 Hospital made numerouseffortsto provide accommodation
including redirectingsome patients, removingmold, reducing
brightnessand glare of lights and eliminatingscrolling from
computers,and providing three leaves of absence.
 Tech claimed needed intermittentleave to recover from seizures as
accommodation.
 Employee not qualifiedindividual with a disability because could
not safely operatesophisticatedmedical equipmentand interact
with patients.

 The court affirmed a grant of summary judgment in UPS’ favor
by Judge Julie Robinson in the District of Kansas. Judge
Robinson had found that plaintiff could not prove a prima
facie case of retaliation, and even if he could, that he could
not prove that his termination was in retaliation for his filing
a workers’ compensations claim.
 Employee was terminated for dishonesty by UPS in November
of 2009.
Macon v UPS, Decided February 19, 2014,
10th Circuit Court of Appeals

Macon (cont.)
 He filed a grievance and pursued it to a hearing before a two-
state panel made up of representatives of management and
the Teamsters’ union.
 The two-state panel unanimously agreed the termination was
appropriate.
 Macon sued claiming he had been terminated because he had
filed a workers’ compensation claim.

Macon (cont.)
 The workers’ compensation claim was filed fifteen months
before Macon was terminated.
 The court focused on whether Macon could prove that the non-
retaliatory reason for his termination was merely a pretext.
 Macon said the expressed reason for his termination was a
mere pretext because: (A) UPS had engaged in a pattern of
retaliatory conduct; (B) he was not, in fact, dishonest; and
(C) other similarly situated employees were not terminated
for the same offense.

Macon (cont.)
 The court disagreed with Macon’s first argument because he
disregarded the findings of the two-state panel. The fact that
the CBA in place put the ultimate decision about whether the
termination was appropriate in the hands of that panel was
found to be very significant in undercutting Macon’s claims
that his supervisors had singled him out for discipline after
he had filed his workers’ compensation claim.
 The court disagreed with Macon’ claims of personal honesty,
again measuring his claims against the work done by the two-
state panel. It concluded that the panel reasonably could
have concluded that he was dishonest and not as he argued,
just improperly trained.

Macon (cont.)
 Macon’s argument about how other employees were treated
was rejected as well by the court. Once again, the court gave
heavy weight to the existence and performance of what it
called an “independent grievance panel”. The court pointed
to other instances of discipline where the two-state panel
had not upheld UPS’ discipline against Macon as evidence
that the process was fair and not retaliatory.
 The court ignored the lack of temporal proximity between the
filing of the workers’ compensation claim and the alleged
retaliation.

Lykins v Certainteed Corporation, Decided
February 12, 2014, 10th Circuit Court of Appeals
(unpublished opinion)
 Plaintiff appealed the district court’s grant of summary
judgment on his claim of being discharged in retaliation for
reporting wrongdoing as a “whistleblower”.
 Mr. Lykins had reported to various supervisors at the plant
where he worked his concerns that he thought other
employees were handling and disposing of toxic waste
materials improperly.

Lykins (cont.)
 The employee said his bosses were not receptive to his
complaints. He never reported the alleged environmental law
violations to any governmental agency before he was
terminated.
 Lykins had been given an employee handbook with
information on how to make reports of known or suspected
company violations. He made no investigation into whether
the company was handling the waste products in accord with
the wastewater discharge permit it held.

Lykins (cont.)
 When Mr. Lykins got a poor work performance letter, he
refused to accept it or sign that he had received it. He told
plant management that he thought he was being retaliated
against with the letter and the threat that if he did not sign
the letter he would be terminated. After telling his story, he
was terminated.
 Mr. Lykins sued for retaliatory discharge. The employer and
an individual defendant moved for summary judgment and
the court granted the motions.

Lykins (cont.)
 In reviewing the trial court decision , the Court of Appeals
found that Kansas law requires a whistleblower to seek to
stop unlawful activity through intervention of a higher
authority which can be either inside or outside the place of
employment. Reporting the conduct to the alleged wrongdoer
alone was not sufficient to meet that requirement.
 The court held that a person seeking the protection of a
whistleblower must report alleged unlawful conduct either to
someone above the alleged wrongdoer or to an outside
authority. Mr. Lykins conceded he had not done either.

Lykins (cont.)
 Also supporting the court’s decision was the fact that Mr.
Lykins had been educated about the means by which he could
make reports of actual or suspected company misconduct by
being provided an employee handbook with this information
in it. Included in that handbook was a discussion of the
avenues an employee had for lodging a complaint including
the use of a “hot line” which would be accessed anonymously.
 The court held that Mr. Lykins was not entitled to the status
of a “whistleblower” and affirmed the trial court’s grant of
summary judgment.

Deboard v. Mercy Health System of Kansas,
Inc., Decided November 26, 2013, 10th
Circuit Court of Appeals
 The employee lost her suit against her former employer for
sexual harassment and retaliation in violation of Title VII.
The Court of Appeals affirmed the grant of summary judgment
in favor of her former employer.
 Ms. Deboard claimed that the employer knew or should have
known that her supervisor had created a hostile workplace
through unwanted touching and sexual remarks. She also
claimed that her employer did not do enough to prevent
sexual harassment in the workplace and that when she
reported the harassment, she claimed, she was fired in
retaliation.

Deboard (cont.)
 The conduct about which Ms. Deboard complained had started
some five years before her termination. She admitted that
she had never reported that conduct to her employer. Yet, she
said the employer knew or should have known it was going on
because other employees had experienced the same conduct.
 The conduct to which Ms. Deboard pointed had occurred eight
years before the employer received actual notice of her own
complaints. That earlier incident was not shown to be either
substantially similar or repeated in the intervening years.

Deboard (cont.)
 The first time the employer received notice that Ms. Deboard
was making a complaint is when it saw a Facebook posting by
Ms. Deboard which made indirect references to her supervisor
touching her improperly. When confronted by her employer
about the postings, she denied having authored them. Later
she admitted that she had written them.
 The employer demonstrated that once it had notice of Ms.
Deboard’s complaints it conducted a thorough and fair
investigation. During that investigation, Ms. Deboard said
she did not want to file a formal complaint against her
supervisor.

Deboard (cont.)
 Later, the employer determined that another complaint made
by Ms. Deboard that she had been overpaid in the past was
false. HR determined that Ms.Deboard was sending messages
to other employees accusing the employer of misconduct in
the investigation. It was determined that he messages had
disrupted the workday at the hospital. As a result, Ms.
Deboard was terminated.

Deboard (cont.)
 The court made a detailed analysis of whether the employer
had actual or constructive notice of the alleged sexual
harassment by Ms. Deboard’s supervisor. It determined that
Ms.Deboard had failed to meet her burden of showing that
notice. The court found that the employer had sound policies
in place seeking to prevent harassment and that Ms. Deboard
was well informed of them. The court also focused on the
prompt and effective response made by the employer when it
saw the Facebook posting.

Deboard (cont.)
 The court addressed the claim that Ms. Deboard had been
retaliated against by focusing on whether she was able to
show that the reason for her termination was a pretext. Ms.
Deboard did not dispute the grounds for her termination.
She conceded she had posted inflammatory messages on the
internet and had sent provocative messages to co-workers.
The court concluded that she failed to show the existence of a
pretext.

Deboard (cont.)
 One odd feature of the case is that the HR director’s
determination that Ms. Deboard had never been overpaid as
she had alleged, was determined after her termination to be
inaccurate. A more detailed search of pay records found
there had been at least one incident of overpayment.
However, the court determined that the HR director
reasonably believed that Ms. Deboard had lied about this
issue when she was terminated.

Deboard (cont.)
 Ms. Deboard attempted to argue that using Facebook to
report sexual harassment was a valid way to do that and that
as a result of the Kasten v Saint-Gobain Performance Plastics
Corp. case decided by the U. S. Supreme Court she could not
be fired for using that means of reporting. That case which
dealt with the anti-retaliation provision of the Fair Labor
Standards Act said that the provision extended to oral as well
as written reports of alleged misconduct. The 10th Circuit
distinguished that case because the employer for Mr. Deboard
had methods for making reports about which she knew, but
did not use.

Dickens v Creative Business Solutions, LLC,
(D. Kan 2013)
 Be careful what you say when you are asked to comment on an
applicant for a job.

Dickens (cont.)
 Ms. Dickens said she was not hired by the United Way because
an outside HR contractor, CBS, told United Way that it knew
Ms. Dickens and that there were “red flags” concerning her
and that she would not be a “good fit” for United Way.
 CBS was sued by Ms. Dickens claiming a violation of 42 USC
§1981 and tortious interference with her business
expectancy.

Dickens (cont.)
 CBS moved to dismiss the case and the District Court denied
that motion.
 Based on the face of the pleadings, the court found that Ms.
Dickens had stated a valid claim.
 The president of CBS which provided HR services to United
Way and also had provided it to a former employer of Ms.
Dickens, is alleged to have called United Way after it had
decided to hire Ms. Dickens. The offer to hire her was
withdrawn.

Dickens (cont.)
 CBS knew that Ms. Dickens had worked for Florence Crittenton
Services in Topeka. She knew that Ms. Dickens had omitted
that employment from the resume she provided United Way.
She also knew that Ms. Dickens had filed an administrative
charge against Crittenton and then sued for race and
disability discrimination. Ms. Dickens alleged that CBS had
used this information to cause United Way to reverse its
decision to hire her.
 The court found that Ms. Dickens had made the necessary
allegations to keep her case alive.

Dickens (cont.)
 The lesson: If asked for information about a former
employee, the better practice is to follow the advice of
providing only limited information such as; Dates of
employment; pay range; job description and duties and wage
history. Under Kansas statutory law, if a written request for
information is provided, additional information can be
provided under some limited circumstances. See, KSA 44-
119A, “Employer immunity from liability and suit for
disclosure of employment administration.”
 The best practice is to provide only very limited, truthful
information.

Contact
Dan O’Toole
dotoole@armstrongteasdale.com
314.621.5070
Larry Tucker
lrtucker@armstrongteasdale.com
816.221.3420

Employee Benefits Update
Jonathan W. Igoe
Presented by

Affordable Care Act
63

2010-2012 Key Provisions
 These changes apply whether or not a plan is grandfathered.
 Dependent coverage up to age 26
 No pre-existing condition exclusion for those under age 19
 Limitation on Flexible Spending Account (FSA) coverage for
over-the-counter medications
 Removal of lifetime and phase out of annual dollar limits for
essential health benefits
 Summary of Benefits and Coverage (SBC)
64

2013
 FSA deferral limit capped at $2,500 annually
 Exchange notice issued to employees
 Medicare payroll tax increased from 1.45% to 2.35% on
employee’s earned income above $250,000 (employee only
tax)
 New Medicare 3.8% tax on net investment income for
taxpayers with income above $250,000
65

Effective in 2014
 Waiting period in excess of 90 days once employee is eligible
to enroll is prohibited
 No pre-existing condition exclusion regardless of age
 Prohibition on annual limits on dollar value of coverage for
essential health benefits
 Automatic enrollment required for employers with more than
200 full-time employees (DELAYED)
66

Pay or Play Rules/Shared Responsibility
 Originally to be effective in 2014 but delayed one year to 2015
 Additionaldelays and transitionrules announcedearlier this
month
Individual Mandate
 Individual must have minimumessential coverageor pay shared
responsibilitypenalty
• Penalty in 2015:greater of 2% of incomeover filing threshold or
$325per adult ($975maximumfor family)
 No penalty if individual covered by employer-sponsoredgroup
health plan
 No penalty if individual covered by individual health insurance
policy throughExchange
67

Employer Mandate
 Applies on calendar-yearbasis
 Applies only to employers which employ on average 50 full-time
(“FT”) employees on business days during prior calendar year.
• Regulationsprovideformulafor convertingpart-time and
seasonal employeesto FT equivalents for determiningwhether
employer has 50 FT employees
 Employer avoids penaltyby offeringto
• At least 95% of FT employeesand dependents (not spouse)( but
see transition rules)
• Minimumessential coveragewhich has
• Minimumvalueand is
• Affordable for employee
− Employee’s share of cost of self-only coverage no greater than 9.5%
of employee’s household income
68

Action Items for Employer Shared
Responsibility Analysis
 Determining FT status
• 130 hours per month treated as 30 hours per week
• Actual hours worked vs. equivalency method
• Final regulations provide some additional clarity as to who is FT
 Determine measurement period for calculating FT status for ongoing
employees
• 3 to 12 months (note transition rules)
 Initial measurement period for calculating FT status for new employees
• Applies to new employees and variable hour and seasonal employees not
reasonably expected to work 30 hours per week
• Seasonal employees now defined to mean individuals who do not work
more than six months. (This definitionis different than the one used for
determining if an employer has at least 50 FTs.)69

Pay or Play Excise Tax for Employers
 No Coverage Penalty
• Imposed if employer does not offer minimum essential
coverage to 95% of FT employees and one such employee is
enrolled in an Exchange and entitled to a premium tax credit
• Penalty is $2,000 times number of FT employees excluding
first 30 employees
• Penalty indexed for inflation
• See transition rules
70

 Insufficient Plan Penalty
• Imposed if employer does offer minimum essential coverage
to FT employees, but such coverage lacks minimum value or
is not “affordable” or
• Imposed if employer offers minimum essential coverage to at
least 95% of FT employees, but one of excluded FT employees
obtains coverage through Exchange
• Penalty is $3,000 per FT employee who is covered by
Exchange and entitled to a premium tax credit
• Penalty is indexed for inflation
• See transition rules
71

Pay or Play/Shared Responsibility Planning
 Evaluate whether medical plan coverage will be offered or employer will
pay $2,000 penalty
 If medical plan coverage offered
• Confirm medical plan satisfies Minimum Essential Coverage
• Confirm medical plan is affordable and document employee contribution
does not exceed 9.5% of wages
• Document that 95% of FT employees and dependents offered coverage
with annual elections (see transition rules)
• Review employee census to determine who qualifies as FT employee (30
hours per week/130 hours per month)
• Keep plan documents updated to reflect pay or play provisions
• Implement tracking programs to monitor information for part-
time/seasonal employees
72

Transition Rules for 2015
 Potentialpenalties for employers which have at least 50 FT or FT
equivalentemployees but fewerthan 100 FT or FT equivalent
employees have been delayed for one year.
 To take advantageof the delay, employers have to provide a
certificationthat certain conditionshave been met.
 Employer may use a six consecutive monthperiod in 2014 to
determine if it has at least 50 or at least 100 FT or FT equivalent
employees for 2015.
 For larger employers, plan only has to be offered to 70% (instead of
95%) of FT employees for purposes of the no coverage($2,000)
penalty and the number of employees excluded for purposes of
calculating the penalty is raised from 30 to 80.
73

Transition Rules for 2015 (cont’d.)
 No delay or transitionrules for insufficientplan ($3,000) penalty
for larger employers.
 If a plan does not offer coverage to dependentsas required in order
to avoid penalties, it can still avoid thosepenalties in 2015 if it
takessteps this year to offer dependentcoverage for 2015.
 Certain non-calendaryear plans can wait to comply until the start
of their plan years in 2016
 Plan may use a six monthmeasurementperiod,for determiningFT
status,starting no later than July 1, 2014 and ending no earlier
than 90 days before the first day of the 2015 plan year and still use
a longer stability period in 2015 (such as 12 months).
74

Other Recently Announced Rules
 Rules spelled out for monthly measurement periods as an alternative to
look-back periods.
 No liability for assessable payments in first year an employer is subject to
the shared responsibility payment, if coverage is offered by April 1 of that
year so long as coverage has minimum value
 A former employee is treated as a new hire if not employed for at least 13
instead of 26 weeks (except for educational institutions)
 Certain employees may be excluded from being counted as FT employees
(e.g., volunteers, students on work-study programs)
 Rules address possible calculation of hours for certain types of employees
(e.g., airline employees and adjunct college professors) but still not yet
for others (commissioned sales people)
75

Employer Reporting
 If employer has more than 250 employees, employee’s2013 Form
W-2 must include cost of employer provided health care coverage
 If grandfatheredplan, must include statementon all benefits
communication
 UpdateCOBRA forms to reflect existence of Exchanges
 Significantreportingfor pay or play rules, voluntary for 2014,
mandatoryfor 2015
 Issue SBCs
 Expect final rules for reportingshortly
76

Same-Sex Marriage
77

Windsor Supreme Court decision
 Struck down portion of Defense of Marriage Act (DOMA)
which prohibited recognition of same-sex marriages under
Federal law
• Section 3 definitions of “marriage” and “spouse” are
unconstitutional
 Windsor does not require a state to recognize same-sex
marriages performed in other state, nor does it require a
state to permit same-sex marriages
78

Pre-Windsor
 Simpler for plan administrators
 For ERISA and IRC, same-sex couples not married regardless
of provisions of state law
79

Post-Windsor
 Many unanswered questions
• Should Windsor be applied retroactively?
• Does employer in Missouri have to recognize same-sex
marriage of employee who is validly married under the law
of another jurisdiction?
• Very fluid situations – lots of lower court decisions generally
favoring recognition of same-sexmarriages
80

 Current state of law
• IRS ruling (State of Celebration Rule): Same-sexcouples treated
as marriedunder IRC, so long as marriedin state which authorizes
same-sex marriage,even if couple is domiciledin state which does
not recognizesame-sex marriage
− Does not apply to domestic partnerships and civil unions
− Full retroactivity under IRC so long as statute of limitations
open
• Employers may cover legally married same-sex spousesunder
medical plan without taxation to employee
• Employeesmay receive tax-free reimbursement for expenses
incurredby same-sex spousesunder FSAs
• Same-sexspouses entitled to special enrollment rights under
HIPAA
• An increasing number of states by vote or decree recognize same-
sex marriage
81

 Current state of law (cont’d.)
• Same-sex spouses are legally entitled to qualified joint and
survivor annuity and pre-retirement survivor annuity under
qualified pension plans
• Same-sex spouses entitled to 100% of participant’s 401(k)
account upon participant’s death unless same-sex spouse
consents to another beneficiary
• Same-sex spouses may roll over distributions to their own
IRAs
• By Executive Order of Governor Nixon, Missouri will accept
jointly filed tax returns from same-sex couples legally
married in another state
82

Employer Decisions
 REVIEWDEFINITIONS OF “SPOUSE”IN ALL PLAN DOCUMENTS
 Will employer welfare benefit plans recognizesame-sexspouses?
• ERISA does not require same-sex coveragein a medical plan
 Awaitfurther guidanceconcerning retroactivity,especially survivor
annuity rights under ERISA
 When to amend retirementplan documentsrelating to definition of
spouse
 If prior to Windsoremployer was providing same-sexspousal
coverage, determinationwhetheremployer wants to claim
employment tax refunds on imputed income
83

Contact
Jonathan Igoe
jigoe@armstrongteasdale.com
314.621.5070
84

The National Labor Relations Board
and Department of Labor in 2014
It could be a very bumpy ride
John Vering
Presented by

Agenda
 National Labor Relations Board in 2014
• New Election Rules
• Continued emphasis on Handbooks at non-union workplaces
• Emphasis on duty to provide information to established
unions
 Department of Labor
• Already have new requirements for Federal Contractors
encouraging employment of veterans and the disabled under
Amended ADA
• Advice exemption to Persuader Reporting likely being
eliminated

National Labor Relations Board
 Fully constituted and senate confirmed Board and General
Counsel.
 The Supreme Court might order the new Board to revisit
decisions of the previous Recess Appointed Board.
 While the Board rules on cases and can make new law, the
General Counsel decides what cases to litigate and what new
areas of the law to pursue and bring to the Board.
 The GC has stated a number of priorities:

NLRB General Counsel Agenda
 A Union’s Right to Financial Information of Privately held
companies
 Aggressive use of 10(j) injunctions
 Aggressive use of investigative subpoenas
 First contract bargaining cases
 Social Media
 Handbooks
 Arbitration Agreements – class waivers

NLRB Agenda
 New Election Procedures
• First proposedJune 2011and went into effect in April 2012.
• Stayed pendinglegal action in the D.C. Circuit.
• Boardvoluntarily dismissedits appeal on December 9, 2013.
• The newly confirmedBoardreissued on February6, 2014without
an issue over whether the Boardhas a lawful quorum.
 Notice of Employee Rightsunder the NLRA
• On January 7th the Board announcedit will not proceed with
requiringemployersto post but is keepingit available if employers
or employeeswant to post it.
• Federal contractors are still requiredto post pursuant to Executive
Order of the President.

New Proposed Election Rules
Current Rules New Rules
Initial hearing 7-14 days from
filing of petition for election.
Presume 7 days. More difficult
to get a postponement.
Most voter eligibility issues
could be eliminated prior to
the election at hearing.
Only issuesthat relate to
whether a QCR exists.
Presume post-hearingbriefs. Post-hearing briefs only upon
request.
Presume election 42-days after
petition (if no hearing).
Presume election 7-14 days
after petition.
Request for Review of decision
allowed.
Requestsfor Review only
granted in extraordinary
circumstances.
Post election appeal a right. Post election appeal at Board
discretion.

Why is 42 Days Versus 10 Days Important
Petition filed (1) (2)
Letter to
homes about
petition
(3) (4)
Letter to
home with
election
details
(5) (6)
(7)
What is a
union?
(8)
Posting 1
Constitution
(9) (10)
Posting 2 financials
(11) (12)
Posting 3– Oath of loyalty
Speech #1; letter to homes #3
(13)
(14)
Dues
(15)
Posting 4
Dues calculation
(16) (17)
Posting 5
What could you
buy?
(18) (19)
Posting 6
Dues vs. 401(k)
Speech #2; Letter to homes #4
(20)
(21)
Collective
Bargaining
(22)
Posting 7
CB defined
(23) (24)
Posting 8
Could losein
bargaining
(25) (26)
Posting 9
Union Security/Dues checkoff
Speech #3; letter to homes #5
(27)
(28)
Strikes
(29)
Posting 10
What is a strike?
(30) (31)
Posting 11
History of union
strikes
(32) (33)
Posting 12 – permanent
replacements; Speech 4; letter
to homes #6
(34)
(35)
We are a
good
employer
(36)
Posting 13 –
reminder of good
benefits and pay
(37)
25th Hour
Speech – final
letter to
homes
(38)
25th Hour Speech
(39)
NO CAMPAIGN
MEETINGS
(40)
ELECTION
(41)

Micro Units
 A result of the NLRB decision in Specialty Healthcare.
• So long as the petitioned for unit consists of a readily
identifiable group of employees the Board will presume it is
appropriate.
• Why do we care?
− Smaller units are easier to organize,easier to organizequietly
and quickerto organize.
− The standard coupled with the new election rules virtually
eliminates any chance at a hearing to get a delay.

Continued Focus on Non-Union Employers
 Non-union employees still have the right to engage in
protected concerted activity and the Board wants that group to
know it.
• Talk about their benefits, pay, bonuses, supervisors,
bosses, etc.
• Talk about those issues to the media, on social media, etc.
• Talk about those issues using your company e-mail.

Why the Focus on Non-Union employees
and election issues?

How the DOL intends to Help
Create a U-Turn
 By all but eliminating the advice exemption to the “persuader
rule”
 What is the “persuader rule”?
• Under the Labor ManagementReporting and Disclosure Act
(LMRDA) both employers and labor consultants are required
to report financial arrangements and payments between
each other for either direct or indirect persuader activities.
• Examples – flyers, speeches, letters to the home etc.
• If a lawyer provided advice about how to lawfully
communicate in compliance with the NLRA than the “advice
exemption”provided that no reporting was required.

What Is DOL Changing?
 Under the proposed rule a report will be required if the
activity will result in indirect persuader activity or direct
persuader activity regardless of whether it is also advice.
 What does the DOL consider reportable activity?

Examples of Reportable Activity
Persuader activities: Any activity to be performed where the
object thereof is to directly or indirectly persuade employees
concerning their rights to organize or bargain collectively through
representatives of their own choosing, or the right to engage in
any protected concerted activity in the workplace.

Examples Continued
 Drafting, revising, or providing written materials for
presentation, dissemination, or distribution.
 Drafting, revising, or providing a speech for presentation to
employees.
 Drafting, revising, or providing audiovisual or multi-media
presentations for presentation, dissemination, or
distribution to employees.
 Drafting, revising, or providing website content
for employees.

Examples Continued
 Planning or conducting individual or group employee
meetings.
 Developing or administering employee attitude surveys
concerning union awareness, sympathy, or proneness.
 Training supervisors or employer representatives to conduct
individual or group employee meetings.
 Coordinating or directing the activities of supervisors or
employer representatives.
 Establishing or facilitating employee committees.

Examples Continued
 Developing personnel policies or practices.
• Solicitationand distributionpolicies
• Bulletin board
• Access
• Social media
• Workplace investigations
• Confidentiality
• Pay and benefits
• Pro-employee/opendoor philosophy
• Alternative disputemechanism

Examples Continued
 Deciding which employees to target for persuader activity.
 Conducting a seminar for supervisors or employer
representatives.

Why should I care?
 The President and Treasurer of your organization are
personally responsible for ensuring the report is filed and
filed accurately.
 Those individuals face federal criminal penalties for failing to
do so as well as civil penalties.

What Needs to Be Reported by Employers
 The nature of the relationship
 Dates entered into
 Money paid and for what services
 Who performed the services

What Will Law Firms Have to Report
 Not only the receipts from clients for reportable services but
all receipts from any client that we performed reportable
activities for.
 All cash disbursements to employees of the firm.

Why Would DOL Do This?
 Remember that graph?
 The hope must be that companies will not want to disclose
how much they spend on their lawyers so they might opt to
“go it alone” and see what happens.
 By going it alone the unions hope companies will be either
too afraid of violating the NLRA to say anything or not aware
of what all they actually can say.

Remember it is the Department of LABOR
 Labor wants more members.
 Labor has been losing membership at staggering rates.
 Labor can’t win the battle as the rules are currently set and is
hoping a combination of changes will tilt the odds in their
favor.

Persuader Rule Conclusion
 The final rule was due at the end of November but has been
pushed back to March of 2014.
 We expect legal challenges that will hopefully stay the
implementation or enforcement.
 The ABA submitted a strongly worded comment in opposition
to the proposed rule as eviscerating the attorney-client
privilege.
 We are hoping for a final version that keeps in place the
advice exemption for Attorneys but not Labor Consultants as
President Clinton attempted to put in place.

Other DOL Initiatives
 OSHA
• Infectious Disease Standards
− At the pre-rule stage and designedto develop regulationsto
reduce the risk of worker exposureto infectious diseases,
particularly in healthcare settings.
• Injury and Illness Prevention Program
− By September2014OSHA plans to issue a proposedrule
requiringemployersto implementan Injury and Illness
Prevention Program.

Other DOL Continued
 Electronic Recordkeeping
• Recently issued proposed rule would require employers to electronically
file certain injuryand illness data and make it publicly available.
Comment period expired Feb. 6, 2014.
 Whistleblower Protection
• Expecting final rules establishing procedures for filing whistleblower
complaints under: the AffordableCare act of 2010; Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2010; National Transit
Systems Security Act; Surface Transportation Assistance Act; Federal
Railroad Safety Act; Consumer Financial Protection Act; Seaman’s
Protection Act; FDA Food Safety Modernization Act; and the Moving
Ahead for Progress in the 21st Century Act.

Other DOL Continued
 Other Safety Standards
• Comment periodon proposedrule on occupationalexposureto
crystalline silica expired December2013.
• Occupationalexposureto berylliumand combustibledust.
 Office of Federal ContractorAffirmativeAction Requirements
• By April 2014we expect to see another OFCCPrule specifically for
the constructionindustry updatinggoals based on more recent
data as the current goals are based on data from the 1970’s.
• By May 2014OFCCPplans to issue proposedrules revising sex
discriminationguidelinesfor federal contractors and
subcontractors.

Other DOL Continued
 Wage and Hour Division
• By March 2014 we expect WHD to issue a revised definition of
spouse under the FMLA consistent with the Supreme Court
decision in United States v. Windsor.
• We expect WHD to move forward with an initiative requiring
employers to affirmatively inform employees of their status
as either an employee or independent contractor and the
basis for how their pay is computed.

Contact
John Vering
jvering@armstrongteasdale.com
816.221.3420

Employer Liability for
Distracted Driving
Shelley I. Ericsson
Presented by

The Problem - Overview
 Distracted driving is a serious problem
• Attributable for 28% of all U.S. crashesannually
− This equals 1.6 million crashes, causing 636,000 injuries and 10,000 deaths
annually
− At least 170,000 crashes annually are directly attributable to the texting while
driving
− Studies show that talking on the phone while driving carries the same risk as
driving with a .08 blood-alcohol level
National Safety Council,“Summary of Attributable Risk Estimate Model”; Human Factors; The Journal
of the Human Factors and Ergonomics Society, 2006(Summer), 381-391.

The Problem – Overview
 According to the National Highway Traffic Safety
Administration (NHTSA):
• 80% of crashes caused by driver inattention
• Biggestsources of inattention is cell phone use
• Most drivers think they are more skilled than other drivers when it
comes to multitasking while driving
• Drivers distracted by mobile devices 4x more likely to have
accident
• More and more instinctive and second nature to immediately
respondto incomingtext or email immediately
U.S. Dept. of Transp., “Statistics and Facts about Distracted
Driving”

What are the Costs to Employers?
 Any business for which employees use cell phones while
driving faces liabilities in the form of financial losses
• Legal judgments
• Increased insurance premiums
• Workers’ compensation claims
• Fines and repair costs
 NHSTA estimates that on-the-job accidents cost employers
over $24,500 per crash, $128,000 per injury, and $3.8 million
per fatality
NHSTA, “The Economic Burdenof Traffic Crasheson Employers”

Basis for Employer Liability from Employee-
Caused Accidents
 There are a variety of differentlegal theoriesunder which the
employer may be found liable for the actions of an employee:
• RespondeatSuperiorLiability
• Negligent Hiring,Retention and Supervision
• Negligent Entrustment
 OSHA implications:
• OSHA Asst. Sec. of Labor publicly announcedto employers “It is
your responsibilityand obligationto have a clear, unequivocaland
enforced policyagainst texting while driving. . . “
General Duty Clause, Section 5(a)(1) will be deemed violated if work is structured in a way
that requires employee texting.

Hoskins v. King
676 F.Supp.2d 441 (S.C.D.C. 2009)
 Sharon King serviced medical equipment for Siemens Medical
Solutions and was issued a company car and cell phone.
 King was on vacation when she ran over and killed Thomas
Hoskins, who was cycling.
 At the time of the accident, King was talking on her cell
phone and tending to her two dogs.
 Hoskins’ widow sued Siemens under the respondeat superior
and negligent supervision theories and sued King for
negligence.

Respondeat Superior Liability
 Respondeat Superior Liability “holds the master liable for the
acts of his servant.”
 To establish liability for the master, the injured party must
show that the servant was acting within the course and scope
of the master’s business.

Negligent Supervision
 A master may be liable for negligent supervision, even for
acts outside the scope of employment, if the master knows or
should have known that employing a specific servant created
an undue risk of harm to the public.
 An injured party may claim that the master acted negligently
in entrusting his servant with a tool that created an undue
risk of harm.

Negligence
 Negligence requires proof of
1. A duty to a Plaintiff;
2. A breach of the duty by a negligent act or omission;
3. Proximate causation, and;
4. An injury or damages.
 Punitive damages are available if there is clear and
convincing evidence that a Defendant’s conduct was willful,
wanton, or in reckless disregard of a victim’s rights.

 King was on vacation returning from her wedding reception.
 King had removed all of her work equipment from the car
prior to her vacation.
 King was talking with her best friend.
The court found that Siemens was not responsible for Hoskins’
death because King was not acting in the course and scope of
her employment.

 What if King had been talking to her boss or to a customer?
 What if King had been driving to a work assignment?

Negligent Supervision
 Hoskins was killed in October 2007.
 King had received speeding tickets in March 2005 and March
2007 but had no points on her license when hired.
 King rear-ended another car in January 2007 during working
hours. She may have been on her cell phone.
 King was not speeding when the accident occurred.

Hoskins v. King (cont.)
 The court found that King’s past conduct did not rise to a level
that Siemen’s was on notice that King presented an
unreasonable risk of harm to the public.
 What if King had been involved in two prior accidents while
talking on her phone?
 What if King had been speeding?

Negligence and Punitive Damages
 King was talking on the phone, attending to her dogs and
adjusting the radio in the minutes before the accident.
 The court found that King’s conduct was clearly indicative of
negligence.
 The court also found that the evidence was sufficient to
justify an award of punitive damages against King.

Hunter v. Modern Continental Construction Co.
287 Ga. App. 689 (2007)
 Stasium was a shift supervisor for Modern who was involved
in an accident with Hunter while Stasium was on his way to
work.
 Stasium had called a co-worker around the time of the
accident. The co-worker called Stasium back around the same
time but Stasium did not answer.
 Stasium had given his cell phone number to all his co-workers
so he could be contacted regarding company business.

Hunter (cont.)
 The evidence was sufficient to create a factual issue
regarding respondeat superior liability.
 Stasium could have been using the phone or distracted by the
unanswered call.
 What if Stasium had not been using his phone on the way to
work?

Montgomery v. State
369 S.W.3d 188 (Tex. Crim. App. 2012)
 Montgomery hung up from a cell phone call and realized that
she had just passed her exit.
 Montgomery was driving slowly and abruptly changed lanes.
A faster moving truck swerved to avoid Montgomery.
 The truck clipped Montgomery’s car and Montgomery then hit
Terrell Housley’s pickup truck.
 Housely’s pickup flipped and ejected the passenger Chance
Wilcox. Wilcox died as a result of a broken neck.

Montgomery (cont.)
 Montgomery was convicted of criminally negligent homicide
and sentenced to 10 years imprisonment and a $10,000 fine.

What’s an Employer to Do?
Preventative Measures

Management Recognition of the Concern
Recognize and deal with the barriers
• Lack of employee support
• Competing job priorities
• Lack of managementcommitment

Development of a Distracted Driving Policy
 There are many examples available
• Industry Groups
• Insurance Companies
• Government Sources
• The Web
 There is no one set formula
 Feel free to modify one to reflect your culture
 Modify policy to reflect the formatting of your current policies

Build Employee Support and Buy-In
 Acknowledge the culture change
 Make practical suggestions
• Plan trips so that calls are unnecessary
• Don’t schedule conference calls during travel times
• Change voicemail greetings
• Pull over for calls

Document Compliance
 Get acknowledgments
 Consider “pledge forms”
TAKE THE PLEDGE
The fight to end distracted driving starts with you. Make the commitment to drive phone-free today.
Distracted driving kills and injures thousands of people each year. I pledge to:
 Protect lives by never texting or talking on the phone while driving.
 Be a good passenger and speak out if the driver in my car is distracted.
 Encourage my friends and family to drive phone-free.
SIGNATURE: _____________________________________________________________
DATE: ___________________________________________________________________

Re-enforce the Policy
 Have a thank you message delivered a month or two after
implementation
 Include the message from time to time in employee
communications
 Do scary public service pieces from time to time

Chatman v. Coca-Cola (TX) 2012
Jury Awarded $24 million
 A Texas jury awarded $24 million ($10 million in punitive
damages and $14 million in actual damage) to a woman who
was injured by a Coca-Cola driver talking on her cell phone.
 The suit claimed that the victim had to undergo lumbar
surgery after the Coca-Cola vehicle hit her car.
 Court held that even though Coca-Cola had policy in place,
that policy alone was insufficient as a defense and Coca-Cola
was negligent

Policy Alone Does Not Absolve
Employers of Liability
 Many companies already have policies in place banning cell
phone use
 Few, if any, have procedures in place to enforce policies
 To avoid or reduce employer liability:
• Policy in place
• Disseminate/train employees
• Monitor/Enforce Compliance
• Practice what you preach

Questions?

Contact
Shelley I. Ericsson
sericsson@armstrongteasdale.com
816.221.3420

The EEOC’s Strategic Enforcement Plan:
How the EEOC’s National Enforcement Priorities
May Impact Your Business
Dione C. Greene
Presented by

Government Shutdown

EEOC’s 2013 Results – Employers Paid Record
Amounts in Settlements
 The EEOC’s administrative division raked in $327.1 million in
voluntary payments from private sector employers in FY 2013
 FY 2013’s voluntary payments are highest in EEOC’s history
 Of the settlements reported in 2013, 63 involved allegations
of systemic discrimination and accounted for approximately
$40 million in payments.

EEOC Strategic Enforcement Plan
 Combat employment discrimination through strategic law
enforcement
 Prevent employment discrimination by education and
outreach
 Deliver service through a skilled and diverse workforce and
effective systems

The EEOC’s Strategic Enforcement Plan (“SEP”):
6 National Enforcement Priorities
1. Eliminating barriers in recruitment and hiring
2. Protecting immigrant, migrant and other vulnerable
workers
3. Addressing emerging and developing employment
discrimination issues
4. Enforcing equal pay laws
5. Preserving access to the legal system
6. Preventing harassment through systemic enforcement and
targeted outreach

Today’s Agenda
 Today we’ll focus on:
• Eliminating Barriers in Recruitment and Hiring
• Addressing Emerging & Developing Issues
• Employer Best Practices

Eliminating Barriers in Recruitment & Hiring
 Racial, ethnic, and religious groups, older workers, women
and people with disabilities continue to confront
discriminatory policies and practices at the recruitment and
hiring stages.
 In order to remove “barriers” to recruiting and hiring, the
EEOC will target:
• class-basedintentional hiring discrimination; and
• facially neutral recruiting and hiring practices that adversely
impact particular groups.

Eliminating Barriers in Recruitment & Hiring
(cont.)
 Policies and Practices Under Heightened Scrutiny:
• The channeling/steeringof individuals into specific jobs due
to their status in a particular group
• Restrictive application processes
• The use of screening tools (e.g. pre-employment tests, post-
offer tests, background checks)

Substantial 2013 EEOC Verdicts & Settlements
 $920,000 Settlement – EEOC v. Sedona Group
• The EEOC alleged that this staffing company engaged in a
pattern and practice of classifying and failing to refer job
applicants based on their race, color, sex, national origin,
age or disability.
 $900,000 Settlement – EEOC v. It’s Just Lunch USA, LLC
• The EEOC alleged that the company refused to hire men as
dating directors and sales representatives

Substantial 2013 EEOC Verdicts & Settlements
 $700,000 Settlement – EEOC v. Presrite Corp.
• The EEOC alleged that the company engagedin a pattern of
refusing to hire women for metal forging jobs
 Employer Wins Dismissal of EEOC’s Lawsuit – EEOC v. Freeman
Companies
• A District Court held the EEOC’s evidence was unreliable and
that the EEOC failed to show the employer’s background
check policies created a disparate impact in violation of Title
VII

Best Practices for Employers:
Job Applications & Postings
 Review your job postings and advertisements
 Recruit in a way that grants access to a cross section of the
protected classes
 Be vigilant in how you distribute job applications – train your
hiring personnel that they cannot refuse to give employment
applications to people based on stereotypes and assumptions

Pre-Employment Tests
 If you require job applicants take a test, the test must be
necessary and related to the job.
 Remember that you may not use a test that excludes workers
age 40 or older if the test is not based on a reasonable factor
other than age.

Credit Checks
 Credit Checks - Avoid inquiries into an applicant’s credit
rating, assets or liabilities, including bankruptcy filings or
garnishments – these inquiries tend to impact more adversely
on minorities and females. Exceptions exist if the employer
can show that such information is essential to the job in
question.

Best Practices for Employers: Criminal
Background Checks
 Criminal Background Checks – Avoid disqualifying applicants
simply because she has an arrest or conviction. Remember
your background check “checklist”:
• Analyze convictions – not arrests
• Business Necessity
− Consider:
• The nature of the offense
• The amount of time that passed
• The nature of the job sought

Addressing Emerging & Developing Issues
 In order to prevent new and emerging discriminatory
practices, the EEOC will monitor recent legislation, judicial
and administrative interpretations, significant events, and it
will facilitate early compliance with the law.

Addressing Emerging & Developing Issues
(cont.)
 What areas of the law are believed to be emerging
employment issues?
• Certain ADA issues, including: expanding ADA coverage,
monitoring the provision of reasonable accommodations,
strict leave policies, qualification standards, undue hardship
and direct threat.
• Accommodating pregnancy-related limitations under the
ADAAA and the PDA
• Coverage of lesbian, gay, bisexual and transgender
individuals under Title VII’s sex discrimination provisions, as
they may apply

Addressing Emerging & Developing Issues:
Drug and Alcohol Testing
 The EEOC contends that a company’s random alcohol testing of
probationary employees violates the ADA’s medical testing
provisions, arguing that a company is permitted to
administer alcohol testing only when it has “a genuine and
reasonable belief based on objective evidence that an
employee is impaired by alcohol.”
 Section 102(d) of Title I of the ADA prohibits employers from
using medical testing or making inquiries as to whether an
employee is disabled, or as to the severity of the disability,
“unless such examination or inquiry is shown to be job-
related and consistent with business necessity.”

The EEOC has challenged allegedly discriminatory
tests and qualification standards.
 The EEOC has scrutinized employers’ use of personality tests
in hiring on the theory that such tests “tend to screen out”
those who suffer from certain disabilities.

Unpaid Leave as a Reasonable Accommodation
 In EEOC v. Verizon the EEOC argued that Verizon’s attendance
policy violated the ADA because it allegedly disciplined
employees for absences including those related to a
disability. In the EEOC’s words, this policy amounted to a “no
fault” leave policy
 Similarly, in EEOC v. Denny’s, Inc., the EEOC sued Denny’s for
enforcing a six-month maximum medical leave policy.
 The EEOC currently concedes that employers need not grant
requests for indefinite leave.

Unpaid Leave as a Reasonable Accommodation
 In EEOC v. Interstate DistributorCo., the EEOC brought suit on
behalf of hundreds of Interstate employees, alleging that the
company denied them reasonable accommodations and then
fired them pursuant to its unlawful maximum leave policy.
 The EEOC claimed that the employer violated the ADA because
it allegedly terminated its employees if they requested more
than 12 weeks of leave instead of attempting to determine
whether it would be reasonable to provide additional leave as
an accommodation.

Addressing Emerging& Developing Issues:
EEOC’s Guidance on CaregivingResponsibilities
Reflects An IncreasinglyAggressivePosition
 In 2007, the EEOC issued enforcement guidance entitled
“Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities”
 “Although the federal EEO laws do not prohibit discrimination
against caregivers per se,” it states that “there are
circumstances in which discrimination against caregivers
might constitute unlawful disparate treatment.”

 In 2009, the EEOC issued its “Employer Best Practices for
Workers with Caregiving Responsibilities.”
 The Caregiving Best Practices acknowledges that it is
providing examples of practices that “go beyond federal
nondiscrimination requirements and that are designed to
remove barriers to equal employment opportunity.”

 The Commission hosted a public hearing on February 15, 2012
about “Unlawful Discrimination Against Pregnant Workers
and Workers with Caregiving Responsibilities.”

 In EEOC v. CTI Global Solutions, in which the EEOC complained that CTI
fired three female employees because of their pregnancies. Allegedly, CTI’s
CFO told one of the employees that her job would be a “risk” for her
because of her pregnancy (and she could not submit medical
documentation evincing otherwise); a manager told another employee
that her job would be unsafe for her while pregnant; and another manager
told the third employee that, based on “past experiences,” it “would not
be fair” for her to keep her assignment.
 The court granted summary judgment for the EEOC on two of the women’s
claims because there was direct evidence of discrimination

Addressing Emerging and Developing Issues:
Emerging ADA & GINA Issues
 EEOC v. Fabricut – The EEOC’s first lawsuit alleging genetic
discrimination under GINA
• The EEOC alleged the fabric distributor violated GINA and the
ADA by unlawfully asking a job applicant for her family
medical history in a pre-employment, post-job offer medical
examination. The EEOC alleged further that the offer was
rescinded based on the belief that the employee had carpal
tunnel syndrome.

Addressing Emerging and Developing Issues:
Emerging LGBT Issues
 Macy v. Department of Justice
 Complainant is a transgender woman
 The EEOC held that claims of discrimination based on
transgender status, also referred to as claims of
discrimination based on gender identity, are cognizable
under Title VII’s sex discrimination prohibition and therefore
may be processed under EEOC’s federal sector and EEO
complaints process.

Employer Best Practices
 Be aware of your legal obligations under the ADA, ADAAA and
PDA;
 Train managers and staff that will encounter these issues;
 Develop, disseminate and enforce a strong EEO policy.

Contact
Dione C. Greene
dgreene@armstrongteasdale.com
816.221.3420

General Question & Answer Period
 For the remainder of the morning, questions will be taken
regarding any employment law topic.

Employment & Labor Seminar Presentation 2014 - Kansas City

Recomendados

Recomendados

Más contenido relacionado

Destacado

Destacado (13)

Similar a Employment & Labor Seminar Presentation 2014 - Kansas City

Similar a Employment & Labor Seminar Presentation 2014 - Kansas City (20)

Más de Armstrong Teasdale

Más de Armstrong Teasdale (20)

Último

Último (20)

Employment & Labor Seminar Presentation 2014 - Kansas City