Labor and Employment Law 2015

1. 2015 Labor & Employment Law Update April 23, 2015 Presented by: Alexis C. Knapp SPHR, MS-‐HRM, JD Shareholder, Li4ler Mendelson

2. Plans for Today •  Goals for this webinar •  Agenda •  Agency Update •  EEOC Strategic IniFaFves •  Medical Issues in the Workplace •  Wage and Hour Developments •  The NLRB in Your Workplace •  Social Media Challenges •  Unemployment •  Reminders and Next Steps

3. Agency Update Same Song, Diﬀerent Verse? •  EEOC, DOL and other federal agencies have bigger budgets and more invesFgators than ever before •  Their tacFcs are more aggressive •  InformaFonal campaigns to employees •  LoQy enforcement agendas

4. EEOC FY 2014 Charge AllegaJons Basis of Charge Filing FY 2006 FY 2008 FY 2014 RETALIATION 22,555 32,690 37,955 RACE 27,238 33,937 31,073 SEX/GENDER 23,247 28,372 26,027 AGE 16,548 24,582 20,588 DISABILITY 15,575 19,453 25,369 NATIONAL ORIGIN 8,327 10,601 9,579 RELIGION 2,541 3,273 3,549 TOTAL CHARGES 75,768 95,402 88,778

5. EEOC Strategic IniJaJves & Noteworthy LiJgaJon

6. EEOC Strategic Enforcement Agenda (2013-‐2016) •  Pregnancy AccommodaJon Guidance •  Health and Wellness Programs •  Background Checks •  ProtecJons for Transgender Employees •  Severance Agreements

7. EEOC Enforcement Guidance on Pregnancy DiscriminaJon and Related Issues (7/14/14) •  http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm •  The “Rules” •  The PDA requires accommodations for pregnant women, regardless of the severity of their pregnancy-related work limitations, if the types of accommodations are provided to other employees with similar abilities or inabilities to work. •  The ADA requires accommodation of pregnancy-related disabilities, regardless of their relationship to a healthy and routine pregnancy. •  Employers may not differentiate between those employees who are injured on the job, and those who are pregnant, in providing accommodations such as light duty.

8. Young v. UPS The United States Supreme Court Speaks •  What we wanted versus what we got •  Why the facts of Young complicate the answer •  What the Court said about the EEOC’s Guidance •  Commingling disparate treatment (intent) and disparate impact (effects)? •  Mooted by the ADAAA? •  What does “light duty” mean to your organization? •  Where do we go from here? •  And do not forget the EEOC’s current enforcement position—it will be the subject of litigation.

9. EEOC TargeJng Wellness Programs Under ADA and GINA •  ADA prohibits “medical exams and disability-‐related inquiries” of employees as part of health plan unless parFcipaFon is voluntary. •  GINA restricts employers from requiring geneFc informaFon and prohibits employers from using geneFc informaFon to make employment decisions. •  EEOC has sued three employers over their wellness programs since August 2014. •  But what about the ACA and HIPAA, which allow (and encourage) such incenFves?

10. EEOC Issues Proposed RegulaJons on Wellness Programs and the ADA •  Thursday, April 16, 2015—EEOC issues its proposed rule (60 day noFce and comment period) •  To shed light on how employers can use incenFves to encourage employees to parFcipate in wellness programs without violaFng the ADA •  Proposing a hard numerical cap •  Employers cannot use informaFon obtained to discriminate based on disability

11. Criminal Background Checks •  SubstanJve •  Disparate impact •  Aggressive enforcement by the EEOC •  Individualized analysis •  Relevant factors •  No blanket policies •  Other state law issues •  Procedural •  Fair Credit ReporFng Act (FCRA) •  FTC enforcement •  IniFal disclosure/authorizaFon, pre-‐adverse, adverse noFces •  Class acFon liFgaFon—frequent mulF-‐million dollar lawsuits ﬁled against employers

12. “Ban the Box” LegislaJon •  Prohibits consideraFon of criminal convicFon as iniFal screening tool on applicaFon •  Rules vary widely, depending on jurisdicFon – expanding trend •  Public v. private employers •  ...And there are not as many excepFons as you would think

13. EEOC Focus on Transgender Employees •  The EEOC filed two lawsuits alleging that transgender employees had been fired in violaFon of Title VII •  First suits in history challenging transgender discriminaFon under Title VII •  Consistent with EEOC’s posiFon that gender idenFty is included in the definiFon of sex under the law •  Lawsuits allege that employees were fired for failing to conform with employer’s expected gender norms

14. EEOC Challenges Release Agreements •  This is not enFrely new – the EEOC has been ﬁling lawsuits challenging provisions of release agreements for almost 30 years •  But the new a4acks are against language the EEOC had previously approved •  The NLRB is joining in on the fun

15. Clauses Under Aaack •  CooperaFon clauses •  Non-‐disparagement clauses •  Non-‐disclosure of conﬁdenFal informaFon •  General release applying to claims of discriminaFon of any kind •  Promise not to ﬁle a claim/sue •  Lengthy, single-‐spaced documents •  Remedies including a4orneys’ fees

16. Other Basic Reminders RE: Release Agreements •  One size does NOT fit all •  Reasons •  Age of employee •  Number of affected employees •  Midstream and final releases •  Basic consideraFon reminders •  Do not make promises or commitments about unemployment, and do not reference UIB in your releases •  State law consideraFons •  Reread your templates before you use them—every Fme

17. ConJnuous AaenJon on Medical Issues In The Workplace

18. Who is a “Spouse” Under the FMLA? •  United States v. Windsor: USSC held that the provision of DOMA denying federal benefits to same sex spouses was unconsJtuJonal •  Relevance? Leave to care for a spouse with a serious health condiJon •  The FMLA’s historical definiJon of “spouse” •  “Spouse meant 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 in States where it is recognized.” 29 C.F.R. §825.122 •  The FMLA’s 2013-‐2015 definiJon of spouse post-‐Windsor: if the employee resides in a state that recognizes same-‐sex marriage, that person is a “spouse” for FMLA purposes (“place of residence” rule)

19. Spouses Under the FMLA (cont’d) •  The FMLA’s new and current definiJon of “spouse” as of February 25,2015: if the employee was married in a jurisdicJon that recognizes same-‐sex marriage, regardless of where they reside, that person is a “spouse” for FMLA purposes (“place of celebraJon” rule) •  BUT WAIT-‐-‐on March 26, 2015, a federal court in Texas granted an applicaJon for preliminary injuncJon against the DOL’s new Rule—filed by the states of Texas, Louisiana, Arkansas and Nebraska •  Argument: the Rule conflicts with our state laws regarding marriage •  Court said: “…the Department of Labor must stay the applicaJon of the Final Rule, pending a full determinaJon of this maaer on the merits” •  How the DOL is reading the request •  Hearing requested for April 2015 •  What to do while we wait for an answer? •  Regardless of the outcome—it’s not just as simple as agreeing to call it all FMLA •  The risk of counJng it as FMLA •  The DOL’s response to the “How will we know?” quesJon

20. Leave as an AccommodaJon •  Leave under the ADA when FMLA does not apply •  What we have learned: there is no set period of Fme that will always be “enough” •  Document your communicaFon eﬀorts •  Don’t be afraid to ask (properly) •  The standard for undue hardship •  What are your replacement plans? •  The EEOC is being aggressive on this issue

21. The FMLA and ADA More Enforcement and LiCgaCon Trends •  Overbroad requests for medical informaFon •  “Full release” requirements •  “We never allow ______” policies (light duty, telecommuJng, modiﬁed schedules, and more) •  Lessons from recent cases •  For employers, the technicaliFes ma4er •  For employees, they ma4er far less •  Inﬂexible policies are fatal for employers •  Engaging in the process is much of the ba4le—even if the answer is “no”

22. And What About Mandatory Paid Sick Leave? •  Be aware of every jurisdicFon in which you have employees •  There is no such thing as a “one size fits all” policy •  But do not throw in the towel just yet— you may offer a sufficient benefit (if your policy explains it correctly) •  Federal changes coming?

23. Developments and AcJvity in Wage and Hour Law

24. Changing The Rules A DirecCve from the White House President Obama, declaring that “Americans have spent too long working more and gerng less in return,” ordered the Labor Department in March 2014 to revise federal rules on overFme pay to make millions more workers eligible for extra pay when they work more than 40 hours a week.

25. AnJcipated Rule Changes •  Minimum Salary Level •  Highly Compensated Test •  DuJes Tests for ExempJons •  Computer Professional ExempJon

26. Next Steps In DOL Process •  NoJce of proposed rule making (was anJcipated for February 2015—nothing yet) •  Comment Period (30-‐90 days) •  DOL review and response to comments •  DOL publishes ﬁnal regulaJons

27. More Wage and Hour Updates •  Areas of Increased Enforcement and LiFgaFon •  Misuse of the independent contractor classiﬁcaFon •  Overuse of the AdministraFve ExempFon •  Not appropriately counFng “work Fme” (work-‐related acFviFes) •  Failure to include bonuses in the regular rate for overFme purposes •  “CreaFve” pay models •  Reminders •  Time worked is sacred—PAY IT (federal and state law issue) •  25+ states require more than the FLSA •  Do not rely on your compeFtors’ pracFces

28. Why We Pay So Much AaenJon to Wage and Hour •  Remember: most aggressive DOL in history •  Can be easy money for the plainFﬀ’s bar •  The damages are staggering •  Intent does not ma4er •  Two or three year look-‐back •  Every person in the posiFon? •  Liquidated damages (i.e., double) •  A4orney’s fees •  Civil/criminal and employer/individual •  Average FLSA/state law wage se4lements average $4.8 M, discriminaFon lawsuits = $600k

29. THE NATIONAL LABOR RELATIONS BOARD (NLRB) Union Law in the Union (and Even Non-‐Union) Workplace

30. The NaJonal Labor RelaJons Act (1935) •  What was going on in U.S. history •  The Great Depression •  Industrial RevoluFon •  Strikes and labor unrest (oQen resulFng in violence) •  Substandard working condiFons •  The basic premise of the NLRA was to permit employees to organize and try to secure be4er working condiFons for themselves •  Established the framework for unionizaFon, bargaining, and the concept of “unfair labor pracFces” by both unions and management alike •  Note: the NLRA deems that there are only two types of people in the world —”employees” and “supervisors”

31. SecJon 7 of the NLRA Employees shall have the right to self-‐organizaJon, to form, join, or assist labor organizaJons, to bargain collecJvely through representaJves of their own choosing, and …to engage in other concerted acCviCes for the purpose of collecCve bargaining or other mutual aid or protecCon, and shall also have the right to refrain from any or all of such acJviJes.

32. What is “Protected AcJvity” Under the NLRA? •  Employees have a statutory right to: •  Discuss wage rates, bonuses, and beneﬁts with one another •  Openly discuss thoughts on discipline •  Complain about unsafe working condiFons/refuse to work in unsafe condiFons •  Complain about mismanagement by a supervisor or manager •  Complain about a policy or pracFce or decision they do not like •  CriFcize management’s acFons •  Enlist outside support −  What does this do to good, old-‐fashioned insubordinaFon?

33. Employer Handbooks/Policies Under Aaack for “Chilling” SecJon 7 AcJvity •  Social media •  ConfidenJality (including pay secrecy) •  Employee (mis)conduct •  Contact with outsiders •  At-‐will employment disclaimers that cannot be modified •  Complaint/dispute resoluJon policies •  Loitering/visitors/solicitaJon/bulleJn boards •  ConfidenJality of invesJgaJons? •  Purple CommunicaCons—whose e-‐mail system is it anyway?

34. New “Quickie” ElecJon Rules •  New rules took effect April 14, 2015 •  TradiFonal labor a4orneys saying this is the most significant development in decades •  Highest risk = NON-‐UNION WORKPLACES •  DramaFcally speeds up the Fme for an elecFon to take place (within a couple of weeks!!) •  Speeds up your required response Fme •  Requires that you provide the Union with more detailed contact informaFon on your employees •  Congress working to block, but for now these rules are in effect

35. The Related Challenge of Social Media and the Workplace

36. Did Facebook Single-‐Handedly Make SecJon 7 Famous Again? §  Cases filed for employees terminated for Facebook and related social media acJvity §  Policies are important—but one size does not fit all—must be customized §  Focusing on prevenJon before discipline §  Dealing with it when it finds its way into the workplace §  Password protecJon laws §  Hundreds of cases filed

37. To Look or Not to Look Employee Posts on Social Media •  What you can review •  Social media content on publicly available sites and pages is fair game •  Social media content volunteered by co-‐workers is fair game •  BUT you may not gain access to a restricted or private page, either directly or indirectly

38. Should Managers and Employees Be “Friends?” •  Too much informaFon of all kinds— potenFally protected informaFon (religion, disability, etc.) •  The problem of the “uncomfortable” subordinate •  PotenFal retaliaFon issues

39. LinkedIn and Similar RecommendaJons •  As a supervisor/manager, you should not be giving LinkedIn or other professional recommendaFons regarding the performance of someone you used to supervise or who was in your direct or indirect chain of command •  All such references need to either come from HR, or be approved through them

40. Do Not Forget: the Rules on Responding to Unemployment Claims Have Changed •  The Federal Unemployment Insurance Integrity Act (2011) and amendments to state law (2013) •  State laws require employers/agents to Fmely and adequately respond to UI claims you intend to appeal or dispute •  A pa4ern of failure to do so will result in the employer’s account being charged beneﬁts (regardless of former-‐employee’s eligibility) •  Civil and criminal penalFes may apply

41. Miscellaneous Reminders •  Privilege issues—emails are forever •  “ConﬁdenFal”—what it is, and what it is not •  Frivolous charges and lawsuits must sFll be answered

42. Where To Go From Here •  It is Fme to really look at your handbook and related policies •  Pause before discipline or terminaFons based on conduct (including social media acFvity) •  Take a look at how your employees are classiﬁed and paid •  Train and sensiFze managers and supervisors to listen for FMLA/ADA cues •  Stay plugged in—much is on the way (FLSA regs, background check issues, new categories of lawsuits, NLRB acFvity, and more)

43. HRCI CerJficaJon Credits: "This webinar has been pre-‐cerFfied for 1 hour of general recerFficaFon credit toward PHR, SPHR and GPHR recerFficaFon through the HR CerFficaFon InsFtute. We will send out a confirmaJon e-‐mail with the Program ID code to note on your HRCI recerJficaJon applicaJon form to everyone who is confirmed as aaended and watched the live version of this webinar. The use of this seal is not an endorsement by the HR CerFficaFon InsFtute of the quality of the program. It means that this program has met the HR CerFficaFon InsFtute's criteria to be pre-‐ approved for recerFficaFon credit." QUESTIONS? G&A Partners info@gnapartners.com (800) 253-‐8562 *This webinar has been recorded and will be posted on the G&A website by Friday

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