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2013 SPRING CONFERENCE. Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478-621-2423 E-mail: jthompson@constangy.com. What Happened & What ’ s Next. 2012 - The Year In Review “ Hot Button ” Issues for 2013. Title VII and EEOC. EEOC Touts Monetary Recoveries. - PowerPoint PPT Presentation
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Jeffery L. ThompsonConstangy, Brooks & Smith, LLP
Telephone: 478-621-2423E-mail: jthompson@constangy.com
2013 SPRING CONFERENCE
What Happened & What’s Next 2012 - The Year In Review “Hot Button” Issues for 2013
Title VII and EEOC
EEOC Touts Monetary Recoveries
Record year for EEOC $365 million from mediations &
conciliations $36 million from investigations of
systemic charges $44.2 million from litigation 99,412 charges in 2012 fiscal year
Which type of EEOC Charge is the fastest growing?
1. Race2. Age3. Gender4. Retaliation
Does Title VII protect transgendered employees?
1. Yes2. No
Title VII Protects Transgendered Employees
Macy v. Holder (2012) Historically, EEOC had ruled that
discrimination on basis of sexual identity was not sex discrimination
Reversal: gender identity discrimination is a form of sex stereotyping
Criticism of Employer Investigation is Not Protected
Activity Brush v. Sears Holding Corp (2012) Employee criticized harassment
investigation and decision not to call police
Ct: only protected if object to acts unlawful under Title VII
Sloppy Handling of Sex Harassment Complaint Precludes
S.J. Kurtts v. Chiropractic Strategies
Group (2012) Employee made internal complaint
and expressed discomfort working with accused “harasser”
Company made no effort
Failure to Accommodate Pregnant Employee May Violate
Title VII Chapter 7 Trustee v. Gate Gourmet,
Inc. (2012) Pregnant employee’s doctor imposed
restrictions; supervisor says no light duty; fires her
Ct: have to at least consider whether light duty work available
Can you require an employee to get a flu shot?
1. Yes2. No3. Maybe
Refusal to Receive Flu Shot Chenzira v. Cincinnati Children’s
Hospital (2012) Employee is a vegan; refuses
mandatory flu shot based on religious belief
Ct: duty to accommodate employee’s religious beliefs
Americans With Disabilities Act
EEOC Issues ADA Guidance for Veterans With Disabilities
Preventing disability discrimination Accommodation of veterans with
disabilities
Wellness Program Fits ADA Safe Harbor
Seff v. Broward County Employees who declined to
participate in wellness program charged $20/pay period
Ct: No violation of ADA; safe harbor for insurance plans
Does the ADA require a transfer to a vacant position?
1. Yes2. No
ADA Requires Transfer to Vacant Position
EEOC v. United Airlines 7th Cir. 2012 Employee can not perform own job Ct: Not sufficient to let employee compete
for vacant job; duty of accommodation requires transfer
But don’t have to ignore union contract
The Family Medical Leave Act
New FMLA Rules Final regulations issued February 5,
2013,implementing National Defense Authorization Act of 2010
Relating to military leaves Other changes to 2009 Regulations
include intermittent leave Effective March 8, 2013
New FMLA Regulations (Military)
New FMLA Regulations (Military)
1,226 DaysExcluded!
New FMLA Regulations (Military)
New FMLA Regulations
Use smallest increments of time as used for other types of leave
New FMLA Regulations – Next Steps
Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward:
Update their FMLA policies in accordance with the new rule.
Replace the current FMLA poster with this one. Make sure all FMLA Fact Sheets are up to date. Use the new DOL notification and certification
forms, or adapt their own forms to be consistent with the new ones.
Ensure that leave administrators are familiar with the changes that will take effect March 8.
Request To Take FMLA Before Eligible is Protected
Pereda v. Brookdale Senior Living Communities
8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months
Court found Pereda’s termination for poor performance 9 months after being hired was unlawful
Fair Labor Standards Act
Court Disqualifies Morgan & Morgan For Unethical Behavior
Bedoya v. Aventura Limousine (2012)
Morgan & Morgan thrown off case threatening emails to opposing
counsel set deposition in a Dunkin Donuts ex parte communications to company
attacking company’s attorney
Pharmaceutical Sales Reps Are Exempt
Christopher v. SmithKline Beecham U.S. (2012)
Pharmaceutical reps are making sales; exempt under outside sales exemption
Overturns DOL interpretation of outside sales
On Call Time On premises or geographical limits Pager/cell phone/smart phone Personal use of time
Training Time Not compensable if:
Attendance is outside the employee’s regular working hours
Attendance is voluntary Not directly related to job and No productive work performed
Public Hospitals
First Amendment Walden v. CDC Court: Personal beliefs and values
are no excuse to refusing to perform job duties
USERRA
Refusal To Accept Transfer is Not Resignation Under USERRA
U.S. v. Ala. Dept. of Mental Health (2012)
Employee declined transfer to another city at end of military leave
Ct: not a resignation; employee entitled to reinstatement
Benefits
Affordable Care Act Upheld
Supreme Court June, 2012 ACA is constitutional, except for
mandate for states to expand Medicaid
Several pieces already in effect
Patient Protection and Affordable Care Act
What Now? After the election, it’s full steam ahead for
implementation. By January 2014, unless delayed:
Millions of Americans will have to obtain insurance or pay penalties, and
Insurers will be banned from denying coverage based on pre-existing conditions for all individuals.
Implementation Schedule
2013 Changes Plans must provide a participant notice
regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice).
Health flexible spending account limit will be $2,500.
2014 and Beyond Some of the additional changes
scheduled for implementation are: Establishment of state insurance
exchanges. Imposition of a penalty on large
employers not offering health insurance ($2,000 per full-time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).
2014 and Beyond Automatic enrollment for employers
with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and self-funded plans, including grandfathered plans).
2014 and Beyond Employers are required to provide a qualifying
group health plan that meets the ACA requirements. Provides minimum essential benefits (for fully
insured small group plans, also provides all required “essential health benefits”),
Limits cost-sharing for such coverage, and Provides either a bronze, silver, gold, or
platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).
2014 and Beyond
“Essential health benefits” include (at this point):- Ambulatory Patient Services- Emergency Services- Hospitalization- Maternity and Newborn Care- Mental Health and Substance
Abuse Services- Behavioral Health Treatment
- Laboratory Services- Preventive and Wellness
Services- Chronic Disease
Management- Prescription Drugs- Pediatric Services,
including oral and vision care
2014 and Beyond Requirement for individuals to have
health insurance or pay a tax penalty. Individuals without “minimum essential
coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income
2014 and Beyond The penalty would be phased in
accordingly: $95 in 2014, or 1.0% of taxable
income $325 in 2015, or 2.0% of taxable
income $695 in 2016, or 2.5% of taxable
income Beginning after 2016, the penalty will
be increased annually according to cost-of-living adjustment
2014 and Beyond Beginning in 2014, the maximum
waiting period an employer can impose upon an employee is 90 days.
Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre-existing condition, and they will be prohibited from excluding coverage for a pre-existing condition.
2014 and Beyond Establishment of health care choice
compacts (2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines
Issues - Viability If enrolling in a health care plan is viewed
as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest.
Much of the law’s success depends on having young, healthy people sign up for insurance. They have much lower health care expenses. Their insurance premiums help offset the
higher medical expenses of older, sick people in a health plan.
Issues - Conflict State Exchanges
Few states have proceeded with their implementation activities.
Many states have not taken any action toward the establishment of a state health insurance exchange.
Issues - Enforcement IRS Enforcement
Since the decision labeled the penalty a tax, it will be collected by the IRS.
The IRS may have few options for collection because:
Congress restricted the agency’s collection authority,
The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and
The IRS can only collect the money by withholding it from tax refunds or Social Security checks.
Hot Button Issues For 2013
Supervisor Status Under Title VII
Vance v. Ball Statue University U.S. Supreme Court will decide
whether someone who directs employees’ work, but lacks other authority, is a supervisor
Implications for harassment cases
Offer of Judgment in FLSA Case
Genesis Health Care Corp. v. Symczyk
U.S. Supreme Ct. will decide whether offer of full relief to named plaintiff moots an FLSA collective action
EEOC’s Strategic Action Plan
EEOC Strategic Action Plan (SAP)
Targeted Approach
Integrated Approach
Accountability
Nationwide Priorities
Eliminating Systemic Barriers in Recruitment and Hiring Exclusionary Policies and Practices Channeling/Steering of Individuals Into Specific
Jobs Due to Their Status in a Particular Group Restrictive Application Processes (i.e., pre-
employment tests, background screens, date of birth screens and on-line applications).
Nationwide Priorities
Protecting Immigrant, Migrant and Other Vulnerable Workers Disparate pay Job Segregation Harassment
Emerging Issues
ADAAA – Proper Application of Defenses such as Undue Hardship, Direct Threat and Business Necessity
LGBT (Lesbian, Gay, Bisexual and Transgender Individuals) – Coverage Under Title VII Sex Discrimination Provisions
Accommodating Pregnancy – Woman Who Are Forced Into Unpaid Leave After Being Denied Accommodations Routinely Provided to Similarly Situated Employees
Preserving Access To The Legal System
Overly Broad Waivers Settlement Provisions That Prohibit Filing
Charges with EEOC Failure To Retain Records Required By EEOC
Regulations Retaliation
Nationwide Priorities
Combating Harassment Reevaluation of Strategies to Prevent
Harassment such as Education/Outreach
EEO Action Plan Review hiring/recruitment policies concerning
requirements such as high school diplomas, criminal background checks, credit histories, applicant testing.
Review EEO statements (is it broad enough?) Training and practices concerning ADA
accommodation, pregnancy accommodation, leave practices in conjunction with FMLA.
Review training methods and policies concerning discrimination and harassment in the workplace.
Revisit whether you are currently complying with OFCCP/affirmative action requirements and have current written affirmative action plans.
Motivation and Support
Let’s Start With You Save Lives Save Families Save Finances Build Hope
First – Help Yourself Recalibrate Start Day Off Right Health = Happiness Love/Respect For Family/Friends Be A Friend To Yourself
First – Help Yourself Set Positive Goals Have Something To Look Forward To Hide Sometimes Let Work Glorify God
Final Thoughts
It Starts At Home
Questions
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