presented by Jonathan A. Segal, Esq

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©2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Palo Alto | Baltimore | Boston | Washington, D.C.

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2013 State Law Legislative Updateprepared for

Pennsylvania SHRM 13th Legislative & Legal ConferenceApril 19, 2013

presented by

Jonathan A. Segal, Esq.*No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further,

participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer).

DM2/4179878.1

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I. STATE TRENDS*

*Current and proposed bills are examples only and not intended to be all inclusive.

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CRIMINAL BACKGROUND CHECKS

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Criminal Background Checks

1. Current lawsa. Ban the Box:

i. Massachusetts

ii. Philadelphia

iii. Newark (most recent)

b. Others:i. California: prohibitions on considering certain

convictions

ii. New York: certain enumerated factors that employers must consider

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Criminal Background Checks

2. Proposed laws (15 plus states)a. Restrictions, for example: Rhode Island -- only

after conditional offer of employment has been extended

b. Mandates, for example: proposals in some states for employees who will have unsupervised access to minors

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Criminal Background Checks

3. Title VIIa. Per se rules create commonality for class

actions

b. EEOC Guidancei. Individualized Assessments (Green factors)

ii. Targeted Exclusions (tight nexus)

iii. State law mandates not exempt from EEOC scrutiny but risks in not complying with state law mandates

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CREDIT REPORTS

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Credit Reports

1. Current lawa. 7 states have enacted restrictions

b. 3 states enacted restrictions in 2011 alone: CA, CN and MD

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Credit Reports

2. Proposed lawsa. Proposed bills in at least 15 states and District

of Columbia

b. Examples:i. PA: credit checks permitted for certain positions

only (narrowly defined)

ii. NJ: prohibits credit check as condition of employment

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Credit Reports

3. Title VII – adverse impact analysisa. Per se rules create commonality for class

actions

b. Apply holistic approach (individual v class claims)

c. Potential guidance from EEOC in the wings

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DISCRIMINATION LAWS

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Discrimination Laws

1. Examples of proposed bills:a. Sexual Orientation:

i. Protected in 21 states (plus DC) already (private employers)

ii. Proposed bills in Texas and (possibly) Pennsylvania, among other states

b. Gender Identity: i. Protected in 16 states (plus DC) already (private

employers)

ii. Proposed bill in Hawaii, among other states [Hawaii already covers sexual orientation]

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Discrimination Laws

1. Examples of proposed bills: (continued)

c. Unemployed: i. Current laws: New Jersey, Colorado and Oregon

ii. Proposed bills: Pennsylvania and Ohio (among other states)

d. Domestic Violence Victim:i. Current law: New York City

ii. Proposed bill: Hawaii

e. Homelessness: i. Current law: Rhode Island

ii. Proposed bill: California

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Discrimination Laws

2. Multi-state issuea. EEO Policy: benefit of inclusion versus risk of

quasi contract

b. Recommendation: “Unlawful consideration of”

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PAID LEAVE BILLS

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Paid Leave Laws

1. Current paid leave laws include:a. Connecticut: virtually all employers

b. Philadelphia: only certain contractors and subcontractors with the City of Philadelphia

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Paid Leave Laws

1. Proposed paid leave laws:a. New York City

b. Philadelphia (almost all employers)i. Passed by City Council

ii. Veto by Mayor

iii. Override by City Council failed

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BULLYING

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Bullying

1. No U.S. laws currently prohibit

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Bullying

2. Proposals include:a. Maryland: Protection from “abusive work

environments” without regard to protected status

b. Massachusetts: Protection from “bullying” without regard to protected status

c. Pennsylvania: Cohen bill to be proposed

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Bullying

3. HR practicesa. Address in training

i. Harassment

ii. Performance management

b. Take corrective action

c. But be careful of policy

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IMMIGRATION

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Immigration

1. Mandatory E-verifya. Approximately 20 states mandate use of

E-verify in some circumstancesi. All employers: Arizona

ii. Some employers: Pennsylvania (state contractors and subcontractors)

b. Supreme Court has upheld the right of states to regulate in this area if regulation relates to license to do business (not unlimited right)

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Immigration

2. Activity in 2012a. 3 states enacted legislation applying to state

contractors and subcontractors: Michigan, Pennsylvania and West Virginia

b. 5 states modified existing laws (for example, South Carolina created unauthorized work hotline)

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Immigration

3. Proposals in many states—required use of E-verifya. Majority approach: state contractors and

subcontractors

b. Minority approach: all employers

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Immigration

4. Immigration self-auditsa. Focus: missing, incomplete or excess

information

b. Corrective action (contemporaneous dating)

c. Summary memo

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WEAPONS IN VEHICLES

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Weapons in Vehicles

1. Currently: approximately 20 statesprotect, to some degree, the right of employees to have firearms in their motor vehicles (Florida and Texas, for example)

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Weapons in Vehicles

2. Proposals (examples only)a. Tennessee: hand gun in car so long as not

visible

b. Pennsylvania: firearm in or on vehicle

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SAME SEX MARRIAGE

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Same Sex Marriage

1. Lawful in 9 states plus: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, Vermont and Washington

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Same Sex Marriage

2. States that may follow the trend: California, Illinois, Minnesota, New Jersey, Oregon and Rhode Island

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Same Sex Marriage

3. Issues for employers, include, but are not limited to: a. Health and other insurance

b. FMLA (definition of spouse)

c. Bereavement and other policies

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RIGHT TO WORK

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Right to Work

1. Right to refrain from union membership (or to pay dues) where union in place

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Right to Work

2. Before 2012, 22 states were right to work states

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Right to Work

3. 2012: 2 more right to work statesa. Indiana

b. Michigan

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Right to Work

4. Proposed legislation in:a. Pennsylvania

b. Ohio

c. Wisconsin

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SOCIAL MEDIA

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Social Media

1. Issue: prevent employers from requiring or even asking applicants or employees to disclose social media passwords

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Social Media

2. Prohibitions in employment context passed in 4 states in 2012, including Maryland, Illinois, Michigan and California (2 more states passed in educational context only)

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Social Media

3. Bills pending in many states, including Connecticut, Delaware, Maine, Minnesota, New Jersey, New York, Pennsylvania, Texas and Utah

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Social Media

4. Legal risks even in the absence of legislation (for example, Stored Communications Act)

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MINIMUM WAGE

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Minimum Wage

1. 19 states and the District of Columbia have minimum wages higher than federal minimum wage ($7.25)

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Minimum Wage

2. Proposals to increase minimum wage in Pennsylvania:a. Set amount

b. COLA increases

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II. WHAT WERE THEY THINKING?

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Indiana

Spiteful gossiping is unlawful in Indiana.

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New Jersey

It is unlawful to wear a bullet proof vest while trying to kill someone.

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West Virginia

Road kill may be taken home for supper.

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Baldwin City, California

It is unlawful to ride a bicycle in a bath tub

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Delaware

It is unlawful to sell dead bodies without a license

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Oklahoma

It is illegal to have a sleeping donkey in your bathtub after 7 pm

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New York

New Yorkers cannot dissolve a marriage for irreconcilable differences unless they agree to it.

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III. 10 RECOMMENDATIONS

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10 Recommendations

1. Follow legislationa. Track individual bills

b. Be mindful of developments in other jurisdictions

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10 Recommendations

2. Evaluate bills—think criticallya. Consider short-term and long-term impact

b. Focus on the interests not only of employers but also employees—unintended but foreseeable adverse consequences of legislative action with laudable motivation (for example, minimum wage increase)

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10 Recommendations

3. Know your Senators and Representativesa. Visit them

b. Invite them to meet with you and others

c. Develop relationships with their staffers, too

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10 Recommendations

4. Build positive relationshipsa. Make public policy a two-way street

b. Offer yourself, and your company, as a valuable resource for knowledge in your field.

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10 Recommendations

5. Get others involveda. Internal (e.g., CEO)

b. External (e.g., trade association)

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10 Recommendations

6. Legal considerations: discoverability of communications

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10 Recommendations

7. Personal considerations: check with your employer before taking public position

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10 Recommendations

8. HR considerations: assume your workforce will find out what you say and make sure what you have said is defensible in terms of content and tone

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10 Recommendations

9. Be practicala. Pick your battles—may be political reasons not

to oppose a bill

b. Do not give a bill that is going nowhere publicity so that it may end up going somewhere

c. Encouraged not to take positions contrary to SHRM’s positions

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10 Recommendations

10. Meeting with your representativea. No assumptions

i. Position

ii. Knowledge of bill

b. Do not attack

c. Explain bill

d. Explain your position

e. Don’t ask for impossible

f. See “their movie” and frame accordingly

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©2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Palo Alto | Baltimore | Boston | Washington, D.C.

Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership

Thank You!

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