Upload
melanie-walker
View
215
Download
0
Embed Size (px)
Citation preview
E R I C PA LT E L L , E S Q.KO L L M A N & S A U C I E R , P. A .
2012 C U M B E R L A N D VA L L E Y S H R ML E G A L & L E G I S L AT I V E C O N F E R E N C E
Recent Federal Developments in Employment Law
Program OverviewSupreme Court Developments
Thompson v. North American Stainless Staub v. Proctor Hospital Kasten v. Saint-Gobain Performance
Plastics
EEOC Developments New Enforcement Guidance on Criminal
Background Checks
NLRB Developments General Counsel’s Memoranda on Social
Media Policies NLRB Notice Posting Requirements
IRS Developments Voluntary Classification Settlement
Program
Thompson v. North American Stainless (131 S.Ct. 863)
Extends retaliation protection under Title VII to the fiancé of employee who has filed charge of discrimination
Protection applies to any person within an amorphous “zone of interests”
Likely result is years of litigation over who falls in that “zone” – co-workers, family, former employees?
Kasten v. Saint-GobainPerformance Plastics
(131 S.Ct. 1325)
Extends FLSA-anti-retaliation protection to oral complaints
Rejects argument that complainant must have formally “filed” complaint to be protected
Requires that complaint be “sufficiently clear and detailed” for employer to understand employee is raising an FLSA issue
Staub v. Proctor Hospital(131 S.Ct. 1186)
Holds employers liable for discrimination under USERRA by applying “cat’s paw” theory
Employers now face liability even when the decision-maker does not possess any discriminatory animus
Implications are substantial: internal investigators can no longer rely solely on information from managers when evaluating disciplinary actions
What is the New EEOCEnforcement Guidance About?
EEOC issued new Enforcement Guidance (“EG”) on use of arrest and conviction records in hiring, effective April 25, 2012
EG replaces prior guidance issued in 1987 and 1990
Legal authority for EEOC to regulate use of criminal background checks is statistical evidence that African Americans and Hispanics are more likely to have a criminal record – meaning that a policy barring hiring persons with a criminal record will tend to exclude minorities
Disparate Impact Theory
A policy of conducting criminal background checks on applicants is presumed to have a disparate impact on African Americans and Hispanics because statistics show they are convicted of crimes more often than persons in other groups
As a result, employers must show that the exclusion of persons with convictions is “job related and consistent with business necessity” for the position being applied for
What is “Job Related and Consistent With Business Necessity?”
EEOC says there are three ways to show valid business necessity:1. Federal law prohibits hiring someone with a
certain type of criminal record (note that a state law prohibition is not enough for the EEOC – but I don’t think courts will agree with EEOC on that);
2. Statistical validation through the Uniform Guidelines for Employee Selection Procedures (almost never done); or
3. A “Targeted Screen” AND (in most cases) an “Individualized Assessment”
What is a Targeted Screen?
A “targeted screen” means the employer must consider at least the following criteria (the “Green factors”) when evaluating a criminal record in a hiring decision:1. The nature and gravity of the crime;2. The passage of time since the conviction
or completion of the sentence; and3. The nature of the job applied for (duties;
working environment, level of supervision, etc.)
What is an Individualized Assessment?
The EEOC says an “individualized assessment” means:1. Notice to the individual that his criminal record
caused him to be excluded;2. An opportunity for the individual to explain why
the conviction should not bar him from the job; and
3. Consideration by the employer as to whether the additional information justifies making an exception (i.e., a mistake in his file; a clean record since conviction; his age at time of conviction)
More on the Individualized Assessment
It need not be an in-person meeting – can be done by letter or email, with applicant being given a deadline to provide explanatory information
The EEOC says there may be circumstances where the connection is so clear (i.e, a recent conviction for auto theft for a person applying for a parking valet position) that an individualized assessment is not required
However, the EEOC says that making an individualized assessment can “help employers avoid Title VII liability”
Use of Arrest Records
EEOC says that exclusion from employment based solely on an arrest violates Title VII because African Americans and Hispanics are arrested at a rate 2-3 times higher than the general population
EEOC also disallows arrests as sole basis for exclusion because arrest records do not show final disposition and may not be accurate
However, EEOC permits employers to make an employment decision based on the conduct underlying the arrest
Example of Permissible Use of Arrest Information
Employee is arrested for distribution of marijuana. After obtaining the arrest report, employer learns that employee was alleged to be dealing in the company parking lot. Employer does investigation and gets eyewitness corroboration that employee was seen dealing. Although employee denies it, employer finds eyewitness more credible because she is long term employee known for her honesty. In these circumstances, employer can discharge employee based on the results of its independent investigation.
NLRB Social Media Guidance
General Counsel issued 3 reports summarizing 35 cases addressing employee use of social media and employer social media policies under NLRA
Memoranda affirm that “Section 7” rights extend to employee communications made using social media, so long as:
1. Communications are with or on behalf of others, and 2. The communications seek to improve terms and conditions
of employment
NLRB Social Media Guidance (cont’d)
NLRB will challenge any social media policy it perceives as “chilling” Section 7 rights: Can’t use overly broad language (i.e., prohibiting “inappropriate
discussions” ) Can’t have blanket prohibition on disclosing “confidential”
information Can’t prohibit use of company logo on posts, tweets, and websites Can’t save a policy with a general disclaimer
NLRB Social Media Guidance (cont’d)
NLRB gave some examples of permissible social media policies: Prohibitions on use of social medial in manner that violates
harassment or workplace violence policies Prohibitions on disclosure of confidential student or patient
information protected by law Prohibitions on pressuring co-workers to connect through social
mediaIn general, the more specific the policy and the more
narrow its scope, the more likely the NLRB will find it legal Examples of prohibited behavior are very helpful
National Association of College and University Attorneys
NLRB Notice Posting Requirement
Requires all employers post notice advising employees of their right to form unions under the NLRA
Codified at 29 CFR 104.202U.S. Court of Appeals for the D.C. Circuit has
enjoined NLRB from enforcing the rule until at least late 2012
Contents of Notice
Informs employees of: Right to form a union; Right to bargain collectively; Right to join with co-workers to raise work related
complaints; Right to strike
Contents of Notice (cont’d)
Also makes employees aware that employer cannot: Prohibit them from soliciting for a
union in non work time in non-work areas;
Interrogate employees about support for a union;
Take adverse action against employees because they support a union;
Prohibit employees from wearing union buttons or t-shirts; or
Spy on union activities
Posting Obligations
Must be posted where the employer posts other notices
Must also be posted on intranet or website if that is where the employer normally communicates to employees about personnel policies
Enforcement & Penalties
No monetary penalty for failure to post
However, failure to post could be an unfair labor practice
Could also result of tolling of the 6 month statute of limitations
Voluntary Classification Settlement Program
Voluntary program which allows employers to reclassify persons historically treated as independent contractors as employees without incurring interest or penalties
Employer is only required to pay 10% of the employment taxes that would have been due in the preceding tax year
Employer must meet certain conditions to qualify for program
VCSP started in September 2011 and not certain how long it will remain in effect
VCSP Implications
IRS will not share information with DOL or state agencies
IRS will not audit you if application is rejected
However, could be “spillover” implications on other employment laws: Former contractors may now be eligible for benefits May increase number of employees to point where
employer becomes covered by employment laws (15 and 50 employees are “magic” numbers)
Eligibility Criteria for VCSP
Workers must have been consistently treated as independent contractors
Employer must have filed any required form 1099’s for the past three years
Employer cannot be under audit by the IRS, DOL, or any state agency regarding the classification of its workers
Employer must submit application (Form 8952) to IRS to determine if it is eligible