PRESENTS THE 3RD ANNUAL EMPLOYMENT LAW FORUM · 2016. 10. 4. · The 3rd Annual Employment Law Forum in Colorado presented by Cline Williams Wright Johnson & Oldfather, L.L.P. has

EMPLOYMENT LAW FORUM P R E S E N T S T H E 3 R D A N N U A L

I N C O L O R A D O

The 3rd Annual Employment Law Forum in Colorado presented by Cline Williams Wright Johnson & Oldfather, L.L.P. has been approved for CLE credit:

Nebraska CLE (2.5 hours) Iowa CLE (2.5 hour s) Colorado CLE (3.0 hours)Wyoming CLE (2.5 hours)

Course No. 127503Course No. 238689Course No. 754827

PROFESSIONAL CONTINUING EDUCATION CREDITS

This activity, ID No. 289030, has been approved for Recertification Credit Hours Awarded: 3.50 Specified Credit Hours: HR (General) recertification credit hours toward aPHR™, PHR®, PHRca®, SPHR®, GPHR®, PHRi™, SPHRi™ recertification through HR Certification Institute's® (HRCI®). Please make note of the activity ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

T H E 3 R D A N N U A L

EMPLOYMENT LAW FORUM

These materials and program are being offered as an outline of general information on the subject to assist in development and implementation of employment practices and policies. They are offered for educational and

information purposes only and are not intended as legal advice.

I N C O L O R A D O

The use of this seal confirms that this activity has met HR Certification Institute's® (HRCI®) criteria for recertification credit pre-approval.

FORT COLLINS | OCTOBER 6, 2016

Registration and WelcomeTracy Oldemeyer

1:45-2:05

The Times, They Are A Changin': Implementing Changes to the FLSA's White-Collar Exemptions Henry Wiedrich

2:05-2:30

2:30-3:00

Recent Developments in Employee Benefits Michelle Sitorius

Emerging Employment Law Issues in 2016 and Beyond!John Hewitt & Jody Duvall

Colorado Employment Law Update Jody Duvall

From Hiring to Firing: An Interactive Update on Recent EEO Developments and CasesJason Yungtum & Tara Stingley

Open Panel - Questions and Answers

AGENDA


EMPLOYMENT LAW FORUM

3:00-3:30

I N C O L O R A D O

3:45-4:15

4:15-4:45

4:45

Break3:30-3:45

TRACY A. OLDEMEYER

[email protected] (970) 221-2637

Practice Areas:

Alternative Dispute Resolution

Banking, Bankruptcy and Creditors Rights Litigation

Business Litigation

Business Organizations

Construction Litigation

Insurance and Surety Coverage Litigation Personal Injury and Wrongful Death Tax Litigation

Admitted to Practice:

Nebraska Colorado Wyoming United States District Court for the District of Nebraska United States District Court for the District of Colorado United States District Court for the District of Wyoming United States Court of Appeals for the Eighth Circuit United States Court of Appeals for the Tenth Circuit United States Court of Federal Claims United States Tax Court United States Supreme Court

Education:

Creighton University, J.D., cum laude, 1995 Creighton University, M.B.A., 1995 Creighton University, B.S.B.A., magna cum laude, 1993

TRACY A. OLDEMEYER

Practice Emphasis:

Tracy has represented a wide range of individuals and businesses as plaintiffs and defendants in state and federal courts in Colorado, Nebraska, and Wyoming. Tracy's practice focuses primarily on general civil litigation, complex commercial litigation, insurance coverage, construction contract disputes, and insurance defense. She has represented clients in litigation involving personal injuries, insurance coverage, contract disputes, business torts, and trade secret misappropriation.

Other Experience/Achievements:

Associate, American Board of Trial Advocates

Eighth Judicial District Judicial Nominating Commission, 2016-2021

Listed: Best Lawyers in America (Woodward/White, Inc.) (Arbitration)

President, Byron White American Inn of Court, 2006-2007, 2009-2010, 2015-2016

Member, Colorado Defense Lawyers Association

Member, Defense Research Institute Secretary, Board of Directors, United

Way of Larimer County Colorado Trial Lawyers Association,

2005-2012 Member, Nebraska Association of Trial

Attorneys, 2000-2005 Member, Leadership Fort Collins,

2005-2006 Law Clerk to Judge Lyle E. Strom,

United States Senior District Judge, District of Nebraska, 1996-1998

Alpha Sigma Nu

THE TIMES, THEY ARE A CHANGIN': IMPLEMENTING CHANGES TO THE FLSA'S

WHITE-COLLAR EXEMPTIONS

PRESENTED BY HENRY WIEDRICH


EMPLOYMENT LAW FORUMI N C O L O R A D O

HENRY L. WIEDRICH [email protected]

(402) 397-1700

Practice Areas:

Business Litigation Employment Litigation Labor & Employment


Nebraska Iowa United States Court of Appeals, Eighth Circuit United States Court of Appeals, District of

Columbia Circuit United States District Court for the District of

Nebraska United States District Court for the District of

Colorado United States District Court for the District of

Northern District of Illinois United States District Court for the District of

Northern District of Iowa United States District Court for the District of

Southern District of Iowa

Education:

University of Nebraska College of Law, J.D., with high distinction, 2007

University of Nebraska, B.S., Civil Engineering, 2004

HENRY L. WIEDRICH

Practice Emphasis: Henry concentrates his practice in the area of labor and employment. He helps large and small businesses with daily and long-term compliance with federal, state and local employment laws, the development and implementation of best employment practices, advice on employment and termination decisions, and employment-based litigation and administrative actions, including guidance on Title VII, the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), state discrimination and leave laws, workers’ compensation and non-compete provisions. Henry drafts employment policies and handbooks, employment and independent contractor agreements, non-compete and confidentiality agreements and training materials for clients. He also assists clients with wage and hour audits, helping employers identify areas of compliance and non-compliance with applicable laws.

In his litigation practice, Henry represents employers in state and federal courts, as well as before federal and state administrative agencies, such as the Equal Employment Opportunity Commission (EEOC), the Nebraska Equal Opportunity Commission, the Iowa Civil Rights Commission, and the National Labor Relations Board (NLRB). Henry has defended employers against claims of discrimination, harassment, retaliation and wrongful termination. He regularly helps employers enforce non-compete and confidentiality provisions.

He also appears in state and federal court on commercial litigation matters, including cases involving claims of breach of contract, complex business disputes, product liability, securities fraud, patent, trademark and copyright infringement, unfair competition, defamation, premises liability, eminent domain and government contract procurement disputes, among others.


Listed: Great Plains Super Lawyers (Laborand Employment Rising Star)

Board Member, Southwest YMCA

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THE TIMES, THEY ARE A CHANGIN’ :

IMPLEMENTING CHANGES TO THE FLSA’S WHITE-COLLAR EXEMPTIONS

JASON YUNGTUM/TARA STINGLEYHENRY WIEDRICH

Come gather ’round employersWherever you roamAnd admit that exempt salariesAround here have grownAnd if you don’t change You’ll be paying overtime out the nose If your business to you is worth savin’Then you better start payin’, or hourly go For the times they are a-changin’

ROBERT DYLAN, SPHRDirector of Human ResourcesWatchtower Consultants, LLC

**This may or may not be on President Obama’s summer playlist.

OVERVIEW• What are the regulatory changes to the Fair Labor Standards Act?

• What hasn’t changed?

• What steps should be taken to implement the changes?

• What challenges will your business face in implementing the

changes?

• How to overcome those challenges?

• What opportunities do these changes present?

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THE FAIR LABOR STANDARDS ACT

• The Fair Labor Standards Act (“FLSA”) is a Federal law (29 U.S.C. § 201et seq.) that establishes minimum wage, overtime pay, recordkeeping,and youth employment standards for covered employers in the privateand government sectors. It also establishes certain exemptions tominimum wage and overtime—including the white collar exemptions.

• Employees of covered employers, unless otherwise exempt, must bepaid at least minimum wage for all hours worked and overtime at timeand one-half for hours worked over 40 in a workweek. Accuratetracking and recordkeeping of hours worked.

THE FAIR LABOR STANDARDS ACT

• Enterprise Coverage = 2 employees + Annual $ volume or sales/business > $500,000

or

2 employees + either a hospital, a business providing medical or nursing care for residents, a school or preschool, or a government agency

• Individual Coverage: Even if there is no enterprise coverage, employees are covered bythe FLSA if their work regularly involves them in interstate commerce (very broad).(i.e. producing goods for sale in interstate commerce, contacting people in otherstates, etc.)

• Most employers are covered by the FLSA.

• Under the FLSA, the United States Department of Labor (“DOL”) is granted theauthority to pass regulations implementing the FLSA, including rules regardingovertime requirements and exemptions to the overtime requirements—includingthe white collar exemptions (executive, administrative.

• See 29 CFR Part 541 – “Defining and Delimiting the Exemptions for Executive,Administrative, Professional, Computer and Outside Sales Employees”

• Thus, when determining whether the white collar exemptions apply, we look to theFLSA regulations for the applicable rules and how to apply them.

• SOME OF THOSE RULES WILL CHANGE EFFECTIVE DECEMBER 1, 2016.

FLSA REGULATIONS

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• Generally speaking, to qualify for a white collar exemption,an employee must meet certain tests regarding the jobduties performed AND must be paid on a sufficient salarybasis.

TEST FOR EXEMPTION

• Example – Requirements for Executive Exemption. To qualify for theexecutive employee exemption, all of the following tests must be met:

o The employee must be compensated on a sufficient salary basis (as definedin the regulations);

o The employee’s primary duty must be managing the enterprise, or managinga customarily recognized department or subdivision of the enterprise;

o The employee must customarily and regularly direct the work of at least twoor more other full-time employees or their equivalent; and

o The employee must have the authority to hire or fire other employees, or theemployee’s suggestions and recommendations as to the hiring, firing,advancement, promotion or any other change of status of other employeesmust be given particular weight.

TEST FOR EXEMPTION

SALARY BASIS TEST

• What does it mean to be paid on a salary basis?

o The employee is paid the same amount each pay period regardlessof the quality or quantity of the work performed, if any work isperformed.

o Limited exceptions (deductions for full day personal absences,deductions in accordance with bona fide sick leave plan, etc.).

o See 29 CFR § 541.602

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CURRENT SALARY AMOUNTS• What is the minimum (i.e. sufficient) amount of salary to be

paid to qualify for the standard white collar exemptions under OLD regulations?

o $455/week, which equates to $23,660/year

o If using the Highly Compensated Employee exemption, theemployee must receive the $455 weekly salary amount and his/hertotal annual compensation must be at least $100,000.

o Nondiscretionary bonuses cannot be used to satisfy the salaryamount.

WHAT IS CHANGING ON DECEMBER 1?• The minimum exempt salary for the white collar exemptions is

increasing from $455/week or $23,660/ year to $913/week or$47,476/year.

• The minimum exempt salary will automatically update (i.e. increase)every three years. It will be set at the 40th percentile of full-timesalaried workers in the lowest income region of the country, which iscurrently the South. Thus, this will be an ongoing compliance issue- ensuring salaries fall above the minimum salary amount to maintainthe exemption. The next update will be on Jan. 1, 2020, and currentprojections put that figure at $51,168/year.

WHAT IS CHANGING ON DECEMBER 1?

• Employers will now be able to use non-discretionarybonuses, incentives, and commissions to account for up to10% ($4,747) of the salary requirement, if paid on at least aquarterly basis. But this does not apply to highlycompensated employees. Examples: bonus for meetingproduction/profit goals, retention bonuses, commissionpayments based on fixed formula. Must be set/objective.

• The highly compensated employee exemption threshold hasincreased from $100,000/year to $134,004/year.

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WHAT IS NOT CHANGING ON DECEMBER 1?• Duties test remains unchanged.

• There was much discussion about whether the duties tests would be modified, particularly with regards to what is a “primary duty.”

• On the “primary duty” issue, the discussion was whether a California-inspired 50% of working time should be adopted in considering what are “primary duties”.

• Under the current regulations, the term “primary duty” means “the principal, main, major or most important duty that the employee performs.” Many factors are looked at, including relative importance of the duty, time spent performing exempt work, supervision, etc.

• Time spent is a useful guide (and I am more comfortable when exempt work takes more than 50% of the time), but it is not the sole test. See 29 CFR 541.700

• Tabled FOR NOW.

WHAT IS NOT CHANGING ON DECEMBER 1?

• No additional slack on showing the employee meets theduties requirements, just because they are paid more now.

• Do not be fooled into thinking that you simply have to paythe employee more now, and your other worries about thework they are doing go away.

• An employer can increase an employee’s salary above thenew threshold and the employee may still not be properlyexempt, depending upon their actual job duties. The sameconcerns/issues are still present.

PUTTING THE INCREASE IN PERSPECTIVE

• In 2017, 2018, and 2019, the California state law is actually less protective on the issue of white-collar exemptions. The minimum salary threshold for the California exemptions is currently $41,600.

• By 2020, California gets back to being California and will have a projected threshold of $54,080 v. the $51,168 for projected federal threshold.

• By 2022, California becomes Uber-California and will have a $62,400 threshold.

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IMPLEMENTING THE CHANGES: IDENTIFYING AND ADDRESSING THE AFFECTED EMPLOYEES

• STEP 1: Identify exempt employees’ whose paycurrently falls between the previous threshold($23,600/year) and the new threshold ($47,476/year),or are highly compensated employees and makebetween the old ($100,000) and new ($134,004)thresholds. These are the employees on whichadjustments will be needed.

IMPLEMENTING THE CHANGES: IDENTIFYING AND ADDRESSING THE AFFECTED EMPLOYEES

• STEP 2: Make a financial/practical assessment of the affected employees.

o How much are they currently paid? Near the threshold?o How many hours are they generally working (if you know; if not start tracking)?o Based upon expected workload, what are anticipated overtime costs if the

employee becomes non-exempt?o Can hours be limited to 40 per week and accomplish necessary tasks?o Are there any quarterly, nondiscretionary bonuses, incentives, or commissions

that can help close the gap?o Consistency?o Ongoing chasing of the threshold?o Was the previous classification correct?

IMPLEMENTING THE CHANGES

• STEP 3: Make a decision on the affected employees—whether to keep them exempt and adjust their payaccordingly or move them to non-exempt status adjusttheir pay accordingly.

• STEP 4: Communicate the changes to employees. (More onthis later)

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IMPLEMENTING THE CHANGES• STEP 5: If an employee is changed from exempt to non-

exempt, they will need training and reminders on trackingtime and life as a non-exempt employee.o Record timeo Approval to work overtime?o Adjust work routines: No working through lunch or

staying lateo No working off the clocko Smartphones and e-mail access!!!!!o BIG CHALLENGE IS CHANGING HABITS.

POTENTIAL OPTIONS• Increase the salary to make them exempt.

• Move to non-exempt, pay them hourly, and pay them overtime over 40 hours per week. Limit OT to control costs.

• Move to non-exempt, pay them hourly, and reduce the hourly rate so that total compensation with OT remains the same.

POTENTIAL OPTIONS

• Move to non-exempt, pay on salary, but pay for OT (I don’t particularly like this option, although it can be structured in numerous ways).

• Hire part time workers to offset reduced workload of employees now working less.

• Reduce benefits and/or other costs?

8

OVERCOMING EMPLOYEE CONCERNS• How you communicate the changes, the reasons for the changes, and their effects

will have a huge impact on how well the changes are received.

• Common Concerns for Employees Moving to Non-Exempt Status• Demotion?

o Response: How pay is calculated, not their relative position.• Advancement?

o Response: Career path unchanged?• Make Less $?

o Response: Paid for every hour worked, including OT.o Response: Moving to Hourly? How does the math work out? Equivalent?o Response: Staying at Salary but paying OT?

• Loss of Flexibilityo Response: Recording time means being paid for every hour worked,

including OT.

OTHER COMMUNICATION TIPS

• Who is the point person for the communication? Considersomeone other than employee’s manager. HR?

• Clearly explain that the changes are needed because ofchanges by the federal government. Not a performanceissue. Objectively required.

• Emphasize paid for every hour worked.

OTHER COMMUNICATION TIPS

• Train your Managers and Supervisors on the changes,especially if they will be working newly non-exemptemployees.

• Train newly non-exempt employees on timekeepingrequirements. Follow up and be proactive. Don’t let oldhabits perpetuate, like working extra hours, not trackingtime, etc.

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OPPORTUNITIES?

• Opportunity to conduct a full review of classifications andjob descriptions. Are job descriptions accurate? Areclassifications appropriate?

• Cover: Does the company have a classification decision orchange they want to make? Making a classification changeout of the blue often raises eyebrows. The regulatorychanges provide plausible cover.

QUESTIONS?

HENRY [email protected]

Likely Lawyer Answer: “It Depends”…

THIS MATERIAL IS NOT INTENDED TO CONSTITUTE A COMPLETEANALYSIS OF ALL LEGAL AND TAX CONSIDERATIONS. IT IS OFGENERAL NATURE AND INTENDED FOR INFORMATIONAL PURPOSESONLY, NOT LEGAL ADVICE.

THE INTERNAL REVENUE SERVICE REQUIRES US TO INFORM YOUTHAT ANY FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION(INCLUDING ATTACHMENTS OR ENCLOSURES) SHOULD NOT BE USEDOR REFERRED TO IN PROMOTING, MARKETING, OR RECOMMENDINGOF ANY ENTITY, INVESTMENT, PLAN OR ARRANGEMENT, AND SUCHADVICE IS NOT INTENDED OR WRITTEN TO BE USED AND CANNOT BEUSED BY A TAXPAYER FOR THE PURPOSE OF AVOIDING PENALTIESUNDER THE INTERNAL REVENUE CODE.

EMERGING EMPLOYMENT LAW ISSUES IN 2016 AND

BEYOND!

PRESENTED BY JOHN HEWITT & JODY DUVALL



JOHN C. HEWITT [email protected]

(402) 397-1700

Practice Areas:

Administrative Litigation Alternative Dispute Resolution Communications and Media Law Employment Litigation Health Care Labor and Employment


Nebraska United States District Court for the District

of Nebraska United States Court of Appeals for the

Eighth Circuit

Education:

University of Nebraska, J.D., 1985 Hastings College, B.A., 1982

JOHN C. HEWITT

Practice Emphasis: John represents public and private employers in labor and employment matters, including collective bargaining, arbitration, affirmative action, Wage and Hour, OSHA, and fair employment practice proceedings before federal and state courts and agencies, and the Nebraska Commission of Industrial Relations. John served as the Chair of the Board of the Alegent Creighton Health System and represents health care providers on a variety of issues including nonprofit governance and executive compensation. John also represents print and broadcast media on First Amendment, open meetings and public record issues.


Listed: Best Lawyers in America (Woodward/White,Inc.) (Employment Law-Management; Labor Law-Management)

Listed: Chambers USA, America's Leading Lawyers forBusiness (Chambers & Partners Publishing) (Laborand Employment)

Chair, Labor Relations and Employment Law Sectionof Nebraska State Bar Association, 1995-1997

Member, Nebraska State Bar Association, Committeeon Multi-Disciplinary Practice of Law, 2000

Fellow, Nebraska State Bar Foundation Member, Hastings College Board of Trustees Member, Alumni Council for University of Nebraska

College of Law Member, Board of Directors, Alegent Creighton Health,

2006-2012; Vice Chair, 2009-2010; Chair, 2011-2012 Member, Board of Directors, Alegent Creighton Clinic,

2009-2015 Member, Board of Directors, Immanuel Health System,

2009-2010 Member, Board of Directors, Hastings College Alumni

Association, 1988-1990 Published: "Employers Prepare: Arbitration of

Statutory Employment Claims," The Nebraska Lawyer,June 1998

Published: "Independent Contractor or Employee:Avoiding Legal Risks and Penalties Associated with theMisclassification of Workers," The Nebraska Lawyer,November/December 2010

JODY N. DUVALL [email protected]

(970) 221-2637

Practice Areas:

Employment Litigation Labor & Employment Personal Injury & Wrongful Death


Colorado Washington United States District Court for the District of

Colorado United States District Court for the Western

District of Washington United States District Court for the Eastern

District of Washington

Education:

University of Oregon School of Law, J.D., 2011 Colorado State University, B.A., 2002

JODY N. DUVALL

Practice Emphasis:

Jody’s practice focuses on labor disputes and labor relations for clients from a variety of industries. He represents employers in all stages of litigation before federal and state trial and appellate courts, before the National Labor Relations Board and other state and federal administrative agencies, and in mediation and arbitration. Additionally, he counsels clients on a wide range of issues related to their employment policies. He has represented employers in matters involving labor negotiations and arbitrations, unfair labor practice proceedings before the National Labor Relations Board and state administrative agencies, wage and hour class and collective actions, wrongful termination and unlawful discharge, discrimination and retaliation.

In addition to his labor and employment practice, Jody has represented clients in a variety of civil litigation matters, including products liability, commercial disputes, and bankruptcy. He counsels individual clients on matters relating to estate disputes and management.


Published: “MLRC 50-State Survey:Employment Libel and Privacy Law,” Surveyof Washington Employment Libel Law, 2014and 2015 editions

Published: "New NLRB Decision Takes Aimat Employment Relationships Within theConstruction Industry," Merit Builder, Assoc.Builders and Contractors (Rocky MountainChapter), Fall 2015

1

EMERGING EMPLOYMENT LAW ISSUES IN 2016 AND

BEYOND!

JOHN HEWITT & JODY DUVALL

EMPLOYMENT DISCRIMINATIONRETALIATION ENFORCEMENTSAME SEX MARRIAGESEXUAL ORIENTATIONEEOC STUDY ON HARASSMENT

IN THE WORKPLACEPENALTIES FOR POSTING

VIOLATIONSEEO-1 PAY DATA

WAGE & HOUR

JOINT EMPLOYMENT UPDATEFRIEDRICHS V. CALIFORNIACLASS ACTION WAIVERS

EMPLOYMENT POLICIESNON-COMPETE/NON-SOLICITATIONPAID SICK LEAVEWORKPLACE WEARABLES

SAFETY

LABOR

EMPLOYEE CLASSIFICATIONPERSONAL & SUCCESSOR LIABILITY

INCREASE IN OSHA FINESELECTRONIC REPORTING/RECORDKEEPING RULEOSHA BATHROOM RULE

COLORADO-SPECIFIC ISSUES

ACCESS TO PERSONNEL FILES– Governor Hickenlooper has signed into law a

new requirement regarding employee access to personnel files

– Current employees: must be allowed access to inspect and obtain a copy of any part of their personnel file at least once per year

– Former employees: must be allowed to inspect their personnel file at least one time after termination

– Goes into effect January 1, 2017

2

COLORADO-SPECIFIC ISSUES

NEW REQUIREMENTS REGARDING STATE EMPLOYMENT VERIFICATION

– Employers no longer need to collect and retain state employment verification forms for each new hire

– Employers must still comply with the separate federal requirements related to Form I-9s, but no more requirement to maintain duplicative state forms

– Went into effect on August 10, 2016

RETALIATION ENFORCEMENT• New guidance from EEOC

regarding what it will consider retaliation

• Same 3 elements for retaliation:– Employee’s participation in protected

activity– Adverse action – Causal connection between the two

• BUT, much broader definition of each element

EMPLOYMENT DISCRIMINATION

SAME SEX MARRIAGE• Obergefell v. Hodges—Supreme Court

ruling that same-sex couples may exercise the right to marry in all states

• However, Court avoided whether LGBT Americans constitute a protected class

• Obergefell will affect employers in the areas of benefits and mandatory leave laws


3

SEXUAL ORIENTATION• EEOC has started prosecuting cases of

sexual orientation discrimination under the sex discrimination provisions of Title VII

• Multiple lawsuits filed by EEOC in multiple jurisdictions

• However, Hively v. Ivy Tech Community College (7th Cir. 2016)– At least in the Seventh Circuit, discrimination on

the basis of an individual’s sexual orientation is not prohibited under federal law


HARASSMENT IN THE WORKPLACE• Prevalence of harassment in the

workplace• Workplace leadership and

accountability• Prevention policies and procedures• Anti-harassment compliance

training• Workplace civility and bystander

intervention training

EMPLOYMENT POLICIES

PENALTIES FOR POSTING VIOLATIONS• EEOC announced new fines for

employers that fail to properly post federal discrimination laws

• Maximum penalty now $525, more than double previous maximum of $210


4

EEO-1 PAY DATA• OFCCP announced top two

priorities:– Systemic pay discrimination in gender-

and race-based pay disparities– Establishing Regional Centers focused on

compensation practices of financial services companies

• If you are in the financial services industry and subject to the OFCCP’s jurisdiction, you are in the crosshairs


NON-COMPETE/NON-SOLICIT• Illinois Attorney General Action

– Deceptive Business Practice– Focus on Restriction of Low Wage

Workers• White House Report on Non-

Compete Agreements– Usage, Issues and State Responses

EMPLOYMENT POLICIES

PAID SICK LEAVE• Currently, there are no federal or

applicable state legal requirements that you provide paid sick leave

• Hot topic in state and local governments:– 5 states (CA, CT, MA, OR, VT) and the District of

Columbia now have mandatory paid sick leave requirements

– More than 25 local jurisdictions have mandatory paid sick leave

– In response, some states have passed laws banning local paid sick leave laws

• Stay tuned!

EMPLOYMENT POLICIES

5

WORKPLACE WEARABLES• What are we talking about?

– Smart glass– Fitness tracking bracelets– Smart watches– Other tech gadgets that are becoming

popular in the workplace• Potential benefits and concerns

EMPLOYMENT POLICIES

EMPLOYEE CLASSIFICATION• Independent Contractor vs.

Employee• Uber class-action litigation in

California

WAGE & HOUR

PERSONAL & SUCCESSOR LIABILITY• Fair Labor Standards Act can

impose liability on individuals responsible for operation of a company

• Now, individuals may be subject to personal liability for violations of the Family and Medical Leave Act:– Federal Court holds that Human

Resources Director is personally liable for FMLA violation

WAGE & HOUR

6

INCREASE IN OSHA FINES• OSHA fines increase for first

time in 25 years• Near 80% fine increase went

into effect on August 1• Strategies for compliance

SAFETY

ELECTRONIC REPORTING & RECORDKEEPING RULE• New rule effective January 2017• Applicable to businesses with 250

or more employees• Smaller businesses (20-249) may

still be subject to the rule if in particularly dangerous industries

SAFETY

OSHA GUIDANCE REGARDING BATHROOMS• OSHA issued a guide setting forth

the basics of gender identity and bathroom access

• OSHA requires that employers provide sanitary and available toilet facilities

• Transgender workers must be allowed to use the bathroom consistent with their gender identity

SAFETY

7

JOINT EMPLOYMENT UPDATE• The NLRB’s Browning-Ferris

decision created uncertainty regarding who will be considered a Joint Employer

• State law is attempting to fill the gap to protect franchisors

• Steps to reduce potential liability

LABOR

FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION• U.S. Supreme Court decision• 4-4 split after Justice Scalia’s

passing• Split results in Court upholding

lower court’s decision• Issue: Agency fees for non-

union teachers

LABOR

CLASS ACTION WAIVERS• Ninth Circuit recently released a decision

finding that certain mandatory arbitration agreements violate federal labor law

• Circuit Split:– Ninth and Seventh Circuit will invalidate mandatory

arbitration agreements requiring individual arbitration– Second, Fifth, and Eighth Circuits will uphold such

agreements under the Federal Arbitration Act• NLRB is continuing to pursue these types of

agreements as unlawful• This will likely head to the Supreme Court

LABOR

8

QUESTIONS?

JOHN [email protected]

JODY [email protected]


THE INTERNAL REVENUE SERVICE REQUIRES US TO INFORM YOUTHAT ANY FEDERAL TAX ADVICE CONTAINED IN THISCOMMUNICATION (INCLUDING ATTACHMENTS OR ENCLOSURES)SHOULD NOT BE USED OR REFERRED TO IN PROMOTING,MARKETING, OR RECOMMENDING OF ANY ENTITY, INVESTMENT, PLANOR ARRANGEMENT, AND SUCH ADVICE IS NOT INTENDED ORWRITTEN TO BE USED AND CANNOT BE USED BY A TAXPAYER FORTHE PURPOSE OF AVOIDING PENALTIES UNDER THE INTERNALREVENUE CODE.

RECENT DEVELOPMENTS

IN EMPLOYEE BENEFITS

PRESENTED BY MICHELLE SITORIUS



MICHELLE L. SITORIUS [email protected]

(402) 474-6900

Practice Areas:

Employee Benefits and DeferredCompensation


Nebraska United States District Court for the District of

Nebraska United States Court of Appeals for the Eighth

Circuit

Education:

University of Nebraska, J.D., with distinction, 2009

McGill University, Montreal, Quebec, M.A., 2005

University of Nebraska, B.A., with high distinction, 2002

MICHELLE L. SITORIUS

Practice Emphasis:

Michelle concentrates her practice on employee benefits counseling. She counsels a variety of clients, including for-profit, nonprofit, governmental, and church organizations on qualified and non-qualified plans and welfare benefits arrangements. Michelle advises clients in relation to defined benefit and defined contribution pension and profit sharing plans, employee stock ownership plans, section 401(k), 403(b) and 457 plans, section 125 cafeteria plans, and deferred compensation plans subject to Internal Revenue Code Section 409A. She also advises clients on self-insured, fully-insured, and funded and unfunded welfare benefit arrangements. She assists clients with plan design and administration, fiduciary duties, disclosure requirements, and correction procedures. Michelle has experience amending and restating plans, terminating plans, applying for determination letters, and preparing submissions to voluntary correction programs. She works with clients in dealing with the U.S. Department of Labor and Internal Revenue Service. She also consults with clients concerning compliance with the Affordable Care Act, COBRA continuation coverage requirements, and HIPAA portability requirements as well as other health insurance issues.


Member, Board of Directors, Voices of Hope, 2015-present

Leadership Lincoln Class XXVII Articles Editor, Nebraska Law Review, 2007-2008

1

RECENT DEVELOPMENTS IN EMPLOYEE BENEFITS

JASON YUNGTUM/TARA STINGLEYMICHELLE SITORIUS

OVERVIEW

• Wellness Plans Developments• Health Insurance

Marketplace Notices• ACA Reporting• ACA § 1557• Retirement Plans• Potpourri

WELLNESS PLANS DEVELOPMENTS

• New ADA Regulations issued May 17, 2016• Effective: First day of the plan year beginning on or

after January 1, 2017• HIPAA, GINA requirements also apply to Wellness

Plans

2

WELLNESS PLANS DEVELOPMENTS• Disability-related inquiries and medical examinations

must be “voluntary”o No requirement to participateo No denial of coverage for non-participationo No adverse action, retaliation, or coercion for

non-participation

WELLNESS PLANS DEVELOPMENTS• Maximum incentive 30% of –

o A particular health plan, if no choiceo Lowest cost health plan, if enrollment not

necessaryo Lowest cost health plan, if choiceo 40-year-old non-smoker silver coverage if no

health plan• Maximum incentive - 50% (tobacco users on your

honor)

WELLNESS PLANS DEVELOPMENTS• Notice Requirement• EEOC has provided a sample notice

https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm

3

WELLNESS PLANS DEVELOPMENTS• Confidentiality Requirements

o Only aggregate medical info or historyo Cannot require employees to agree to selling

medical infoo But HIPAA likely applies anyway

• EEOC does not agree with the “bona fide benefit plan”safe harbor recognized by recent court decisions.

WELLNESS PLANS DEVELOPMENTS• IRS Chief Counsel Advice 2016-22031 (Apr. 14, 2016)• Generally, an employer must include the value of a

wellness plan rewards in the employee’s gross income(e.g., tax withholding), unless–o The reward qualifies as “medical expenses” under

Code § 213(d)o De minimis fringe under Code § 132(e) (but cash is

never de minimis)

HEALTH INSURANCE MARKETPLACE NOTICES

• 500,000 Notices sent June 21, 2016

• Gather any Notices sent to your organization

• Appeal if not correct• No response necessary if

correct

4

ACA REPORTING• Draft 2016 versions of Forms 1094-B/1095-B; Forms

1094-C/1095-C• Draft 2016 Instructions – Forms 1094-C and 1095-C• Overall, minor changes from 2015 versions• (Final Forms not issued as of deadline for printed

materials.)

ACA REPORTING• June 30, 2016 filing deadline (electronic)• IRS continues to accept 2015 Forms on its website

even after the June 30, 2016 deadline.• Employers with 50-99 employees –– ACA penalties

new for 2016 Forms• Employers with 100+ employees –– ACA penalties

continue for 2016 Forms

ACA REPORTING• What happens if I filed but something did not work?

o Rejected? Act within 60 days.o “Accepted with Errors”? Submit corrections.o Missed the deadline? Document your “legitimate

efforts” to register and to file, continue to make such efforts, and complete the process as soon as possible.

o Still in bad shape? Hope for a reasonable cause waiver from the penalties.

5

ACA REPORTING• IRS Information Letter 2016-0030• Example: Employer adopted a new policy restricting

part-time and seasonal employees from working morethan 29 hours of service in any week. However, some ofthe employer’s part-time and seasonal employees workmore than 29 hours of service in a week. Some of theseemployees are covered by Medicare or another source ofcoverage.

• Result?

ACA § 1557• Section 1557 prohibits discrimination in certain health

programs and activities on the basis of race, color,national origin, sex, age, or disability.

• Regulations issued May 18, 2016; generally effectiveJuly 18, 2016

• Additional compliance time is allowed for benefit designchanges, such as, covered benefits, benefits limitationsor restrictions, and cost-sharing mechanisms.

ACA § 1557• Applies to –

o Any health program or activity any part of whichreceived funding from HHS

o Any health program or activity that HHS itselfadministers

o Health Insurance Marketplaces and all plans offeredby issuers that participate in those Marketplaces

6

ACA § 1557• Stated Goals:

o Protecting individuals against sex discriminationo Ensuring meaningful access for individuals with limited

English proficiencyo Ensuring effective communication with and accessibility for

individuals with disabilities

ACA § 1557• What employers are impacted?

o Coverage of Health Insurance in Marketplaces and Other Health Plans

o Additional materials: http://www.hhs.gov/civil-rights/for-individuals/section-1557/

RETIREMENT PLANS• IRS has eliminated the regular cyclical Determination

Letter program for individually-designed plans.• IRS intends to annually publish a Required

Amendments List.• Individually designed non-governmental plans will then

generally be required to adopt any requiredamendments by the end of the second calendar yearthat begins after the issuance of the RequiredAmendments List in which the change in qualificationrequirements appear.

7

RETIREMENT PLANS• Retirement Plan Investment Fees

o New Fiduciary Rule (Apr. 8, 2016)o Duty to monitor plan investments – Tibble v. Edison

Int’l, 2016 WL 1445220 (9th Cir. 2016), following 2015 U.S. Supreme Court decision.

POTPOURRI• Retain proof of mailing COBRA Election Notices• Perkins v. Rock-Tenn Services, Inc., 2016 WL 3135709

(W.D. Mich. 2016)• Court accepted electronic copy of the notice along with

computer records showing the dates on which the noticewas created and mailed, supported by affidavit from aTPA employee responsible for the delivery of COBRAnotices as directed by the employer.

POTPOURRI• Notice 2013-54 et al. – IRS continues to emphasize that

an employer may not reimburse individual insurancepolicies for employees.

8

POTPOURRI• DOL has proposed changes to Form 5500• Comments requested by October 4, 2016• Proposed changes would apply beginning with the 2019

Plan Year.

POTPOURRI• DOL identified 5 Goals of the proposed changes to Form 5500:

1. Modernize Financial Reporting2. Provide Greater Information Regarding Group Health Plans3. Enhance Data Mineability4. Improve Service Provider Fee Information5. Enhance Compliance with ERISA and the Code

POTPOURRI• EBSA increases civil money penalties for inflation• Effective August 1, 2016• Examples include:

ERISA Statute

Description Current $ New $

209(b) Failure to furnish reports Up to $11 per employee

Up to $28 per employee

502(c)(2) • Failure or refusal to file annual report and

• Failure of a multiemployer plan to certify endangered or critical status under Section 305(b)(3)(C) treated as failure to file annual report

Up to $1,100per day

Up to $2,063 per day

502(c)(5) Failure of a multiple employer welfare arrangement to file report required by regulations issued under Section 101(g)



9

POTPOURRITABLE CONTINUED

ERISA Statute

Description Current $ New $

502(c)(6) Failure to furnish information requested by Secretary of Labor

Up to $110 per day not to exceed $1,100 per request

Up to $147 per day not to exceed $1,472 per request

502(c)(7) Failure to furnish blackout notice or notice of the right to divest employer securities

Up to $100per day

Up to $131 per day

502(c)(9)(A) Failure by an employer to inform employees of CHIP coverage opportunities – each employee a separate violation

Up to $100 per day

Up to $110 per day

715 Failure to provide Summary of Benefits Coverage under Public Health Services Act

Up to $1,000 per failure

Up to $1,087 per failure

ACTION STEPS FOR EMPLOYERS1. If you successfully filed your ACA Reports for 2015 on

time, celebrate (responsibly) with your favorite beverage! 2. Examine Wellness plan(s)3. Respond as appropriate to Exchange Notices 4. Continue ACA Reporting5. Discuss ACA § 1557 with Health insurer or TPA

ACTION STEPS FOR EMPLOYERS6. Retirement Plan – annually consider whether

amendments needed7. Consider Retirement Plan investment fees8. Retain proof of COBRA notices9. Don’t reimburse individual insurance policies

10

QUESTIONS?

MICHELLE [email protected]



COLORADO EMPLOYMENT LAW

UPDATE

PRESENTED BY JODY DUVALL



JODY N. DUVALL [email protected]

(970) 221-2637

Practice Areas:

Employment Litigation Labor & Employment Personal Injury & Wrongful Death


Colorado Washington United States District Court for the District of

Colorado United States District Court for the Western

District of Washington United States District Court for the Eastern

District of Washington

Education:

University of Oregon School of Law, J.D., 2011 Colorado State University, B.A., 2002

JODY N. DUVALL

Practice Emphasis:

Jody’s practice focuses on labor disputes and labor relations for clients from a variety of industries. He represents employers in all stages of litigation before federal and state trial and appellate courts, before the National Labor Relations Board and other state and federal administrative agencies, and in mediation and arbitration. Additionally, he counsels clients on a wide range of issues related to their employment policies. He has represented employers in matters involving labor negotiations and arbitrations, unfair labor practice proceedings before the National Labor Relations Board and state administrative agencies, wage and hour class and collective actions, wrongful termination and unlawful discharge, discrimination and retaliation.

In addition to his labor and employment practice, Jody has represented clients in a variety of civil litigation matters, including products liability, commercial disputes, and bankruptcy. He counsels individual clients on matters relating to estate disputes and management.


Published: “MLRC 50-State Survey:Employment Libel and Privacy Law,” Surveyof Washington Employment Libel Law, 2014and 2015 editions

Published: "New NLRB Decision Takes Aimat Employment Relationships Within theConstruction Industry," Merit Builder, Assoc.Builders and Contractors (Rocky MountainChapter), Fall 2015

1

COLORADO EMPLOYMENT LAW

UPDATE

JASON YUNGTUM/TARA STINGLEYJODY DUVALL

NEW LAWSACCESS TO PERSONNEL FILES

EMPLOYMENT VERIFICATION

PREGNANT WORKERS FAIRNESS ACT

CASE LAW & GUIDANCEUSE-IT-OR-LOSE-IT LEAVE

WAGE CLAIM DAMAGES

MARIJUANA USE


– Gov. Hickenlooper signed into law a requirement regarding employee access to personnel files

– Goes into effect January 1, 2017– Applies to private-sector employees– Current employees: must be allowed access to

inspect and obtain a copy of any part of their personnel file at least once per year

– Former employees: must be allowed to inspect their personnel file at least one time after termination

2


– No requirement to maintain or retain a personnel file for an employee or former employee

– Employer may require employee or former employee to pay reasonable costs for copying

– Employer may require presence of another individual during inspection

NEW LAWSACCESS TO PERSONNEL FILES• WHAT IS A PERSONNEL FILE?

– The personnel records of an employee that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, termination, or discipline

• DOES NOT INCLUDE:– Documents or records required to be maintained in a separate

file by federal or state law or rule– Documents or records pertaining to confidential reports from

previous employers of the employee – Documents or records pertaining to an active criminal

investigation, employer disciplinary investigation, or investigation by regulatory agency

– Documents that identify an individual who made a confidential accusation against an employee

NEW LAWSACCESS TO PERSONNEL FILES• RECOMMENDATIONS:

– Review file retention policies– Separate materials from personnel files that is

not subject to review – Train HR personnel and create processes for

responding to employee requests to access their personnel

3

NEW LAWSNEW REQUIREMENTS REGARDING STATE EMPLOYMENT VERIFICATION

– Employers no longer need to collect and retain state employment verification forms for each new hire

– Employers must still comply with the separate federal requirements related to Form I-9s, but no more requirement to maintain duplicative state forms

– Went into effect on August 10, 2016

NEW LAWSNEW REQUIREMENTS REGARDING STATE EMPLOYMENT VERIFICATION

– Random audits still permitted– What about the stacks of forms I have that were

signed before August 10?

NEW LAWSPREGNANT WORKERS FAIRNESS ACT• Became effective on August 10, 2016• Requires employers to accommodate

medical conditions and limitations stemming from pregnancy that might not otherwise be a disability under the ADA

• New posting and notification requirements• Applies to all employers with 1 or more

employees

4

PREGNANT WORKERS FAIRNESS ACT• Potential reasonable accommodations:

– Light duty– Frequent or longer breaks– Easier access to water– Modified work schedules– Help with manual labor– Alternate seating arrangements

NEW LAWS

PREGNANT WORKERS FAIRNESS ACT• No retaliation • Broad definition of “adverse action”

– Any action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination

NEW LAWS

PREGNANT WORKERS FAIRNESS ACT• Notice Requirements

– Employers have until December 8, 2016, to provide employees with written notice of their new rights

– New hires– Posting in the workplace

• Potential Damages

NEW LAWS

5

PREGNANT WORKERS FAIRNESS ACT• Recommended steps:

– Policies and handbooks– Job descriptions– Draft written notice– Incorporate notice into new hire paperwork– Prepare workplace poster– Train HR personnel, supervisors, and managers– Periodic review to ensure compliance

NEW LAWS

USE-IT-OR-LOSE-IT LEAVE POLICIES• CDLE promulgated guidance in October of

last year• Use-it-or-lose-it policy may not operate to

deprive an employee of earned vacation time and/or the wages associated with that time

• Terms of agreement between employer and employee will dictate when the vacation pay is “earned”

COURT DECISIONS & GUIDANCE

USE-IT-OR-LOSE-IT LEAVE POLICIES• Many current use-it-or-lose-it policies may

not comply with CDLE’s current position• If an agreement is silent as to when

vacation is earned, the CDLE will look at the following factors:– Industry norms– Subjective understandings of employer and

employee– Other factual considerations that might shed light

on when vacation time is earned


6

USE-IT-OR-LOSE-IT LEAVE POLICIES• CDLE’s authority to adjudicate

vacation pay claims comes from the Wage Claim Act– No mention of PTO

• Recommendations– Review policies– Vacation cap

• Penalties


WAGE CLAIM DAMAGES• Evans v. Loveland Automotive Investments, Inc.

– Employee may be awarded damages under Colorado Wage Claim Act PLUS liquidated damages under the FLSA

• Colorado Wage Claim Act (“CWCA”) damages:– Unpaid wages– Penalty: 125% up to 175% (if violation is willful) of unpaid wages– Prejudgment and postjudgment interest– Attorney’s fees and costs

• Liquidated damages under the FLSA:– Can be awarded at 100% of the amount of wages owed and are

authorized unless employer showed that it acted in good faith and had a reasonable basis for believing that it did not violate the FLSA

• 10th Circuit: CWCA penalty and FLSA liquidated damages do not overlap

CASE LAW & GUIDANCE

MARIJUANA USE• Coats v. Dish Network

– Mr. Coats used medical marijuana for pain– Randomly drug tested and fired– Trial court dismissed the case, Court of Appeals

affirmed, two certified questions to the Supreme Court:• Does Colorado’s lawful activities Statute protect

employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance?

• Does Colorado’s medical marijuana amendment make the use of medical marijuana “lawful” and confer a right to use medical marijuana to persons lawfully registered with the state?


7

QUESTIONS?

JODY [email protected]



FROM HIRING TO FIRING: AN

INTERACTIVE UPDATE ON RECENT EEO

DEVELOPMENTS AND CASES

PRESENTED BY JASON YUNGTUM & TARA STINGLEY



JASON R. YUNGTUM [email protected]

(402) 397-1700

Practice Areas:

Health Care Labor and Employment


Nebraska Iowa United States District Court for the District of Nebraska

United States District Court for the Southern District of Iowa

United States Court of Appeals for the Eighth Circuit

United States Supreme Court

Education:

Creighton University, J.D., 1997 Luther College, B.A., 1994

JASON R. YUNGTUM

Practice Emphasis: Jason was formerly with Catholic Health Initiatives (CHI) and the Alegent Creighton Health System. His practice involves advising health care clients on a variety of issues, including the Federal fraud and abuse laws (the False Claims Act, the Anti-Kickback Statute, the Physician Self-Referral Law, the Exclusion Authorities, the Civil Monetary Penalties Law); mergers, acquisitions, and joint ventures and affiliations; hospital and physician employment, recruitment, and compensation plans; corporate governance; antitrust; medical staff-hospital relationships; medical staff bylaws, rules and regulations; hospital administrative policies; EMTALA and emergency department policies; patient consent; medical records and HIPAA; and record retention policies and programs. He also represents health care workers in state disciplinary proceedings. Jason also advises clients on a variety of employment and labor law issues, including employment contracts and severance agreements; wage/hour and unemployment issues; Title VII, the ADEA; the ADA; and the FMLA. In addition, he has represented employers in discrimination and retaliation claims before the Omaha Human Rights and Relations Department, the Nebraska Equal Opportunity Commission, the Council Bluffs Civil Rights Commission, the Iowa Civil Rights Commission, the U.S. Equal Opportunity Employment Commission, and the U.S. Department of Labor/OSHA.

Other Experience/Achievements: Regional General Counsel and Vice President, Legal Services Group, Catholic

Health Initiatives, 2013-2014

General Counsel, 2012-2013, and Deputy General Counsel, 2009-2012,Alegent Creighton Health System

Law Clerk to Chief Justice John V. Hendry, Nebraska Supreme Court, 1998-1999

Law Clerk to Chief Justice C. Thomas White, Nebraska Supreme Court,1997-1998

Member, American Health Lawyers Association

Member, Iowa Society of Healthcare Attorneys

Member, Nebraska Chapter of Healthcare Financial Management Association

Member, Human Resource Association of the Midlands

Member, Society for Human Resource Management

Member, Leadership Omaha, Class 32, 2009-2010

Adjunct Professor of Law, Legal Research & Writing, Creighton UniversitySchool of Law, 1999-2004

Member, Creighton Law Review, 1995-1996

Editorial Staff, Creighton Law Review, 1996-1997

Member, Regional and National American Bar Association Appellate MootCourt Advocacy Team, 1995-1996

Published: Co-authored "The Times They Are A-Changin'...Everywhere andFor Everyone: LB107 and Nurse Practitioners," The Nebraska Lawyer,May/June 2016

Published:"COBRA & Preexisting Coverage After Geissal v. Moore MedicalCorp.", Creighton Law Review, 1999

Published: "Mediating Sexual Harassment Claims: If, When & How", Journalof Alternative Dispute Resolution in Employment, 1999

Published: "The 'Captain of the Ship' Sets Sail in Nebraska: Long v. Hacker",Creighton Law Review, 1997

TARA A. STINGLEY [email protected]

(402) 397-1700

Practice Areas:

Alternative DisputeResolution

Business Litigation Employment Litigation Intellectual Property

Litigation Labor and Employment


Nebraska United States District Court for

the District of Nebraska United States Court of Appeals for

the Eighth Circuit

Education:

University of Nebraska, J.D., with high distinction, 2005

University of Nebraska, B.S. Criminal Justice, summa cum laude, 2002

TARA A. STINGLEY

Practice Emphasis: Tara specializes in employment law, advising large and small businesses in a variety of industries on compliance with federal, state, and local employment laws and regulations. Tara assists clients in developing employment policies and provides guidance on best employment practices, employment/termination decisions, and avoiding employment litigation and claims. She advises clients on Title VII, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), and other similar federal, state, and local laws and regulations. In the area of wage and hour laws. Tara assists clients in performing internal wage/hour audits to identify potential areas of exposure. Tara also prepares and updates employment policies, employee handbooks, employment agreements, independent contractor agreements, restrictive covenant agreements (including non-compete, non-solicitation, non-disclosure/confidentiality, and non-diversion agreements), and separation agreements/releases for individual terminations and reductions-in-force. Additionally, she develops employee training materials and conducts training sessions on equal employment opportunity subjects and recent changes in employment law. Tara also has a litigation practice and routinely represents public and private employers of all sizes in federal and state court and before federal, state, and local administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the Nebraska Equal Opportunity Commission (NEOC), and the National Labor Relations Board (NLRB), among others. Tara defends employers against claims of discrimination, retaliation, and harassment under Title VII, the ADA, the FMLA, and the ADEA; claims for wage/hour violations under the FLSA and state wage payment laws; and claims alleging wrongful termination and breach of contract. She also assists employers in enforcing restrictive covenant agreements containing non-compete, non-solicitation, non-disclosure/confidentiality, and non-diversion provisions.

Other Experience/Achievements: Listed: Best Lawyers in America (Woodward/White, Inc. (Employment Law-

Management; Litigation-Labor and Employment) Listed: Chambers USA, America's Leading Lawyers for Business (Chambers &

Partners Publishing) (Labor and Employment) Listed: Benchmark Litigation, The Definitive Guide to America's Leading

Litigation Firms and Attorneys Listed: Great Plains Super Lawyers (Employment Litigation Defense;

Employment & Labor; Employment Discrimination; Employment Law -Employee; Retaliation, Sexual Harassment, Wage & Hour Laws;Whistleblower; Wrongful Termination)

Chairperson, Board of Directors, Food Bank for the Heartland Member, University of Nebraska President's Advisory Council Member, University of Nebraska Law College Alumni Council Member, Robert M. Spire American Inn of Court, 2006-2011 Member, Leadership Omaha, Class 33 (2010-2011) Graduate, Nebraska State Bar Association Leadership Academy, Class 2010 Law Clerk to the Honorable William Jay Riley, U.S. Circuit Judge, Eighth

Circuit Court of Appeals, 2005-2007 Managing Editor, Nebraska Law Review, 2003-2005 Member, National Moot Court Team, 2004 Order of the Coif Order of the Barristers Published: "Independent Contractor or Employee: Avoiding Legal Risks and

Penalties Associated with the Misclassification of Workers," The NebraskaLawyer, November/December 2010

Published: "Physicians and Facebook: Implications of Social Media Usage inthe Health Care Industry," Nebraska Medicine/The Nebraska MedicalAssociation, September 2012

1

FROM HIRING TO FIRING: AN INTERACTIVE UPDATE ON RECENT EEO DEVELOPMENTS

AND CASES

JASON YUNGTUM/TARA STINGLEYJASON YUNGTUM & TARA STINGLEY

THE HIRING ANDBACKGROUND CHECK SCENARIO

THE FACTS

• Don Draper applies for an entry-level junior copywriter position atSterling Cooper, an advertising agency.

• At the bottom of Don’s application, Don checks the box authorizingSterling Cooper to perform a background check under the Fair CreditReporting Act (“FRCA”).

• Based on Don’s authorization, Sterling Cooper orders the backgroundcheck from a third party consumer reporting company.

• After reviewing the results of Don’s background check, the agencydoesn’t like what it sees. Sterling Cooper e-mails Don stating “We gotthe results of your background check. We’re unable to move forwardwith you. Better luck next time, you hippie.”

2

DID STERLING COOPER MISSTEP?A. NO. Don authorized the background check, he was told of his FCRA

rights, and Sterling Cooper properly told Don it was rejecting hisapplication after it reviewed the background check report.

B. YES. Sterling Cooper failed to provide a notice of FCRA rights and failedto get Don’s authorization for the background check in documentsseparate from the application.

C. YES. Sterling Cooper failed to send Don a Notice of Pre-Adverse Actionand failed to give him a chance to review a copy of his background checkreport to dispute any inaccuracies.

D. YES. Sterling Cooper failed to send Don a Notice of Adverse Action thatincluded the final decision to reject his application based on informationin the report.

E. B, C, and D.

SO, WHAT DID THAT BACKGROUND CHECK REPORT REVEAL ABOUT DON?

• Don’s background check revealed a 2006 drug offense:conviction for possession of marijuana.

• Don was a 21-year-old college student when this happened(his favorite music artist at that time was Snoop Dogg).

• Don’s other convictions or arrests since 2006 – None.

DID STERLING COOPER APPROPRIATELY SEND DON’S APPLICATION “UP IN SMOKE”?

A. YES. Come on, dude! Once a hippie pot head, always a hippie pot head.

B. NO. The conviction was for a non-violent misdemeanor. The agency shouldconsider the nature and gravity of the offense.

C. NO. It was 10 years ago! The agency should consider the time that has passedsince the offense.

D. NO. Don is applying for an entry-level position to work with other artist-typesin the “creative lounge.” The agency should consider the nature of the positionsought.

E. B, C, and D

3

SO, WHAT HAPPENS NEXT?

• Sterling Cooper’s Human Resource Department believes theorganization has a systemic problem with screening applicants.

• It recommends a new policy to use when reviewing the results ofcriminal background checks:

“Background checks will be marked as‘Pass’ or ‘Fail’ depending on whether theapplicant has a felony conviction.Applicants with a felony conviction willnot be hired.”

IS THIS NEW POLICY A GOOD IDEA?

A. YES. No reputable employer wants to or should have a felon working for them.

B. NO. Sterling Cooper may face Title VII liability for disparateimpact. It should eliminate this policy and any other policiesthat automatically exclude applicants from employment basedupon a criminal conviction.

C. MAYBE. Depending on the job and the circumstances, it maybe reasonable to exclude an applicant from furtherconsideration based on a felony conviction.

THE DEMOTION AND RETALIATION

SCENARIO

4

BACKGROUND INFORMATION

• Anna is an Account Executive at Frozen, Inc., acompany with 60 employees that makes ice cream.

• Elsa is Anna’s boss.

• Frozen, Inc. just lost a big account. Elsa has to demoteat least one Account Executive.

• Anna and Hans are on the list of potential AccountExecutives to be demoted.

oBoth have worked for Frozen, Inc. for over a year.

oBoth have been underperforming and not meeting companystandards.

• One day in the warehouse, while Anna is flirting withanother employee in the warehouse (an area in which shedoes not work), Anna bumps into a shelving unit for the icecream.

• Anna tries to grab the shelving unit to prevent furtherdamage, and her boss Elsa yells, “Let it go! Let it go!”

• In Anna’s attempt to stop the shelving unit from falling, shebreaks both legs and an arm. Frozen, Inc. suffers damageto its warehouse and products.

• Anna subsequently files a worker’s compensation claim andrequests FMLA leave.

WHAT SHOULD ELSA DO?A. Grant Anna’s request for FMLA leave, if Anna is otherwise

eligible.

B. Deny Anna’s request for FMLA leave because Anna canperform many job duties with one working arm.

C. Grant Anna’s request for FMLA leave, but move her to thedemoted position while out – Elsa was going to do it at somepoint anyway, and this is a nice opportunity to deal with it.

D. Deny Anna’s request for FMLA leave because Anna violatedworkplace rules and caused damage to Frozen, Inc. Plus,Anna is already getting work comp benefits.

5


• Elsa grants FMLA leave to Anna, and considers what to dowith the two Account Executives.

• A few weeks after Anna returns from FMLA leave, Elsa tellsher that Frozen, Inc. is restructuring various departments.

o Both Hans and Anna will no longer be Account Executives, butinstead will be Sales Leads.

o Their duties are somewhat similar, but they have fewerresponsibilities and will receive slightly less pay.

• Anna considers this a demotion and becomes very upsetand icy to others at work.

• Meanwhile, Frozen, Inc. continues to suffer poor sales of icecream due to a never-ending winter.

• In order to keep the company in business, Elsa implements ahiring freeze and must immediately cut 10% of Frozen’spayroll by terminating underperforming employees.

• Anna complains about her demotion to Olaf, the HR director.

• Since Anna has returned from FMLA leave, her jobperformance has declined, and she is increasingly icy tocolleagues and clients in her new role.

• Elsa also finds out that Hans has a good relationship with oneof Frozen’s biggest accounts, Sven’s Ice Cream Shoppe.

WHAT’S THE RISKIEST THING ELSA COULD DO RIGHT NOW?

A. Let Anna go, let Anna go, even though Anna has been theiciest, poorest performing employee and Elsa has beenconsidering a termination for months.

B. Cut equal parts of Anna’s and Hans’ pay. A fair and equalcut for two low performers won’t lead people to believe anydiscrimination or retaliation has occurred.

C. Reduce the salaries for all Sales Leads.

6


• Elsa ignores the well-reasoned advice of legal counsel andthe HR Department and terminates Anna.

• Anna is outraged. She believes she was demoted fortaking FMLA leave and then fired in retaliation forcomplaining to the HR Department.

• Anna asks herself, “Do I want to file a lawsuit?” andultimately asserts claims against Frozen, Inc. forretaliation.

WILL ANNA’S RETALIATION CLAIM SUCCEED?

A. YES. Anna’s claim will succeed because Anna’s complaint to HRwas quickly followed by her being frozen out of the company.

B. NO. Both Anna and Hans were demoted for legitimate, non-retaliatory reasons, and the timing of Anna’s termination after hercomplaint to HR is a mere coincidence, given that Frozen, Inc. hasbeen considering Anna’s termination for months.

C. MAYBE. Even if Frozen, Inc. had been considering Anna’stermination for months, the timing of the termination so quicklyafter Anna’s complaint to HR seems suspect. Jury trial!

THIS SCENARIO WAS BASED ON: BROWN V. DIVERSIFIED DISTRIBUTION SYSTEMS, LLC,

801 F.3D 901 (8TH CIR. 2015)• An employee took FMLA leave and returned to a demoted position.

• The employee complained to HR, and five days later the employee wasfired.

• In order to cut costs, the company had been considering who toterminate for months, and the employee, while on the list fortermination, was not originally the one selected to be fired.

• The Eighth Circuit found the timing of the decision to fire the employeeso quickly after she filed a complaint to HR supported an inference ofretaliatory intent.

• The Eighth Circuit reversed the district court’s order granting summaryjudgment on the employee’s FMLA entitlement claim and retaliationclaim and remanded the case for trial.

7

THE PREGNANT EMPLOYEE

SCENARIO

BACKGROUND INFORMATION• Leia is a delivery driver for Dark Side Trucking, Inc., a growing company

with 20+ employees.

• Dark Side Trucking, Inc. requires drivers to lift 20-30 lb. boxes whenloading/unloading trucks for delivery and when stocking the warehouse.

• Leia is in the last 15 weeks of her pregnancy.

• She tells her boss, Darth Vader, that she can’t lift more than 10 lbs.o In the past, Dark Side Trucking has provided accommodations for other

employees with non-pregnancy related physical limitations.o For example, Luke and Han, two other drivers, injured their backs this

year and both were temporarily transferred from delivery to sales becausethey could not do any lifting.

• Leia asks Darth to be given less strenuous work, such as coordinatingdeliveries, because of her lifting limitation.

WHAT SHOULD DARTH DO?A. Tell Leia that he will not transfer her to a coordinator position or

give her light-duty work (i.e., stop acting like such a littleprincess). Pregnancy is not a “disability” so Dark Side Trucking,Inc. is not required to provide an accommodation.

B. Tell Leia she needs to show proof of her lifting limitation (e.g.,doctor’s note) before Dark Side Trucking, Inc. can accommodateher request.

C. Place Leia on unpaid leave because it would be very difficult andcostly to train her for the new position, and Darth is worried Leiamay have further complications if she continues working.

D. Transfer Leia to an open coordinator position. It will take sometime and expense to train her, but at least she won’t sue.

8


• Darth chooses option (D) and transfers Leia to a delivery coordinatorposition after one week of training. Leia is assigned to the warehouseoffice.

• The chair in Leia’s office is pretty uncomfortable. Some employeeshave suggested Darth use the budget surplus to buy new office chairs.

• Three weeks after the transfer, Leia complains to Darth that sitting inthe uncomfortable office chair for hours-on-end causes her pain andmakes it vey difficult to do her job.

• A few weeks later, Leia complains to Darth (again), saying the pain isso bad that she can no longer perform her job if she has to sit in thechair for so many hours a day. She requests an ergonomic chair.

WHAT CAN DARTH DO?A. Tell Leia, “I find your lack of pain tolerance disturbing!” The company

has already incurred enough expense by transferring and training Leia.

B. Buy a new ergonomic chair ($2,500). Darth really has no other choice ifhe wants to avoid a lawsuit.

C. Talk with Leia and provide her with more frequent and longer breaks,or modify her work schedule altogether to avoid sitting in the officechair for extended periods of time.

D. Buy a new chair, but make note to delay Leia’s scheduled pay increaseby a few months; Dark Side Trucking, Inc. has spent too much moneyaccommodating her lifting limitation to give her the scheduled pay raisenext month.

WHAT HAPPENS NEXT?

• Darth talks with Leia, and they agree Leia will take morefrequent and longer breaks rather than purchasing a new chair.

• This works out well, and Leia has no more requests or concerns.

• A few months later, Leia has her baby (Kylo Ren).

• After her maternity leave, she is ready to return to her normaldelivery driver position because she can now lift the boxesweighing 20-30 lbs.

• However, when she returns to work, she asks Darth for breaktime throughout the day and a private place to be set aside inthe office given that she is a new mother and is nursing hernewborn.

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WHAT SHOULD DARTH DO?A. Grant Leia’s request. Dark Side Trucking, Inc. must provide the requested

accommodations even after Leia returns to work.

B. Deny Leia’s request. Dark Side Trucking, Inc. can’t afford to miss anydeliveries, and the temporary worker hired to fill in for Leia is leaving thisweek.

C. Deny Leia’s request and place Leia on unpaid leave for a few more weeks,as allowed under company policy. Tell Leia that, when she returns, shewon’t be given any more accommodations since Dark Side Trucking, Inc.already provided a temporary transfer/training and more breaks while shewas pregnant.

D. Deny Leia’s request. While Dark Side Trucking, Inc. had to accommodateLeia’s limitations while she was pregnant, they don’t have to provide anyadditional accommodations after she has had her baby and returned towork.

THIS SCENARIO WAS BASED ON:YOUNG V. UNITED PARCEL SERVICE, INC.,

135 S. CT. 1338 (2015)• The plaintiff, a pregnant UPS driver, had a 20-lb. lifting restriction for

the first 20 weeks of her pregnancy and a limit of 10 lbs. thereafter.

• UPS denied the accommodation request and put her on unpaid leave.

• The U.S. Supreme Court ruled that the plaintiff had stated enoughfacts to show UPS treated her differently from other employees who hadsimilar physical limitations that resulted from things other thanpregnancy.

• If those facts were ultimately proved, then UPS violated the federalPregnancy Discrimination Act.

FEDERAL VS. STATE LAWDIFFERENT OUTCOME?

oFederal Law (Pregnancy Discrimination Act of 1978)• 42 U.S.C. §§ 2000e et seq.• Requires employers to treat employees with pregnancy-

related medical conditions the same as employees with non-pregnancy related medical conditions

oColorado Law (Colorado Pregnant Workers Fairness Act)• House Bill 16-1438• Amended Colorado Anti-Discrimination Act

oC.R.S. § 24-34-402.03• Signed into law June 1, 2016 (Gov. John Hickenloooper)• Effective August 10, 2016

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DIFFERENCES BETWEEN COLORADO AND FEDERAL LAW?

• Posting and Notification Requirements• Applies to all employers• “Timely, good-faith, and interactive process” to determine

accommodationso Transfer to a light duty position (if available)o Longer or more frequent breakso Easier access to watero Modified work scheduleso Assistance with manual laboro Alternate seating arrangements while on the job

• Prohibits taking adverse actions or denying employmentopportunities to employees/applicants who request orutilize an accommodation

THE CONSTRUCTIVE DISCHARGE

SCENARIO

BACKGROUND INFORMATION• Independence, Inc. is a large employer that manufactures fireworks.

• Alexander Hamilton works on Independence’s factory floor.

• Aaron Burr is Hamilton’s direct supervisor.

• Hamilton complained to Burr that he had been denied a promotion because ofhis race and was experiencing a hostile work environment, stating he was thesubject of continuous racial slurs and racially-motivated threats in theworkplace.

• Burr denied this, stating Hamilton did not receive the promotion because hewas suspected of stealing fireworks. Burr stated the company was consideringreporting Hamilton to law enforcement to investigate Hamilton’s conduct.

• Hamilton and Burr came to an agreement that Hamilton would pay back thecompany for the stolen fireworks. Hamilton later decided to resign.

• Two weeks later, Hamilton finally signed and returned his formal resignationpaperwork to Independence, Inc.

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SHOULD INDEPENDENCE, INC. INVESTIGATE HAMILTON’S CLAIMS OF RACIAL BIAS?

A. NO. Hamilton did not provide any concrete evidence ofdiscrimination so Independence, Inc. is under no obligation toinvestigate. Employers need not investigate frivolous complaints.

B. NO. Because Hamilton voluntarily resigned, Independence, Inc.has no continuing duty to investigate his claims. What doesIndependence possibly have to worry about?

C. YES. Independence, Inc. should investigate allegations ofdiscrimination in the workplace – regardless of whether thecomplaining employee has resigned.

D. Both A and B are correct.

WHAT HAPPENS NEXT?• Independence, Inc. decides not to investigate Hamilton’s

complaints because it’s busy with fireworks sales seasonand Hamilton resigned. Good riddance to bad rubbish!

• However, Hamilton sends Independence a firework of hisown: an NEOC/EEOC Charge of Discrimination alleginghe was constructively discharged from Independence, Inc.in light of the racially charged workplace.

• To defend against the Charge, Independence nowinvestigates Hamilton’s allegations.

IS HAMILTON’S CHARGE HISTORY?

During its investigation, Independence discovers the following:

• Hamilton’s coworker George Washington made several racially inappropriate jokes tocoworkers, including Hamilton, but was never issued any verbal or written warnings.

• Hamilton’s coworker James Madison overheard another coworker making racially-inappropriate comments directed at Hamilton numerous times over several months.

• Hamilton’s coworker Thomas Jefferson heard Hamilton’s supervisor, Burr, refer toHamilton by a racial slur outside of Hamilton’s hearing.

• No employee of Hamilton’s same race holding Hamilton’s job title has been promotedin the last 2 years.

• But, Hamilton allegedly sent Thomas Jefferson several racially-inappropriate textsduring his employment. Unfortunately, Jefferson deleted the texts last week.

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WILL HAMILTON’S CONSTRUCTIVE DISCHARGE CLAIM SUCCEED?

A. Yes. The facts uncovered by Independence, along withthose surrounding his resignation, would result in asuccessful constructive discharge claim.

B. No. These facts could never be severe enough to formthe basis of a constructive discharge claim.

C. Maybe. I don’t know. My head hurts. This is whatjuries are for!

WAIT, WAIT … THERE’S MORE!

• Hamilton and Independence came to the agreement that Hamilton wouldresign 314 days before he filed his EEOC charge.

• Hamilton returned his formal resignation paperwork to Independence 299 daysbefore he filed his NEOC/EEOC charge.

Can Independence argue the claims are time-barred?A. Yes, the time period has expired. The 300-day period in which to file a charge begins

running for a constructive discharge claim from the time of the employer’s lastdiscriminatory conduct: in this case, the agreement that Hamilton would resign.

B. No, Hamilton filed in time. The 300-day clock begins running for a constructivedischarge claim from the time of the employee’s notice of resignation.

THIS SCENARIO WAS BASED ON:GREEN V. BRENNAN, 136 S. CT. 1769 (2016)

• A federal government employee filed a constructive discharge charge with the EEOCupon his retirement from the USPS.

• The employee had only 45 days to initiate contact with the EEOC.

• The postal worker filed his charge 41 days after he formally left employment fromthe USPS, but 96 days after he signed an agreement indicating that he had agreedto retire rather than face federal criminal charges for “delaying the mail.”

• The U.S. Supreme Court ruled that the claim accrues at the date of “notice ofresignation” rather than the date of the last act of discrimination by the employer.

o Even though this case analyzed a federal government employee’s claim, theSupreme Court extended its decision to private-sector employees as well.

• The U.S. Supreme Court did not define “notice,” leaving the question open as towhether an agreement to resign is sufficient to start the clock.

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MORAL OF THE STORY

QUESTIONS?

JASON [email protected]

TARA [email protected]

