Schmeltzer, Aptaker and Shepard Law & Public Policy 2600 Virginia Ave, NW, Suite 1000 – The Watergate Washington, DC 20037 202.333.8800 Employment Law

Schmeltzer, Aptaker and ShepardLaw & Public Policy2600 Virginia Ave, NW , Suite 1000 – The Watergate Washington, DC 20037202.333.8800

Employment Law & Public Policy Update

Ira Shepard [email protected]

CUPA-HR General Counsel &

Josh [email protected]

CUPA-HR Government Relations Consultant

mailto:[email protected]

mailto:[email protected]


Legal Update

– Romance in the Workplace– Screening Applicants– FMLA Settlements and Waivers– Age Discrimination & Neutral Practices


Romance in the Workplace

Miller v. Dept. of Corrections, (California Sp Ct. . July 18, 2005)

– The court held consensual sexual affairs between a supervisor and subordinates may create an unlawful hostile work environment for other employees, when the conduct is widespread enough to create the impression that management views employees as “sexual playthings” or sex is required for advancement.

– Although under the California state law, the decision may influence interpretations of Title VII of the Civil Rights Act of 1964 and anti-discrimination laws in other states.

– The court relied heavily on the Equal Employment Opportunity Commission’s Policy Guidance.


Screening Applicants

Karraker v. Rent-a-Center, Inc., (7th Cir. June 15, 2005)

– The U.S. Court of Appeals for the Seventh Circuit (Wisconsin, Illinois and Indiana) has ruled that using the Minnesota Multiphasic Personality Inventory ("MMPI) to screen out applicants for management positions violated the Americans with Disabilities Act ("ADA").

– Employer argued that the MMPI was not a "medical examination" because it used a vocational scoring method that is not designed to diagnose mental illness. Nevertheless, the court concluded that the MMPI was a medical examination, since it may reveal an individual’s mental disorder.


FMLA Settlements and Waivers

Taylor v. Progress Energy (4th Cir. July 20, 2005)

– The U.S. Court of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina Virginia, and West Virginia) of Appeals for the Fourth Circuit ruled that employees cannot waive or settle claims under the Family and Medical Leave Act (FMLA) without first obtaining Department of Labor (DOL) or court approval.

– The decision conflicts with the Fifth Circuit’s (Louisiana, Mississippi and Texas) ruling in the 2003 case Faris v. Williams WPC, Inc. that employees can waiver and settle FMLA claims without approval.

– Progress is seeking en banc review and DOL has filed an amicus brief in support of review. Remains to be seen how other circuits handle the issue.


Age Discrimination & Neutral Practices

Disparate Impact

– A neutral employer policy or practice that has a disproportionate adverse effect on individuals in a protected class.

– An employee suing under a Disparate Impact theory does not have to show the employer intended to discriminate through thepolicy or practice.

– Available under Title VII of the Civil Rights Act of 1964 since the 1970s and the Americans with Disabilities Act since its enactment.


Age Discrimination & Neutral Practice

Smith v. City of Jackson (U.S. Supreme Court March, 2005)

– The U.S. Supreme Court resolves long standing split in the Federal Appellate courts, holding that employees may bring disparate impact suits under the Age Discrimination in Employment Act (ADEA).

– Scope of employer liability for disparate impact claims under the ADEA is narrower than under Title VII.


Age Discrimination & Neutral Practice

ADEA vs. Title VII Disparate Impact

– The ADEA permits policies or practices that have a disparate impact on older workers if the differentiation is based on "reasonable factors other than age" - Title VII requires the policy or practice be job related and consistent with business necessity.

– 1991 Civil Rights Act amended Title VII but did not amend the ADEA, so Wards Cove Packing Co. v. Atonio still applies to the ADEA. Consequently, it is not enough for an employee to simply allege that there is a disparate impact or point to a generalized policy, he or she must isolate and identify the specific employment practice allegedly responsible for the disparities.


Policy Update

– AFL-CIO Split and Union Organizing – Leave Mandates– New Anti-Discrimination Legislation


AFL-CIO Split and Union Organizing

• Unions Leaving AFL-CIO– SEIU – 1.8 million– Teamsters – 1.4 million– UFCW – 1.4 million

• Change to Win Coalition Also Includes– UNITE HERE– Laborers International– United Farm Workers– Carpenters



Employee Free Choice Act (HR 1696 / S 842)– AFL-CIO has made co-sponsorship a litmus

test for support– House: 200 co-sponsors– Senate: 37 co-sponsors



Employee Free Choice Act (HR 1696 / S 842)– Sponsored by Sen. Kennedy (D-MA) and Rep. Miller

(D-CA)– Union may waive secret ballot elections– Majority of authorization cards enough for

certification– Arbitration of first contracts– Expanded damages and remedies



State and Local efforts at Labor Law Reform:

– Bar funds to assist, promote, or deter organizing– Require neutrality in organizing drives– Require card check



State and Local efforts at Labor Law Reform:

– Pittsburgh (1999) - Upheld by Third Circuit– California (2000) – Struck Down by Ninth Circuit– Milwaukee County (2000) - Upheld by the District

Court – New York (2002) - Struck Down by the District Court



Businesses Efforts The Secret Ballot Protection Act (HR 874 / S 1173)• Sponsored by Rep. Norwood (R-GA) and Sen.

DeMint (R-SC).• Requires NLRB-conducted secret ballot

elections for recognition.• House: 62 co-sponsors• Senate: 0 co-sponsors


Leave Mandates

• Family and Medical Leave Act regulatory reform

• Leave to “address” domestic violence needs• Leave for military contingency operations• Paid sick leave


Leave Mandates

FMLA Regulatory Reform– FMLA Enacted – February 1993– Regulations finalized – April 1995– Opinion letter on minor illnesses issued – December

1996– Ragsdale decision – March 2002– DOL stakeholder meetings -- January 2003– OMB recommends reform – March 2005– DOL regulatory agenda – scheduled for May 2005


Leave Mandates

FMLA Regulatory Reform– Definition of “serious health condition”– Intermittent Leave– Notice– Certification– Attendance awards


Leave Mandates

Leave for Victims of Domestic Violence

– 108th Congress, Murray (D-WA) Amendment (SAmdt 2859 to HR 1997)

– Failed by a vote of 53 to 46– Never vetted by House or Senate labor committees– Fails to consider FMLA challenges


Leave Mandates

Leave for Victims of Domestic Violence

• 30 days of leave to “address” domestic violence and accommodation requirements

• State leave laws and employer policies expanded

• Technical Problems:– Includes perceived victims– Questionable certification


Leave Mandates

Military Families Leave Act

– Sen. Feingold (D-WI) and Rep. Udall (D-NM) (S 798 / HR 1667)

– Similar amendment passed by Senate unanimously, October 2003 but was stripped in conference

– Never vetted by House or Senate labor committees– Fails to consider FMLA difficulties


Leave Mandates

Military Families Leave Act

– FMLA leave permitted for reasons resulting from family member’s military service

– Technical concerns:• Vague standards – “any purpose”• Unworkable certification process• Loose notice requirements


Leave Mandates

Health Families Act

– Sen. Kennedy (D-MA) and Rep. DeLauro (D-CT) (S 1085 / HR 1902)

– Mandatory 7 days paid sick leave– Pro-rata to part time and temporary employees– Must permit accrual from year to year– May be taken intermittently– Available if family members are ill– May only request certification after 3 consecutive

days


Anti-Discrimination Legislation

Genetic Discrimination

– Sen. Snowe (R-ME) and Rep. Biggert (R-IL), S 306 / HR 1227

– Passed the Senate February 17, 2005– Covers Health Insurance and Employment– Prohibits employers from discriminating based on

“genetic information”– Prohibits most collection of “genetic information”

and genetic testing



Genetic Discrimination

– Sweeping definitions, ex: genetic information includes family history

– Compensatory and punitive damages– Inconsistent with ADA and HIPAA regarding

collection and retention of health information– Does not trump inconsistent state laws– Can sue under this bill and ADA



Workplace Religious Freedom Act

– S 677: Santorum (R-PA) Kerry (D-MA)– Ensign (R-NV) Lieberman (D-CT)– Brownback (R-KS) Clinton (D-NY)– Smith (R-OR) Schumer (D-NY)– Talent (R-MO) Corzine (D-NJ)– Coburn (R-OK)– Hatch (R-UT)– Cornyn (R-TX)– Coleman (R-MN)– Cochran (R-MS)– Dole (R-NC)




– Current law – Title VII:• Prohibits discrimination based on religious belief• Requires accommodation of religious practices• Unless accommodation creates undue hardship• De minimus standard




– Changes undue hardship test to require significant difficulty or expense

– Much more difficult to:• Deny scheduling requests• Enforce dress codes

– One person’s accommodation may be another person’s hostile work environment

Documents

Schmeltzer, Aptaker and Shepard Law & Public Policy 2600 Virginia Ave, NW, Suite 1000 – The Watergate Washington, DC 20037 202.333.8800 Employment Law