Title Goes Here 2013 EMPLOYMENT LAW UPDATE
Presented By:
Ignacio J. Garcia, Esq. Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
100 North Tampa Street, Suite 3600
Tampa, Florida 33602
(813) 289-1247
Perez Confirmed As
New Labor Secretary
Perez Confirmed As
New Labor Secretary
On July 18, 2013, the Senate confirmed
Thomas Perez as labor secretary with a party-
line vote of 54-46.
Perez’s nomination was part of a Senate
compromise made to avoid changing the
chamber’s filibuster rules.
Perez is currently the head of the Department
of Justice Civil Rights Division and will replace
Hilda Solis, who resigned from the top labor
post in January 2013.
Perez – What to Expect Now
Perez has listed his top priorities as
reauthorizing the Workforce Investment Act
(WIA), ensuring safe and equal opportunity
workplaces, establishing pension security, and
providing even-handed enforcement of wage
and hour laws.
Expect Perez to push passage of the
controversial persuader regulations.
Health and safety-related rules once again
dominate the DOL’s regulatory agenda.
Regulatory Agenda: Persuader
Agreements Under the LMRDA
Office of Labor-Management Standards (OLMS) intends to issue a final rule by early 2014.
Would broaden the scope of reportable activities by substantially narrowing interpretation of the "advice exemption" in Section 203(c).
Would greatly expand the types of employer activity and legal advice in conjunction with a union organizing campaign that would trigger the LMRDA reporting requirement.
If finalized, the rule could have a drastic impact on the confidential nature of the attorney/client relationship.
Regulatory Agenda: Right to Know
Wage and Hour Division’s “Right to Know” Rule remains in “Long Term Actions,” meaning that the DOL likely will not take action on this issue this year.
“Right to Know” Rule will require employers to: Perform a written classification analysis for every worker that
is excluded from FLSA coverage
Disclose the individual analysis to each worker
Retain the documents in the event of a WHD investigation
Require employers to provide a wage statement each pay period to their employees
On January 11, 2013, public comments requested on DOL’s “proposal to collect information about employment experiences and workers’ knowledge of basic employment laws so as to better understand employees’ experience with worker misclassification.”
New FMLA Regulations
Currently Effective
Final Rule effective as of March 8, 2013.
Expanded caregiving leave to include covered
veterans:
-Expanded exigency leave to Regular Armed
Forces, in addition to National Guard and
Reserves.
-New clarification for definitions of “serious injury
or illness” and “serious health condition.”
Side-by-side comparison chart to previous
regulations can be accessed at:
http://www.dol.gov/whd/fmla/2013rule/
comparison.htm.
There’s An App For That!
DOL has launched
an app that allows
employees to record
their own time.
David Lopez, General Counsel
Equal Employment Opportunity Commission
Where We Are Now – Fiscal 2012 Statistical Analysis
EEOC Charge Statistics
95,402 charges in FY 2008 99,922 charges in FY 2010 99,412 charges in FY 2012 2008 2012 Race: 35.6% 33.7% Sex: 29.7% 30.5% National Origin: 11.1% 10.9% Religion: 3.4% 3.8% Age: 25.8% 23.0% Disability: 20.4% 26.5% Equal Pay Act: 1.0% 1.1% Retaliation (All Statutes): 34.3% 38.1% Retaliation (Title VII only): 30.1% 31.4%
EEOC filed 155 lawsuits in 2012, compared to 300 in 2011.
EEOC recovered $44.2 million in 2012, the lowest amount since 2006.
National EEOC Litigation Activity
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1997
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20
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EEOC Filings
EEOC CHARGES
States with the highest number of charges:
Texas – 8,929 (9% total US charges)
Florida – 7,940 (8.0% total US charges)
California – 7,399 (7.4% total US charges)
Georgia - 5,903 (5.9% total US charges)
Illinois – 5,490 (5.5% total US charges)
EEOC 2013 Spring
Regulatory Agenda
Final FOIA rule issued in June 2013.
Plans to issue proposed rules by March 2014 that would revise procedures for filing complaints or charges of employment discrimination based on disability.
Plans to issue proposed rules that would revise the procedures for handling complaints/charges of employment discrimination based on disability filed against employers holding government contracts or subcontracts, as well as complaints filed against recipients of federal financial assistance.
EEOC Strategic Enforcement Plan
Fiscal Years 2013-2016
Priorities:
Eliminating systemic barriers in recruitment
and hiring
Immigrant, migrant, and other vulnerable
workers
Emerging issues: ADA Amendments Act;
Lesbian, Gay, Bisexual, and Transgender
issues; pregnancy and forced unpaid leave
Compensation & gender
Access to the legal system – retaliation &
releases
Harassment
EEOC Strategic Enforcement Plan
Prioritization of charges: Category A charges will be those that raise
priority issues.
Individual disability, harassment and retaliation charges will only be included in Category A if they present strong vehicles for development of the law.
Priority issue and systemic cases will be given precedence for litigation. In 2012, the EEOC completed 240 systemic
investigations, leading to 46 settlements or conciliation agreements worth $36.2 million.
Also, the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits.
Delegation of litigation authority to the General Counsel.
EEOC Strategic Enforcement Plan
Recruitment and Hiring
Exclusionary policies and practices
Channeling/steering of individuals into
specific jobs
Use of screening tools
Pre-employment tests
Criminal history and credit background
checks
Date of birth screens on online
applications
EEOC Strategic Enforcement Plan
Criminal Background Checks
Focus on disparate impact
Race & National Origin
Blanket prohibitions on hiring convicted
felons may generate EEOC interest.
EEOC has pursued employers that have
broad prohibitions on hiring applicants
with conviction records.
Establishing the “Business
Necessity” Defense
Two ways for employers to establish the
“job-related and consistent with
business necessity” defense:
1. Validation of criminal conduct exclusion, by
using the Uniform Guidelines on Employee
Selection Procedures; or
2. Targeted screening process.
Targeted Screening Process
Takes into account the following 3 factors:
1) The nature and gravity of the offense or
conduct;
2) The time that has passed since the offense,
conduct, and/or completion of the sentence;
and
3) The nature of the job held or sought.
Individualized Assessment
EEOC Guidance: For any individuals
“screened out” by this targeted screening
process, employer’s policy should then provide
“an opportunity for an individualized
assessment”.
Individualized Assessment –
Factors
Notice to individual that he/she has been
screened out because of criminal conviction
Opportunity to demonstrate that the
exclusion should not be applied due to
his/her particular circumstance
Consideration by the employer as to
whether the additional information provided
by the individual:
Warrants an exception to the exclusion; and
Shows that the policy as applied is not job-
related and consistent with business
necessity.
Individualized Assessment –
Factors
1. Individual’s showing that he/she was not
correctly identified in the criminal
record or that the record is otherwise
inaccurate
2. Facts or circumstances surrounding
offense or conduct
3. Number of offenses for which individual
was convicted
Individualized Assessment –
Factors
4. Length and consistency of employment
history before and after the offense or
conduct
5. Rehabilitation efforts (e.g.,
education/training)
6. Employment or character references
and any other information regarding fitness
for the particular position
7. Whether individual is bonded under a
federal, state, or local bonding program
Guidance and State Law
Compliance with state and local laws does
not shield employers from violating Title VII
All 50 states and D.C. require criminal
background checks for certain occupations, such
as nurses, elder caregivers, daycare providers,
and school teachers
Counties, cities, and other municipalities
increasingly require background checks
This includes Level 2 screening required by
Florida agencies.
Employer Response to EEOC
Background Check Initiative
1. Develop process regarding background checks and
criminal convictions.
2. Should resemble credit check processes:
a. Notice to individual.
b. Ability to challenge accuracy of conviction report.
3. Link conviction to inability to perform job, if possible.
4. Conduct individualized assessment of applicant’s
conviction, explanation and desired job.
5. Document all steps.
6. Evaluate links between types of convictions, age of
conviction, and job duties. Elements could be different
for different jobs.
Credit Checks
EEOC asserts that using credit history data in hiring decisions can violate Title VII’s race discrimination prohibitions.
EEOC v. Kaplan Higher Education Corp., Case No. 1:10 CV 2882, 2013 BL 21834 (N.D. Ohio Jan. 28, 2013) Alleged “defendants' use of credit reports in the
hiring process has an unlawful disparate impact on Black applicants.”
Court granted summary judgment in favor of the defendant.
“Race rating” used by EEOC’s expert was not reliable.
EEOC failed to prove adverse impact.
EEOC Has Sued BMW
and Dollar General
BMW: policy has no time limit with regard to criminal convictions and “is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.”
Dollar General: policy has a disparate impact against African Americans applicants. Dollar General revoked a job offer to an African
American applicant who had “a six-year-old conviction for possession of a controlled substance.”
Another African American employee was terminated after Dollar General discovered a prior felony conviction, although the employee asserts that the report was a mistake.
The EEOC Gets “Checked” EEOC v. Freeman (August 9, 2013)
Federal judge dismissed action brought by EEOC alleging a disparate impact based on an employer’s use of criminal background checks.
The Court found that the EEOC failed to supply reliable expert testimony and statistical analysis that demonstrated a disparate impact from its criminal background check policy (national statistics not enough).
The Court stated, “…By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability.”
Although this dismissal is a setback for the EEOC, employers should still be mindful of the EEOC’s current guidance.
Lafe Solomon,
General Counsel
There’s An App For That!
NLRB has launched
an app that provides
information on rights
and obligations
under the NLRA.
NLRB – Compliance
Employers should review the following policies: No solicitation/no distribution
Off-duty access
Surveillance cameras
Bulletin board policy
Electronic communication/technology policy
Orientation statement
Statement on unions
Dress code/uniform policy Lanyards, buttons, hats, etc.
Visitor security policy
Social media policy
At will statement
Supreme Court Review
The Defense Of
Marriage Act And
Windsor
Section 2: Full faith
and credit clause:
one state does not
have to recognize a
same-sex marriage
from another state
Section 3: federal
definition of “spouse”
and “marriage”
(applied to over
1,000 federal laws)
Supreme Court Review: The
Windsor Decision
Case involved estate taxes.
By a 5-4 decision, Supreme Court ruled that Section 3 of DOMA is unconstitutional.
The Court did NOT address constitutionality of Section 2 of DOMA, which remains the law.
But significant changes were made to FMLA, COBRA, and HIPAA.
Supreme Court Review: Effects
of the Windsor Decision
FMLA
BEFORE Windsor
Employers were only required to extend these leave rights to an opposite-sex spouse; however, an employer could voluntarily extend rights to an employee’s same-sex spouse, domestic partner or civil union
AFTER Windsor
Appears employers must now extend these rights to an employee to care for a same-sex spouse (depending on domiciliary requirement)
The DOL Has Spoken
DOL made its first official post-Windsor
announcement regarding FMLA on Friday,
August 9 in an internal email to all DOL
employees from Labor Secretary Perez.
DOL has updated multiple guidance documents
to remove references to DOMA and “affirm the
availability of spousal leave based on same-sex
marriages” under the FMLA.
Secretary Perez noted that the amendment of
the guidance documents was just one of many
steps that the DOL will take to implement the
Windsor decision in a way that “provides the
maximum protection for workers and their
families.”
The DOL Has Spoken
Revised DOL Fact Sheet removed references to
DOMA and defines spouse to include same-sex
spouses where recognized by state law.
A “spouse” is a “husband or wife as defined or
recognized under state law for purposes of
marriage in the state where the employee
resides, including ‘common law’ marriage and
same-sex marriage.”
FMLA regulations also define “spouse” based
on the state’s legal definition of marriage.
Previously issued DOL materials also affirm
FMLA eligibility for an in loco parentis
relationship with a child, regardless of the
recognition of one’s same-sex marriage.
Do I Need to Revise My FMLA
Policy Immediately? Yes, but only if you have employees residing in
any of the 13 states that recognize same-sex
marriage or the District of Columbia.
Employees are entitled to take FMLA leave to
care for same-sex spouses if: the employees
are domiciled (e.g., state of primary residence)
is California, Connecticut, Delaware, Iowa,
Maine, Maryland, Massachusetts, Minnesota,
New Hampshire, New York, Rhode Island,
Vermont, Washington, or D.C.
The employees must be married to a same-sex
spouse recognized by their home state. It is not
a requirement that the marriage be
performed in that state.
Supreme Court Review: Effects
of the Windsor Decision
COBRA
BEFORE Windsor
• No requirement to provide COBRA coverage to
domestic partners or same-sex spouses; but could
voluntarily continuation coverage
AFTER Windsor
• To the extent an employer offers health coverage to a
same-sex spouse, it appears that an employer will
need to extend COBRA coverage to such same-sex
spouse
• Still no requirement to provide COBRA coverage to
domestic partners but can provide such coverage
voluntarily
Supreme Court Review: Effects
of the Windsor Decision
HIPPA – Special Enrollment Rights
BEFORE Windsor
• Employers were only required to extend those rights to
an opposite-sex spouse; however, an employer could
voluntarily extend enrollment rights to an employee’s
same-sex spouse or domestic partner
AFTER Windsor
• Appears employers must now extend these rights to
same-sex spouse (depending on the domiciliary
requirement), to the extent an employer provides
same-sex coverage generally
Supreme Court Review
Vance v. Ball State, 133 S. Ct. 2434 (2013)
Issue: What is the definition of a “supervisor” for purposes of Title VII vicarious liability?
Held: A supervisor must be able to take tangible employment actions against the victim (such as the ability to hire, fire, demote, promote, transfer, or discipline).
Supreme Court Review
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)
Issue: What is the proper standard of causation for Title VII retaliation claims?
Held: Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.
Court rejected the EEOC’s Compliance Manual, which endorsed a “mixed motive” burden of proof.
Supreme Court Review
Genesis HealthCare v. Symczyk, 133 S. Ct. 1523 (2013)
Issue: Whether a plaintiff’s refusal of an offer of judgment for complete relief on a FLSA claim renders the case moot?
Held: The offer of judgment “mooted” plaintiff’s individual claim and her claim was dismissed.
Plaintiff also attempted to assert suit “on behalf of others similarly situated,” but because no other claimant’s had joined, the Court dismissed the collective action.
Arbitration American Express Co. v. Italian Colors Restaurant,
No. 12-133, 2013 BL 163177 (U.S. June 20, 2013) – A
contractual waiver of class arbitration is enforceable
under the Federal Arbitration Act when the plaintiff’s cost
of individually arbitrating a federal statutory claim exceeds
the potential recovery.
Oxford Health Plans LLC v. Sutter, No. 12-135, 2013
BL 151235 (U.S. June 10, 2013) – Parties agreed by
contract that “no civil action . . . shall be instituted before
any court” and that “all such disputes shall be submitted
to . . . arbitration.” The parties also agreed that the
arbitrator should decide whether their contract authorized
class arbitration. The Supreme Court decided that the
arbitrator did not exceed his authority when he
determined that the parties’ arbitration agreement
provided for class arbitration.
Arbitration – Lessons Learned In light of these two cases, every employer of
every size should reassess whether the
protections an arbitration agreement can afford
are worth the potential negative ramifications.
An employer can avoid class and collective
actions by adopting an arbitration agreement
that precludes arbitration on a class basis.
However, to ensure that happens, an employer
must be explicit about it.
With a carefully crafted arbitration agreement,
employers can gain the benefits of American
Express and Oxford Health.
Beware of attorney’s fee provisions in arbitration
agreements
What Else Should Employers
Be Looking Out For?
Pending Legislation…
The Employment Non-Discrimination Act
(ENDA) has been re-introduced.
Would add sexual orientation and gender identity
to list of protected classes where employment
discrimination is prohibited
Senate Committee on Health, Education, Labor
and Pensions voted 15-7 in favor the bill; to be
debated on Senate floor fall 2013
Companion bill still pending in the House
Will DOMA’s impact change the outcome?
Pending Legislation…
Family and Medical Leave Inclusion Act
Would allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.
Failed to pass in the last session of Congress and has been re-introduced.
This bill was assigned to a congressional committee on April 25, 2013, which will consider it before possibly sending it on to the House or Senate as a whole.
Pending Legislation…
Working Families Flexibility Act of 2013
Would allow workers who are entitled to
get overtime pay to choose instead to
receive compensatory time
1.5 hours of time for each overtime hour
Employee may bank up to 160 hours a year
Workers can request money later
Once 80 hours in the bank, the employer may
choose to pay overtime in cash
Approved by the House in May 2013, but
may not survive the Democrat-controlled
Senate
Pending Legislation…
Social Networking Online Protection Act
SNOPA would protect individuals who
use social networking sites.
Would prevent employers from requiring
applicants or employees to divulge their
personal “profile” information,
passwords, or online accounts.
Reintroduced in February 2013, and is
pending in a House of Representatives
Committee.
Pay Equity May Resurface
Paycheck Fairness Act was reintroduced
this year.
Would have amended the Equal Pay Act,
requiring employers to demonstrate that any pay
disparity complained of is related to job
performance and not gender.
Prohibits retaliation and allows for punitive
damages.
Died in the Senate in June 2013.
An earlier version of this bill passed in the House
in 2009.
Stay tuned, this bill will likely show up again.
Title Goes Here
Presented By:
Ignacio J. Garcia, Esq. Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
100 North Tampa Street, Suite 3600
Tampa, Florida 33602
(813) 289-1247
?? Questions ??