What’s Going on in Labor and Employment Law: 2016 and Beyond

Alexis C. KnappSHRM-SCP, MS-HRM, JDShareholder, Littler

Plans for Today

• Involvement of the federal government• What the EEOC is up to• Weapons in the workplace• Wage and hour developments• Medical issues in the workplace• Welcoming the NLRB into your non-union

workplace (and related social media issues)• Where to go from here

Federal Government Involvement

• At all time high• Politics matter – it’s an election year• President Obama’s numerous executive orders

(minimum wage, retaliation, immigration, LGBT, paid sick leave)

• Efforts in Congress to pass additional employment legislation (e.g., ENDA)

• The federal agencies have bigger budgets and more investigators than ever before, and their tactics are more aggressive

Of Course, There’s an App for That

Occupational Health and Safety Administration Department of Labor

EEOC Update

Equal Employment Opportunity Commission

2015 in Review & What to Watch for in 2016

• Continued focus on systemic investigation and related litigation

• Continued scrutiny of hiring policies and practices• Ongoing scrutiny of ADA claims (37% of lawsuits filed

by the EEOC involved ADA issues)• Expansion of pregnancy discrimination claims• Protection against discrimination based on sexual

orientation and gender identity despite absence of express provisions under Title VII

• Attacking severance/release agreements• Criminal background check issues (and don’t forget

FCRA!)

Increasing Focus: Pregnancy in the Workplace

• FMLA, ADA, PDA• EEOC’s new enforcement guidance

06/25/2016• The Supreme Court’s view• Involvement of the states• What it all means

More Details from EEOC’s New Enforcement Guidance

• No assumptions about pregnant workers’ ability or inability to do the job

• Don’t forget pregnancy-based harassment (“You’re HUGE!!”)

• Lactation accommodation reminders• Equal parental leave to men and women• Discrimination based on caregiving

responsibilities may violate Title VII if based on sex

Weapons in the Workplace

• Open Carry in Texas 01/01/2016• What it changed• What it did not change

• Employees versus outsiders• The “Parking Lot” rule

• Much ado about posters• Texas Penal code 30.06 (concealed) and

30.07 (open)

Developments in Wage and Hour Law

Shaping Wage and Hour Law

• A Directive from the White House• “Americans have spent too long working more

and getting less in return...”• Ordered the DOL to revise the FLSA regulations to

make millions more workers eligible for overtime (i.e., nonexempt)

Huffington Post

The DOL Listened

• White Collar Regulations proposed• Issued June 30, 2015

• Comment period ended September 4, 2015• 194,735 comments received• Expected to be finalized this summer and take effect before

the election

• Minimum Salary Test Change• Was $455 per week (23,660 annualized) for 2016• Proposed $970 per week ($50,440 annualized) for 2016• Estimated to convert 4.6 million workers from exempt

to nonexempt

With Automatic, Annual Increases

• The DOL proposed to establish a mechanism for automatically increasing the salary levels annually

So What Should You Do?

• Pull compensation data• For all exempts with an annual salary below $50,440• Your pull should also include data on bonuses and

commissions• Calculate the cost of increasing salary to $50,440

• Consider lowering incentive pay to offset salary increase

• Calculate the cost of reclassification• How many hours are exempt employees working?• What is the “cost neutral” hourly rate?

New Joint Employer Guidance • DOL’s Administration Interpretation 2015 - 1 (January 20, 2016)• Available at: http

://www.dol.gov/whd/flsa/Joint _Employment_AI.htm • Expansive definition of joint employment (and therefore shared

liabilities) • Old test: Actual control of wages, hours, working conditions

and terms of employment was required• New test: Potential or reserved control is enough for a joint

employer finding• Consider related business entities and intermediate entities• DOL did not follow administrative procedures – subject to attack?• Attack on the franchise industry

More Wage and Hour Updates

• Areas of Continued Enforcement and Litigation• Misuse of the independent contractor classification• Overuse of the administrative exemption• Not appropriately counting “work time” (work-related

activities)• Failure to include bonuses in the regular rate for overtime

purposes• “Creative” pay models

• Reminders• Time worked is sacred – PAY IT (federal and state law issue)• 25+ states require more than the FLSA• Do not rely competitors’ practices

Medical Issues in the Workplace

The DOL Issues New FLMA Forms

• May 2015 (with little pomp and circumstance)

• Available at http://www.dol.gov/whd/fmla/ • GINA – finally (we think?)

Who is a “Spouse” Under FMLA?

• FMLA: leave to care for a spouse with a serious health condition

• The original rule: place of residence• The modified rule: place of celebration• What the United States Supreme Court held in

2015• States must now license• States must now recognize

• Result for FMLA?• Why can’t we just call it all FMLA?

A Quick ADA Recap

• The ADA prohibits discrimination because of a disability (applicants and employees)

• Disability: a physical or mental impairment that substantially limits a major life activity (lower threshold than before)

• Employers must reasonably accommodate qualified individuals with disabilities unless it poses an undue hardship

• Requires an interactive process with the employee and possibly his/her healthcare provider (highly individualized – no blanket rules)

Leave as an Accommodation

• Is this on your radar?• Leave from work – block, intermittent,

reduced schedule – may be a reasonable accommodation under the ADA, whether or not an employee is eligible for FMLA and regardless of what your policies say or what your practices are

Leave as an Accommodation

• Leave under the ADA when FMLA does not apply

• What we have learned: there is no set period of time that will always be “enough”

• Document your communication efforts• Don’t be afraid to ask (properly)• The standard for undue hardship• What are your replacement plans?• The EEOC is being aggressive on this issue

Attendance-Based Discipline and Terminations

• 2011: A record-breaking $20M EEOC settlement involving a major cellular provider for rigid application of an attendance points policy (largest ADA settlement in EEOC history)• Started a trend of EEOC enforcement in this arena that

continues today• In November 2015, a major food service company

settled with the EEOC for $1.7M for the same issue• Dozens of class action lawsuits against employers for

rigid application of neutral absence control policies• What this means for employers

Confidentiality Issues

• The FMLA, ADA, and GINA all require that employee medical information be kept confidential

• Under lock and key – whether virtual or physical• Separate files• Share on a need-to-know basis only• But what medical information are we entitled to?

• FMLA: what is on the DOL forms• ADA: job-related and consistent with business necessity

(i.e., individualized analysis)

Caution: You May Be Asking Too Much

• The EEOC’s position: a glance into the Agency’s perspective• Informal Discussion Letter evaluating a sample ADA

policy/forms (February 2014)• http://

www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html

• Increasing enforcement regarding overbroad requests for medical information• The courts are agreeing• Punitive damages?• Don’t blame your third-party administrator

The FMLA and ADA: More Enforcement and Litigation Trends

• “Full release” requirements• “We never allow ______” policies (light duty,

telecommuting, modified schedules, and more)• Lessons from recent cases

• For employers, the technicalities matter• For employees, they matter far less• Inflexible policies are fatal for employers• Engaging in the process is much of the battle – even

if the answer is “no”

What About Mandatory Paid Sick Leave?

• Be aware of every jurisdiction in which you have employees

• There is no such thing as a “one-size-fits-all” policy

• But do not throw in the towel just yet – you may offer a sufficient benefit (if your policy explains it correctly)

• Federal changes coming?

UNION LAW IN THE UNION AND EVEN NON-UNION WORKPLACE

The National Labor Relations Board (NLRB)WikiMedia

My Business is Non-Union

• So, why should I care about the NLRB?

National Labor Relations Board

Paying Attention to Signs of an Election

• New rules took effect April 14, 2015• Traditional labor attorneys saying this is the most

significant development in decades• Higher risk: non-union workplaces• Dramatically speeds up the time for an election to take

place (within a couple of weeks!)• Speeds up your required response time• Requires that you provide the Union with more

detailed contact information on your employees• Congress working to block, but for now these rules are

in effect

The National Labor Relations Act (1935)

• What was going on in U.S. history• The Great Depression• Industrial Revolution• Strikes and labor unrest (often resulting in violence)• Substandard working conditions

• The basic premise of the NLRA was to permit employees to organize and try to secure better working conditions for themselves

• Established the framework for unionization, bargaining and the concept of “unfair labor practices” by both unions and management alike

• Note: the NLRA deems that there are two types of people in the world – “employees” and ”supervisors”

The NLRB Finds New Relevance

• Policing the modern-day water cooler• The rate of unionization has been declining in the

U.S. for decades• The NLRB has an old hook: even non-union

employees are protected under the National Labor Relations Act (NLRA) from discipline when they are engaging in “protected, concerted activity”

• Net result: employees have union-esque rights, sometimes even when they behave badly

Section 7 of the NLRA

• “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities...”

What is “Protected Activity” Under the NLRA?

• Employees have a statutory right to:• Discuss wage rates, bonuses and benefits with one another• Openly discuss thoughts on discipline• Complain about unsafe working conditions/refuse to work in

unsafe conditions• Complain about mismanagement by a supervisor or manager• Complain about a policy or practice or decision they do not

like• Criticize management’s actions• Enlist outside support

• What does this do to good, old-fashioned insubordination?

Employer Handbooks/Policies Under Attack for “Chilling” Section 7 Activity

• Social media• Confidentiality (including pay secrecy)• Employee (mis)conduct• Contact with outsiders• At-will employment disclaimers that cannot be modified• Complaint/dispute resolution policies• Photos/recordings• Loitering/visitors/solicitation/bulletin boards• Confidentiality of investigations?• Purple Communications: whose e-mail system is it

anyway?

So What Should You Look For?

• Do your policies (or practices) restrict employees’ ability to discuss or complain about working conditions, wages, benefits, favoritism or management actions, or prevent enlistment of outside help?

Generations Collide

• Social media meets the NLRA

Free Social Icons

Mouthing Off on Facebook?

• Triple Play Sports Bar, 34-CA-12915 (Jan. 3, 2012)• Facts

• Employee becomes frustrated with her manager’s method of withholding taxes from her paycheck

• She logs onto Facebook and posts “my manager is an a**hole”• Another employee ”liked the post”• They are both terminated for “performance reasons”

• NLRB judge orders reinstatement of the employees, because they were engaged in protected, concerted activity discussing issues related to work

• The co-worker’s “like” of the Facebook status constituted “participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity” under the NLRA (?!)

• On August 22, 2014, the NLRB adopted the agency judge’s finding and said Facebook “likes” can be protected, concerted activity

Nothing is Sacred

• The NLRB has found protected, concerted activity in cases where employees• Used ”swearing and/or sarcasm”• Used a “short-hand expletive”• Called managers “scumbags” “a******”• Called boss ”nasty mother ******” saying “****

his mother” and “vote yes for the union!” (yes, really)

• Take away: we are in a parallel universe

Key Questions for 2016

• Will the NLRB’s approach hold up?• What will an election bring?• Meanwhile, before taking disciplinary action

ask:• Does the employee conduct involve or concern

wages, hours or other terms and conditions?• Is co-worker action or support solicited or

elicited, beyond mere emotional help?

Miscellaneous Reminders

• Privilege issues: emails are forever• “Confidential”: what it is, and what it is not• Frivolous charges and lawsuits must still be

answered

Where to Go From Here

• It is time to really look at your handbooks, forms and policies

• Figure out how you’ll handle the new salary threshold under the FLSA

• Pause before discipline or terminations based on attendance or conduct (including social media activity)

• Train and sensitize managers to all the issues discussed today

• Stay plugged in and utilize your resources: G&A, your employment counsel, HR associations and more

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Get in Touch

• Alexis C. Knapp• aknapp@littler.com• (713) 652-4706