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EMPLOYMENT LAW UPDATE. April 14, 2011. Keith Weddington Sarah Ford PARKER POE ADAMS & BERNSTEIN LLP. AGENDA. Judicial Decisions U.S. Supreme Court 4 th Circuit N.C. Appellate Courts Legislative Update Hot Topics. Supreme Court Decisions. - PowerPoint PPT Presentation
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AGENDA
I. Judicial Decisions
• U.S. Supreme Court
• 4th Circuit
• N.C. Appellate Courts
II. Legislative Update
III. Hot Topics
2
Disparate ImpactLewis v. City of Chicago
(Decided May 24, 2010)
Plaintiffs who fail to file charge with EEOC within 180/300 days of employer’s adoption of discriminatory policy, may still assert a timely claim
Adoption vs. Application
4
Disparate ImpactLewis v. City of Chicago
(Decided May 24, 2010)
Must establish prima facie disparate impact claim
Employer uses a particular employment practice
Practice causes a disparate impact on one of the prohibited bases
Beware of comfort based on old familiar policies.
5
PrivacyCity of Ontario, CA v. Quon
(Decided June 17, 2010)
Court avoided making a broadly applicable ruling regarding employee privacy rights with respect to employer provided electronic devices
Court assumed Quon had a reasonable expectation of privacy
Public employee v. private employee
6
PrivacyCity of Ontario, CA v. Quon
(Decided June 17, 2010)
Reasonable search under the 4th Amendment legitimate, work-related purpose not excessive in scope
Be sure computer/internet usage policies keep pace with advancing technology (texting, instant messaging, social networks)
Consistent training and enforcement
7
Background ChecksNASA v. Nelson
(Decided January 19, 2011)
Court assumed, without finding, that a constitutional right to informational privacy exists
Government has greater latitude as employer than when acting as sovereign
Federal government may conduct wide-ranging background checks of workers employed by government contractors.
8
Background ChecksNASA v. Nelson
(Decided January 19, 2011)
Employers (public and private) should evaluate background check procedures to:
ensure reasonableness/job-relatedness avoid prohibited ADA/GINA protected
inquiries ensure information obtained is kept
secure and confidential
9
Third Party RetaliationThompson v. North American Stainless, LP
(Decided January 24, 2011) White v. Burlington Northern: Any
conduct by employer that would dissuade a reasonable person from engaging in protected conduct = adverse action
Terminated fiancé of employee who filed EEOC charge was within “Zone of Interests” protected by Title VII
Policies and training materials should emphasize that 3rd party retaliation is illegal
10
Cat’s PawStaub v. Proctor Hospital(Decided March 1, 2011)
Employer liable where: Supervisor acts with
discriminatory animus Supervisor intends
act to result in adverse action
That act is a proximate cause of ultimate adverse employment action
11
Cat’s PawStaub v. Proctor Hospital(Decided March 1, 2011)
Employer may escape liability if ultimate adverse action unrelated to original biased action
Practical Tips: Train all supervisory
employees Regular performance reviews Conduct independent
investigation, especially if employee challenges disciplinary action or has conflict with supervisor
Get input from multiple sources
12
Protected ActivityKasten v. Saint-Gobain Performance Plastics
(Decided March 22, 2011)
Oral complaint regarding FLSA issue is sufficient to invoke protections of FLSA’s anti-retaliation provision
Oral complaint must be sufficiently clear and detailed for reasonable employer to understand it as an assertion of rights protected by FLSA
Unresolved – complaint to employer vs. governmental body?
13
Protected ActivityKasten v. Saint-Gobain Performance Plastics
(Decided March 22, 2011)
Consider implementing formal process to review and respond to internal complaints
Specify what information employee must provide employer in order to “file” a complaint
14
Attorneys’ FeesFox v. Vice
(Oral arguments heard May 21, 2011)
Issue: Whether a court can award attorneys’ fees to civil rights defendants based on dismissal of claim when plaintiff has asserted other interrelated non-frivolous claims
“But for” versus “fairly attributable”
15
Settlement of FMLA ClaimsWhiting v. Johns Hopkins Hospital
(Decided March 14, 2011)
Hopefully, the final word on waiver of FMLA claims
Affirms reasonableness of DOL’s 2007 regulation approving of the settlement or release of FMLA claims based on past employer conduct without the approval of DOL or court
17
Executive Exemption under FLSAGrace v. Family Dollar Store, Inc.
Decided March 22, 2011
Salaried retail store manager was an executive employee exempt from FLSA’s overtime provisions despite spending 99% of her time on nonexecutive tasks
Time factor was not controlling Even while doing non-managerial
tasks, Grace was responsible for running the store profitably and dealing with whatever issues arose
Sexual HarassmentEEOC v. Cromer Food Services, Inc.
(Decided March 3, 2011)
Issue: Can employer be held liable for harassment of an employee by a third party?
Employer is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.
Knowledge can be imputed to employer if a reasonable person, intent on complying with Title VII, would have known about the harassment
19
Volunteer Exemption Under FLSAPurdham v. Fairfax County School Bd.
(Decided March 10, 2011)
Golf coach was “volunteer” exempt from FLSA
Volunteer = individual who performs hours of service for a public agency for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation
20
Volunteer Exemption Under FLSAPurdham v. Fairfax County School Bd.
(Decided March 10, 2011)
Employee of public agency exempt if: receives no compensation or is paid
expenses or nominal fee, and volunteer services are different from
normal duties
Private employees cannot be volunteers
21
Calculating Damages Under FLSADesmond v. PNGI Charles Town Gaming
(Decided Jan. 18, 2011)
Issue: Measure of damages in FLSA misclassification cases involving salaried non-exempt workers?
“Half-time” methodology: 50% OT premium—provided that employer & employee had mutual understanding salary covered all hours worked and employee made not less than minimum wage for every hour worked
22
Non-Solicitation AgreementsMJM Investigations, Inc. v. Sjostedt
(Decided July 20, 2010) Employer’s failure to define “current or
prospect client” rendered non-solicitation clause unenforceable
Clearly define “customers” and “prospects” How determined? At what point in time? Limit to those for whom employer has legitimate
need for protection.
Be sure both noncompete and non-solicitation provisions each contain a time period (in case one is blue-penciled out)
24
Oral Employment AgreementsKornegay v. Aspen Asset Group, LLC
(Decided April 12, 2011)
Oral agreement to pay 20% commission bonus upheld
Memo stating “No Bonuses. No Commissions. No Nothing until Aspen sees fit & confident we are making money” insufficient to negate bonus plan under NCWHA.
Trial judge’s decision re: liquidated damages and attys fees is reviewed de novo for abuse of discretion.
25
Oral Employment AgreementsKornegay v. Aspen Asset Group, LLC
(Decided April 12, 2011) Clear written agreement or policy re:
bonuses and commissions is essential How calculated? When earned? When payable? When lost or forfeited?
Any ambiguity will be construed against the employer.
26
Americans with Disabilities Act Amendments (ADAAA)
Signed into law on September 25, 2008
Amendments effective January 1, 2009
Final Rules issued March 25, 2011
28
Final Rules Implementing ADAAA
Primary Purpose: “To make it easier for an individual seeking protection under the ADA to establish that he/she has a disability within the meaning of the ADA.”
Focus is on whether individual was/was not reasonably accommodated or otherwise discriminated against – NOT whether individual is disabled
29
Final Rules Implementing ADAAAA
Claims under “actual disability” and “record of” versus claims under “regarded as.”
No per se list of disabilities; but, non-exhaustive list of examples of conditions that would likely be considered disabilities.
Goal: Courts should spend less time on determining coverage under the ADA and more time to determine if a discriminatory act occurred.
30
Impact on Employers
More requests for accommodations More internal review More EEOC charges More lawsuits More retaliation complaints Fewer dismissals and early
conclusions
31
Final Rules Implementing Genetic Information Nondiscrimination Act
(GINA)
Health insurers and employers cannot discriminate on the basis of an individual’s genetic information
32
GINA
Took effect on November 21,2009
Final Regulations Implementing GINA were issued on November 9, 2010 and took effect on January 10, 2011
What is Genetic Information?
Includes Genetic test results Family medical history
Does NOT include Information about employee gender or age Information about current disease/disorder Tests for drug/alcohol use
34
What Does GINA Prohibit?
Prohibits use of genetic information in employment-related decisions
Prohibits intentionally acquiring genetic information
Prohibits harassment Prohibits retaliation
36
STRICT REQUIREMENT OF CONFIDENTIALITY
Genetic Information Nondiscrimination Act (GINA)
Interplay between GINA, ADA, and FMLA Effect on Employer-Sponsored Wellness
Programs Same remedies as Title VII Employee training is a must
37
What’s The Status?
38
PayCheck Fairness Act
Protecting Older Workers Against Discrimination Act
Employment Nondiscrimination Act
Employee Free Choice Act
Hot Topics in 2011
Social Networking in the Workplace
Misclassification of Independent Contractors
Investigation of Systemic Discrimination
Impact of Credit Checks in Hiring
Form I-9 Audits
40
Social Networking Statistics
Facebook has 500 million active users (http://voices.washingtonpost.com/posttech/2010/07/facebook_hits_500_million_user.html?referrer=emaillink)
Twitter has more than 190 million users, tweeting 65 million times a day (June 8, 2010, TechCrunch.com)
By June 2008, Technorati was tracking over 112 million blogs (http://www.blogherald.com/2008/02/11/how-many-blogs-are-there-is-someone-still-wondering/)
42
What’s the problem?
““Cisco Fatty”Cisco Fatty”
A Cisco applicant tweeted this:
“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
Your Social Media Policy
Address time management
Prohibitions may include: profanity about co-workers, false statements, confidential information, harassment
Policy should be narrowly crafted with a disclaimer re labor rights
Misclassification of Independent Contractors
U.S. DOL study found 10-30% of employers audited had misclassified workers
IRS estimates it is losing $20 billion a year due to worker misclassification
Obama’s $25 million “Misclassification Initiative”
Increasingly subject of FLSA suits
Independent Contractors v. EmployeeWhy Does the Classification Matter?
Employee
Employer pays payroll taxes & withholds income taxes
Employee may qualify for UC and WC
Protection under anti-discrimination laws
Protection under federal and state wage and hour laws
Independent Contractor
IC pays self-employment taxes & reports own income
No UC or WC No overtime No protection under
anti-discrimination and workplace safety laws
47
Factors
Control of manner and means of work
Skill required Source of tools and
instruments Length of
employment Place where work is
performed
Method of payment Receipt of benefits Vacation Opportunity for
profit/loss Hired party’s role
in hiring and paying assistants
48
What Should You Do?
Identify who you have classified as ICs
Conduct an analysis of each position Reclassify?
49
Enforcement InitiativeSystemic Gender Discrimination
Nationwide focus for EEOC
Prevent systemic discrimination, with focus on gender discrimination
Class actions and large settlements and damages awards
50
What Should an Employer Do?
Review policies on transfers and promotions and analyze compensation practices
Conduct training for managers to address best practices in making hiring, pay and promotion decisions
Conduct prompt and effective investigations of gender-based conduct or decisions in the workplace
51
Credit Checks in Hiring Process
Whether employer’s use of credit checks as a condition of employment violates federal civil rights laws?
Disparate impact against women and minorities
EEOC heard testimony on October 20, 2010
52
Form I-9 Audits by ICE/DHS
Increased enforcement and higher fines
Failure to verify authorization to work
“Paperwork” violations
Audit: Internal or External
53
54
Office Locations• Charleston, SC• Charlotte, NC• Columbia, SC• Myrtle Beach, SC• Raleigh, NC• Spartanburg, SC
Kd
Keith Weddington Sarah Ford Direct Dial 704-335-9035 Direct Dial [email protected] [email protected]