Employment Law Update – Being Proac,ve in 2013 Alexis C. Knapp, SPHR, MS-‐HRM, JD LITTLER MENDELSON, PC aknapp@liGler.com 713.652.4706
Plans for Today • Goals for this training • Agenda • Magnitude of these issues to your business and increased enforcement for 2013 • Top 5 areas where management and HR can make a diﬀerence • Miscellaneous reminders • What else is ahead in 2013 • Disclaimers
Undeniable Truths About the Employment Rela9onship • Governmental agency ac[vity is at an all-‐[me high • Lots and lots of new inves[gators • Inter-‐agency coopera[on • Outreach eﬀorts (iPhone apps?!?) • New legisla[on, rules and guidance • Increased enforcement budgets and agendas • EEOC’s budget for 2013 increased by $14M! • In 2012, the EEOC recovered more than $365.4 million in monetary damages from employers – a new record!
More Undeniable Truths About the Employment Rela9onship • Employee charges and li[ga[on are at an all-‐[me high • Even the frivolous charges and lawsuits must be answered • How the process looks (administra[ve, lawsuit, discovery, etc.) • The impact of the economy and the poli[cal climate is signiﬁcant • There is a growing, niche market for plain[ﬀ’s-‐side employment lawyers
Areas Where Management and HR Can Make a Diﬀerence
#1 Interviewing and Selec9on Dos and Don’ts It Is Never Too Early to Manage Your Risk
It’s Never Too Early Interviewing and Selec9on Challenges • You must, must, must know why you made that decision—but document cau[ously • What are you doing with those documents once the job is ﬁlled? • The impact of the internet on this process • Discrimina[on against the unemployed?
More Interviewing and Selec9on Challenges • Interview ques[ons—BEWARE! • Disparate impact and the EEOC’s view • Personal (own a home, own a car, birthdate, marital status, all associa[ons) • Disability-‐related inquiries • Arrests and convic[ons • Consistency within a posi[on • Importance of the job descrip[on— show it to them! • Fair Credit Repor[ng Act issues • Semng compensa[on
#2 Wage and Hour Issues Managing the Hours Worked and Pay of Your Employees
Common Wage and Hour Challenges: Managing Hours Worked • Time clock issues • Rules about breaks • Managing hours worked—and the sanc[ty of them once they are worked • Beware of pre-‐ and post-‐shin ac[vi[es • Travel [me “gotchas”
More Wage and Hour Challenges • Misclassiﬁca[on (the DOL’s favorite “new” topic) • Independent contractor/employee • Exempt/non-‐exempt piqalls • Recordkeeping challenges • Why these cases are so expensive • 2-‐3 year SOL • Every person in the posi[on? • Liquidated damages • AGorney’s fees • Civil/criminal and employer/individual
#3 The Trouble with Termina9ons Common Piaalls for Employers in Ending the Employment Rela9onship
The Trouble with Termina9ons • Over-‐reliance on the “employment-‐at-‐will” doctrine • Semng or devia[ng from precedent—can you explain the diﬀerence? • Most common frustra[on = what was your ﬁnal incident? • Employees in “the bubble” • If it looks like a duck, and quacks like a duck, it’s a duck—call termina[ons what they are • You have ONE chance to tell the true story • What are your plans re: replacing the employee?
The Trouble with Termina9ons: What Happens Next • Consider release/severance issues, protec[ng your business informa[on, gemng property back, logis[cs, etc. • Special challenges with the 40+ por[on of the workforce • Texas Payday Law • Unemployment claims • Sworn tes[mony • Free discovery • Ul[mately, not an employer’s decision • Coordinate with HR and consider who will respond to the TWC
The Government is Paying LOTS of Acen9on • Changes to the FMLA and ADA • State law mini-‐FMLAs and ADAs • Recent ac[vity by Congress, the DOL and the EEOC • EEOC FY 2012 Sta[s[cs • 26,379 Charges alleging disability claims—nearly 1/3 of all charges ﬁled • 150% increase in monetary recovery by the EEOC between 1997 and 2012 • Most popular impairments
FMLA 101: A 30,000 Foot View of Employer Obliga9ons • Qualifying reasons • Unpaid, job-‐protected leave • 12 workweeks (block or intermiGent) • Your responsibility to start the process? • No interference, no retalia[on • It doesn’t maGer how inconvenient this is
ADA 101: A 30,000 Foot View of Employer Obliga9ons • Don’t let the picture on the len fool you—physical or mental, seen or unseen • No discrimina[on because of a disability—applicants or employees • Reasonable accommoda[on • What “accommoda[on” looks like • The interac[ve dialogue—and documen[ng it • An individualized analysis • Showing undue hardship • Conﬁden[ality and recordkeeping
Employee Medical Condi9ons: Some Common and Costly Mistakes • Wai[ng for the employee to use magic words • “we don’t do that here” • “that’s our policy” • “only with a full release” • “you can’t do this job” • Prescrip[on drug issues • Not talking to the employee • Conﬁden[ality issues/need-‐to-‐know
...and what about 9me oﬀ? The EEOC has long maintained—and is now aggressively enforcing—that you may have leave obliga[ons to your employees regardless of whether you or any of your employees is covered by/eligible for FMLA, and regardless of what your policies say or what you prac[ces are.
What We’ve Learned About Leave Obliga9ons under the ADA • Medical leave—a liGle, or a lot—may be a reasonable accommoda[on • Inﬂexible leave policies—neutral absence control, no-‐fault type policies à ILLEGAL under the ADA • Restric[ve light duty policies could also create problems • AGendance policies are on the EEOC’s radar Employee Handbook
Some “Union Law” Basics for a Non-‐Union Workplace • The Na[onal Labor Rela[ons Act and “protected, concerted ac[vity” • Who is the NLRB? • Issues to watch in your workplace • Employee complaints about pay, supervisors, working condi[ons • Pay secrecy policies for non-‐supervisory employees • Non-‐solicita[on policies (oﬃcial or unoﬃcial) • Conﬁden[ality rules • Or anything you ﬁre or discipline employees for! • Pay vigilant aGen[on for any restric[ons on “Sec[on 7” ac[vity • The hot buGon of social media ac[vity
Other Employment Piaalls: Miscellaneous Reminders • Retalia[on—and oldie but a goodie • Inves[ga[ons—what do you do when someone complains? • What harassment can look like • Duty to report • What will you be able to prove—and why it maGers • Did you follow up? • Tort law claims • Document reten[on/destruc[on issues • Watch those e-‐mails—privilege and discoverability issues
What Else to Expect: 2013 and Beyond • Addi[onal whistleblower protec[ons • “Bring Your Own Device” Issues • DOL’s “Right to Know” Ini[a[ve • LGBT Employees and Same Sex Partnership Issues • EEOC Focus on Use of Arrest and Convic[on Records • State Law and Credit Check Protec[ons • Immigra[on Enforcement