Labor Law Update
for the Mining Industry
Mining Association of South Carolina
Mining Workshop – Building Partnerships for ...
The Highlights



New areas of emphasis for the EEOC



NLRB’s new agenda



What employers can do

www.laborlawyers.co...
New Emphasis Areas for the EEOC

www.laborlawyers.com
2013 Strategic Enforcement Plan











Eliminate systemic barriers in recruitment and
hiring
Protect immigrant, ...
EEOC Litigation






122 lawsuits filed in FY 2012
20% of charges and 8% of lawsuits were
systemic
EEOC obtained reco...
Systemic Investigations






EEOC pursued 580 systemic investigations in
FY 2012
Can begin as a single charge
Require...
Systemic Investigations


Targeted areas for systemic investigations:
–
–
–
–
–

Fitness for duty/medical examination pol...
Arrest and Conviction Records




EEOC investigative strategy targeting prehire selection criteria impacting minorities
...
New Guidance



Must make an individualized assessment
Consider many factors:
– Nature and gravity of offense
– Time pas...
New Guidance
– Has person performed same type of work, postconviction, with no criminal conduct
– Employment history befor...
The NLRB’s New Agenda

www.laborlawyers.com
Meet The New NLRB


Adjudicative decisions, guidance memos and
rule-making drive the NLRB’s agenda



Facilitating organ...
Reshaping the Landscape



Proposed Election Rule



Notice Posting Requirement



Speciality Healthcare – Micro-Units
...
Practical Impact









Easier for unions to obtain certification
Less time to identify issues/train supervisors
E...
Focus on Non-Union Workplaces


Confidentiality
– wages/discipline/investigations








Class Action Waivers
Dress...
Policy Language to Avoid









Restricting wage/discipline discussions
Outright prohibition on use of company
nam...
What Can Employers Do








Focus on prevention of
issues
Pay your employees
correctly
Conduct annual
supervisory tr...
Final Questions

Presented by:
Matthew Korn
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com

www.laborlawyers.com
Atla...
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Labor Law Update for the Mining Industry (Mining Association of South Carolina - Apr 2013)

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During this presentation to the Mining Association of South Carolina, Matthew Korn provided an employment and labor law update for the mining industry, including recent initiatives from the Equal Employment Opportunity Commission and National Labor Relations Board.

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Labor Law Update for the Mining Industry (Mining Association of South Carolina - Apr 2013)

  1. 1. Labor Law Update for the Mining Industry Mining Association of South Carolina Mining Workshop – Building Partnerships for the Future April 16, 2013 Presented by: Matthew Korn Phone: (803) 255-0000 Email: mkorn@laborlawyers.com www.laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC
  2. 2. The Highlights  New areas of emphasis for the EEOC  NLRB’s new agenda  What employers can do www.laborlawyers.com
  3. 3. New Emphasis Areas for the EEOC www.laborlawyers.com
  4. 4. 2013 Strategic Enforcement Plan       Eliminate systemic barriers in recruitment and hiring Protect immigrant, migrant, and other vulnerable workers Coverage of gay, lesbian, bisexual and transgender Pregnancy discrimination, harassment, and retaliation Age discrimination Disability discrimination www.laborlawyers.com
  5. 5. EEOC Litigation     122 lawsuits filed in FY 2012 20% of charges and 8% of lawsuits were systemic EEOC obtained record-high $365 million $36 million obtained from systemic investigations (4 times that obtained in 2011) www.laborlawyers.com
  6. 6. Systemic Investigations     EEOC pursued 580 systemic investigations in FY 2012 Can begin as a single charge Requires significant resources to reply Can result in a large monetary settlement and changes in policies www.laborlawyers.com
  7. 7. Systemic Investigations  Targeted areas for systemic investigations: – – – – – Fitness for duty/medical examination policies Leave/termination policies Proficiency rules Employment tests Criminal background/credit checks www.laborlawyers.com
  8. 8. Arrest and Conviction Records   EEOC investigative strategy targeting prehire selection criteria impacting minorities Criminal background checks under particular scrutiny – Disproportionate impact on African-Americans and Hispanics due to higher conviction rates  Pepsi reached a $3 million settlement with the EEOC for using criminal background checks to screen applicants www.laborlawyers.com
  9. 9. New Guidance   Must make an individualized assessment Consider many factors: – Nature and gravity of offense – Time passed since conviction/sentence completion – Age at time of offense; age now – Rehabilitation efforts – Facts surrounding the offense – Number of convictions and offenses www.laborlawyers.com
  10. 10. New Guidance – Has person performed same type of work, postconviction, with no criminal conduct – Employment history before and after the offense – Additional training/education – Character references – Relevance of conviction to job duties  Need background check policy and procedure that allows individualized assessment www.laborlawyers.com
  11. 11. The NLRB’s New Agenda www.laborlawyers.com
  12. 12. Meet The New NLRB  Adjudicative decisions, guidance memos and rule-making drive the NLRB’s agenda  Facilitating organizing and expedite elections  Reversing decades of precedent  Increased focus on non-union employers  Reinventing itself on heels of union decline www.laborlawyers.com
  13. 13. Reshaping the Landscape  Proposed Election Rule  Notice Posting Requirement  Speciality Healthcare – Micro-Units www.laborlawyers.com
  14. 14. Practical Impact       Easier for unions to obtain certification Less time to identify issues/train supervisors Employees basing futures on one side of story Room for peer pressure/intimidation Process to allow unions to “cherry pick” units All of this will fuel organizing activity www.laborlawyers.com
  15. 15. Focus on Non-Union Workplaces  Confidentiality – wages/discipline/investigations      Class Action Waivers Dress Codes Access Rules Social Media Restrictions At-will Disclaimers www.laborlawyers.com
  16. 16. Policy Language to Avoid       Restricting wage/discipline discussions Outright prohibition on use of company name/logo Mandatory advance “approval” language Prohibiting general discussions with media Using generic terms like “unprofessional,” “inappropriate,” or “harassing” behavior Requiring concerns to first be raised with management www.laborlawyers.com
  17. 17. What Can Employers Do     Focus on prevention of issues Pay your employees correctly Conduct annual supervisory training Be wary of all agency investigator inquiries      Document policies and discipline Stay alert to new legal developments Monitor “hot spots” for enforcement activity Update your employee handbook Make a “Top Ten” list of proactive actions www.laborlawyers.com
  18. 18. Final Questions Presented by: Matthew Korn Phone: (803) 255-0000 Email: mkorn@laborlawyers.com www.laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC
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