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There have been a number of new developments this year. Christina discusses new federal and state initiatives, new case law and other developments that directly affect employers.

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  1. 1. Employment Law Update: NewDevelopments and Trendsin Employment LawChristina M. JepsonApril 9, 2013Salt Lake City25th ANNUAL EMPLOYMENT LAW SEMINARparsonsbehle.com
  2. 2. Introduction The Obama administration continues to usthe administrative agency systemaggressively in the area of employmentlaw – overall expansion of employee rights Many developments this year which are acontinuation of what we’ve seen the lastfew years We will just touch on them2
  3. 3. EEOC – National Stats EEOC has been very active in bringing itsown lawsuits against companies EEOC reported near record number ofdiscrimination charges in 2012 $364 million paid by employers in EEOCcases Important to make sure you have goodpractices and address issues3
  4. 4. EEOC – Utah Stats Total charges trending up– 2009 107– 2010 204– 2011 215– 2012 2474
  5. 5. EEOC – Utah Stats Race charges trending down a little– 2009 19.6%– 2010 16.7%– 2011 17.2%– 2012 13%5
  6. 6. EEOC – Utah Stats Sex discrimination charges back up– 2009 41.1%– 2010 28.9%– 2011 34.9%– 2012 40.5%6
  7. 7. EEOC – Utah Stats National origin charges down a little– 2009 10.3%– 2010 14.7%– 2011 11.6%– 2012 7.3%7
  8. 8. EEOC – Utah Stats Religion charges trending down– 2009 6.5%– 2010 8.8%– 2011 11.6%– 2012 5.7%8
  9. 9. EEOC – Utah Stats Retaliation charges consistent and alwaysthe biggest problem– 2009 44.9%– 2010 42.6%– 2011 44.2%– 2012 38.5% Very important to prevent retaliation9
  10. 10. EEOC – Utah Stats Age charges pretty stable– 2009 29%– 2010 32.8%– 2011 27%– 2012 25.1%10
  11. 11. EEOC – Utah Stats Disability charges up a little– 2009 31.8%– 2010 30.4%– 2011 32.6%– 2012 34.4%11
  12. 12. Wage and Hour Stats Employers paid more in 2012 to settlewage and hour claims nationally– $467 million– Up 4.6 million from 2011 Pay attention to wage and hour issues –exemptions, overtime, independentcontractors12
  13. 13. EEOC – Utah Cases April 2012, company in Vernal whichoperated nursing homes agreed to pay$22,000 to settle pregnancy discriminationlawsuit filed by EEOC Also agreed to provide training for 3 years Lawsuit alleged owner learned of assistant’spregnancy, kept asking her when sheplanned to stop working, demoted her, andeffectively terminated her13
  14. 14. EEOC – Utah Cases October 2011, EEOC sued Utah medicalclinic for hostile work environment based onnational origin EEOC alleged two Mexican employeesroutinely subjected to derogatory commentsand slurs and constructive discharge14
  15. 15. EEOC – Utah Cases January 2013, Utah construction companyagreed to pay $180,000 to settle EEOC raceharassment and retaliation lawsuit Also training, review and revise policies, andpost notices Allegations about two employees working onOdd Fellows Hall project in SLC Alleged regularly used n-word, “boy,”n-lovers, and racial jokes15
  16. 16. EEOC – Trends in Complaints EEOC is focusing on systemicdiscrimination litigation – strategic planannounced in February 2012– Criminal background and credit checks– Pregnancy and child care– Age– Pre-employment testing– Disability16
  17. 17. NLRB – Social Media NLRB pursued a number of cases againstemployers (regardless if unionized) whofired employees for social media posts orbecause the NLRB believed theemployer’s social media policy wasoverbroad NLRB recently issued guidance on socialmedia policies and actions – somedecisions in your handbook17
  18. 18. NLRB – Social Media NLRB has made clear that employees areentitled to engage in “concerted activity”including on social media Social media policies cannot prohibit“concerted activity” Other workplace policies cannot prohibit“concerted activity”18
  19. 19. NLRB – Problems with Decisions On January 4, 2012, President Obamamad three recess appointments (3 of 5) Various employers have challengedrecess appointments as unconstitutional DC District Court held appointmentsunconstitutional (only one court)19
  20. 20. NLRB – Problems with Decisions Court found appointments void, so legallythey were never part of NLRB Every decision since then is subject toattack Supreme Court will likely resolve20
  21. 21. Social Media Hot topic in social media – askingemployees or applicants for social media(Facebook) passwords Not a good idea! Find out more than you want –discrimination, ADA, GINA May violate federal laws regarding storedcommunications21
  22. 22. Social Media However, court dismissed FMLAretaliation case when employer showedthat it had reasonable belief employee wasabusing FMLA – Lineberry v. DetroitMedical (Mich. 2013) Facebook postings of vacations pictures(including riding motorcycle) while onFMLA leave – terminated employee22
  23. 23. Social Media Co-workers saw postings and complained Talked to employee and she claimed she usedwheelchairs at airport Reminded that airports have cameras and of FBpostings She admitted she lied about wheelchairs Court used “honest belief” doctrine which allowsemployer which honestly believes based onfacts that employee abused leave23
  24. 24. Social Media BYOD policies – hot topic– Bring your own device – addresses problemof employees using own equipment butaccessing company systems– Implementing policies to address technologyand social media in the workplace– Staying current24
  25. 25. EEOC – Background Checks 4/25/2012 – reminder EEOC issued Enforcement Guidance onuse of Arrest and Conviction Records inemployment decisions under Title VII Concerns with disparate treatment anddisparate impact – uniform policies maystill have a disparate impact25
  26. 26. EEOC – Background Checks Criminal convictions may be relevant if– Job related – specific and tailored– Direct threat to public safety or property– Business necessity – individualized assessment Fact of an arrest does not establish criminalconduct– May consider conduct underlying arrest if conductmakes individual unfit for position This is not going away26
  27. 27. Gender Identity/Transgender April 2012 Macy v. Holder – EEOC case inwhich employee transitioning from male tofemale claimed she was denied a job by theATF because of her transgender status EEOC found Title VII intentionaldiscrimination because transgender status isby definition discrimination based on sex Trend continues with some limitations27
  28. 28. Gender Identity/Transgender 11th Circuit has supported the notion thatdiscrimination based on “gender identity”is Title VII discrimination because it isbased on stereotypes about what it meansto be a man or woman Many states and local governments havepassed employment laws protecting gayand transgender employees28
  29. 29. Gender Identity/Transgender Some push back 5th Circuit held in July of 2012 that a maleemployee (who was not gay) did not have TitleVII case even though he was called “faggot” and“princess” and simulated sex with him – EEOCv. Boh Brothers Construction Court found no discrimination because no proofthat plaintiff did not conform to stereotypes29
  30. 30. Gender Identity/Transgender Some push back 8th Circuit rejected a transgender discriminationclaim in September 2012 – Hunter v. United ParcelService Court accepted the growing body of precedent thatdiscriminating based on applicant’s gender non-conformity violates Title VII Court held that there was no evidence that companyknew applicant was transgendered even thoughapplicant had female name but dressed as male30
  31. 31. EEOC – Transgender Employees Supreme Court has accepted cert. andhas heard argument in two gay marriagecases This area will continue to change31
  32. 32. DOL – New Regs February 2013 DOL published new rulesexpanding coverage Qualifying veterans and caregivers ofqualifying veterans discharged within 5 years Amends definition of serious injury or illnessof veteran – includes psychological Exigency leave for military members andfamily members Airline personnel32
  33. 33. DOL – Wage & Hour andWorker Classification January 2013, DOL proposed $1.9 millionsurvey on independent contractormisclassification – Right to Know Initiative Plan to interview 10,000 workers in next 2 years Survey may be next step toward requiringemployers to provide notice to employees oftheir classification and reasons Time to audit your classifications and“independent contractor” relations33
  34. 34. DOL – Wage & Hour andWorker Classification In February 2012, the DOL published its2013 budget request to Congress The Wage and Hour Division (whichenforces the Fair Labor Standards Act andthe Family and Medical Leave Act) hasindicated that it will continue to focus itsresources on vulnerable workers andmisclassified employees34
  35. 35. DOL – Wage & Hour andWorker Classification “Vulnerable workers” – subcontracting,franchising, temporary employment andindependent contractors Budget calls for increased investigationsand education in these areas35
  36. 36. DOL – Wage & Hour andWorker Classification DOL announced it was joining forces withthe IRS and 11 states (including Utah) tocrack down on misclassification California has stiffened penalties Triggered by audit, unemployment claim,worker’s comp claim, 1099 filings36
  37. 37. IRS – Wage & Hour Enforcement IRS recently announced temporaryexpansion of Voluntary WorkerClassification Settlement Program Permits employers to reclassify employeeswho have been improperly classified asindependent contractors Allows a fresh start and minimizesexposure on taxes37
  38. 38. IRS – Wage & Hour Enforcement Criteria– Consistent treatment and 1099s for 3 years– No current audit regarding classification– Must be in compliance with prior audit Temporary expansion modifies eligibility topermit taxpayers who have not issued all1099s for three years to participate If accepted, pay 10% of tax liability Deadline – June 30, 201338
  39. 39. DOL – Unpaid Interns Under attack – April 2010 Fact Sheet Test (not as strict for non profits)– Similar to educational training– For the benefit of intern– Does not displace workers– Employer gets no immediate advantage andmay be impeded by intern– Intern not entitled to job at end– Intern understands no wages39
  40. 40. DOL – Unpaid Interns What can happen? Recently a class action was filed in federalcourt in NY by a former unpaid intern forElite Model Agency seeking $50 million inunpaid wages, overtime, and benefits40
  41. 41. Federal Labor Standards Act March 2013, 11th Circuit found that anemployee who was not authorized to workin United States could still recover unpaidwages under FLSA Consistent with trend in federal courts Minimum wage and overtime41
  42. 42. Department of Homeland Security As of March 8, 2013, employers mustbegin using new I-9 form issued byDepartment of Homeland Security This form has 3-year shelf life as it will notexpire until March 2016 New instructions for the I-9 have beenpublished to help employers http://www.uscis.gov/files/form/i-9.pdf42
  43. 43. New Whistleblower Protections July 2013,National Defense Authorization Actgave government contractors andsubcontractors whistleblowers substantialadditional rights – gross mismanagement, grosswaste, abuse of authority, violation of law orregulation, danger to public health Mark’s presentation Take proactive measures to address employeeconcerns and prevent retaliation43
  44. 44. OSHA OSHA very targeted and busy Has issued a record number of significantenforcement cases including largest fine inhistory Strengthened protections for whistleblowers Launched new inspection programs Focusing on high hazard, temporary workers,and hospitals and healthcare44
  45. 45. OSHA – Workplace Violence In 2012, OSHA updated the HazardCommunication Standard New label elements, new safety datasheet format, and training requirementsthat must be completed by December 1,2013 Go to website45
  46. 46. Immigration – Audits I-9 Audits experienced huge jump– Multiplied over past decade– 3 in 2004– 500 in 2008– 3,004 in 201246
  47. 47. Courts: Handbooks January 2013, Utah Court of Appeals heldthat pro se plaintiff had enough evidence tomove forward on his claim of breach ofcontract – Tomlinson v. NCR– At will statements in handbook were not solidand did not clearly apply to all employees– Handbooks included written warnings andperformance plan– Claim that manual created an impliedcontract47
  48. 48. Courts: FMLA March 2013, Tenth Circuit held employeenotifying employer of intent to take FMLAleave is protected activity – Wehrley v.American Family Adjustor hurt knee and back Couldn’t do roof inspections and wasterminated because essential duty Employee brought lawsuit for retaliation forengaging in protected activity48
  49. 49. Courts: FMLA Employee has to show that– He engaged in protected activity – in thiscase notified employer of intent to takeFMLA leave– He was subject to adverse action –terminated– Causal connection between notificationand termination49
  50. 50. Courts: Non-Solicitation January – Prepaid Legal v. Cahill (E.D.Okla.) addressed new area of enforcingnon-solicitation agreements by trying tostop social media posts Salesman left and went to competitor He made general posts on FB and Twitterabout his new company – went to many ofhis previous sales force50
  51. 51. Courts: ADA September 2012, EEOC v. United Airlines(7th Circuit)– Held employer must reassign disabledemployee to vacant position if employee isqualified and would not impose unduehardship on employer– Even if other employees are more qualified51
  52. 52. In the News Penn State– Sexual abuse scandal– Fired head coach Joe Paterno and UniversityPresident Graham Spanier based onallegations that grad student saw assistantcoach assault boy and told officials– Failed to report to police– Negligent hiring and retention– Addressing issues52
  53. 53.  Christina M. Jepsondirect: (801) 536.6820cell: (801) 209.7805email: cjepson@parsonsbehle.comThank You53