This document discusses emerging legal trends affecting the workplace presented by Mark Bakker of Wyche, P.A. It outlines increased regulatory scrutiny from agencies like the DOL, EEOC, and NLRB. The DOL is cracking down on misclassifying independent contractors and the EEOC is providing guidance on criminal background checks. The NLRB is also showing signs of more aggressive enforcement of labor laws. Emerging issues around social media, BYOD policies, same-sex marriage benefits, and anti-bullying initiatives are also discussed. Bakker provides best practices for various policies and compliance in this new legal landscape.

1. The New Normal
Emerging Legal Trends
Affecting the Workplace
Mark Bakker
Wyche, P.A.
November 12, 2013
www.wyche.com

2. The New Normal:
Increased Regulatory Scrutiny
Federal Agencies:
• DOL
• EEOC
• NLRB

3. The DOL New Normal:
Scrutiny of Independent
Contractor Classification
• Benefits of IC relationship
– Reduced payroll taxes and no benefits
– No Workers’ Compensation liability
– No overtime liability or other related claims
– Potential for reduced working space/other
overhead
– Hedge against future uncertainty

4. Misclassification of
Independent Contractors
• Crackdown on IC
misclassification
• Enforcement Priority
• DOL Secretary:
“workplace fraud”
• Motivations
– Protection of workers
– Response to claims of
unfair competition
– Tax recovery

5. IC Classification
Economic Realities Test (FLSA)
(1) Degree of control
(2) Investment in facilities/equipment
(3) Opportunity for profit and loss
(4) Permanency of the relationship
(5) Required skill

6. IC Misclassification
Red Flags
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Relying solely on consultant label
Integrated workforce (“side-by-side”)
Integrated compensation systems
Long-term or exclusive relationship
Headcount/cost-saving motivation

7. Consequences of
Misclassification
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DOL and IRS (state and federal)
Tax penalties
Overtime liability
Unemployment Assessment – SCDEW
Penalties/liquidated damages
Attorneys’ fees and costs
Benefits (e.g., retirement benefits)
Potential for class/collective action litigation

8. Practical Steps
• Written Agreements
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Limit exclusivity
Encourage economic independence
Enhance flexibility
Establish conclusion of the work
Disavow employment relationship and benefits
• Require worker to set up LLC/corporation
• Periodically audit and evaluate
• Consider alternative (temp staffing)

9. The New Normal:
EEOC & Background Checks
Enforcement Guidance (2012)
Consideration of Arrest and Conviction
Records in Employment Decisions
Under Title VII of the Civil Rights Act
• “New normal” or “clarity” of existing reg’s?

10. EEOC Enforcement Guidance
• Race and national origin discrimination
• Arrest v. conviction records
• Disparate treatment v. disparate impact
– Reliance on national data
– Targeting general, blanket anti-hire exclusions
“Even when employers apply criminal record exclusions
uniformly, the exclusions may still operate to
disproportionately and unjustifiably exclude persons of a
particular race or national origin.”

12. Liability for Negligent Hire
Claim for negligent hiring and negligent
entrustment:
a) The company is on notice of an issue that
requires it to reasonably inquire into the
fitness of a particular employee for a
particular position
b) The company fails to inquire
c) That failure to inquire causes legal
damage

13. Best Practices
• Eliminate “blanket” policies or practices
• Develop narrowly tailored written policy:
– Considers job requirements/contexts
– Specify offenses that demonstrate unfitness
– Limits duration of exclusions
– Conduct individualized assessment
• Limit inquiries to “job related” & “consistent
with business necessity”
• Establish appropriate confidentiality

14. National Labor Relations Board
• Signs of Aggressive activity
– Boeing
– New NLRB Notice

15. NLRB
• Why?

16. National Labor Relations Act
• NLRB counsel: not “new normal” but “catch up”
• Covers most private-sector employees
• “Section 7” rights
– guarantees employees the right to “engage in”
“concerted” and “protected” activities with
other employees
– Protected activities include:
• Discussing wages, discipline, unions
• Complaining about policies, supervisors
• Complaining about terms/conditions of employment

17. Handbook Clauses that May
Implicate Section 7 Rights
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Bans on Disclosing Wages
Social Media
Bans on Use of Company Name*
“Employment-at-will” disclaimers*
Confidentiality*
– General/investigations
Off-duty conduct
Access Provisions
Solicitation and distribution
Harassment*
Dispute Resolution Procedures

18. Social Networking Policies
(NLRB)
• Activity may be protected if
– Done on employee’s time and equipment
– Related to terms/conditions of employment or
exercise of NLRA rights
– Involves “concerted” activity
• Swearing/name calling may not justify
termination
• Overbroad policies will be scrutinized

19. Social Media and NLRB
• Examples of policies that were overbroad: general
prohibitions against
– Self-identifying as employee
– Using company logo
– Posting Facebook comments about work
– Disparaging company products on-line
– Harming the image and integrity of the company
– Inaccurate or misleading or offensive remarks
• Others that NLRB deemed problematic:
– Encouraging employees to solve work problems in the
workplace rather than post online
– Discouraging the “friending” of co-workers

20. Butler Medical (Sept. 2013)
• E’ee A: terminated & complained on FB
– Allegedly told patient about poor condition of vehicles
• E’ee B responded:
“Sorry to hear that but if you want you may think about
getting a lawyer and taking them to court.”
• E’ee C:
“Hey everybody!!!!! Im [f—— ing] broke down in the
same [s—— ] I was broke in last week because they
don’t wanna buy new [s—— ]!!!! Cha-Chinnngggggg
chinnng—at Sheetz Convenience Store.”
Butler : B&C terminated--posts violated company policy

21. Drafting Your Social Media
Policy
CLARITY
• You CAN prohibit social media postings that:
– Make comments about coworkers or supervisors or the
employer that are vulgar, obscene, threatening,
intimidating, or harassing
– That constitutes illegal discrimination or harassment
– Carry out illegal conduct
– Are maliciously untrue
• Specific examples are key
• Disclaim that not interfering with NLRA rights

22. Access Provisions
• Employers may prohibit:
– Non-employees from entering premises
– Off-duty employees from entering internal
premises
• Employers may not prohibit:
– Non-employees from public property
– Off-duty employees from external premises
Non-Discriminatory enforcement!

23. Solicitation and Distribution
Provisions
• Employers may prohibit
– Non-employees from soliciting and distributing
– Employees from soliciting and distributing
during “work time” and in “work areas”
• Employers may not prohibit:
– All employee solicitation and distribution
– Employees from “talking” about a union or
terms and conditions of employment
Non-discriminatory enforcement!

24. Arbitration Agreements
• DR Horton Case (2012)
– Agreement requiring employee to arbitrate
claims violates Section 7 rights
• Interferes with access to NLRB
• Must expressly carve out right to bring NLRB
charges
– Class action waivers violate Section 7 rights

25. The New Normal:
Managing Other Social Media Issues
• Some old boundaries and axioms no longer
relevant (business/personal)
• “Frontier law” but apply familiar frameworks

26. Social Media – Hiring
• Appeal of SM in Hiring
• Risks
– False identity
– Inaccurate information
– Impermissible subject matter
• E.g., UK professor/religious discrimination
• Limit Risks
– Third party vendors
– Separate cybervetters from decision makers

27. Social Media – Access to Passwords
 Accessing passwords – with permission
 Banned in 12 states
 Not recommended
 Accessing passwords – no authorization
 Trapp v. DHS
 resorting to self-help could expose
an employer to civil and possible
criminal liability
Fair Game: unsecured, publicly
available social media

28. Bring Your Own Device Policy (BYOD)
• Benefits
– Employees carry single device
– Convenience/practical response to technology
– Reduce costs of devices to employer
• Risks
– Security concerns
– Potentially higher IT costs
– Disaster for discovery in litigation
– Erosion of personal/business spheres

29. Other BYOD Employment Law
Issues
• Personal Privacy protections
– Computer Fraud and Abuse Act
– Stored Communications Act
• Wage & Hour considerations
• Harassment/hostile work environment
• Security of confidential information

30. BYOD Policy
• Broad Authorization to:
– Monitor use and content
– Wipe data upon termination/lost device
– Turn over devices for investigations
• Diminished expectation of privacy
• Obligation to notify if lost/stolen
• Require data encryption/password
protection

31. Social Media – Ownership
Who gets the friends
when the employment
relationship breaks up?

32. Best Company Practices to Protect
Social Media
• Company establishes Account (name and content)
• Structural protection
– Adopt uniform branding, content and style guides
– Assign employees to administer SM accounts
• Anticipate separation of employment
– Reference SM in restrictive covenants
– Have manager also keep account/password
information
– Take quick action upon separation of employment

33. Best Practices, ctd.
• Written agreement/policy that clarifies rights
and duties
– Blogs, accounts are company property
– Employee must transfer all account
information upon termination
– Administering SM is part of employee’s job
Remember NLRB admonitions: Write
policies in pencil rather than in pen

34. Impact of Supreme Court Decision
on Same Sex Marriage on
Employment Law
• Defense of Marriage Act enacted 1996
– Definition of “marriage” and “spouse”
– Affected numerous tax/estate/employee
benefit laws
• U.S. v. Windsor decided 2013
– Unconstitutional to limit “marriage” and
“spouse” to opposite-sex couples

35. Primary Employer-Related Laws
Affected
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Federal Tax
ERISA
COBRA
HIPAA
FMLA
IRS/ERISA determination: “place of celebration”
FMLA determination: “place of residence”

36. Next Steps
• Best practice: obtain same-sex marriage information
• Review employment policies, handbooks, benefit
plans, SPDs and summaries and insurance policies
• Make legally necessary changes and any changes
desired in accordance with corporate HR strategy
Stay Tuned: More guidance
expected

37. And while we are on the subject of Sexual
Orientation and Emerging Trends
• Increased jurisdictional protection in
states/cities
• Employment Non-Discrimination Act
(ENDA)

38. Bullying, Hazing, and Healthy
Workplace Initiatives

39. Legal aspects of bullying
• No current anti-bullying laws
– “Healthy Workplace Act”
• Laws/causes of action
– Federal and state anti-discrimination laws
– Harassment
– Intentional Infliction of Emotional Distress
– OSHA General Duty Clause
– ADA accommodation
Next Major Arena for Employment Claims?

40. The New Normal
Emerging Legal Trends
Affecting the Workplace
Mark Bakker
Wyche, P.A.
November 12, 2013
www.wyche.com