Transcript LEGAL UPDATE

Spring
Conference
LEGAL UPDATE
David J. Goldstein
June 6, 2013
Title IX Compliance
• April 4, 2011 “Dear Colleague” Letter from
the U.S. Department of Education, Office for
Civil Rights
– Identify and properly train a Title IX Coordinator
– Review and revise, if necessary, Grievance
Procedures
– Also train investigators and adjudicators, campus
law enforcement, and the rest of the campus
community
2
Minnesota Legislative Wrap-Up
3
Recognition of Same-Sex Marriages
• State laws protecting spouses or parents now extend to
same-sex couples
– e.g., family military leave and EEO laws prohibiting marital
status discrimination
– However, certain religious organizations will continue to be
exempted from various legal requirements under certain
circumstances
• Action Items
– Review and revise, if necessary, policies and procedures to
ensure state protections and benefits provided to
heterosexual married couples are extended to same-sex
married couples
– Train HR and supervisory staff on amended law’s
requirement, and ensure that employees understand that
discrimination against same-sex married couples based on
their marital status is prohibited
4
Sick Leave Benefits When Caring for
Family Members
• Under existing law, an employee can use employerprovided “personal sick leave benefits” for absences
due to the illness or injury of the employee’s child for
reasonable periods just as he or she could use sick
leave for his or her own illness or injury
• Personal sick leave benefits amount to the time an
employee can accrue and use for absences due to
personal injury or illness under an employer’s policy,
but do not include short- or long-term disability or
other salary continuation benefits
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Sick Leave Benefits When Caring for
Family Members
• Under the amended law, personal sick leave
benefits now can also be used for absences
due to an illness or injury of the employee’s:
– Adult or minor child
• under age 18
• under age 20 but still in high school
• includes the step-, biological, adopted, and foster children
–
–
–
–
–
Spouse
Sibling
Parent
Grandparent
Stepparent
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Sick Leave Benefits When Caring for
Family Members
• Employers may limit the use of personal sick
leave benefits provided for absences
connected to the illness or injury of an adult
child, spouse, sibling, parent, grandparent, or
stepparent to no more than 160 hours in any
12-month period
– However, employers may not limit absences
connected to a minor child’s illness or injury
• Codified at Minnesota Statutes §181.9413
• Effective August 1, 2013
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BAN THE BOX
Unless exempted, employers may NOT
• Inquire into or consider or
require disclosure of criminal
record information until:
– the applicant has been
selected for an interview; or
– If there is no interview, until
after making a conditional
offer of employment
• Use any form of employment
application that seeks such
criminal record information
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Background Checks Remain Legal
• The law “does not prohibit private employers from
eventually conducting background checks and fully
investigating the criminal past of potential
employees,” but, “is designed to get applicants past
the initial application stage, so that if they qualify for
the job, they get a chance to explain themselves”
– Representative Tim Mahoney (DFL)
• The statute expressly states that it does not prohibit
an employer from notifying applicants that either law
or the employer’s policy will disqualify an individual
with a particular criminal history background from
employment for particular positions
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Protections for Employers
• Employee’s criminal history inadmissible in civil
litigation against the employer where:
– the civil action is based on the employee’s conduct and
the duties of the employee’s position did not pose
particular risk to others; or
– before the occurrence of the conduct at issue in the civil
action, a court order sealed the criminal record or the
employee received a pardon; or
– the record is of an arrest or charge that did not result in
a conviction; or
– the action is based solely on the employer’s compliance
with the statutory restrictions
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Enforcement
• Enforced by the Department of Human Rights
• Transition Enforcement for the first year
– Written warning
– Maximum penalty of $500 per violation, not to exceed
$500 per calendar month.
• After the first year, penalties will be based on the
size of the employer
– $100 or $500 per violation
– Cap of $100, $500 or $2,000 per month
• No private right of action
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BEYOND THE BOX
Avoiding
discrimination
claims related
to
background
checks
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Updated EEOC Enforcement Guidance
Approved 4-1 on April 25, 2012:
• “EEOC Enforcement Guidance on the Consideration of Arrest
and Conviction Records in Employment Decisions Under Title
VII of the Civil Rights Act of 1964”
• Accompanying “Questions and Answers About EEOC’s
Enforcement Guidance”
See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm and
http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
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Title VII & Criminal History Record:
Setting the Stage
Title VII- Criminal History Record
Disparate
Treatment
Treated Different Based
On EEO Status
No Protected
Status
Disparate Impact
Policy Unfairly Impacts On
Protected Group
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Application of Title VII to Criminal
History Records
I. Summary – Use of criminal history may “in some circumstances” violate Title VII
II. Introduction- Focuses on statistics / Purpose of Guidance/ Intended Audience
III. Background – Criminal record databases may be “incomplete” or “inaccurate”
IV. Disparate Treatment Discrimination and Criminal Records
– Focus on “Stereotyped Thinking” (e.g. African Americans v. White youth convicted of drug
related crimes)
– Reviews “kinds of evidence that may be used” (See Guidance- Examples #1 and #2)
V. Disparate Impact Discrimination and Criminal Records (12 of the 26 pages)
– Must demonstrate exclusion is “job related” and “consistent with business necessity”
– “Effectively link specific criminal conduct and its dangers with the risks inherent in the duties
of a particular job”
– Key Distinction in Approach: Arrests vs. Convictions
– Review of Arrests: “Standing alone may not be used to deny employment,” but may focus on
“conduct underlying the arrest” (See Guidance- Examples #3 and #4)
VI. Impact of Federal Prohibitions /Restrictions on Individuals -- Certain Criminal Conduct
VII. Impact of State/Local Prohibitions /Restrictions on Individuals -- Certain Criminal Conduct
VIII. Employer Best Practices
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Individualized Assessment Factors
Review of Factors to Consider for Individualized Assessment:
– The facts or circumstances surrounding the offense or conduct;
– The number of offenses for which the individual was convicted;
– Older age at the time of conviction, or release from prison;
– Evidence that the individual performed the same type of work, post conviction, with the
same or a different employer, with no known incidents of criminal conduct;
– The length and consistency of employment history before and after the offense or
conduct;
– Rehabilitation efforts, e.g., education/training;
– Employment or character references and any other information regarding fitness for the
particular position; and
– Whether the individual is bonded under a federal, state, or local bonding program
[See Guidance- Example #7- No reasonable cause- targeted rule upheld with individualized assessment/ But see- Example #8- Reasonable
cause without individualized assessment]
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Compliance with Federal and/or
State Laws
Federal Laws and/or Regulations – Defense to Charge of Discrimination
• Examples:
1. Positions subject to Federal prohibitions and/or restrictions
2. Federal Licenses
3. Application for Waiver of Federal Imposed Occupational Restrictions- Not Required
under Title VII
[See Guidance- Example #9- Reasonable cause/ Example #10- No reasonable cause- no obligation
to seek waiver of federal bar]
State Laws and/or Regulations– “Preempted” by Title VII
[See Example #11- State law exclusion job related/business necessity and no reasonable cause/
Example #12- Not job related/business necessity]
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EEOC Recommended “Best Practices”
EEOC’s View of “Employer Best Practices”
•
•
•
•
•
•
Eliminate blanket exclusions “based on any criminal record”
Develop narrowly tailored written policy/procedures excluding individuals from particular
jobs based on a criminal history record
(1) Identify essential job requirements
(2) Identify specific offenses tied to “unfitness” for job
(3) Identify time limits applicable to exclusion
(4) Document research/consultations to support policy/procedures
(5) Provide for individualized assessment before final hiring decision
When asking questions about criminal records, limit inquiries to records job
related/consistent with business necessity
Make inquiries of criminal record – post application
(e.g. “ban the box” approach)
Train managers, hiring officials, and decision-makers
on how to implement the policy and procedures
consistent with Title VII.
Maintain confidentiality of criminal records
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WHAT ELSE
ARE THEY UP TO AT THE
EEOC?
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Charge Filings Continue at Record Highs
• EEOC charge stats from FY 2012:
97,000 charges
• Follows three prior years of record
charges (FY 2011: 99,947; 2010:
99,922; FY 2009: 93,277)
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The Stakes Are High
• In 2012, the EEOC collected more than $365
million in monetary awards from employers –
a new record!
2009
2012
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EEOC Enforcement Update: A “New Breed”
• More Aggressive Posture
• More regulations / rule making
• Expanded scope of investigations
• Threaten systemic investigation if
fail to accept their conciliation
offer
• Mandatory public press releases
for settlements
• Refusal to allow early “no fault”
settlements in some cases
• Requiring injunctive relief with
follow-up powers
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Department of Labor
• DOL is “back in the
enforcement business”
• “We Can Help”
• “Plan/Prevent/Protect”
Photo credit: http://www.dol.gov/laborday/history-rosie.htm
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Independent Contractor
Misclassification
• The Wage & Hour Division is conducting self-directed
investigations in industries that frequently use independent
contractors:
–
–
–
–
–
–
–
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Construction
Janitorial
Home Health Care
Child Care
Transportation and Warehousing
Poultry and Meat Processing
Landscaping
Professional and Personnel Services
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Targeting Employee
Misclassification
• FY 2012 Budget Request - DOL sought an increase of $46
million for “misclassification initiative”
• FY 2013 Budget Request - $4million/35 investigators for WHD
and $10 million for ETA for state grants
• DOL memorandums of understanding with IRS and states to
combat misclassification
• Legislation to changes to Section 530 safe harbor likely to be
reintroduced
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FLSA: “Right to Know”
• DOL is planning rulemaking to update employer
recordkeeping requirements under the Fair
Labor Standards Act (FLSA)
• Would require employers to conduct
classification analysis, notify workers of their
status as exempt or non-exempt, and provide
information regarding hours, how pay was
computed and whether the proper wages and
overtime were paid
• A proposed rule was originally scheduled for
release in August 2010, then October 2011, and
now TBD
26
OFCCP Regulatory Agenda
• Proposed Veterans and Disability
Regulatory Revisions
• Rescission of OFCCP’s Compensation
Standards and OFCCP’s New
Compensation Directive
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OFCCP: What to Expect
• Finalize proposed regulations, significantly
increasing compliance costs
• Continued aggressive, hard-line approach to
compliance
• Deference to field personnel
• Demand information that may not be relevant to
compliance
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The Future of Affirmative Action
• FISHER v. TEXAS
– Does the U.S. Constitution permit any
consideration of race in college admissions?
– If consideration of race is constitutionally
prohibited in the context of higher education, it is
likely to also be barred elsewhere
• Implications for College and University
Affirmative Action Programs
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FMLA Proposed Rule
• Implements statutory changes to military exigency
and caregiver leave
• Implements FMLA amendments in Airline Flight Crew
Technical Corrections Act
• Reverts to pre-2009 rules on intermittent leave
– FMLA leave available in shortest period of time employer
uses to account for leave
– Narrow interpretation of physical impossibility to return to
work mid-shift
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HR HEADACHES
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Does requesting certification from a
healthcare provider for FMLA leave
implicate the Genetic Information
Nondiscrimination Act?
32
FMLA Certification Forms
• Mixed Messages From the DOL
and EEOC
• FMLA Forms Implicated by GINA
– Eligibility / Rights & Responsibilities
Notice (Cautionary)
– Certification of Health Care
Provider for Employee’s Serious
Health Condition
– Certification of Health Care
Provider for Family Member’s
Serious Health Condition
– Designation Notice
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GINA and the DOL Forms
• Certification of Health Care Provider for Employee’s Serious Health
Condition (WH-380-E)
– The following should be added right after the first paragraph of
instructions to the health care provider in Section III:
• Important Notice to Health Care Provider:
• The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or
requiring genetic information of an individual or family member of the
individual, except as specifically allowed by this law. To comply with this law,
we are asking that you not provide any genetic information when responding
to this request for medical information. “Genetic information” as defined by
GINA, includes an individual’s family medical history, the results of an
individual’s or family member’s genetic tests, the fact that an individual or an
individual’s family member sought or received genetic services, and genetic
information of a fetus carried by an individual or an individual’s family member
or an embryo lawfully held by an individual or family member receiving
assistive reproductive services.
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HR HEADACHES
Time Off For Employees Under
ADA/FMLA
Once an employee’s FMLA
leave ends, are employers
free to terminate
employment, consistent
with their policies and how
they’ve treated other
employees?
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Intersection of FMLA/ADA –
Extended Leave
• Leave as a Reasonable
Accommodation under
the ADA
• What do your policies
provide happens when
FMLA expires?
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Intersection of FMLA/ADA –
Extended Leave
EEOC has brought a number of lawsuits
against companies and obtained multimillion dollar consent decrees based on
no-fault leave policies
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“No Amount of Leave is
Unreasonable”
• Automatic termination of employees who have
exhausted FMLA or other types of leave
– In 2011, EEOC sued major employers throughout the
country alleging the employer’s leave policies violate
the ADA
– Remember – providing additional leave is a form of
reasonable accommodation
– Cannot automatically terminate – must engage in
interactive process
– EEOC position.....no amount of leave is unreasonable
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Intersection of FMLA/ADA –
Extended Leave
• Courts are also taking notice
– Shelton v. Bridgestone MetalPha, No. 3-11-0001,
(M.D. Tenn. May 8, 2012)
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But hope is not lost...
• Reservation sales agent for an airline lived in Salt Lake City, worked out of
Houston. Injured back in 2004, on intermittent FMLA...
• Back issues “flared up” on days just before or after previously
scheduled time off...35 times
• Policy: “Using sick leave or sick pay
for a purpose other than that
intended constitutes abuse...
[and ] shall warrant termination”
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Investigation Reveals?
• Pattern of taking FMLA around
booked flights on July 4, August 8
(birthday), September 4 (Labor
Day and wedding anniversary),
November 23, December 25 and
December 31...simply a
coincidence?
• Employee terminated for misuse
of FMLA in violation of
attendance program
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An FMLA Holiday Plan:
Fly Away With Me...
• Employee sued, claiming FMLA retaliation, FMLA interference,
ADA discrimination and ADA failure to accommodate
• Case dismissed: while modified work schedules may be an
accommodation, “the ADA does not give employees who are
disabled the right to be absent from work under the guise of
FMLA leave”
• Rydalch v. Southwest Airlines, 1:09CV00178CW (D. Utah,
August 3, 2011) (2011 U.S. Dist. LEXIS 85726)
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Time Off For Military Employees
• Availability of military exigency leave in less
common situations
For example: may a service
member’s parent take leave
to care for a service
member’s child (i.e., the
employee’s grandchild)?
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Military Family Leave for
“Qualifying Exigencies”
• Available to spouse, child or parent for: Shortnotice deployment
• Military events or related activities
• Childcare and school activities
• Financial and legal arrangements counseling
• R&R
• Post-deployment activities
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FMLA Rules
• R&R leave – extended from
5 to 15 days
• Military exigency leave need not be for
care of employee’s child. E.g. service
member’s parent may take leave to care
for service member’s child (i.e.,
employee’s grandchild)
• Expands definition of “serious’ injury or
illness” for military caregiver leave
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Patient Protection and Affordable Care
Act (PPACA)
• On March 23, 2010, President
Obama signed the PPACA, with the
intention of providing
comprehensive healthcare coverage
to nearly all individuals.
• The law is being rolled out in
phases, and arguably the most
significant aspect for employers is
set for implementation on January
1, 2014.
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Patient Protection and Affordable Care
Act
• Effective January 1, 2014, employers with 50 or
more full-time or full-time equivalent employees
will have to choose between providing affordable
health insurance coverage to qualifying
employees or paying a penalty.
• There is no per se requirement that all employers
provide health insurance coverage
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Affordable Care Act
• Employers will need to evaluate the pros and cons of
providing health insurance coverage or paying various
penalties
– Employers should consider not only the financial implications
of one option over the other, but also:
• Issues of employee
morale
• Competitiveness within
the marketplace
• Tax implications and
benefits, and
• Potential internal
compliance and
monitoring requirements
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Affordable Care Act
• What Can Employers Do Now?
– Assess your current workforce and where
your business falls within the eligibility
requirements
– Assess your current healthcare provided
benefits and related costs
– Consult with your tax professional to ensure
all available tax benefits are taken into
consideration
– Get involved in formulating regulations and
the insurance exchange
– Talk with your employees about healthcare
options and the decisions you’ll be making
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Keeping an eye on the NLRB
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Has the National
Labor Relations
Board finally
decided to stop
applying a 1930’s
solution to new
millennium
problems?
Can we now
terminate employees
for inappropriate online posts?
Fired For
Facebook
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NLRB Focuses Substantial
Attention on Social Media
• April 2011: Memo from NLRB Acting GC to all Regional
Directors
• May 2011: NLRB’s Acting GC adds social media to the list of
subjects in which he is taking particular interest
• By June 2011, NLRB reports at least 1 social media case in
every regional office
• August 18, 2011: NLRB GC Memo on 14 cases decided within
the past year regarding employee use of social media; Board’s
focus is on the “protected, concerted” nature of the speech
• January 24, 2012: NLRB GC Memo update on social media
cases – 75 pending
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Report of the Acting General Counsel
Concerning Social Media Cases (1/24/12)
• Issue: Is the employee who did
inflammatory posting on
Facebook/Twitter “engaged in
protected concerted activity”
• “[A] finding of protected activity
does not change if employee
statements were communicated
via the Internet”
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Social Media Policies:
An employer’s social media policy
may run afoul of the NLRA if it
infringes on an employee’s ability
to engage in protected activity.
Employers should be careful not
to make their policies too broad,
and should also include specific
language that they do not mean
for the policy to prohibit or
restrict any lawfully protected
activity
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Section 7 of the LMRA as Amended
• “Employees shall have the right of self
organization to form, join, or assist labor
organizations to bargain collectively through
representations of their own choosing and to
engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection”
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Employees May Not Be Disciplined for Social
Networking Activity Protected by the NLRA
• Section 7 of the NLRA protects employees who engage in
"concerted activities for the purpose of collective bargaining
or other mutual aid or protection"
• Under the NLRA, conduct is considered "protected" and
"concerted" where an employee: acts together with or on the
authority of other employees; seeks to initiate, induce, or
prepare for group action; or brings "truly group complaints" to
the attention of management
• Section 7 of the NLRA also protects an employee's activities if
they are the logical outgrowth of work-related concerns
expressed by employees collectively
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Unlawful
Lawful
No posting of confidential
information
No posting trade secrets and private and
confidential information with examples
No “inappropriate conduct” or “be
respectful”
Examples prohibiting discriminatory remarks,
harassment and threats of violence or similar
inappropriate conduct
“Be respectful”
No malicious, obscene, threatening or
intimidating conduct, harassing or bullying,
posting intentionally meant to harm a coworkers’ reputation or could contribute to
hostile work environment
Use of employer name or logo
Ensuring postings are consistent with the
code of ethics or conduct
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Discipline Stemming From Employee
Social Media Activity – An Unfair Labor
Practice?
• Activity must be “concerted”
– Involve more than one employee
• “Concerted activity” must be “protected,” i.e.,
related to the terms and conditions of
employment
• Existing union is not required
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Add These Questions to Your Checklist
• What is the subject matter of the post?
• Who is participating in the discussions?
• Is the employee expressing only an individual gripe?
• Are employees acting collectively?
• Are the social media posts a direct outgrowth of some
prior group discussions?
• And consider adding disclaimer to Social Media Policy
saying it won’t be construed or applied to interfere with
Section 7 rights
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Arbitration Agreements
Can we require “as a condition of employment”
all employees to agree to waive the right to
bring a class or collective action?
61
Class Action Waivers Scrutinized
• D.R. Horton (Jan. 3, 2012)
– The NLRB held that an arbitration agreement
requiring employees to waive “as a condition of
employment” their right to bring a joint, class or
collective action violates the rights of employees to
engage in concerted protected activity
– Board filed a brief with the Fifth Circuit Court of
Appeals on September 4, 2012 asking the Court to
enforce its original decision and order
– Courts that have considered this case have
distinguished or rejected the NLRB’s holding
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D.R. Horton
•
What is protected, concerted activity?
– NLRA Section 7: “Employees shall have the right to self
organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection”
– NLRA Section 8(a)(1) makes interference with Section 7
rights an unfair labor practice
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More Class Action Waivers Scrutinized
24 Hour Fitness USA Inc. (2012),
– an ALJ objected to the employer's policy of requiring
new hires as a condition of employment to sign an
agreement never to proceed against the employer in
class or collective actions in court or in arbitration
– The judge ruled that “employers cannot enter into
individual agreements with employees in which the
employees cede their statutory rights to act
collectively.” Even though the employer allowed
employees to opt-out of the agreement, that did not
resolve the Section 7 problem.
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What’s Next?
• A majority of federal district courts have refused
to follow D.R. Horton (most recently in Owen v.
Bristol Care, Inc. (8th Cir. Jan. 7, 2013)), ruling that
it conflicts with Supreme Court precedents,
including the Supreme Court's recent decision in
AT&T Mobility v. Concepcion (2011).
• 2013 should bring more guidance on the impact
of D.R. Horton
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Internal Workplace Investigations
Are there any labor issues we should be
concerned about when conducting internal
investigations?
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Complete Confidentiality
“While I’m investigating these
concerns about misconduct I need you
to keep this discussion completely
confidential”
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May Not Be Able to Require
Confidentiality
• A blanket policy that requires
employee confidentiality
during an HR investigation
violates the National Labor
Relations Act and employees’
rights to engage in concerted
activity
• Whether confidentiality is
required must be determined
on a case-by-case basis
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THANK YOU!
David J. Goldstein
1300 IDS Center
80 South 8th Street
Minneapolis, MN 55402
(612)313-7611
[email protected]
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