Reelin’ in the Year

Presented by Russell W. Gray Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 1800 Republic Centre 633 Chestnut Street Chattanooga, TN 37450-1800 423.209.4218

[email protected]

EEOC Enforcement Statistics – 2010

*

• Record high number of charges (99,922) • Most frequent charges: • Retaliation (36.3%) • Race discrimination (35.9%) • Sex discrimination (29.1%) • EEOC recovered $404.3 million on behalf of claimants for fiscal year 2010 • EEOC continued efforts to build “systemic” cases *These materials provide a brief overview of developments in employment law in Tennessee during the past year. They are not intended to provide a complete analysis of each topic.

FLSA Litigation Explosion Continues

• • • • More FLSA collective actions than discrimination class actions in 2010* DOL reports collecting $6.5 million in 2010 versus $2.6 million in 2009* (150% increase) FLSA lawsuits up 25% from 2009** FLSA cases up 278% in last ten years** Source: * Sefarth Shaw, Workplace Class Action Litigation Report 2011 ed.) ** Main Street Business Journal

Social Media – Retaliation and Employment Issues

• • • • NLRB Regional Director issued complaint that employer unlawfully terminated an employee for complaining on Facebook More than 100 social media matters filed with the NLRB* NLRB’s General Counsel has published a summary of social media cases Focus becomes on the scope of the employer’s social media policy and disciplinary actions * U.S. Chamber of Commerce: A Survey of Social Media Before the NLRB

Tennessee Drug-free Workplace Update

• • • Positive test raises presumption that alcohol or drugs caused the workplace injury Workers must show by “clear and convincing evidence” that work injury was not caused by alcohol or drug abuse Previous standard was “preponderance of the evidence”

New Wage Deduction Law in Tennessee – Tenn. Code Ann. § 50-2-110

• • Permits deduction if: • Agreement with employee to advance or loan money to the employee • Agreement signed prior to the advance or loan • • Agreement allows the advance or loan to be offset against employee’s wages Employer provides 14-days notice prior to making the deduction • Employee does not pay the amount owed Sets forth procedure for contesting amounts

The EEOC and Attendance Policies

• • • EEOC taking aggressive position on attendance policies Policies must take into account disabilities EEOC settled with Verizon for $20 million on this issue

New Americans with Disabilities Act Regulations

• • • • • Effective March 24, 2011 Clarify definition of “disability” Provide an expanded list of “major life activities” Provide broader view of “substantially limits” Include a list of various conditions that will nearly always constitute disabilities

Retaliation Update: Association with Complainers –

Thompson v. North American Stainless

• • • Claim exists for retaliation against fiancé of complaining employee Fiancé fell within “zone of interest” that Title VII protects Consider what might persuade reasonable worker not to engage in protected activity

Retaliation Update: Oral Complaints

Kasten v. Saint-Gobain Performance Plastics Corporation

• • FLSA prohibits retaliation against an employee who has “filed complaints” U.S. Supreme Court concludes that FLSA protects oral complaints and written complaints

Retaliation Update: Food Safety Modernization Act

• • • • Effective January 4, 2011 Protects an employee from retaliation when he or she: • • • Provides information that employee reasonably believes violates FSMA Testifies or is about to testify about violations of FSMA Objects or refuses to participate in an activity employee reasonably believes violates FSMA Employee need only show retaliation was a “contributing factor” in the discharge Employee must file a complaint with the DOL

Retaliation Update: The Dodd-Frank Wall Street Reform and Consumer Protection Act

• • • • Expands employee protections under the Sarbanes-Oxley Act Prohibits employers from discriminating against employee for: • Providing information to the SEC • Assisting in an investigation or judicial or administrative action relating to such information • Making disclosures that are required or protected under the Sarbanes-Oxley Act Protection applies irrespective of whether employee reasonably believed a violation occurred Complaining individuals may share in amount recovered by the SEC

Class Action Update –

Wal-Mart Stores v. Dukes

• • • Supreme Court overrules broad certification of class Court stresses need for proof of a “general policy of discrimination” Court notes inconsistency of different damages and injuries by class members

The Dodd-Frank Diversity Initiative

• • • • Applies to any company that provides “services of any kind” under contract with such federal agencies as the FDIC, Department of Treasury, SEC, and Federal Reserve Contractors may include financial institutions such as mortgage banking firms, investment firms, asset management firms, law firms, brokers, dealers and accountants Contractors and sub-contractors of the agencies must certify that their workforces reflect fair inclusion of women and minorities Applicable agency may terminate the federal contract or take other appropriate action in the event that the contractor fails to make good faith efforts to include women and minorities in their workforce

New Regulations For the Genetic Information Non-Discrimination Act (GINA)

• • • Effective January 10, 2011 Clarify that GINA applies to not only employees, but also to applicants and former employees Provide guidance on exceptions to the prohibition against employers requesting, requiring or purchasing “genetic information” • Inadvertent information from healthcare provider: employer should specifically instruct the healthcare provider not to provide genetic information • Inadvertent examples: during casual conversation, over-hearing a conversation and inadvertently learning through email or other electronic media

New Regulations For the Genetic Information Non-Discrimination Act (GINA), continued

• • • • • Restricts follow-up questions regarding genetic information inadvertently disclosed Wellness programs: employer cannot require an employee to provide genetic information as part of program Provide guidance as to the exception for requiring genetic information through voluntary wellness programs Genetic information provided as part of the wellness program cannot be directly obtained by the employer Genetic information in public documents: discovery inadvertent if unintentional

New Non-Compete Law in Georgia

• • • • Permits non-compete agreements that are reasonable in time, geographic area and scope of activity for certain groups of former employees Permits the prohibition of disclosing confidential information for so long as information remains confidential Provides that non-solicitation agreements are enforceable with certain limitations Permits courts to “blue pencil” restrictive agreements if they are overbroad

Guns at Work in Tennessee

• • New law effective March 31, 2011 Employer’s decision to allow employees to possess firearms while at work is not an occupational safety and health hazard in and of itself

Possible OSHA Actions for Accidents Related to Cell Phone Use

• • • Department of Labor leadership indicates that employers may be held responsible for accidents caused by cell phone use Focus would be on employers creating incentives for employees to use their cell phones OSHA is not currently enforcing a ban on talking on cell phone while driving at work Source: Bruce Rolfsen, While Driving Backed by OSHA Official (BNA April 26, 2011) Ban on Texting

Export Certification Requirements

• • • Federal law prohibits the “export” of listed technologies and products Providing certain information to certain foreign workers is a “deemed” export Employers that sponsor certain foreign workers must now certify that: • Employer has read and complied with the deemed export rules, and • Controlled technology or technical data will not be shared with foreign workers in violation of export control regulations

Tennessee E-Verification Law

• • • • Requires Tennessee employers to use Federal E-verify Employment Verification Program or maintain certain identity or work authorization documents Requires covered employers to request and maintain a copy of requisite identity or work authorization documents for non employees with whom they contract or pay for services Provides monetary penalties and the suspension of business licenses for violations Law becomes effective in phases: • 500 or more employees – January 1, 2012 • • • 200 – 499 employees – July 1, 2012 Less than 200 employees – January 1, 2013 Not effective if 5 or fewer employees

Wage and Hour Enforcement Weapon – Debarment

• • • Debarment: Government precludes government contractors and sub-contractors from serving as government contractors due to violations DOL has pursued debarment for recent wage and hour violations According to the DOL, “The Department will not hesitate to pursue legal action, including debarment, to ensure employees working on federally funded projects are properly paid under the law.”

U.S. Supreme Court Recognizes Cat’s Paw Liability Against Employers:

Staub v. Proctor Hospital

• • • Employer may be liable when the decision maker relies on information that is influenced by unlawful discrimination Unlawful discrimination occurs where “a supervisor performs an act motivated by . . . animus that is intended by the supervisor to cause an adverse employment action” and such act is a proximate cause of the ultimate employment action Focus is not on the intent of the decision maker

Conclusory Thoughts

• • Gather more detail about particularly applicable developments Stay apprised of continuing developments

Reelin’ in the Year

Presented by Russell W. Gray Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 1800 Republic Centre 633 Chestnut Street Chattanooga, TN 37450-1800 423.209.4218

[email protected]