Transcript www.pccyfs.org

Changes in Law and Federal
Agency Enforcement and Its
Impact on Your Operations
Presented By:
Jill M. Lashay, Esquire
Shareholder
Buchanan Ingersoll & Rooney, PC
213 Market Street, 3rd Floor
Harrisburg, Pennsylvania 17101
(717) 237-4800
[email protected]
PCCYFS 2012 Annual Spring Conference
© Copyright 2012 Buchanan Ingersoll & Rooney
Recent Developments
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• EEOC Update
• ADA Update and ADAAA
Regulations
• GINA Regulations
• Retaliation Claims/Whistleblower
Claims
• FLSA Update
• USERRA Update
• "Unemployment" discrimination as a
protected class
EEOC Update
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• 99,947 charges filed with EEOC in 2011.
• Highest number of new charges in the
EEOC's 46-year history.
• Through its enforcement, mediation and
litigation programs, the EEOC won a
record $455.6 million in relief for private
sector, state and local employees, and job
applicants for the 2011 fiscal year – more
than $45 million increase over 2010.
• For third year in a row, retaliation claims
were the most frequently cited form of
discrimination charges.
EEOC Update
• Number of charges of race discrimination
declined from 2010, but charges of sex,
disability and age discrimination all
increased to record highs.
• The administrative relief obtained by the
EEOC for disability discrimination charges
increased to roughly $103.4 million –
almost 36% increase from 2010.
• This likely reflects the recent amendments
to the ADA.
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EEOC Update
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• In early 2010, in connection with a workers'
compensation leave exhaustion policy, Sears
Roebuck & Co. paid the largest ADA
settlement in EEOC history.
• The Northern District Court of Illinois
approved distribution of a $6.2 million
compensation fund to the former 235
employees that had been terminated from
their positions. The average award for each
claimant was approximately $26,300.
• EEOC alleged that Sears maintained an
inflexible policy and terminated disabled
employees instead of offering reasonable
accommodations.
Significant Changes to the ADA
• The Americans with Disabilities Act
("ADA") prohibits discrimination against
employees who have, had, or may be
regarded as having a physical or mental
impairment that significantly limits a
major life activity.
• The ADA requires employers to engage in
an "interactive process" to find reasonable
accommodations for employees with
disabilities.
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Traditional ADA Framework
• Disability-related inquiries
traditionally involved two steps:
– Determining whether an impairment
was a disability; and
– Engaging in the "interactive process" to
determine if a reasonable
accommodation could enable a
disabled employee to successfully
perform the job.
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New ADA Regulations
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• On March 25, 2011, the Equal Employment
Opportunity Commission ("EEOC") published the
final regulations ("Regulations") (29 C.F.R. Part
1630) and accompanying interpretive guidance
implementing the ADA Amendments Act of 2008
("ADAAA").
• The Regulations became effective on May 24, 2011.
• The ADAAA was intended to broaden the definition
of disability under the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), and
make it easier for individuals with disabilities to
obtain protection under the ADA. The Regulations
implement this Congressional goal, explicitly
affirming that the definition of "disability" must be
"construed broadly in favor of expansive coverage
to the maximum extent permitted by the terms of
the ADA."
"Disability" Now… After ADAAA
• For the purposes of the ADA, a
disability is:
– A physical or mental impairment that
substantially limits one or more major
life activities,
– a record of such an impairment,
– or being regarded as having such an
impairment.
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• The ADAAA does not change the
definition of disability, but it
significantly changes the
interpretation.
Interpreting "Disability" Under
ADAAA
• The ADAAA minimizes the first step
and strongly emphasizes the second
step.
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– Question of whether an individual's
impairment is a disability should not
demand extensive analysis
– Now, the primary object of ADA cases is
whether employers have complied with
their obligations, principally to take
reasonable steps to help maintain the
employment relationship
Interpreting "Disability" Under
ADAAA
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• The previous six-month
"transitory" part of the "transitory
and minor" exception to "regarded
as" coverage does not apply to the
definition of disability – the effects
of an impairment lasting or
expected to last fewer than six
months can be substantially
limiting and even less than a few
months, if it is severe.
ADAAA Changed the Focus of the
ADA
• Broadens scope of protection under the ADA.
• Expands "Major Life Activity" to include
"Major Bodily Functions."
• Eliminates disability mitigation defense.
• Covers "Episodic Impairments" and "Those in
Remission."
• Expands the "Regarded As" Provision in the
ADA.
• No longer focus on the issue of "disability."
• Shifts focus to Interactive Process.
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New ADA Regulations
• The new regulations clarify and expand many
of the terms and procedures used to
determine whether an individual is disabled:
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– A "physical or mental impairment" is (1) any
physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one
or more body systems, such as neurological,
musculoskeletal, special sense organs,
respiratory (including speech organs),
cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic,
lymphatic, skin, and endocrine; or (2) any
mental or psychological disorder, such as an
intellectual disability (formally termed "mental
retardation"), organic brain syndrome,
emotional or mental illness and specific
learning disabilities.
New ADA Regulations
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• The term "major life activities" now
includes, but is not limited to,
caring for oneself, performing
manual tasks, seeing, hearing,
eating, sleeping, walking, standing,
sitting, reaching, lifting, bending,
speaking, breathing, learning,
reading, concentrating, thinking,
communicating, interacting with
others, and "working" … and
reproductive functions.
New ADA Regulations
• In determining whether an impairment "substantially
limits" a major life activity, the Regulations provide
certain "Rules of Construction":
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– An impairment is a disability if it substantially limits the
ability of an individual to perform a major life activity as
compared to most people in the general population; it
does not need to prevent or significantly restrict the
individual from performing the major life activity.
– The determination of whether an impairment substantially
limits a major life activity requires an individualized
assessment that does not necessarily need to include
scientific, medical or statistical data.
– The determination of whether an impairment substantially
limits a major life activity must be made without regard to
the ameliorative effects of mitigating measures (other than
ordinary eyeglasses or contact lenses on vision
impairments).
– An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity
when active.
– A severe impairment that lasts less than three months
could be a "disability."
What Does This Mean For
Employers?
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• Ensure managers and human resources
professionals are trained and provided
with guidance on the effect of the
Regulations.
• Employers should assume that all but the
most transitory and minor of impairments
(e.g., the common cold, seasonal
influenza, sprained joints) will be found
to be "disabilities."
• Practically, this should increase employer
focus on reasonable accommodation and
the interactive process.
Impact of ADAAA
• Because ADAAA and the regulations relax
the ADA's definition of "disability"…..
– Fewer dispositive motions on the
threshold issue of "disability" are
expected to succeed.
– Result = more exposure for employers.
– Litigation will now focus on the issues of
"qualified individual" with a disability;
reasonable accommodation", "undue
hardship;" and the motivation behind
employment actions.
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More Attention To Interactive
Process
• More individuals are expected to request
accommodation as they become familiar
with the ADAAA changes.
• The EEOC's regulatory impact analysis
concludes that 1 million more people may
consistently meet the ADAAA's definition
of "disability" and, thus, accommodating
them may cost employers as much as
$235 million per year over the next five
years.
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New ADA Regulations
What Should Employers Do?
• Because the new regulations materially change how
employers handle employees who claim they are
disabled and want to receive an accommodation, we
recommend that employers take the following steps:
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– Reassess all ADA procedures and policies to ensure that
they recognize the broadened scope of the term
"disability" and provide for a meaningful interactive
process with the disabled employee as soon as possible.
The ADAAA and the Regulations want employers to focus
on the interactive process rather than whether an
individual is "disabled."
– Review all company job descriptions to confirm that they
specifically and accurately define the essential functions
of each position.
– Analyze pre- and post-employment screening and testing
to ensure they are job-related and do not adversely affect
the broad range of qualified, disabled individuals who will
now take part in the screening or testing.
GINA Regulations
• EEOC issued final regulations that
implement employment provisions (Title
II) of the Genetic Information
Nondiscrimination Act of 2008 (GINA)
effective January 10, 2011.
• Purpose is to prevent use of genetic
information and family medical history to
be a basis for denial of employment.
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GINA Regulations
• What Does GINA Limit and By Whom?
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– Employers cannot take adverse
action/discriminate based on genetic
information.
– Employment agencies cannot discriminate.
– Labor organization cannot exclude or
expel.
– No retaliation against employees alleging
GINA violation or participating in the
investigation of alleged violations.
– No harassment because of genetic
information.
GINA Regulations
• What is "genetic information"?
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– Results of an employee's genetic tests.
– Genetic tests of family members of such
employee (up to fourth-degree relatives).
– Manifestation of a disease or disorder in
an employee's family members.
– Request for or receipt of genetic services
(e.g., genetic counseling).
– Participation in clinical research which
includes genetic services.
– Does NOT include information about the
age or sex of any individual.
GINA Regulations
• What Does GINA Prohibit?
– Discrimination based on genetic
information.
• Hiring, discharge, or otherwise
discriminating with respect to
compensation, terms, conditions or
privileges of employment because of
genetic information.
• Limiting, segregating or classifying
employees in any way that would deprive or
tend to deprive opportunities.
– Acquisition of Genetic information.
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• Requesting, requiring or purchasing genetic
information with respect to an employee or
a family member of the employee.
Six Narrow Exceptions:
• Six Narrow Exceptions to Ban on
Acquisition of Genetic Information:
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– Inadvertent acquisitions (e.g., manager
overhears employee talking about
relative's illness).
– Genetic information obtained as part of
health or genetic services, including
wellness programs, offered by employer
on a voluntary basis, if specific
requirements are met.
– Family medical history acquired as part of
the certification process for FMLA leave (or
leave under state or local law).
Six Narrow Exceptions:
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• Genetic information acquired through
commercially and publicly available
documents, so long as the employer is not
searching with the intent of finding genetic
information or accessing sources likely to
contain genetic information.
• Genetic information acquired through
genetic monitoring program that monitors
biological effects of toxic substances in the
workplace.
• Acquisition of genetic information of
employees by employers who do DNA testing
for law enforcement purposes as a forensic
lab or for purposes of human remains
identification.
GINA Resolutions
• Clarification of Inadvertent Acquisition of
Protected Information that does not
violate GINA:
– Overhearing a conversation.
– Making a general inquiry (e.g., "Will your
daughter be okay?").
– Unsolicited information.
– A social media platform that the employee
granted permission to be accessed.
– A social media platform that the employee
did not grant permission to be accessed.
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GINA Regulations
• Safe harbor language should be used whenever
requesting medical information:
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"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.“
-- 29 C.F.R. § 1635.8.
GINA Regulations
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• On February 3, 2012, the EEOC issued a
rule mandating employers to retain
workplace records in the event they are
called upon to demonstrate compliance
with GINA.
• Rule went into effect on April 3, 2012.
• Employers are required to retain workplace
records in the same fashion they are
required to under the Civil Rights Act and
the ADA.
• Employers are not required to create new
documents; they are simply required to
retain those documents it previously kept
and which are relevant to a charge of
discrimination filed under GINA.
GINA Recommendations:
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• Review procedures and policies to ensure
compliance with new regulations.
• Requests for medical information related
to post-offer pre-employment
examination, for accommodations under
ADAAA, and for fitness-for-duty exams,
and requests for leave should use safe
harbor provision.
• Managers, human resources personnel,
recruiters and company doctors should
ensure that genetic information and
family medical history information is not
requested and if inadvertently obtained, it
is not shared or used.
Retaliation Claims
• The EEOC received 37,334
charges alleging retaliation in
2011.
• This represented 37.4% of all
Charges received by the EEOC
in 2011.
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Retaliation Claims
• In the 2006 case Burlington Northern & Santa
Fe Railway Co. v. White, the Supreme Court
adopted an expansive definition of "adverse
action," making it far easier for plaintiffs to
pursue retaliation claims.
• The Court held that illegal retaliation occurs
whenever a manager engages in conduct
which has the effect of discouraging a
"reasonable employee" from making a
discrimination complaint.
– e.g., reduction in work assignments and
responsibilities.
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Retaliation Claims
• Plaintiffs need not show that
the alleged retaliation
significantly impacted a term,
condition, or benefit of
employment.
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Retaliation Claims
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• In the 2009 case Crawford v. Metropolitan
Gov't of Nashville and Davidson County,
the Supreme Court considered how far
anti-retaliation protections reach and who
can bring retaliation claims.
• Though the plaintiff admitted she had not
been the target of any discrimination, she
later brought her own retaliation claim.
• The plaintiff claimed that her employer
had taken adverse action against her
because the information she disclosed
during an investigation had corroborated
another employee's discrimination
complaint.
Retaliation Claims
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• The Crawford Court held plaintiffs need
not first allege that they suffered
discrimination before claiming that they
suffered retaliation.
• The Court held that the act of reporting
inappropriate behavior during the
investigation constituted protected
action. Accordingly, adverse action taken
in response to such reporting could
constitute retaliation.
• On remand for further proceedings, the
plaintiff was awarded $1.5 million.
Retaliation Claims
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• For the third time in five years, the United
States Supreme Court ruled on a claim of
unlawful retaliation in the employment
discrimination context: On January 24,
2011, the Court handed down its decision
in Thompson v. North American Stainless,
LP, No. 09-291, U.S. Supreme Court
(January 24, 2011).
• Notably, this decision also marks the
third consecutive time the Supreme Court
has sided with aggrieved employees and
expanded their retaliation protections.
Retaliation Claims
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• In Thompson, the Court considered
whether the fiancée of an employee who
filed a sexual discrimination claim against
the company, could bring a claim of
unlawful retaliation when he was fired by
that same employer three weeks later.
• Eric Thompson and his fiancée Miriam
Regalado were both employees of North
American Stainless. Regalado filed a sex
discrimination charge with the EEOC and
the employer fired Thompson three
weeks later.
Retaliation Claims
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• The Court unanimously ruled that
Thompson, who had not participated in the
investigation of Regalado's sexual
discrimination claim, could bring a claim of
retaliation even though he wasn't the one
who brought the underlying sexual
discrimination claim.
• The Court concluded that it is "obvious that
a reasonable worker might be dissuaded
from engaging in protected activity if she
knew that her fiancée would be fired."
• The Court held that Thompson should be
protected and could bring his own
retaliation claim.
Whistleblower Claims
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• Employees who complain about illegal
conduct or unsafe work conditions can later
claim to be whistleblowers.
• It is very difficult to obtain summary
judgment on whistleblower claims.
• The False Claims Act prohibits employers
from knowingly making false statements to
or engaging in fraudulent conduct towards
the federal government for the purpose of
obtaining payment from the federal
government.
• Many statutes permit for retaliation claims
or whistleblower claims even outside the
discrimination context (FLSA, OSHA, PA
Whistleblower Law).
Whistleblower/Retaliation Claims
• Keys to avoiding whistleblower/retaliation
claims.
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– Document every complaint and the
company's response.
– Document whether the complaint had any
validity.
– Apply the same standards to the
complaining employee as are applied to all
others.
– Make sure that the reasons for any
subsequent disciplines are well
documented.
– Adopt strong anti-retaliation policies and
communicate them regularly.
– Train your managers.
Fair Labor Standards Act
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• The FLSA establishes minimum wage,
overtime pay, recordkeeping, and child
labor standards affecting full-time and
part-time workers in the private sector
and in Federal, state, and local
governments.
• The Act provides for minimum standards
for both wages and overtime entitlement,
and spells out administrative procedures
by which covered work time must be
compensated.
• It also exempts specified employees or
groups of employees from certain
provisions.
Fair Labor Standards Act
• Increased enforcement.
– In 2010, the DOL collected more than
$175,652,665 in back wages.
• Collective action explosion.
– Parallel Class Actions.
– Targeted by Plaintiffs' Firms.
– 2010 = 6,081 FLSA lawsuits filed in
U.S. Federal Courts.
2011 = 7,008 FLSA lawsuits filed in
U.S. Federal Courts.
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Fair Labor Standards Act
• Unless employers have made this a
priority in the last five (5) years,
they are probably at risk.
• Magnitude of risk not properly
assessed or appreciated.
• Counterintuitive.
• Litigation – few easy exits – costly.
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Fair Labor Standards Act
• Exempt v. non-exempt:
– Administrative, professional and
executive
– Minimum salary – $455 per week.
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• Actual job duties matter more
than job descriptions.
• Look out for industries and
positions subject to recent
challenge.
Fair Labor Standards Act
• Administrative:
– Primary duty of performing "office or
nonmanual work directly related to the
management or general business
operations of the employer or the
employer's customers"; and
– Have a primary duty that "includes the
exercise of discretion and independent
judgment with respect to matters of
significance.
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Fair Labor Standards Act
• Professional:
– Three types of exempt professionals:
• "Learned" - The employee's primary
duty must involve work requiring
advanced knowledge (customarily
acquired by a prolonged course of
specialized intellectual study) in a
field of science or learning.
• "Artistic" or "Creative"; and
• "Teachers."
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Fair Labor Standards Act
• Professional:
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– Requisite knowledge not obtained at high
school level.
– Fact intensive analysis – title doesn't matter.
– Exempt: airline pilot, benefit plan
practitioner, pharmacists, engineer,
architect, chef, registered nurse, physicians'
assistant (maybe), registered or certified
medical technologist, dental hygienist
(maybe).
– Not Exempt: probation officer, legal analyst,
paralegal, news reporter, insurance claim
adjuster, certain field engineer, avionics
technician, medical transcriptionist,
paramedic, x-ray technician, licensed
practical nurse.
Fair Labor Standards Act
• Executive:
– Manage the enterprise or a customarily
recognized department or subdivision;
– Customarily and regularly direct the work
of two or more; and
– Authority to hire and fire other employees,
or make suggestions and
recommendations that are given particular
weight as to hiring, firing, advancement,
promotion, or other changes in status.
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Fair Labor Standards Act –
A Few Hot Issues
• On-Call Time:
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– Blackberry, cell phone and remote
computer access:
• Time spent responding = work time
• Do not ignore obvious work
• If so restrictive – whole "on call" time
may be work
– Consider who really needs devices.
– Train employees on boundaries for
contacting other employees while "off the
clock."
Fair Labor Standards Act –
A Few Hot Issues
• Meal Breaks:
–
–
–
–
–
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Hot issue in collective actions
Be observant
Consider paid lunches
Get workers away from work space
Beware of processes that make
automatic deductions for meal
breaks
Fair Labor Standards Act –
A Few Hot Issues
• Non-Exempt Travel:
– All time spent traveling during
employee's workday is compensable
– Overnight travel time outside of regular
working hours is compensable if
driving.
– Overnight travel time outside of regular
working hours is not compensable if
traveling as a passenger on an airplane,
train, boat, bus or automobile
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Fair Labor Standards Act –
Why It Matters
• Collective/Class Actions
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– Immediacy
– Exposure
• Wal-Mart Stores, Inc.: 187,000
employees/$187 million verdict for
missed breaks/off-the-clock work
• Top 10 settlements in private litigation
in 2010, $1.16 billion
– Settlement
• Future potential class members/lawsuits
• Need Secretary of Labor or court
approval
• Rarely confidential
Fair Labor Standards Act –
Why It Matters
• Damages
– Two years
– Extended to 3 years if reckless
disregard
– Liquidated damages
• Must be assessed unless defendant
can show it acted in good faith and
with reasonable grounds
– Attorneys' fees
– No guarantee it's over
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Fair Labor Standards Act –
Why It Matters
• Personal Liability
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– "Any person acting directly or
indirectly in the interest of an
employer in relation to the employee"
– An owner, officer, director,
participating shareholder, manager, or
supervisor may be subject to liability
where he or she was responsible in
whole or in part for the alleged
violation
– Potential criminal liability for willful
violations
Fair Labor Standards Act –
Why It Matters
• Presumption
– Employer bears the burden of
establishing the applicability of
exemptions
– Effect of inadequate or inaccurate
records
• No insurance
– Generally, EPLI coverage does not
apply FLSA claims
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USERRA Update
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• In Serricchio v. Wachovia Securities, LLC, 101590 (2d Cir. September 13, 2011) the Second
Circuit affirmed a district court award of $1.64
Million under the Uniformed Services
Employment and Reemployment Rights Act
("USERRA") to a returning servicemember and
ordered his reinstatement to the position of
financial advisor at a salary higher than the
salary he enjoyed pre-deployment.
• The court held that Wachovia's offer to
Serricchio of a position with the same
commission rate as his pre-service position,
but without regard to the actual pay he received
based on the volume and size of the accounts
he managed before his military leave, was
insufficient to satisfy USERRA's reinstatement
obligations.
USERRA Update
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• In another issue of first impression, the
appellate court in Serricchio ruled that
the district court below did not abuse its
discretion in ordering Wachovia to
reinstate Serricchio to a financial adviser
position at a salary of $12,300 per month
for 12 months even though his preservice compensation was "wholly
commission-based."
• The Serricchio decision will likely have a
significant impact on USERRA cases in the
immediate future, as the ongoing drawdown in Iraq continues and more
servicemembers return from active duty
at a time when the United States economy
is suffering and businesses struggle.
Unemployment Discrimination
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• Creates a new "Protected Class."
• Similar to Title VII – would only
apply to employers with fifteen (15)
or more employees and would be
investigated by the EEOC.
• This would have a significant
impact on the hiring process as it
would effectively allow any and all
applicants to sue if they are not
hired.
Questions?
THANK YOU
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