Transcript Slide 1

Recent Federal
Developments in
Employment Law
ERIC PALTELL, ESQ.
KOLLMAN & SAUCIER, P.A.
2012
CUMBERLAND VALLEY SHRM
LEGAL & LEGISLATIVE CONFERENCE
Program Overview
 Supreme Court Developments



Thompson v. North American Stainless
Staub v. Proctor Hospital
Kasten v. Saint-Gobain Performance Plastics
 EEOC Developments

New Enforcement Guidance on Criminal
Background Checks
 NLRB Developments


General Counsel’s Memoranda on Social Media
Policies
NLRB Notice Posting Requirements
 IRS Developments

Voluntary Classification Settlement Program
Supreme Court Developments
Thompson v. North American Stainless
(131 S.Ct. 863)
 Extends retaliation protection under Title VII to the fiancé
of employee who has filed charge of discrimination
 Protection applies to any person within an amorphous
“zone of interests”
 Likely result is years of litigation over who falls in that
“zone” – co-workers, family, former employees?
Kasten v. Saint-Gobain
Performance Plastics
(131 S.Ct. 1325)
 Extends FLSA-anti-retaliation protection to oral
complaints
 Rejects argument that complainant must have formally
“filed” complaint to be protected
 Requires that complaint be “sufficiently clear and
detailed” for employer to understand employee is raising
an FLSA issue
Staub v. Proctor Hospital
(131 S.Ct. 1186)
 Holds employers liable for discrimination under USERRA
by applying “cat’s paw” theory
 Employers now face liability even when the decisionmaker does not possess any discriminatory animus
 Implications are substantial: internal investigators can no
longer rely solely on information from managers when
evaluating disciplinary actions
EEOC Developments
What is the New EEOC
Enforcement Guidance About?
 EEOC issued new Enforcement Guidance (“EG”) on
use of arrest and conviction records in hiring,
effective April 25, 2012
 EG replaces prior guidance issued in 1987 and 1990
 Legal authority for EEOC to regulate use of criminal
background checks is statistical evidence that
African Americans and Hispanics are more likely to
have a criminal record – meaning that a policy
barring hiring persons with a criminal record will
tend to exclude minorities
Disparate Impact Theory
 A policy of conducting criminal background checks
on applicants is presumed to have a disparate impact
on African Americans and Hispanics because
statistics show they are convicted of crimes more
often than persons in other groups
 As a result, employers must show that the exclusion
of persons with convictions is “job related and
consistent with business necessity” for the position
being applied for
What is “Job Related and Consistent With
Business Necessity?”
 EEOC says there are three ways to show valid
business necessity:
1.
2.
3.
Federal law prohibits hiring someone with a certain
type of criminal record (note that a state law
prohibition is not enough for the EEOC – but I don’t
think courts will agree with EEOC on that);
Statistical validation through the Uniform Guidelines
for Employee Selection Procedures (almost never
done); or
A “Targeted Screen” AND (in most cases) an
“Individualized Assessment”
What is a Targeted Screen?
 A “targeted screen” means the employer must
consider at least the following criteria (the “Green
factors”) when evaluating a criminal record in a
hiring decision:
1. The nature and gravity of the crime;
2. The passage of time since the conviction or
completion of the sentence; and
3. The nature of the job applied for (duties;
working environment, level of supervision, etc.)
What is an Individualized Assessment?
 The EEOC says an “individualized assessment” means:
1.
2.
3.
Notice to the individual that his criminal record caused
him to be excluded;
An opportunity for the individual to explain why the
conviction should not bar him from the job; and
Consideration by the employer as to whether the
additional information justifies making an exception
(i.e., a mistake in his file; a clean record since
conviction; his age at time of conviction)
More on the Individualized Assessment
 It need not be an in-person meeting – can be done by
letter or email, with applicant being given a deadline
to provide explanatory information
 The EEOC says there may be circumstances where
the connection is so clear (i.e, a recent conviction for
auto theft for a person applying for a parking valet
position) that an individualized assessment is not
required
 However, the EEOC says that making an
individualized assessment can “help employers avoid
Title VII liability”
Use of Arrest Records
 EEOC says that exclusion from employment based
solely on an arrest violates Title VII because African
Americans and Hispanics are arrested at a rate 2-3
times higher than the general population
 EEOC also disallows arrests as sole basis for
exclusion because arrest records do not show final
disposition and may not be accurate
 However, EEOC permits employers to make an
employment decision based on the conduct
underlying the arrest
Example of Permissible
Use of Arrest Information
 Employee is arrested for distribution of marijuana.
After obtaining the arrest report, employer learns
that employee was alleged to be dealing in the
company parking lot. Employer does investigation
and gets eyewitness corroboration that employee was
seen dealing. Although employee denies it, employer
finds eyewitness more credible because she is long
term employee known for her honesty. In these
circumstances, employer can discharge employee
based on the results of its independent investigation.
NLRB Developments
NLRB Social Media Guidance
 General Counsel issued 3 reports summarizing 35 cases
addressing employee use of social media and employer
social media policies under NLRA
 Memoranda affirm that “Section 7” rights extend to
employee communications made using social media, so
long as:
1.
2.
Communications are with or on behalf of others, and
The communications seek to improve terms and conditions
of employment
NLRB Social Media Guidance (cont’d)
 NLRB will challenge any social media policy it perceives as
“chilling” Section 7 rights:




Can’t use overly broad language (i.e., prohibiting “inappropriate
discussions” )
Can’t have blanket prohibition on disclosing “confidential”
information
Can’t prohibit use of company logo on posts, tweets, and websites
Can’t save a policy with a general disclaimer
NLRB Social Media Guidance (cont’d)
 NLRB gave some examples of permissible social media
policies:



Prohibitions on use of social medial in manner that violates
harassment or workplace violence policies
Prohibitions on disclosure of confidential student or patient
information protected by law
Prohibitions on pressuring co-workers to connect through social
media
 In general, the more specific the policy and the more
narrow its scope, the more likely the NLRB will find it
legal

Examples of prohibited behavior are very helpful
National Association of College and University
Attorneys
NLRB Notice Posting Requirement
 Requires all employers post notice advising employees of
their right to form unions under the NLRA
 Codified at 29 CFR 104.202
 U.S. Court of Appeals for the D.C. Circuit has enjoined
NLRB from enforcing the rule until at least late 2012
Contents of Notice
 Informs employees of:
 Right to form a union;
 Right to bargain collectively;
 Right to join with co-workers to raise work related complaints;
 Right to strike
Contents of Notice (cont’d)
 Also makes employees aware that
employer cannot:





Prohibit them from soliciting for a
union in non work time in non-work
areas;
Interrogate employees about support
for a union;
Take adverse action against employees
because they support a union;
Prohibit employees from wearing union
buttons or t-shirts; or
Spy on union activities
Posting Obligations
 Must be posted where the employer posts other notices
 Must also be posted on intranet or website if that is
where the employer normally communicates to
employees about personnel policies
Enforcement & Penalties
 No monetary penalty for
failure to post
 However, failure to post
could be an unfair labor
practice
 Could also result of tolling
of the 6 month statute of
limitations
IRS Developments
Voluntary Classification Settlement Program
 Voluntary program which allows employers to
reclassify persons historically treated as independent
contractors as employees without incurring interest
or penalties
 Employer is only required to pay 10% of the
employment taxes that would have been due in the
preceding tax year
 Employer must meet certain conditions to qualify for
program
 VCSP started in September 2011 and not certain how
long it will remain in effect
VCSP Implications
 IRS will not share information with DOL or state
agencies
 IRS will not audit you if application is rejected
 However, could be “spillover” implications on other
employment laws:


Former contractors may now be eligible for benefits
May increase number of employees to point where employer
becomes covered by employment laws (15 and 50 employees
are “magic” numbers)
Eligibility Criteria for VCSP
 Workers must have been consistently treated as
independent contractors
 Employer must have filed any required form 1099’s
for the past three years
 Employer cannot be under audit by the IRS, DOL, or
any state agency regarding the classification of its
workers
 Employer must submit application (Form 8952) to
IRS to determine if it is eligible
Questions?