Transcript Recent Developments in Employment Law

Recent Developments in Employment Law
Joint Triad HR Leadership Conference
May 17, 2011
Presented by:
Alexander L. Maultsby
Smith Moore Leatherwood LLP
300 North Greene Street, Suite 1400
T: (336) 378-5331
F: (336) 433-7460
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Hot Topics 2011
• Legislative / Regulatory
– ADA Amendments
– Genetic Information Nondiscrimination Act
– DOL Enforcement
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Hot Topics 2011
• Courts / Litigation
– Retaliation Claims
– Class Actions
– Discrimination
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Cold Topics
• Not Developing . . .
– Immigration Reform
– Free Choice Act
– Employee Nondiscrimination Act (sexual orientation)
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Disabilities
• The Americans with Disabilities Amendments Act of 2008
– Signed by President Bush on September 1, 2008
– Effective January 1, 2009
– Regulations issued March 25, 2011
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Meaning of “Disability”
• Physical or mental impairment that substantially limits a
major life activity
• Record of such impairment
• Regarded as having such impairment
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Disabilities
• “Major Life Activity”
– Statutory List = the “ings”
• “working”
– Major Bodily Functions
• e.g., immune system, cell growth, neurological,
endocrine, reproductive, respiratory, digestive,
circulatory, etc.
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Disabilities
• “Substantially Limits” – no longer means “severe” or
“significantly restricted”
• Do not consider Mitigating Measure (other than
eyeglasses or contact lenses)
• Conditions that are Episodic or in Remission
• “Disability” = Interpret Broadly
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
EEOC Estimates
Impact of Amendments:
• 1 million more workers covered and protected
• 12-38 million disabled workers have had their coverage
clarified
• 2-6 million more requests for reasonable
accommodations
• $60-$180 million cost of new accommodations
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Genetic Information
• Genetic Information Nondiscrimination Act
– Signed by President Bush on May 21, 2008
– Regulations issued on November 9, 2010
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Genetic Information
• Employers of 15 or more
• Prohibits employers from requesting, requiring or
purchasing genetic information
• Enforced by EEOC
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Genetic Information - What Is It?
• Family medical history
• Results of any genetic test of employee or family
member
• Fact that such person sought or received genetic
services
• Genetic information about fetus carried by such person
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Genetic Tests
• “Analysis of human DNA, RNA, chromosomes, proteins,
or metabolites that detects genotypes, mutations, or
chromosomal changes”
– Tests for genetic variant for:
• Huntington’s
• Breast Cancer
• Sickle Cell Anemia
• Spinal Muscular Atrophy
• Fragile X Syndrome
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Not Genetic Tests
• Tests for
–
–
–
–
HIV / AIDS
Pregnancy
Alcohol / Drug
Cholesterol
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Not Genetic Information
• Medical information on current illness (e.g., ability to
work limited by Huntington’s)
• ADA and FMLA discussions are “present”
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employment Physicals
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Exceptions . . .
. . . to the Rule Against Acquiring Genetic Information
• Inadvertent (water cooler; doctor’s note)
• FMLA certification for family member
• Wellness programs
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Safe Harbor for Inadvertent
Disclosures
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.
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Wellness Programs
• May involve use of genetic information
• Must have prior, voluntary, knowing and written
authorization
• Genetic information may be provided by employee to
healthcare provider (and vice-versa)
• Only aggregated information may be provided to the
employer
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Health Benefits
• Cannot use genetic information to make decisions as to
whether individual can participate
• Health benefits are a term or condition of employment
• Cannot refuse to hire or terminate due to anticipated
health costs
• Title 1 limits use of genetic information in setting
premiums and providing coverage
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
GINA = Confidentiality
• Safeguard Genetic Information
• It is illegal to disclose genetic information to third parties
– Segregate it
– Require a specifically worded court order
– A subpoena for “personnel file” or “all employment
files” is insufficient
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Remedies
• Same as Title VII
• Hiring, reinstatement, promotion
• Back pay, compensatory / punitive damages
• Damage caps
$ 50,000 (under 100 employees)
$300,000 (over 500 employees)
plus attorney’s fees
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
DEPARTMENT OF LABOR
INITIATIVES
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
2011 Focus
• Independent Contractors
• Wage Payment
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Independent Contractors
The DOL says:
• 3.4 million workers misclassified
• $3.72 billion in lost tax revenue
• 60% of all businesses use independent contractors
• Fits with goals of healthcare reform
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Independent Contractors
Where it matters:
• Wage payment
• Workers’ Compensation and Health Insurance
• Payroll Taxes
• Employment Laws
– 42 U.S.C. § 1981
• Union Organizing and Collective Bargaining
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Leased Employees v. Independent
Contractors
• With Leased Employees
– Employment Exists
– Someone Handles Compensation, Benefits, Taxes
– Joint Employer Issues
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employees v. Independent Contractors
The Controlling Factor is . . .
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employees v. Independent Contractors
The Controlling Factor is . . .
Control
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employees v. Independent Contractors
• IRS Divides “Control” into 3 categories:
– Behavioral Control – Who Instructs? Who Trains?
– Financial Control – Compensation? Expenses?
– Relationship of the parties – Contract? How does it
end?
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employees v. Independent Contractors
• Relationship of Parties –
Facts to Consider:
–
–
–
–
–
What does the Contract say?
Tax treatment / Benefits treatment
How is the Worker discharged?
Is the relationship Indefinite?
Is the work “regular business activity?”
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Employees v. Independent Contractors
• Other Factors:
– Work is part-time
– Work is not “on-site”
– Hours are flexible
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Courts and Litigation in 2011
• Class Actions
• Retaliation
• Discrimination
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Class Actions
• Purposes
– Efficiency / Lower Costs
– Remove disincentives of small individual recoveries
– Prevent unfair benefit for early filers
– Synthesize outcomes
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Class Actions
• Requirements:
– Common questions of law or fact “predominate” over
individual issues
– Claims of representatives are typical of claims of the
class
– Very big class (impractical for all to participate)
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Class Actions
• Most Common Claims:
– Discrimination
– Misclassification
– Wage and Hour
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Class Actions
• Dukes v. Wal-Mart
– Favoring men over women in promotion and wage
decisions
– 1.5 million women at 3400 stores since 1998 at any
level
– Will it be “certified” by the U.S. Supreme Court
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Class Actions
• Wage and Hour Claims
– 80% of all class actions by employees
– Major plaintiffs’ firms are on the prowl
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Wage and Hour – Critical Areas
• Exempt v. Non-Exempt
• Automatic deductions (breaks, meals)
• Telecommunications / Remote Work
• Early and late “punching”
• “Corrections” by supervisors
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Wage and Hour
• Hefty Exposure
– 3 year look-back
– Multiplication for number of employees affected
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Wage and Hour
There’s an app for that??
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Retaliation
• Retaliation claims have surpassed race claims as the
most frequently filed EEOC charge.
Retaliation
36.3%
and growing
Race
35.9%
and flat
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
The Problem with Retaliation Claims
• Difficult for employers to defend
• Most adverse decisions will look retaliatory
• Claims stand on their own
• More likely to survive pretrial motion and result in trial
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Anti-Retaliation Laws
• Title VII of the Civil Rights Act of 1964
• Age Discrimination Employment Act
• Equal Pay Act
• Americans with Disabilities Act
• Family and Medical Leave Act
• Fair Labor Standards Act
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Elements of a Claim
• Protected activity
• Adverse action
• Causal connection between protected activity and
adverse action
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Protected Activity: Opposition
• EE explicitly or implicitly communicates a belief that ER’s
activity was unlawful discrimination
– Based on reasonable and good faith belief
– Manor of opposition must be reasonable
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Protected Activity: Opposition
• Examples
– Threatening to file a charge or other formal complaint
alleging discrimination
– Complaining to anyone about alleged discrimination
against oneself or others
– Refusing to obey an order because of a reasonable
belief that it is discriminatory
– Requesting reasonable or religious accommodations
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Protected Activity: Participation
• Filing a charge, testifying, assisting with or participating
in any manner in the statutory process (e.g.,
investigations, proceedings, hearing, lawsuits)
– Protected whether or not underlying discrimination
charge is valid or reasonable
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Adverse Action: The Law Today . . .
• Burlington Northern & Santa Fe Railway Co. v. White –
U.S. S.Ct. 2006
– Prohibits any employer action that
well might dissuade a reasonable
worker from making or supporting a charge of
discrimination.”
“[U]nlike a substantive provision” of Title VII, prohibited actions need
not “affect terms and conditions of employment.”
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Who May Claim Retaliation?
• Thompson v. North American Stainless, January 24,
2011 (Scalia)
• Unlawful to retaliate against someone “because he has
made a charge.” (Title VII)
• But, “a person claiming to be aggrieved . . . by the
unlawful employment practice” may sue.
• Thus, anyone “aggrieved,” not simply the person who
complained.
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Thompson: “Me and My Fiancé”
• The Court concluded:
– You might not engage in protected conduct if you
think it means your fiancé will be fired.
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Where Does It End
• Family Members – “almost always”
• Mere Acquaintance – “almost never”
• Supreme Court: “We decline to identify a fixed class of
relationships for which third-party reprisals are unlawful.”
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Preventing Retaliation:
The Best Defense is a Good Offense
• Policies Specifically Prohibit Retaliation
(not just the EEO policy)
– Establish procedures for reporting
– Publicize / Post / Train
– Emphasize zero tolerance
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Preventing Retaliation:
The Best Defense is a Good Offense
• Appropriately Respond to Complaints
– Immediately investigate the underlying complaint
– Maintain confidentiality for underlying complaint (to
the extent practicable)
– Focus on fixing the problem (“effective remedial
action”)
– Document
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Preventing Retaliation:
The Best Defense is a Good Offense
• Close the Loop
– Record Reminder: No Retaliation
– Check In
• Proactively monitor for 6 months
• Coach Supervisor
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Preventing Retaliation:
The Best Defense is a Good Offense
• Train Supervisors to Maintain Incident File
– Record of good and bad incidents
– Complete while details fresh
– Review with Employee without waiting for formal
appraisal
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Subsequent Discipline
•
•
•
•
•
•
•
Make good paper
Clear expectations
Reference patterns of behavior
Reference prior warnings, notices
Include any positives
Do not reference protected activity
Future consequences
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Subsequent Discipline
Follow Policy to the Letter
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Discrimination
• Same as it ever was
• Cat’s Paw Theory
– Staub v. Proctor Hospital
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Courts Expect Employers To . . .
• Avoid effects of biased supervisors
• Separate when possible
• Rely on objective, second sources
© 2011 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.