Labor, Employment, and HR Law Update ( ) Aaron L. Zandy, SPHR, Esquire FordHarrison LLP (407)

Transcription

1 Labor, Employment, and HR Law Update ( ) Aaron L. Zandy, SPHR, Esquire FordHarrison LLP (407)

2 Presentation Roadmap Supreme Court Update ( ) 2014 Proposed Federal Legislation Aggressive Administrative Agency Action Legislating by Executive Orders State Survey of L&E Laws Questions & Answers

3 Supreme Court Update ( )

4 2013 Supreme Court Decisions Vance v. Ball State University University of Texas Southwestern Medical Center v. Nassar United States v. Windsor American Express v. Italian Colors Restaurant Genesis HealthCare Corp. v. Symczyk

5 Vance v. Ball State University (June 24, 2013) Resolved circuit split over who constitutes a supervisor under Title VII.

6 Nassar v. Univ. of Texas S.W. Med. Ctr. (June 24, 2013) Resolved whether retaliation claims under Title VII require a plaintiff to show that the adverse employment action would not have happened but for the employee taking part in protected activity.

7 United States v. Windsor (June 26, 2013) Supreme Court declared unconstitutional the Defense of Marriage Act (DOMA) provision defining marriage as between a man and a woman.

8 American Express Co. v. Italian Colors Restaurant (June 20, 2013) Supreme Court held that public policy challenges based on the need to enforce federal statutes through class litigation or arbitration do not preclude class waivers.

9 Genesis Healthcare v. Symczyk (April 16, 2013) Supreme Court held that a collective action under the Fair Labor Standards Act (FLSA) may not proceed when the lone plaintiff s individual claim becomes moot.

10 Labor & Employment Cases to Watch in 2014 Sandifer v. US Steel Corp. The meaning of changing clothes under the FLSA Daimler Chrysler Corp. v. Bauman Personal jurisdiction over alleged human rights violations committed in Argentina NLRB v. Noel Canning The clash between the NLRB and the President s recess appointment power

11 Labor and Employment Cases to Watch in 2014 Sebelius v. Hobby Lobby Stores, and Conestoga Wood Specialties Corp. v. Sebelius The intersection of contraceptive mandate and an employer s religious objections Fifth Third Bancorp v. Dudenhoeffer The standard of care required by an ESOP fiduciary when that fiduciary is investing in employer stock

12 EEOC Cases to Watch in 2014 EEOC v. Freeman: EEOC appealed DC decision tossing out a case claiming that the company s use of credit history and criminal background checks in the hiring process had a disparate impact on backs and men. EEOC v. DolGenCorp; EEOC v. BMW Manufacturing: sheds light on how employers can use background checks; agency highlighted eliminating barriers to hiring as top priority

13 EEOC Cases to Watch in 2014 State of Texas v. EEOC: State sought to block EEOC s April 2012 enforcement guidance on criminal background checks; State argues it has sovereign right to impose categorical bans on the hiring of criminals; guidance imposes an individualized assessment on every decision Case New Holland v. EEOC: EEOC sent mass e- mail to recruit class action plaintiffs from the company s workforce; no advance notice.

14 2014 Proposed Federal Legislation

15 A Look Ahead At Possible 2014 Federal Legislation Immigration Overhaul In 2013, a comprehensive bill passed in the Senate. In 2014, the House of Representatives is expected to vote on several piecemeal bills. Employment Nondiscrimination Act Bill would make it unlawful for employers with 15 or more employees to discriminate against individuals on the basis of actual or perceived sexual orientation or gender identity. The bill passed in the Senate, but is expected to languish in the House of Representatives. Family Medical Leave Inclusion Act Bill would permit employees to take leave under the FMLA to care for same-sex domestic partner.

16 A Look Ahead At Possible 2014 Federal Legislation Working Families Flexibility Act Bill would give workers entitled to overtime the option of either taking compensatory time or banking it for use later in the year. Employees could use these hours to care for family members, attend school functions, etc. Paycheck Fairness Act Bill would increase the amount of compensation that women could seek for pay discrimination by allowing courts to award punitive damages for violations. Social Networking Online Protection Act (SNOPA) Bill would prohibit employers from requiring employees or applicants to divulge their personal information shared on social networks.

17 A Look Ahead at Possible 2014 Federal Legislation Federal Right to Work Act Bill would prohibit the use of union security clauses in collective bargaining agreements. Federal Arbitrations Fairness Act Bill would prohibit pre-dispute arbitration of employment, consumer, antitrust and civil rights claims.

18 Aggressive Administrative Agency Action

19 Top 10 States - Highest Number of EEOC Charges Texas - 9,068 charges 2. Florida - 7,597 charges 3. California - 6,892 charges 4. Georgia 5,162 charges 5. Illinois 4,781 charges 6. North Carolina 4, Pennsylvania 4,390 charges 8. New York 3,550 charges 9. Ohio 3, Tennessee 2,988 charges

20 EEOC - Total Charges ( ) 120, ,000 80,000 60,000 40,000 20,

21 45,000 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5, EEOC - Charges by Type Race Age Sex Disability Retaliation

22 EEOC s 2013 Enforcement and Litigation Data Fiscal Year October 1 September 30 Received 93,727 charges - 5.7% fewer in 2013 than in 2012 (retaliation 41.1%, race 35.3%, sex 29.5%, disability 27.7%) Recovered an agency record of $372.1 million through its administration process (mediation and conciliation process) (increase by $6.7 million) Accomplished despite sequestration

23 NLRB Posting Requirements January 6, 2014 Board announced Rule that was supposed to take effect in 2013 was the NLRB s rule requiring employers to post notice about employees rights to form a union. However, after two federal court of appeal decisions enjoining enforcement of the rule, the NLRB opted not to seek Supreme Court review of those decisions, and the rule is no longer expected to take effect.

24 NLRB Reissues Ambush Election Rules February 5, 2014 NLRB announced intention to reissue a Notice of Proposed Rulemaking for rules governing the procedures for union representation elections Rules eliminate current procedures for pre-election appeals and rule that election cannot be held sooner than 25 days, limited pre-election hearing scope (within 7 days of petition), petition can be filed electronically, requires SOP submitted by employer or waived, providing s and telephone numbers, Excelsior list within 2 days

25 DOL Persuader Rules Proposed Rule radically alters the regulations implementing the Advice Exemption to the LMRDA Eviscerates any meaningful use of the Advice Exemption which would be swallowed up by the new expansive definition of persuader activity November 2013 DOL announced Final Rule publication in March 2014 March 6, 2014 DOL announced Final Rule would not be published in March Will provide new date in its Spring Regulatory Agenda

26 OFCCP Affirmative Action Regulations Coverage Disability Regulations Veteran s Regulations New Requirements Utilization Goals for Disabled Individuals Hiring Benchmarks for Veterans Invite Voluntary Identification of Status Data Collection Compliance Evaluation Effective March 24, 2014

27 Legislating by Executive Orders Year of Action: Making Progress Through Executive Action - President Obama

28 Executive Order Raising Minimum Wage February 12, 2014 President signed an EO raising minimum wage for employees who work on procurement contracts for services or construction to $10.10 per hour. Effective January 1, 2015 Applies only to new contracts where solicitation is after January 1, 2015 President is leading by example

29 President Calls on DOL to Broaden OT Protections March 13, 2014 directed DOL to update regulations defining the scope of federal OT pay protections (WF fact sheet) Weekly pay threshold for white collar exemptions - $455 ( failed to keep up with inflation) Practice impact: More non-exempt employees

30 State Law Survey of Labor and Employment Law

31 State Social Media Privacy and Same Sex Marriage Laws Dominate state legislatures enacted laws recognizing same-sex marriage in 2013, brining total to 16 (plus DC) Many state legislatures enacted laws protecting the social medial privacy of employees and applicants, prohibiting employers from requiring access to an employee or applicant s Twitter, Facebook or other social media accounts and protects individuals from retaliation

32 State Social Media Privacy and Same Sex Marriage Laws Dominate 2014 E-verify and immigration laws were enacted or modified in several states While military and disaster service laws along with the FMLA were acted upon in others Many states minimum wage increased as a result of being tied to annual inflation rates or the Consumer Price Index Two states (Illionos and New Hampshire) legalized medical marijuana

33 State Labor & Employment Law Survey Laws Protecting Social Media Privacy of Employees & Applicants Arkansas, Colorado, Illinois, Maryland, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington Handful of States Take Up Weapons at Work Laws in 2013 Alaska, Illinois, Oregon, and Tennessee

34 State Labor & Employment Law Survey Employee Classification at Issue in Five State Legislatures Delaware, DC, Illinois, Maryland, and Utah Nearly half of states make changes to wage-hour laws in 2013 Arizona, Arkansas, California, Connecticut, Florida, Hawaii, Louisiana, Maine, Maryland, Mississippi, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington

35 State Labor & Employment Law Survey State Legislatures Update Recordkeeping Laws in 2013 Connecticut, Hawaii, North Carolina, Rhode Island, and Virginia Employers Unable to Condition Employment on Credit Checks Colorado and Nevada

36 Presentation Roadmap Supreme Court Update ( ) 2014 Proposed Federal Legislation Aggressive Administrative Agency Action Legislating by Executive Orders State Survey of L&E Laws Questions & Answers

37 Labor, Employment, and HR Law Update ( ) Aaron L. Zandy, SPHR, Esquire FordHarrison LLP (407)