5 Critical Employment Law Issues Affecting HR Professionals Now

Presenters Traywick Duffie Littler Mendelson, Atlanta Office (404) 443-3547 TDuffie@littler.com Dionysia Johnson-Massie Littler Mendelson, Atlanta Office (404) 760-3901 DJMassie@littler.com Mary Sharp Littler Mendelson, Atlanta Office (404) 760-3975 MSharp@littler.com

Challenge #1 Adventures in Social Media

Who Is Using Social Media?

Worldwide Users on Social Media Sites –

• Facebook – Now over 750 million active users:

– 50% of active users log on to Facebook in any given day

– Avg. user is connected to 80 community pages, groups and events

• Twitter – 175 million accounts

• LinkedIn – 120 million accounts

• Blogs – Approx. 152 million

• Don’t think your employees are out there?

Think again. Type your company’s name into the search engine of any social networking site

Monitoring Employees’ Social Media Activities

• Do employers have a duty to monitor employees’ social media activity?

• Why would employers want to monitor employees’ social media activity?

Do Employers Have A Duty To Monitor Employees’ Off-Duty Social Media Activity?

• Pilots posted allegedly harassing, false, and defamatory comments about female pilot on the “Crew Members Forum,” an electronic bulletin board.

Court: “Employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.”

Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000)

Why Monitor Social Media Use?

• Use Results in Privacy Breach • Disclosure of Trade

Secrets/Confidential Info • Employee Morale/Gripe

Sessions • Harassment/Title VII • Defamation • Misuse of Intellectual Property • Excessive Use (slacking) • Damage to Reputation • Pornography, Obscenity

• Violence • Union Organizing • Unauthorized and Deceptive

Endorsements • Violations of Other Policies

Risks of Monitoring

• Invasion of Privacy • Stored Communications Act • Wiretap Act • First Amendment for Public Employers • NLRA Protections • State Laws Prohibiting Discipline

For Off-Duty Conduct

Risks Of Monitoring: Social Media Firing And The NLRA

Key Allegations: ● Supervisor would not let a union

representative assist employee in preparing a response to a customer complaint about her work

● Employee posted derogatory comments on her Facebook page, using her home computer, about her supervisor, including “Love how the Company allows a 17 to become a supervisor” and that the supervisor is a “dick” and “scumbag.”

“17” = psychiatric patient

● Co-workers who are employee’s Facebook friends post comments supportive of the employee and adverse to supervisor

Unfair Labor Practice?

Company terminates the employee based on the following policy:

“Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers, and/or competitors.”

NLRB Complaint: Termination of employee violated employee’s rights under Section 7 of the NLRA to engage in “protected concerted activity.” American Med. Response of Connecticut (10/27/10)

What Is Protected Concerted Activity?

Protected = related to the terms or conditions of employment, unionization, or an on-going labor dispute

Concerted = “with, or on the authority of, other employees and not solely by and on behalf of the employee himself.”

Meyers Industries, 268 NLRB 493, 497 (1984)

Note: Employees in a non-unionized workplace can engage in protected, concerted activity

The NLRA will closely examine social media policies to ensure they don’t limit employees’ rights to engage in protected concerted activities.

A policy disclaimer may not be enough.

When Is Concerted Activity Not Protected?

1. Statements that are recklessly or maliciously untrue 2. Disparagement or vilification of the employer’s

products or reputation 3. Statements that disrupt workplace discipline 4. Public criticism of an employer

that reflects disloyalty 5. Threats of physical harm

Key Take-Away Observations

1. Develop a policy. 2. Monitor at your own risk. 3. Employment decisions generally should be

based on factors other than social media.

Challenge #2 NLRB Initiatives and Proposed NLRB Rule

Changes

NLRB Initiatives and Proposed NLRB Rule Changes

• NLRB’s new posting rules • NLRB’s key proposed rules to impact elections

– Eliminates certain pre-election procedures. – Provides broader discretion to Hearing Officers

regarding post-hearing briefs and appeals (no longer required to provide 25 days for appeal).

Challenge # 3 Current Wage and Hour Issues Related to Pay

Practices

Current Wage and Hour Issues Related to Pay Practices

• US DOL, Wage and Hour Division Misclassification Initiative and Memoranda of Understanding

• US DOL WHD Enforcement Strategy

• Private Litigation

Independent Contractor Misclassification

• DOL is not waiting for a new budget, new regulations or action by Congress

– WHD conducting self-directed investigations in industries that frequently use independent contractors

– Investigators are beginning to ask employers to produce copies of IC contracts

• WHD coordinating enforcement efforts with Department of Treasury (IRS), State regulators, Worker advocates, community organizations and unions

– IRS Memorandum of Understanding and States’ MOU

– Risks of misclassification include overtime pay, employment taxes, employee benefits, workers compensation, unemployment insurance taxes

States With MOU

USDOL WHD Enforcement Strategy

• Enterprise wide Approach

• Revamped complaint process - concentrating resources on “high risk industries that employ vulnerable workers”

• Greater use of enforcement “tools” – subpoenas, liquidated damages, civil money penalties

• Specific initiatives

Private Litigation

• FLSA Retaliation Claims

– Unwritten, Oral Complaints Are Protected Activity under the FLSA’s anti-retaliation provision (Kasten v. Saint-Gobain Performance Plastics Corp).

– Fourth Circuit recently held that “filed any complaint” includes internal company complaints (Minor v. Bostwick Laboratories, Inc.).

• Wage and Hour Class and Collective Actions Continue to be Filed

– Plaintiffs’ bar has shifted from individual companies to entire industries; groups of firms within the Plaintiffs’ bar are becoming industry experts and leveraging industry expertise to attack employers en mass with less cost

– Automatic deduction for meal period and rounding

• The Supreme Court will consider whether deference is owed to the US Secretary of Labor’s interpretation of the FLSA’s outside sales exemption and related regulations and whether it applies to pharmaceutical sales representatives (Christopher v. SmithKline Beecham Corp.)

Key Take-Away Observations

• Employers should consider conducting a review of independent contractors to ensure compliance regarding classification under state and federal laws.

• Employers should consider evaluating the continued use of automatic deductions for meal periods and rounding.

• Employers should investigate and remedy oral or written internal complaints regarding wage and hour violations, and strictly prohibit retaliation against those who make such complaints.

Challenge #4 ADA/ADAAA

Considerations

The ADA Amendments Act of 2008 (“ADAAA”)

– Enacted 9/2008

– Effective 1/2009, is not retroactive so acts occurring before this date are analyzed under the ADA

– Broadened categories of persons considered “disabled”

– Emphasized interactive process and exploration of reasonable accommodations

• Will likely be much harder for employers to secure favorable summary judgment rulings – which means, more jury trials.

• Makes ADA decisions based upon the determination that “no disability” existed of limited or no value if based on actions or omissions occurring before 1/1/09.

ADA Amendments Act

Following ADAAA Effective Date – EEOC Charges Skyrocket! • In 2010 = 25,165 Disability Discrimination

Charges. Highest number in the ADA’s history…until 2011.

• In 2011 = 25,742 Disability Discrimination Charges. Highest number in the ADA’s history.

Disability Discrimination represented the largest percentage increase in EEOC Charges over any other protected category.

Why? The ADAAA represents a shift in disability discrimination laws and that shift heavily favors employees.

ADA Amendments Act

The EEOC issued final regulations re ADAAA on March 25, 2011: “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.”

ADA Amendments Act

Illustrative ADAAA Cases: • Hoffman v. Carefirst of Fort Wayne, Inc., 737 F. Supp. 2d

976 (N.D. Ind. 2010 ) – Cancer is a disability under the ADAAA even if it is in

remission.

• Gesegnet v. J.B. Hunt Trans., Inc., 2011 WL 2119248 (W.D. KY. May 26, 2011) – “Given the broad definition of disability Congress intended,

the Court will assume that Plaintiff has a disability under the ADAAA.”

ADA Amendments Act

Direct Threat Defense

Illustrative ADAAA Cases: • Wells vs. Cincinnati Children’s

Hospital Medical Center, Case No. 1:10-CV-619 (S.D. Ohio, 2012) – Employer suspending nurse for

“blacking out” at work did not violate ADAAA when it suspended her, but its failure to reinstate her to Critical Airway Unit position could constitute disability discrimination

Direct Threat Defense

• Direct Threat Defense – Employers can require that an individual not pose a direct threat to his

or her own health or safety in the workplace

– A “direct threat” is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”

– Requires individualized assessment based upon objective evidence and/or most current medical knowledge

– Avoid generalizations and stereotypes and blanket exclusions

– Consider the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.

29 C.F.R. Sec. 16320.2(r).

Reasonable Accommodation Case Law – Interactive Process Pro-Employer

• Anderson v. JPMorgan Chase & Co., 418 Fed.Appx. 881 (11th Cir. 2011) (pre-ADAAA analysis)

• Background: Plaintiff’s asthma symptoms flared up when her employer began to clean the carpets around her work station. After refusing to return to work, the employee was terminated and later sued for disability discrimination and retaliation.

• Court: No ADA liability as employer engaged fully in the interactive process by moving the employee to five different work stations in an effort to accommodate her. Additionally, the employer permitted the employee to take paid leave, provided her with fans, and offered to remove the carpet from her workspace. Employer’s efforts spanned six month period.

ADA Amendments Act

Reasonable Accommodation Case Law – Interactive Process Pro-Employer

• McKane v. UBS Financial Services, Inc. 2010 U.S. App. LEIS 1386 (11th Cir. 2010) (pre ADAAA analysis)

– ER granted summary judgment because employee did not identify a “reasonable accommodation.”

– Employee’s request to move his office to “remote location” at work so that he would not “verbally abuse” co-workers is unreasonable since issue leading to termination involved employee berating co-worker after summoning co-worker to employee’s office. Office re-location would not obviate the issue.

– “The plaintiff bears the burden of identifying an accommodation, and of demonstrating that the accommodation allows him to perform the job’s essential functions.”

– Affirmed: Employer has no duty to engage in interactive process where plaintiff fails to identify the existence of a reasonable accommodation. In such instances, “…the employer’s lack of investigation into reasonable accommodation is unimportant.”

Identifying Reasonable Accommodation

Reasonable Accommodation Case Law – Interactive Process Pro-Employee

• Colwell v. Rite Aid Corporation, 602 F.3d 495 (3rd Cir. 2010) (pre-ADAAA analysis)

– Background: Cashier with glaucoma requested accommodation to be assigned the day shift because her partial blindness prevented her from driving at night. The cashier submitted medical documentation supporting request. Supervisor denied request three times (twice with employee and once with union rep). Union rep. scheduled meeting to discuss the requested accommodation with the supervisor and employee, but failed to attend. Before the meeting could be rescheduled, cashier resigned in frustration. Time between initial request for accommodation and resignation (mid September – October 12, 2005).

– Court: Ruled in favor of employee, indicating jury trial required to determine whether employer failed to engage in the interactive process or if employee prematurely halted participation in the interactive process. The court further held that a reasonable change in work schedule is the type of accommodation contemplated by the ADA, though employer argued the requested accommodation was not job-related because employee’s request focused on her need for transportation getting to work, not on an accommodation needed to perform work tasks.

Timeliness of Interactive Process

What Should Employers Do?

• Look and listen for potential impairments of employees or applicants

• Recognize that more impairments will be considered “disabilities”

• Focus the “interactive process” on accommodation discussions

– Don’t focus as much on whether condition is “really” a disability; rather focus on accommodating the condition

• Analyze the essential job functions for each position; ensure accuracy.

• Enable employees to request accommodations.

• Consult with the employee.

• Seek outside advice and counsel.

• Be prompt and be reasonable.

• Keep the employee informed & follow the golden rule.

• Maintain an open door policy and practice.

• Dig deeper to find possible accommodations.

• Choose an effective option.

• Re-visit employee policies: return to work policies and any automatic termination policies that relate to medical leaves of absence.

• Develop a consistent policy – train your managers – standardize documentation and procedures

• Document, document, document.

What Should Employers Do?

Challenge #5 EEOC Update

EEOC UPDATE

010,00020,00030,00040,00050,00060,00070,00080,00090,000

100,000

2006 2007 2008 2009 2010 2011

Fiscal Year

Num

ber o

f Cha

rges

FISCAL YEAR

PERCENTAGE RANK BY TYPE OF CHARGE

2006 1 – Race

2- Sex 3- Retaliation (under all statutes) 4- Age 5- Disability

2007 1 – Race

2 – Retaliation (under all statutes) 3 – Sex 4- Age 5 – Disability

2008 1 – Race

2 – Retaliation (under all statutes) 3 – Sex 4- Age 5 – Disability

2009 1 – Race/Retaliation (under all

statutes) -- tied 3 – Sex 4- Age 5- Disability

2010 1 – Retaliation (under all statutes)

2 – Race 3 – Sex 4 - Disability

2011 1 – Retaliation (under all statutes)

2 – Race 3 – Sex 4 - Disability

75,768

82,792 95,402

93,277 99,922 99,947

EEOC FY2011 Lawsuits

Types of “Merit-Based” Lawsuits Filed in FY 2011

Total Causes of Action by Category

Individual Lawsuits 177 “Multiple Victim” Lawsuits 84 SUBTOTAL 261 Total Lawsuits Title VII claims 162 Americans with Disabilities (ADA) 80 Age Discrimination in Employment Act (ADEA) 26 Equal Pay Act (EPA) 2

EEOC FY-2011 Monetary Recoveries

FY-2011 “Merit” Lawsuits FY-2011 EEOC Charges

Resolved 277 merit lawsuits resolved 9,831 charges resolved

Amount of Monetary Recovery

$90.9 Million $170 Million

EEOC Update

Fiscal Year Number of Systemic Lawsuits

2011 23

2010 20

2009 19

2008 17

2007 14

2006 11

Source: EEOC annual report, p. 20

EEOC Priorities

• Prioritize systemic lawsuits – FY 2011 largest ever since tracking began in 2006 – Completed work on 235 systemic investigations (cases

with at least 20 known expected class members)

– 96 resulted in “reasonable cause” determinations that the policies or practices were discriminatory in nature

– Contrast: 5% determinations in typical EEOC charges v. 40% in systemic charges

EEOC Priorities

• More than 50% of EEOC’s filings were in seven states (California, Texas, Georgia, North Carolina, Michigan, Illinois and Indiana)

• Most frequent causes of action filed: – Disability discrimination

– Retaliation

EEOC Priorities

• Expand technology usage -- “Case Works” System

• Build “systemic enforcement partnerships” with other agencies (DOL (OFCCP), DOJ) – “shared systemic case information”

– “discuss case strategies and available information for further examination of specific employers”

EEOC Priorities

• Continue ERASE initiative (Eradicating Racism and Colorism from Employment) – Credit checks

– Background checks

– Arrest and conviction records

– Employment tests

• Fight compensation discrimination in employment

• Continue mediation efforts

Questions?

Traywick Duffie Littler Mendelson, Atlanta Office (404) 443-3547 TDuffie@littler.com Dionysia Johnson-Massie Littler Mendelson, Atlanta Office (404) 760-3901 DJMassie@littler.com Mary Sharp Littler Mendelson, Atlanta Office (404) 760-3975 MSharp@littler.com