legislative update 2014 -...
TRANSCRIPT
Legislative Update
2014
Presented by:
M. Kim Vance
615.726.5674
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Agenda • Who will be making employment laws in
2014?
• What laws are “in play?”
• Should you participate
in the process?
• How should you prepare
your organization for
employment law changes?
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Who is making our employment laws?
• NLRB is driving the law regulating social
media in connection with employment.
• States are driving the law on using
criminal convictions as part of the
screening process for employees.
• EEOC is driving the law on sexual
orientation and transgender discrimination.
• Congress is . . .
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Laws that are “in play?”
• Limiting the use of criminal convictions in
screening candidates for employment.
(Ban the Box Laws)
• Expansion of Title VII to require
reasonable accommodations for pregnant
employees.
• Administering FMLA – new rules on
coverage of same sex spouses in some
states and a new bill in Congress requiring
paid leave.
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What laws are “in play?”
• The Employment Nondiscrimination Act
pending in Congress prohibiting
discrimination based on sexual orientation
and transgender status.
• The ultimate impact of the Affordable Care
Act on employers (birth control coverage
for example).
• Union organization and elections.
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Laws In Play
Criminal Background
Checks
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The EEOC says criminal background checks
can be discriminatory because African-
Americans are convicted of crimes at higher
rates than Caucasians.
The EEOC issued guidelines that don't prohibit
the use of criminal checks, but urge employers
to use individualized inquiries considering the
crime, its relation to an applicant's potential
job, and how much time has passed since the
conviction.
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The EEOC keeps trying to get the federal
courts to accept its interpretation of the law
regarding criminal background checks in a
class action lawsuit against Freeman Co.
This lawsuit alleged the company’s use of
criminal background checks had a disparate
impact on minorities.
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MARYLAND FEDERAL COURT
THROWS OUT THE EEOC’S LAWSUIT
AGAINST FREEMAN CO. AND HAD
THIS TO SAY ABOUT THE EEOC’S
INTERPRETATION OF THE LAW.
August 9, 2013
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"The story of the present action has been
that of a theory in search of facts to
support it," Judge Titus wrote in a
stinging rebuke to the EEOC.
"But there are simply no facts here to
support" the EEOC's claim that black
applicants were improperly discriminated
against,” the judge said.
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The Judge also noted:
Roughly 87% of employers use criminal-
background checks in hiring, according
to a 2012 survey by SHRM.
Even the EEOC conducts criminal
background checks in its own hiring
process.
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“The EEOC has placed many employers
in the ‘Hobson’s choice’ of ignoring
criminal history and credit background,
thus exposing themselves to potential
liability for criminal and fraudulent acts
committed by employees, on the one
hand, or incurring the wrath of the EEOC
for having utilized information deemed
fundamental by most employers.”
EEOC v. Freeman Co.
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Judge Titus ruled that Freeman Co.’s use
of criminal checks "appears reasonable
and suitably tailored to its purpose of
ensuring an honest workforce." He said
that Freeman limited its review to
convictions in the past seven years and
didn't penalize applicants for arrests that
didn't result in conviction.
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Ban The Box Laws
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Indiana Indiana Passes New Legislation Restricting Criminal History Information
Reported in Background Checks (June 2012)
Massachusetts Massachusetts Employers Face New Obligations When
Conducting Background Checks Involving Criminal History Records (March 2012)
Minnesota Minnesota Enacts “Ban the Box Law” Prohibiting Employment
Application Criminal History Checkmark Boxes and Restricting Criminal Record
Inquiries Until After Interviews or Conditional Job Offers (May
2013)
Newark, New Jersey Employers in Newark, New Jersey Must Comply with a
New Ordinance Broadly Restricting Their Discretion to Rely on Criminal Records
for Employment Purposes (October 2012)
Ohio Ohio Joins Handful of States that Offer Tort Liability Protections for
Businesses that Hire and Employ Rehabilitated Ex-Offenders (August 2012)
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State Law Chart: Criminal/Background
Checking
http://www.shrm.org/LegalIssues/StateandLoca
lResources/StateandLocalStatutesandRegulati
ons/Documents/Criminalandbackground%20ch
ecks.pdf
City and County Chart: Ban the Box
http://www.nelp.org/page/-
/SCLP/2011/CityandCountyHiringInitiatives.pdf
?nocdn=1
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Laws In Play
Pregnancy
Discrimination Under
Title VII
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EEOC has a renewed focus
on pregnancy
discrimination and
granting accommodations
for pregnancy in the
workplace.
But, the Courts have not been so
easy to convince.
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Young v. UPS, Inc.
• UPS offers light duty work to those
employees injured while on the job or
suffering from an impairment cognizable
under the ADA. Under UPS policy, a
pregnant employee can continue working as
long as she can perform the essential
functions of her job, but is ineligible for light
duty work for any limitations arising solely as
result of her pregnancy.
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The Facts . . .
• At some point in September 2006, Plaintiff
left her supervisor a note from Dr. Thaddeus
Mamlenski indicating that she should not lift
more than twenty pounds for the first twenty
weeks of her pregnancy and not more than
ten pounds thereafter.
• HR informed Plaintiff that UPS policy would
not permit her to continue working as long as
she had the twenty-pound lifting restriction.
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Troupe v. May Dep’t Stores Co., 20
F.3d 734, 738 (7th Cir. 1994)
• The Pregnancy Discrimination Act does not,
despite the urgings of feminist scholars . . .
require employers to offer maternity leave or
take other steps to make it easier for
pregnant women to work. Employers can
treat pregnant women as badly as they treat
similarly affected but nonpregnant employees
. . . ."
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The “Supremes” Take The Stage
• April 2013 – Ms. Young asks the Supreme
Court to hear the case.
• May 2013 – Amicus (Friend of the Court)
briefs filed by Law Professors and
Women’s Rights Organizations
• October 2013 – The Supreme Court asks
the Solicitor General to weigh in on
whether to take the case or not.
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Pregnant Workers Fairness
Act (PWFA), H.R. 5647 and S.
3565
• The bill requires employers to make the
same sorts of accommodations for
pregnancy, childbirth, and related
medical conditions that they do for
disabilities.
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Laws In Play
Sexual Orientation and
Transgender
Discrimination
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“The EEOC has held that discrimination
against an individual because that person is
transgender (also known as gender identity
discrimination) is discrimination because of sex
and therefore is covered under Title VII of the
Civil Rights Act of 1964.”
See Macy v. Department of Justice, EEOC
Appeal No. 0120120821 (April 20, 2012).
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“The Commission has also found that claims by
lesbian, gay, and bisexual individuals alleging
sex-stereotyping state a sex discrimination claim
under Title VII.”
See Veretto v. U.S. Postal Service, EEOC
Appeal No. 0120110873 (July 1, 2011); Castello
v. U.S. Postal Service, EEOC Request No.
0520110649 (Dec. 20, 2011).
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Stacy v. LSI Corporation
• Case alleged transgender discrimination
as sex discrimination under Title VII of the
1964 Civil Rights Act
• Decision issued by Third Circuit Court of
Appeals on November 13, 2013
• Court affirmed summary judgment for the
employer finding the employee failed to
prove the employer’s reasons for its action
were a pretext for unlawful discrimination.
• Why is this case of interest?
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Employment Nondiscrimination Act
of 2013
• Passed by the Senate on November 7,
2013 – historical movement by Congress
• Referred to the House and now in
committee
• Text of the bill: prohibits employment
discrimination based on sexual orientation
and gender identity.
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Employment Nondiscrimination Act
of 2013
• The term “gender identity” as used in the
Senate version of the bill means the
gender-related identity, appearance, or
mannerisms or other gender-related
characteristics of an individual, with or
without regard to the individual’s
designated sex at birth.
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Laws In Play
FMLA
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The Impact of Striking Down
DOMA on the FMLA
• In states that recognize same sex
marriages, eligible employees can now
take time off to care for a same-sex
spouse who has a serious health condition
under the FMLA.
• Train managers to recognize and report
potential FMLA coverage for same-sex
spouses in states where this applies.
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Family and Medical Insurance
Leave Act – pending bill
• Introduced in the House and Senate on
December 12, 2013.
• The proposed legislation would offer leave
to every individual regardless of the size of
his or her current employer and regardless
of whether such individual is currently
employed by an employer, self-employed or
currently unemployed, as long as the
person has sufficient earnings and work
history.
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Family and Medical Insurance
Leave Act – pending bill
• The legislation would provide up to 12
weeks of paid leave each year to qualifying
workers for the birth or adoption of a new
child, the serious illness of an immediate
family member or a worker’s own medical
condition
• Workers would be eligible to collect benefits
equal to 66 percent of their typical monthly
wages up to a capped monthly amount that
would be indexed for inflation.
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Laws In Play
The NLRB
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Issue: Whether the President’s
appointments to the NLRB during a
Senate Recess were appropriately
processed.
If the Noel Canning ruling is upheld, it's
possible that all of the NLRB's decisions
from August 27, 2011 to July 31, 2013
could be voided.
The NLRB Appointments
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NLRB Gives Up on Poster
• On January 6, 2014 the NLRB announced
it would not appeal rulings striking down its
mandate that employers post notices
advising employees of the rights under the
National Labor Relations Act.
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The “Free Choice Act”
• Now that Senate filibuster rules have been
changed, will Democratic leadership try to
push through some version of the Free
Choice Act?
• Stay tuned to SHRM publications for the
latest details
• Continue Union Avoidance training
• Stay vigilant for union organizing activity
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Laws In Play
The Affordable Care Act
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Key Parts of the Affordable Care Act
(aka “ObacaCare”) Delayed until
2015
• In early July, the Obama administration
announced that it would delay parts of the
Affordable Care Act until 2015.
• Included in the delay was implementation of the
"employer mandate," which will require
businesses with more than 50 employees
provide health insurance to their workers or pay
a penalty.
• The Supreme Court is set to rule on the issue of
providing birth control under the ACA.
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Laws In Play
Damages Under The
Tennessee Human
Rights Act
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What else is on the horizon?
• A potential increase in the minimum
wage?
• Extension of unemployment benefits up for
vote this month in Congress?
• The state of the economy and its impact
on business and job growth yet to be
seen.
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Should you participate
in the process?
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How can you prepare your
organization for potential
employment law changes?
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What Questions
Do You Have?