spring 2014 employment law legislative update title … · 2018-10-07 · flsa's...

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Presented By:

William E. Grob [email protected]

(813) 221-7228

J. Robert McCormack [email protected]

(813) 221-7439

Dee Anna D. Hays [email protected]

(813) 221-7239

SPRING 2014 EMPLOYMENT LAW

LEGISLATIVE UPDATE

Department of Labor (“DOL”)

Secretary Thomas Perez

Expect Changes to White

Collar Exemptions

March 2014 Memorandum signed by

President Obama -- “Updating and

Modernizing Overtime”

Involves exemptions for Executive,

Administrative, Professional, Outside Sales

and Computer Employees

White collar exemptions “have not kept up

with our modern economy.”

Approximately 3.1 million people would be

entitled to overtime if the $455 per week

threshold had kept up with inflation

(estimated at $1,000 per week).

Expect Changes to White

Collar Exemptions (cont’d.)

DOL plans to promulgate a proposed

rule by November 2014, after elections.

Proposed rule is expected to increase

the salary level and revising specific

job duties required to qualify for

exemption.

The notice of proposed rulemaking is

merely the start of the rulemaking

process, which will also include a period

of public comment, agency review,

and OMB review prior to final action.

More Workers Would Be

Eligible For OT Under FLSA Bill

On June 18, 2014, Senate Democrats

introduced a bill to amend the FLSA to raise the

threshold necessary to qualify for the executive,

administrative and professional exemptions.

The “Restoring Overtime Pay for Working

Americans Act” would cover about 47% of

salaried workers, Health Education Labor and

Pensions Committee Chairman Tom Harkin said

in a statement.

Would gradually raise the $455 a week threshold

to $1,090 per week over several years

and then index it to inflation.

Highly compensated employees can be exempt from

overtime requirements as well, and one of the

criteria for that exemption is annual compensation of

at least $100,000, but the legislation introduced

Wednesday would push that figure up to $125,000.

The legislation would also address the term “primary

duty” — used in figuring out whether FLSA

exemptions apply — that states workers who fall

under the executive, administrative or professional

exemptions can't spend more than half their time on

nonexempt tasks.

Regulatory changes in 2004 did away with that “50

percent threshold” and created a loophole allowing

workers such as store and restaurant managers to

be classified as exempt even if they spent relatively

little time on exempt duties, Wednesday's statement

said.

But under the newly announced bill, a manager

would have to spend the majority of their time

actually managing to qualify as exempt.

The bill would also set penalties for violating the

FLSA's record-keeping provisions, creating a strong

incentive for employers to keep track of things such

as wages, hours and bonuses, Harkin's statement

said.

Representatives for Sen. Lamar Alexander, R-Tenn.,

the HELP committee's senior Republican, were not

immediately available Wednesday to comment on

the overtime legislation.

More Workers Would Be

Eligible For OT Under FLSA Bill

Bill would also change threshold for highly

compensated employees from annual

compensation of at least $100,000 to $125,000.

In addition, the bill addresses the term “primary

duty” — used in figuring out whether FLSA

exemptions apply — states workers who fall

under the executive, administrative or

professional exemptions can't spend more than

half their time on nonexempt tasks.

The bill also sets penalties for violating

the FLSA's record-keeping provisions.

Tips Targeted as States’

Minimum Wages Rise

Labor groups are setting their sights on how

tipped workers in the food industry are paid –

advocating for swapping the tipped minimum

wage in favor of a so-called living wage for all

restaurant workers.

According to the National Restaurant

Association, the vast majority of restaurants

follow the rules for applying the tip credit.

Connecticut, Seattle, and San Diego have

introduced or passed legislation to raise

minimum wage to over $10.00 per hour,

well in excess of the federal rate of $7.25.

FLSA Lawsuits

YEAR 2000

1,935 Nationwide

YEAR 2013

7,500 Nationwide

Wage-Hour Testimony

Before Congress

FLSA Ambiguities Driving More

Lawsuits

Testifying in front of the House Subcommittee on

Workforce Protections, GAO's education, workforce

and income security director Andrew Sherrill

highlighted a recent report documenting a rise in the

number of FLSA suits filed between 1991 and 2012.

Factors: heightened willingness among plaintiffs'

lawyers to pursue wage-and-hour cases; evolving

case law; economic conditions; ambiguity in how to

apply the FLSA, particularly its exemptions for

administrative and professional employees.

The GAO has recommended that the WHD

develop a system for “identifying areas of

confusion” and improve its guidance for

employers and workers in those areas.

Feds Investigate Tampa Bay

Restaurants For Wage

Claims

“According to the U.S. Department of Labor’s

Wage and Hour Division, a two-year

investigation discovered the 152 restaurants

violated federal labor laws since 2012. Those

establishments agreed to pay 1,518 employees

$861,820 in back wages and $152,081 more in

damages. The businesses themselves were

fined $12,509.”

Source: Tampa Bay Times, Tuesday, June 3, 2014

Changes to Exemptions for

Home Care Workers

The WHD recently published a final rule

eliminating the FLSA’s minimum wage and

overtime exemption for home care workers

employed by home care agencies and

other companies -- effective Jan. 1, 2015.

The WHD has issued new guidance and

revised Fact Sheets for this rule:

www.dol.gov.edgekeystaging.net/whd/

homecare/joint_employment.htm

http://www.dol.gov/whd/homecare/

shared _living.htm.

Changes to Exemptions for

Home Care Workers (cont’d.)

The Final Rule prohibits third party employers

of domestic service employees—i.e.,

employers other than the individuals

receiving services or their families or

households—from claiming the

companionship services exemption or the

live-in domestic service employee exemption

from overtime.

Each employer administering or participating

in a consumer-directed, Medicaid-funded

home care program should evaluate

whether it is considered a joint employer.

Federal Contractors:

Minimum Wage

On Feb. 12, 2014, President Obama signed

Executive Order 13658, Establishing a Minimum

Wage for Contractors performing work for the

federal government.

Raises minimum wage for employees working

under federal contractors to: (i) $10.10 per hour,

beginning Jan. 1, 2015; and (ii) beginning Jan. 1,

2016, and annually thereafter, an amount

determined by the Secretary of Labor.

The Executive Order directs that regulations to

implement the requirements be issued by Oct. 1,

2014 (comment period ended July 28th).

Federal Contractors: Further

OFCCP Action

According to the Spring 2014 Regulatory

Agenda, OFCCP intends to issue an NPRM for

compensation data collection in August 2014.

Pay data collection tool will require contractors

to report employee compensation data,

including data by race and sex, annually.

OFCCP has also targeted September 2014 to

propose new sex discrimination guidelines.

OFCCP still intends to issue new regulations

implementing the affirmative action obligations

of construction contractors, now targeted

for January 2015.

FMLA – Changes to the Definition

of “Spouse”

On June 20, 2014, the Wage and Hour Division

announced a Notice of Proposed Rulemaking to

revise the FMLA’s definition of spouse in light of

the Supreme Court’s decision in United States v.

Windsor, which found section 3 of the Defense

of Marriage Act (DOMA) to be unconstitutional.

The NPRM proposes to amend the definition of

spouse so that eligible employees in legal same-

sex marriages will be able to take FMLA leave to

care for their spouse or family member,

regardless of where they live.

Comment period ended on August 11th.

DOL Strategic Enforcement Plan

(SEP)

“Plan, Prevent, Protect” part of SEP in effect

through fiscal year 2016:

Plan = Work with employees to develop

plans and evaluate compliance with wage

and hour, safety and anti-discrimination laws

Prevent = Implement plans and demonstrate

to workers that they are working

Protect = Designate certain employees to

monitor compliance with the plans

Spring 2014 Regulatory Agenda now lists

implementing PPP as “long-term action”

with no target release dates

Policy Break #1:

Gender-Specific Leave

You offer pregnant employees up to 10

weeks of paid medical leave for

pregnancy and childbirth as part of your

short-term disability insurance. You also

offer new parents, whether male or

female, 6 weeks of parental leave.

Do either of these policies discriminate

against male employees?

Policy Break #1:

Gender-Specific Leave

No -- these policies do not discriminate

against male employees.

Leave related to pregnancy, childbirth, or

related medical conditions can be limited

to women affected by those conditions.

However, parental leave must be

provided to similarly situated men and

women on the same terms.

Assistant Secretary,

Dr. David Michaels

Occupational Safety And

Health Administration (DOL)

Has embraced “regulation by shaming” as

an effective means of enforcement:

Severe Violator Enforcement Program (“SVEP”)

Derogatory press releases utilized

Assistant Secretary Michaels: “we will not

hesitate to publicize the names of violators,

especially when their actions place the

safety and health of workers in danger.”

CITATIONS AND PENALTY

AMOUNTS CONTINUE TO RISE

Regulatory Agenda: OSHA

OSHA again dominates the DOL’s rulemaking

agenda with a total of 26 measures.

Proposed plan to add a musculoskeletal

disorders column to its Form 300 injury and

illness log has been assigned to the regulatory

back burner (considered a precursor for

ergonomic standards).

Proposed standards governing combustible dust

and infectious diseases still at the pre-rule stage.

Post-hearing comments for the controversial

crystalline Silica standard, which is in its final

stages, closed July 2014. There is no date

listed for a final rule.


Final rule requiring employers to submit injury

and illness data electronically to OSHA is still

scheduled for publication by March 2015 --

controversial because OSHA will make the

information regarding injuries and illnesses at

particular facilities publicly available.

OSHA also expects to finalize amended

standards governing fall protection that will

likely have a significant impact on the

operations of many different types of facilities.


OSHA is the agency charged with enforcing the

whistleblower provisions in 22 separate statutes.

Final or interim final rules for handling retaliation

complaints under the following statutes are all

scheduled to be released by February 2015: the

Affordable Care Act (ACA), Moving Ahead for

Progress in the 21st Century Act (MAP-21), the

Corporate and Criminal Fraud Accountability Act of

2002, the Consumer Protection Act, the Seaman’s

Protection Act, the FDA Food Safety Modernization

Act, the National Transit Systems Security Act, the

Surface Transportation Assistance Act, and

the Federal Railroad Safety Act.


Injury and Illness Prevention Program (I2P2):

I2P2 is part of the Plan/Prevent/Protect

initiative.

Expected to require employers to find and fix

hazards in their workplace, allowing

employees an opportunity to participate in the

development and implementation of a program

to do so.

Spring 2014 Regulatory Agenda now puts this

rulemaking priority on hold as a “long-term

action” with no release date.

OSHA Regulatory Agenda

Top 10 Violations

1. Fall Protection: structural integrity and

unprotected edges

2. Hazard Communication: information

regarding hazardous chemicals

3. Scaffolding: proper suspension and

support

4. Respiratory Protection: equipment to

prevent inhalation of dust, gases, etc.

5. Electrical, Wiring Methods

OSHA Regulatory Agenda

Top 10 Violations

6. Powered Industrial Trucks: design,

maintenance and use of motorized

trucks.

7. Ladders

8. Lockout/Tagout: machines with

unexpected or delayed energization

9. Electrical, General Requirements

10. Machine Guarding

Equal Employment Opportunity Commission

Where We Are Now – Fiscal 2013 Statistical Analysis

EEOC Charge Statistics 95,402 charges in FY 2008 99,922 charges in FY 2010 99,412 charges in FY 2012 93,727 charges in FY 2013

Approximately a 6,000 decrease from 2010; still one of the top five fiscal years in terms of charges filed

Specific statistics by type of charge have yet to be released for FY 2013 (ended Sept. 30th)

2012 showed charges of retaliation most frequently filed, followed by race, sex, disability, and age

Average processing time to resolve charges in 2013 = 267 days – well over the 180

EEOC recovered $372.1 million in 2013 -- highest ever

FLORIDA STATISTICS

FY 2010 FY 2011 FY 2012 FY 2013

TOTAL CHARGES 7,779 8,088 7,940 7,597

Race 2,402 2,598 2,274 2,533

Sex 2,359 2,406 2,698 2,186

National Origin 1,379 1,446 1,352 1,649

Religion 280 313 316 298

Color 224 266 162 569

Retaliation (All) 2,942 3,231 3,036 3,095

Retaliation (Title VII) 2,607 2,864 2,590 2,564

Age 1,729 1,782 1,694 1,641

Disability 1,681 1,732 1,789 1,825

Equal Pay Act 25 36 50 46

GINA* 7 12 12 9

EEOC Trends – Litigation

131 lawsuits filed in 2013, compared to 155

in 2012 and 300 in 2011

Won 9 out of 13 jury trials and 1 out 2 bench

trials

Largest award ever obtained in EEOC v. Hill

Country Farms -- $240 million (reduced by

the court to $1.6 million because of the

ADA’s damages cap)

In addition, 209 lawsuits were resolved for a

total recovery of $39 million

At the end of FY 2013, EEOC handling 37

appeals in enforcement actions and 17

appeals in private suits

Newly Issued Guidance On

Pregnancy Discrimination (July

2014)

First guidance in over 20 years

PDA prohibits discrimination based on:

Current Pregnancy

Past Pregnancy

Potential or Intended Pregnancy

Medical Conditions Related to Pregnancy

or Childbirth

Available at: www.eeoc.gov/laws/

guidance/pregnancy_guidance.cfm

Enforcement Guidance on

Pregnancy Discrimination and

Related Issues EEOC is importing a reasonable

accommodation obligation into the PDA,

using a disparate treatment analysis.

The Guidance seems to be saying that a

pregnant employee gets “reasonable

accommodation” under the PDA regardless

of whether the condition is even a disability

under the ADA.

Anything outside of a normal pregnancy is

likely to be a disability.

Pregnancy-Related Claims:

Statistics

# of Charges Received by EEOC

FY 2010 FY 2011 FY 2012 FY 2013

Pregnancy Discrimination

4,029 3,983 3,745 3,541

All Statutes 99,922 99,947 99, 412 93,727

Percentage of All Charges

4.03% 3.98% 3.76% 3.79%

Pregnancy-Related Claims:

Litigation

Since the start of the fiscal year 2011, the

EEOC has filed over 45 lawsuits involving

pregnancy discrimination.

During that time, the federal agency has

recovered approximately $3,500,000 -- as well

as injunctive and other case-specific “make

whole” relief.

Pregnancy Discrimination Act

Covers “Recent Pregnancies”

Child is born August 2011 and sometime

November/December, Mother’s manager

states he will resign at the end of December.

In January 2012, Mother doesn’t get the

promotion and sues.

“Thus even though Plaintiff was not pregnant

… there is sufficiently close temporal

proximity between her childbirth . . . and [the

adverse action] ….”

Albin v. LVMH Moet Louis Vuitton, Inc.,

(S.D. N.Y. July 8, 2014)

Rule of Thumb

Beware of treating pregnant

women differently based on

stereotypes and assumptions

about their job capabilities or

job commitment.

EEOC – Spring 2014

Regulatory Agenda

New action to issue a proposed rule on how incentives to employees given as part of wellness plans should be treated under the ADA and GINA.

The EEOC plans to amend existing ADA rules to address whether/ to what extent the ADA permits employer health plans to financially penalize or incentivize employee conduct as part of wellness programs.

EEOC – Spring 2014

Regulatory Agenda

The EEOC also plans to amend GINA regulations to “resolve the frequently-asked question of whether employers may offer inducements to employees’ spouses or other family members who answer questions about their current medical conditions” on health risk assessments, sometimes included in wellness programs.

EEOC Strategic Enforcement Plan

Fiscal Years 2013-2016

Priorities:

Eliminating systemic barriers in recruitment

and hiring

Immigrant, migrant, and other vulnerable

workers

Emerging issues: ADA Amendments Act;

Lesbian, Gay, Bisexual, and Transgender

issues; pregnancy and forced unpaid leave

Compensation & gender

Access to the legal system – retaliation &

releases

Harassment

EEOC Strategic Enforcement Plan

Criminal Background Checks

Focus on disparate impact

Race & National Origin

Blanket prohibitions on hiring convicted

felons may generate EEOC interest.

EEOC has pursued employers that have

broad prohibitions on hiring applicants

with conviction records.

At least one court has disagreed with the

EEOC.

Policy Break #2: Interaction of

the FMLA, ADA, and PDA

Catherine requests leave for in vitro

fertilization treatment. Her doctor’s note

requires bed rest for several days after

implantation due to prior unsuccessful

IVF treatments.

She is ineligible for FMLA and has

exhausted all of her PTO.

Must you grant her request?

Policy Break #2: Interaction of

the FMLA, ADA, and PDA

Yes, you must grant Catherine’s request

– absent undue hardship.

Infertility is a “disability” under the ADA.

You must go through the interactive

process with the employee and have an

obligation to provide a reasonable

accommodation.

Persuader Activity Rule

Once again, the release of the highly

controversial “persuader activity” rule has been

postponed until December 2014.

The rule would significantly broaden the scope

of publicly reportable activities by substantially

narrowing the DOL’s interpretation of the

“advice exemption” in section 203(c) of the

Labor-Management Reporting and

Disclosure Act (LMRDA).

The rule is criticized by the American Bar

Association and others who say it raises

serious concerns about attorney-client

privilege.

NLRB – Spring 2014

Regulatory Agenda

On February 6, 2014, the NLRB reissued a

Notice of Proposed Rulemaking for the

“ambush election” rules.

The proposed rules radically alter union

representation election procedures that have

been in place for decades.

While these rules contemplate many technical

changes, the core result is that employers will

have virtually no time to prepare a considered

response to a representation petition or to

help employees gather the information

they need to make an informed decision.

NLRB – Spring 2014

Regulatory Agenda

The Board’s proposed rules would: 1)

substantially reduce employers’ ability to have

meaningful input regarding the size and scope

of the bargaining unit; 2) delay the resolution of

most disputes about voter eligibility until after

the election; 3) impose upon employers new

onerous filing requirements; and 4) effectively

shorten the time between the filing of the

petition and the actual election.

The Board denied a congressional request to

extend the deadline for public comments, which

ended in April 2014.

Final action is expected before December.

NLRB -- Notice-Posting

Will Not Be Required

On January 6, 2014, the NLRB

announced it will not seek Supreme Court

review of the appellate court decisions

that struck down its controversial notice-

posting rule.

The rule would have required businesses

to hang a poster informing employees of

their rights to join labor unions.

The NLRB’s decision not to fight these

rulings means the notice-posting rule

will no longer go into effect.

NLRB -- Notice-Posting

Will Not Be Required

The D.C. Circuit first struck down the rule in

May 2013.

In June 2013, the Fourth Circuit followed suit

indicating that -- in promulgating notice

requirements -- the Board exceeded its

authority under Section 6 of the National Labor

Relations Act.

Chamber of Commerce v. NLRB, Case No.

12-1757.

Brought by the U.S. and South Carolina

Chambers of Commerce, represented

in part by Ogletree Deakins.

NLRB – Banner Health

Banner Health Care maintained policy

providing for confidentiality of investigation of

discrimination complaints.

NLRB found policy illegal because it could

prevent concerted activity of discussing issues

related to the workplace, i.e., sexual

harassment, management misconduct.

Boeing Company Advice Opinion from July

2013 reiterated this decision.

NLRB – Policy Disclaimers

(May or May Not Save You)

“This policy is not intended to interfere in any

way with any applicable federal, state or local

law.”

“Application of this policy will be consistent with

the National Labor Relations Act.”

“This policy will not be interpreted or enforced

in a manner that would interfere with

employees’ rights to discuss wages, benefits or

working conditions with co-workers or third

parties.”

Facebook 'Like' Protected By

Labor Law, NLRB Says The National Labor Relations Board ruled on August 25, 2014 that

clicking Facebook's “like” button was protected, concerted activity.

The Board found that Triple Play Sports Bar and Grille unlawfully

fired two workers over a Facebook discussion panning the bar's tax

withholding calculations.

The NLRB honed in on a comment by one employee that he “liked”

a status update from another former Triple Play employee that said

Triple Play's owners “couldn't even do the tax paperwork correctly.”

The Board found that the current employee had effectively

endorsed the former employee’s comment and that such activity

was protected.

Purple Communications Inc.

Currently, employees have no right to

use their employers’ e-mail for “Section

7 purposes.”

The NLRB’s general counsel is looking

to overturn it, arguing that the NLRB

should adopt a presumption that a “total

ban” on communicating about nonwork

matters through employer e-mail

systems is unlawful.

Even If You Don’t

Have A Union

Even If You Don’t

Have A Union

Hispanics United of Buffalo Inc.

Hispanics United fired 5 workers for

harassing a colleague with offensive

statements on Facebook. The NLRB

held it unlawful because the

employees had been “engaging in

protected, concerted activity for their

mutual aid and protection” when they

posted their comments online.

NLRB general counsel Richard F. Griffin

Jr. said in June of 2014 that stamping out

“surprisingly ubiquitous” company policies

that forbid workers from discussing

compensation is at the top of his list of

priorities when it comes to employee

handbooks and workplace rules.

Source Employment Law 360 (June 6, 2014)

Even If You Don’t

Have A Union

Unlawful Work Rules. Rule on “boisterous” activities in the

workplace. Prof’l Elec. Contractors, 34-CA-71532, 6/4/14.

Rule on “negativity” and “negative

comments.” Hills & Dales Hosp., 360 NLRB 70 (2014).

Rule on “idle gossip or dissemination of

confidential information within [the firm],

such as personal or financial information.” Flex Frac Logistics LLC, 360 NLRB No. 120 (2014).

Even If You Don’t

Have A Union

Mandatory arbitration agreements. D.R. Horton

Inc., 357 NLRB No. 184 (2012),

Rule on “negativity” and “negative

comments.” Hills & Dales Hosp., 360 NLRB 70 (2014).

Rule on “insubordination” and rule

prohibiting employees from posting negative

comments about the company or co-

workers online. Hoot Winc, LLC, NLRB ALJ, 5/19/14.

Even If You Don’t

Have A Union

Rules prohibiting any use of firm

insignia, banners or logos without

permission. Kroger Co., NLRB ALJ, 4/22/14

Rule on discourteous or inappropriate

behavior toward passengers, other

employees and the public. First Transit Inc.,

360 NLRB No. 72 (2014).

“Held patently ambiguous”

Even If You Don’t

Have A Union

The NLRB factors include: (1) interrelation of

operations, (2) centralized control of labor

relations, (3) common management, and (4)

common ownership or financial control. The

showing required to warrant a finding of single

employer status has been described as ‘highly

integrated with respect to ownership and

operations.’”

McKenzie v. Davenport-Harris Funeral Home,

834 F.2d 930, 933 (11th Cir. 1987)

Even If You Don’t

Have A Union

Found that college football players receiving grant-

in-aid scholarships (tuition, fees, room, board and

books) from Northwestern who have not exhausted

their playing eligibility are employees under the

NLRA.

Directed that an immediate secret ballot election be

held to determine whether they should be

represented by a union, the College Athletes

Players Association (CAPA), in collective

bargaining with Northwestern.

NLRB – Compliance

Employers should review the following policies: No solicitation/no distribution

Off-duty access

Surveillance cameras

Bulletin board policy

Electronic communication/technology policy

Orientation statement

Statement on unions

Dress code/uniform policy Lanyards, buttons, hats, etc.

Visitor security policy

Social media policy

At will statement

Policy Break #3: Leave for

Pregnancy Related Conditions

Elizabeth becomes pregnant within 8

months of hiring. She experiences

severe morning sickness during her first

20 weeks, but is not FMLA-eligible until

her 4th month of pregnancy. She tells

her supervisor her doctor is requiring

weekly appointments due to “high-risk”

pregnancy.

Which absences are protected?

Policy Break #3: Leave for

Pregnancy Related Conditions

All of the absences are likely protected.

If an employee is temporarily unable to

perform her job due to pregnancy or a

pregnancy-related condition, you must

treat her the same as any other

temporarily disabled employee.

Pregnancy-related impairments may also

be disabilities under the ADA and may

require reasonable accommodation.

U.S. Supreme Court Review

National Labor Relations Board v. Noel

Canning et al., S. Ct. Case No. 12-1281

Affirmed D.C. Court of Appeals’ decision on

January 25, 2013 that NLRB recess

appointments of three board members were

unconstitutional.

NLRB lacked quorum (New Process Steel)

between January 4 and July 31, 2013.

Rulings issued by the NLRB from January 4,

2012 to July 31, 2013 are generally void and

unenforceable and will by remanded to

or set aside by the NLRB.


National Labor Relations Board v. Noel

Canning et al., S. Ct. Case No. 12-1281

Cases void, but unwise to disregard entirely.

With 3-2 pro-union majority, key cases likely

to be re-issued with same reasoning.

Cases that rely on older precedent or signal

General Counsel’s objectives—nothing

changes:

Drafting policy language;

Dealing with social media;

Protected, concerted activity.


Harris v. Quinn, S. Ct. Case No. 11–681 (June 30, 2014)

Issue: Does the First Amendment of the U.S. Constitution prohibit a public-employee union from collecting an agency fee from home-care workers who do not want to join or support the union?

Held: Yes -- Justice Alito’s majority opinion stated that the Court’s holding reaffirmed “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”


Burwell v. Hobby Lobby, S. Ct. Case

No. 13–354 (June 30, 2014) Issue: Does the Affordable Care Act require

employers to provide health insurance coverage for methods of contraception that are at odds with their religious beliefs?

Held: No. HHS regulations requiring employer-sponsored health plans to include all FDA-approved contraceptives among the preventive services covered without cost sharing could not be applied to for-profit corporations with religious objections to some of the contraceptive methods.


Fifth Third Bancorp v. Dudenhoeffer,

S. Ct. Case No. 12-751 (June 25, 2014) Issue: When a decision by a fiduciary of an

“employee stock ownership plan” (ESOP) to buy or hold the employer’s stock is challenged in court, is the fiduciary entitled to a “presumption of prudence?”

Held: No. Instead, ESOP fiduciaries are subject to the same duty of prudence that applies to Employee Retirement Income Security Act (ERISA) fiduciaries in general, except that they need not diversify the fund's assets.


Lane v. Franks, S. Ct. Case No. 13-483

(June 19, 2014) Issue: Was a government employee’s

testimony in his criminal prosecution about fraud in the program where he works protected by the First Amendment?

Held: Yes. However, the supervisor who fired him in retaliation for that testimony had qualified immunity from suit because it was not "beyond debate" that the employee’s testimony was protected.

Florida

Supreme Court Review

Delva v. The Continental Group, Inc.,

No. SC12-231 (Fla. Apr. 14, 2014). Issue: Does the Florida Civil Rights Act’s ban

on discrimination based on gender cover claims of pregnancy discrimination?

Held: Yes. The FCRA does not include the word “pregnancy.”

However, the statute prohibits employment discrimination against any individual because of the individual’s sex.

The Court noted that “pregnancy is a natural condition unique to women and a primary characteristic of the female sex …”

Policy Break #4: Light Duty

Sandy requests light duty for a 20-lb

lifting restriction related to her

pregnancy.

You have a policy/practice of providing

light duty, subject to availability, for

employees for up to 90 days, but only for

workplace injuries.

True or False: You may deny Sandy’s

request?

Policy Break #4: Light Duty

False. The recently issued EEOC

Guidance indicates that you would have

to provide Sandy with light duty.

Employers that provide light-duty

positions to employees injured on the job

must provide the same light-duty work to

pregnant employees who are similarly

unable to work.

However, the Supreme Court may

decide differently…

Young v. United Parcel Service

No. 12-1226

Decision Below: 707 F.3d 437

(4th Cir. 2013)

Petition Filed: April 8, 2013

Question Presented:

Whether the federal Pregnancy Discrimination Act, 42 U.S.C. §

2000e(k), requires an employer that provides work accommodations to nonpregnant employees with work

limitations to provide work accommodations to pregnant

employees who are “similar in their ability or inability to work.”

Young v. UPS

Facts Young started working for UPS in 1999.

Young held a position as a part-time, early morning driver.

During her pregnancy, Young provided her supervisor with a note from her doctor 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.

Young v. UPS

Under UPS policy and the Union’s

Collective Bargaining Agreement, 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.

Young v. UPS

The UPS occupational health manager

determined that Young could not perform

the essential functions of her job with her

lifting restriction and was ineligible for

light duty assignment under UPS’ policy.

Young gave birth in April 2007 and

returned to work for UPS.

Young v. UPS

The district court dismissed Young’s

PDA claim.

The Fourth Circuit affirmed, finding that

“where a policy treats pregnant workers

and nonpregnant workers alike, the

employer has complied with the PDA.”

UPS’ policy was “neutral, pregnancy-

blind policy.”

Young v. UPS

April 8, 2013: Young petitioned the

Supreme Court to review the Fourth

Circuit’s decision.

Young argues that UPS admittedly

accommodates employees who are (1)

injured on-the-job; (2) disabled within

the meaning of the ADA; or who (3) lose

DOT certification.

Young v. UPS

By not requiring UPS to provide similar

workplace accommodations to a

pregnant woman, Young argues that

the Fourth Circuit disregarded the plain

statutory text of Title VII.

Petition Granted on July 1, 2014.

According to SCOTUS site this is set

for oral argument on December 3.

Be Prepared To Defend Your

Decisions In Front Of A Jury…

Policy Break #5: Intended

Pregnancy

Ruby, a high-level executive told her

manager she was trying to get pregnant.

The manager reacted with displeasure,

stating that the pregnancy might interfere

with her job responsibilities. Two weeks

later, Ruby was taken off her largest

account due to “inability to delegate

tasks.” Ruby’s previous work on the

account was consistently outstanding.

Ruby files an EEOC charge.

Should you be concerned?

Policy Break #5: Intended

Pregnancy

Yes, you should be concerned.

This example is taken directly from the

EEOC’s recent guidance.

The timing and lack of documentation will

undoubtedly be a problem.

AFFORDABLE CARE ACT

ISSUE DISCOVERED

AFFORDABLE CARE ACT

ISSUE DISCOVERED

In 2010, Thomas Christina, shareholder at

Ogletree Deakins, discovered the wording of

The Affordable Care Act only allowed health

insurance subsidies to be provided through

state exchanges.

His discovery spurred a legal battle, resulting in

two conflicting July 2014 court rulings.

A panel of the U.S. Court of Appeals for the

District of Columbia Circuit struck down the

authority for the subsidies on the federal

exchange used by up to 36 states.

It held that a regulation by the IRS allowing

the subsidies nationwide was not a

permissible interpretation.

AFFORDABLE CARE ACT

ISSUE DISCOVERED

But that same day, a panel of the U.S. Court of

Appeals for the Fourth Circuit in Richmond, Va.

came to the opposite conclusion, ruling that

consumers in states using the federal

marketplace could get subsidies.

The lawsuits that triggered these two

conflicting opinions center on how to

interpret language in the that allows

subsidies when consumers buy insurance on

an exchange "established by the state.“

Challengers say that precludes the federal

exchange; supporters say that was not

Congress' intent.

Recent Trend: Antitrust Class

Action Suits

Case filed on 9/8/2014 against

DreamWorks/Pixar/Disney/Sony

Pictures Animation in California

(federal court)

Plaintiffs claim that Defendants

secretly agreed to work together to

deprive thousands of their workers

better wages and opportunities to

advance their careers at other

companies

Recent Trend: Antitrust Class

Action Suits

Pixar and Lucasfilm agreed that they

would not cold call each other's

employees and would notify the other

company when making an offer to an

employee of the other company

Defendants also communicated

throughout the year to implement these

non-solicitation and wage-fixing

agreements while keeping them secret

from their workers

Florida Right to Medical

Marijuana Initiative,

Amendment 2

The medical use of marijuana “is not subject

to criminal or civil liability or sanctions under

Florida law.”

The amendment does not “affect laws relating

to non-medical use, possession, production

or sale of marijuana.”

The amendment does not allow for the

“operation of a motor vehicle, boat, or aircraft

while under the influence of marijuana.”

The amendment does not require “any health

insurance provider or any government agency

or authority to reimburse any person for

expenses related to the medical use of

marijuana.”

The amendment does not require

“accommodation of any on-site medical use of

marijuana use in any place of education or

employment . . . .”



Amendment 2

Note that it is the intention of the Company to comply

with state and federal laws. Where state and federal

law differ, however, the Company will typically comply

with federal law. [The Company may be obligated to

comply with federal law for employees in federally-

regulated positions.] For example, some state laws

permit the use and possession of marijuana for medical

and/or non-medical purposes. Federal law does not. In

the absence of state law to the contrary, the Company

considers marijuana to be an Illegal Drug for purposes

of its drug testing policy in all

states – even those states that allow for

medical and/or non-medical use.”



Amendment 2

“Ban the Box” In Florida

Discrimination In Employment Screening Act

SB 234 (Sen. Clemens) HB 505 (Rep. Stafford) (defeated – this time).

Would have prohibited employers from asking or considering an applicant’s criminal record on the initial application.

Requires a conditional offer of employment.

Pushed by the National Employment Lawyers Association.

Six states already -- Hawaii, Illinois, New Jersey. Massachusetts, Minnesota and Rhode Island

Other Proposed Laws

Employment Practices Act

SB 324 (Sen. Detert) (defeated – this time).

It would have prohibited the use of credit history to deny employment and make getting a credit report unlawful.

State Minimum Wage

SB 456 (Sen. Bullard) HB 385 (Rep. Stafford) (defeated – this time).

It would have increased minimum wage to $10.10.

Title Goes Here

William E. Grob [email protected]

(813) 221-7228

J. Robert McCormack [email protected]

(813) 221-7439

Dee Anna D. Hays [email protected]

(813) 221-7239

?? Questions ??

spring 2014 employment law legislative update title … · 2018-10-07 · flsa's...

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