W. Jonathan Martin IIConstangy, Brooks & Smith, LLP

I Need A Drink:There’s Plenty Bad News For Employers . . .

and It’s Just Getting Worse.

* Alabama * California * Florida * Georgia * Illinois * Missouri * New Jersey * North Carolina ** South Carolina * Tennessee * Texas * Virginia * Wisconsin *

What’s Old

Business WeekApril 23, 2007

Why Should I

Care About This Stuff?

Title VII of Civil Rights Act of 1964

• Prohibits Discrimination

• Race

• Color

• Religion

• National Origin

• Gender

• Sex

Age Discrimination in Employment Act

(ADEA)

• Employees 40 and Older

• Adverse Action

• Replaced by Person Under 40

• “Significantly Younger”

Americans with Disabilities Act(ADA)

• “Disability” Is a Legal Term of Art– Physical or Mental Impairment

– Substantially Limits Major Life Activities

• “Qualified” Individual– Must Perform the Essential Functions

• Reasonable Accommodation

The Supreme Court Cuts Way Back

• Sutton v. United Air Lines: Mitigating measures have to be taken into account when determining whether individual has a “disability”

• Also, in Toyota Mfg. of Ky. v. Williams, the Court held that repetitive motion injury that made it impossible for plaintiff to hold arms above her head for extended periods of time was not “substantially limiting” in major life activity of working (and therefore not a disability)

• As a result, ADA activity slowed to a trickle.

15,000

15,500

16,000

16,500

17,000

17,500

18,000

18,500

1997 1998 1999 2000 2001 2002 2003 2004 2005

Number of ADA charges 1997-2005

SOURCE: U.S. Equal Employment Opportunity Commission

Here comes the ADAAA!

“Major life activities” now

• Caring for oneself• Performing manual tasks• Seeing• Hearing• Walking• Speaking• Breathing• Learning• Working

“Major life activities” as of 1/1/09

All of those, plus• Eating• Sleeping• Standing• Lifting• Bending• Reading• Concentrating• Thinking• Communicating

“Major bodily functions”

Completely new• Immune system• Normal cell growth• Digestive• Bowel• Bladder• Neurological• Brain• Respiratory• Circulatory• Endocrine• Reproductive

What Hasn’t Changed: Reasonable Accommodation

• Employee must inform employer of disability if it’s not obvious

• Employer has obligation to accommodate for as long as employee is employed and can be accommodated in some way

• Employer may request documentation of condition• Employer need not consider accommodations that are

not “reasonable” or are “undue hardship”

EEOC’s “Reasonable Accommodation” Priority

1. Try to accommodate employee in his or her regular job

2. Try to move employee to different job that is similar to regular job in terms of duties, pay, and status

3. Try to move employee to different job, including part-time job (with part-time pay and possible loss of benefits)

4. Place employee on medical leave

5. Terminate employee

What’s New

Meet the New Boss…Same As The Old Boss?

Not so Fast…

A look at President Obama’s appointments and what they mean for employers.

U. S. Equal Employment Opportunity Commission

• Jacqueline A. Berrien– Chair Berrien came to the EEOC from the NAACP

Legal Defense and Educational Fund (LDF), where she served as Associate Director-Counsel for five and a half years.

– Berrien has moved swiftly to reverse the federal agency’s reputation as inefficient in keeping track of claims individuals file with it and ineffective in safeguarding workers’ rights, according to a profile in the National Law Journal.

U.S. Department of Labor

• Secretary Hilda Solis– Seeking to enact an array of 90 rules and

regulations aimed at giving more power to workers and unions

– Wants to promote rules requiring employers to increase disclosure to workers regarding pay computation, strengthen affirmative action requirements for federal contractors, and greater disclosure regarding anti-union consultants

NLRB

• Chairman Wilma B. Liebman– Designated chairman on day of Obama

Inauguration– Clinton Appointee– Former counsel for Bricklayers and Allied

Craftsman and Teamsters Unions– Former NLRB Attorney

NLRB

• Craig Becker– Sworn in as Board member 4/5/2010 after recess

appointment by President Obama.– Previously served as Associate General Counsel

for SEIU and the American Federation of Labor & Congress of Industrial Organizations.

– Taught Labor Law at UCLA, University of Chicago, and Georgetown law schools.

NLRB

• Mark G. Pearce– Sworn in as Board member on 4/7/2010 after

recess appointment by President Obama– Represented Unions for his former law firm– Served on the New York State Industrial Board of

Appeals• Quasi-Independent agency that reviews decisions by the

NYDOL

– Taught Labor Law at Cornell Law– Former NLRB Attorney

NLRB

• Brian Hayes– Sworn in 6/29/2010– Served as Republican Labor Policy Director for

U.S. Senate Cmty on Health, Education, Labor and Pensions.

– Represented employers in labor litigation for 25 years in private practice

– Former counsel to NLRB chairmen.

Changes to the NLRB’s Goals

Union Membership 1948 – 2006As A Percentage of the Private Sector.

5.0

10.0

15.0

20.0

25.0

30.0

35.0

40.0

1948 1958 1968 1978 1988 1998 2006

The percentage of unionized employees in the private sector continues to decline!

National Labor Relations Act

• Unions lose 612,000 members in 2010.

• Private sector workers represented by unions fell from 7.2% to 6.9%.

• Unions won 69% of elections held during first half of 2010, compared to 73% in same period of 2009.

National Labor Relations Board

• NLRB issues proposed rule on posting employee rights.

• General Counsel issues memo on injunctions.

• NLRB issues FaceBook firing complaint.

• EFCA dead?

NLRB Rulemaking

• Shortened Elections

• Electronic Voting

• Telephone Voting

• Internet Voting

• Minority Union Recognition

Prospective Goals of the Obama NLRB

• Increase Union Membership and Union Organizing through:– Reduction in Timelines for elections – currently 42 days

shortened to 14-21 days

– Expanded Remedies for Act Violations – punitive damages, compensatory damages, front pay

– Remedial Measures Included in Settlement Agreements

– Mandatory Interest Arbitration in Bad Faith and Egregious Cases

Prospective Goals of the Obama NLRB

– Union Access to Employees on or Via Company Property – e-mail addresses, equal meeting time, etc.

– Increased Section 10(j) Injunctions– Expansion and Contraction of Bargaining Units,

Including Recognition of Minority Unions

NLRB Precedent Reversal

• After eight years of a republican administration, the Obama administration’s NLRB may make significant decisions that reverse the precedent that employers have come to rely upon.

• Although speculative, the following precedents appear ripe for reversal.

Top 10 Precedents Potentially Reversed

• Voluntary Recognition: Dana Corp– Decision where Bush NLRB reversed 40 year

precedent that held that an employer's voluntary recognition of a labor union did not bar a decertification or rival union petition filed within 45 days of the notice to employees of the voluntary recognition.

– Decision undermined neutrality/card check and voluntary recognition agreements that unions used as an organizing device.

Top 10 Precedents Potentially Reversed

• Supervisor Solicitation of Authorization Cards: Harborside Healthcare Inc.– The majority held that, absent mitigating circumstances,

solicitation of an authorization card by a supervisor has an “inherent tendency” to coerce the employee solicited and therefore the challenging employer does not have to establish that the supervisor engaged in coercive conduct.

– Member Liebman described as the “most disturbing decision” of 2004.

Top 10 Precedents Potentially Reversed

• E-Mail Solicitation: Register Guard, Inc.– Bush NLRB decision holding that employers have

a property right to company e-mail and can restrict electronic communication at will.

– This decision eliminates the ability for employees to solicit through e-mail while not on work time.

– Decision allows employers to distinguish between §7-related solicitation and other charitable or personal solicitation on its e-mail system.

Top 10 Precedents Potentially Reversed

• Definition of a Supervisor: Oakwood Healthcare – Decision clarified the statutory terms “assign”,

"responsibility to direct," and "independent judgment" to make it easier for an employer to classify someone as a supervisor and thus exclude them from union representation.

– Reversal could come in the form of the RESPECT Act if it is passed by congress.

Top 10 Precedents Potentially Reversed

• Other Expected Reversals include:– 5: Grad Students are not Employees: Brown Univ.– 6: Contingent Workers not in same unit as Regular

Employees: Oakwood Care Center– 7: Weingarten Rights for Non-Union Employees: IBM

Corp.– 8: Disabled Workers in Rehabilitation are not Employees:

Brevard Achievement Center– 9: Threat of Plant Closure not assumed disseminated

throughout Plant: Crown Bolt– 10: Abusive or Profane Language Prohibition: Lutheran

Heritage Village-Livonia

WAGE AND HOUR DEVELOPMENTS

Time is Money

• Explosion of collective action suits– Improper exemption– Unpaid Overtime– Off-the-clock work hours– Missed meals and rest periods

• Top 10 Wage & Hour Settlements Up 44%– 2009 - $364 million– 2008 - $253 million

• Outpaced all other types of workplace class action claims

We Can Help: They Sure Can.

• “We Can Help” is a DOL initiative through which employees can easily file W&H complaints.

• An employee can easily file a complaint on the website or through 200+ offices which will trigger a DOL investigation.– The investigation will consist of examination of

personnel records, payroll records, private interviews with employees, and meetings with management to institute corrective action (if any).

Electronic Timekeeping: Legal Vulnerability

Common Systems

• Many employers utilize electronic systems that calculates time worked by examining employee schedules

• Permit supervisors to override for reasons such as: tardiness or extra work

• Automatic meal deduction in time (30 minutes) for employees scheduled for 6+ hours

• Many use “rounding” system

Department of Labor Opinion Letter

• Nothing inherently wrong with these auto-deductions as long as employer records actual time worked

• Employers using auto-deduct systems without making an effort to keep employees from working during meals or recording extra time may be violating Federal wage and hour law

• Rounding up yet penalizing for being few minutes late - problem

“Meal Deduction Cases”• Plaintiff firms have launched several “meal

deduction” and “rounding” cases• Proactive Position

– Not waiting on cases to come to them– Calling employees and informing them– Posting Advertisements

• Intention– Obtain class certification – representing all employees of

a company in any state

• Non-Insured– Wage and hour claims are usually not covered by

insurance

Recommendation

• Review record keeping and company practices

• Consider clock in/out requirement

• Train Managers on wage and hour issues

• Emphasize need for uninterrupted breaks

• Enforce the meal break rules or pay for breaks

• Review rounding combined with attendance point issues

EEOC’s E-RACE Initiative

EEOC Pursues Discrimination Cases Based On Background Checks

• EEOC has begun the E-RACE initiative (Eradicating Racism and Colorism from Employment)

• Has targeted blanket hiring (or promotion) exclusions based on criminal background and credit checks

• Based on disparate impact theory -- intent is irrelevant

E-RACE (cont.)

• Recent Case– Employer policy excluded applicants convicted of

violent crimes– Policy adopted after three episodes of employee on

employee assault– EEOC continues to investigate, despite employer’s

settlement with charging party and subsequent cessation of rule

ADA Developments on Return to Work

100 % Healed Rule Violates ADA

• Employee out on workers comp

• Released by Dr. with restrictions

• Employer: no return until 100 % healed

• Court: 100% healed rule violates ADA; no case by case assessment

Recent Cases

ADA• Hoffman v. Carefirst of Fort Wayne, Inc. – Cancer is a

disability under ADAAA.• Horgan v. Simmons – HIV status is protected.• Ekstrand v. School District of Sommerset – Seasonal

affective disorder must be accommodated.• Colwell v. Rite Aid Corp. – Shift change to ease

commute to work may be reasonable accommodation.• McEnroe v. Microsoft Corp. – Inability to work at office

justified non promotion.

Don’t Handle These Situations By Yourself!

ADEA

• Mauer v. Deloitte & Touche – “pruning a blueberry bush.”

• Marlow v. Chesterfield County School Board – “lacked 21st century skills.”

• Jackson v. Cal-Western Packaging Corp. – “old, gray-haired fart.”

Be Careful What You Say - It Might Just Come Back!

FMLA

• Cobbs v. Bluemercury, Inc. – lay-off during RIF not grounds for retaliation/interference claim.

• Doucette v. D.R. Horton, Inc. – lay-off during RIF not grounds for retaliation/interference claim.

• Schaff v. SmithKline Beecham Corp. – demotion after maternity leave was not retaliatory.

What’s Coming

What To Do?

You Could Try This . . .

Or You Could Try to Put Me Out of Business . . . .

Practice # 1Make Common Sense

Common Practice

ABC’s Of Employment Law

• A - Always

• B - Be

• C - Consistent

• D - Document

• E - Everything

“If Stupidity Got Us Into The Mess, Then Why Can’t It Get Us Out?”

Practice # 2

Learn to Deal with Difficult People

10 Tips To Deal With Negative People

• Forgive: (WWJD) What would the Jesus do if he was in the situation? He would most likely forgive. Remember that at our very core, we are good, but our judgment becomes clouded and we may say hurtful things.

• Act - Don’t React: Ever feel compelled to instantly send an email defending yourself. Emotionally charged emails never get us the result we want; they only add fuel to the fire. What is helpful is inserting time to

allow ourselves to cool off. • “Does it really matter if I am right?”: Sometimes we respond with the

intention of defending the side we took a position on. If you find yourself arguing for the sake of being right, ask “Does it matter if I am right?” If yes, then ask “Why do I need to be right? What will I gain.”

• Don’t Respond: You Can’t Fight With a Man That Won’t Fight!

10 Tips To Deal With Negative People

• Stop Talking About It: When you have a problem or a conflict in your life, don’t you find that people just love talking about it? We end up repeating the story to anyone who’ll listen. We express how much we hate the situation or person. What we fail to recognize in these moments is that the more we talk about something, the more of that thing we’ll notice.

• Check Out Their Footwear: Maybe the Native Americans were on to something.

• Look for the Lessons: Good judgment comes from experience. Experience comes from bad judgment. No situation is ever lost if we can take away from it some lessons that will help us grow and become a better person.

• Get Rid of Negative People In Your Life: Negative people can be a source breed discontentment.

• Worst Case Scenario: Ask yourself two questions, “If I do not respond, what is the worst thing that can result from it?“, “If I do respond, what is the worst thing that can result from it?”

10 Tips To Deal With Negative People

• Pour Honey: This doesn’t always work, but sometimes catches people off guard when they’re trying to “Pour Poison” on you.

Practice # 3

Follow The Golden Rule

And The Gold Will Follow!

C:\Documents and Settings\JMartin\Desktop\Bad News 2011.PPTConstangy, Brooks & Smith LLP © 2009

I Ain’t No Einstein, But . . .

• “The definition of insanity is doing the same thing over and over again and expecting different results”

Questions?