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1 Year-End Update: A Look Back at 2013 and What to Expect in 2014 Presented by: Karen M. Morinelli Jackson Lewis P.C. 100 South Ashley Drive Suite 2200.

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Presentation on theme: "1 Year-End Update: A Look Back at 2013 and What to Expect in 2014 Presented by: Karen M. Morinelli Jackson Lewis P.C. 100 South Ashley Drive Suite 2200."— Presentation transcript:

1 1 Year-End Update: A Look Back at 2013 and What to Expect in 2014 Presented by: Karen M. Morinelli Jackson Lewis P.C. 100 South Ashley Drive Suite 2200 Tampa, FL 33602 (813) 512-3210

2 Overview Supreme Court Review Federal Administrative Agencies Actions in 2013 Union Membership Update Legislation Enacted in 2013 State & Local Developments in 2013 Other Issues on the Horizon in 2014 2

3 2013 -2014 Supreme Court Decisions 3

4 Employment Cases on the Docket for 2014 Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0 FLSA Whether an employer may avoid paying overtime to unionized employees for time spent donning and doffing certain protective gear 4

5 Employment Cases on the Docket for 2014 Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0 FLSA (contd) 29 U.S.C. § 203(o), allowed U.S. Steel to withhold pay from workers' clothes-changing time, pursuant to a collective bargaining agreement with the United Steelworkers 5

6 Who is a supervisor? Vance v. Ball State University, No. 11-556 (June 24, 2013) (J. Alito), 5-4 [S]upervisory authority includes the power to make a significant change in employment status: Hiring Firing Failing to promote Reassignment with significantly different responsibilities Decision causing a significant change in benefits 6

7 Who is a supervisor? Tangible employment action standard adopted EEOC test of significant direction over daily work rejected 7

8 Who is a supervisor? (Contd) Why Does It Matter? Faragher/Ellerth Defense Best Practices Review job descriptions of employees who assume quasi- leadership roles Continue efforts to prevent workplace harassment through training & investigation of complaints 8

9 Faragher/Ellerth Defense Best Practices 9 Remember that even if the alleged harasser is a co-worker (and not a supervisor), liability may be imposed on the Employer if the Employer knew or should have known about the conduct

10 University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4 The statutes plain language and Title VIIs structure demonstrated that retaliation claims were not subject to the motivating factor standard of proof 10 Proof of But For Causation Required for Retaliation Cases

11 University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4 Retaliation claims must be proven according to traditional principles of but-for causation, not the lessened causation test stated for claims of discrimination 11 Proof of But For Causation Required for Retaliation Cases

12 Why Does It Matter? Heightened Proof Standard for Plaintiffs! Best Practices Document all Actions Investigate Complaints Be Reasonable 12 Proof of But For Causation Required for Retaliation Cases (Contd)

13 Effect of United States v. Windsor (DOMA case) United States v. Windsor, No. 12-307 (June 26, 2013) Holding: DOMAs definition of marriage as being a legal union between a man and a woman was unconstitutional as it denied equal protection under the Fifth Amendment 13

14 Effect of United States v. Windsor (DOMA case) (contd) Why Does It Matter? Change In Interpretation of Federal Law Examples Employers must provide employees time off to care for their same sex spouse under the FMLA Spousal privilege when it comes to confidential communications will now extend to same-sex marriages Benefits, Taxes, Life/Death decisions 14

15 Employment Cases on the Docket for 2014 Noel Canning v. NLRB – whether the Constitution only authorizes presidential appointments during intersession recess and whether the President can only use his recess appointment powers to fill a vacancy that emerged during the recess 15

16 Employment Cases on the Docket for 2014 Schuette v. Coalition to Defend Affirmative Action – whether law prohibiting use of racial preferences in public universities, government contracting and public employment violates the Equal Protection Clause 16

17 Employment Cases on the Docket for 2014 Madigan v. Levin – whether the ADEA provides the exclusive remedy for age bias claims filed by state or local government employees or if such claims can be brought under the Equal Protection Clause of the ConstitutionDISMISSED!!! REVIEW IMPROVIDENTLY GRANTED 17

18 Administrative Agencies 2013 18

19 19.vue EEOC UPDATE

20 20 Total Charges 2012/201399,41293,727 Race33,51233,068 Sex30,35627,687 National Origin10,88310,642 Religion3,8113,721 Color2,6623,146 Retaliation - All Statutes37,83638,539 Retaliation - Title VII only31,20831,478 Age22,85721,396 Disability26,37925,957 Equal Pay Act1,0821,019 GINA280333

21 2013 Claims between Oct. 1, 2012 to Sept. 30, 2013 Charges filed: EEOC received a total of 93,727 private sector discrimination charges A decrease of roughly 6,000 charges over the previous three fiscal years 21

22 FY 2012FY 2013 Receipts99,41293,727 Resolutions111,13997,252

23 Charges resolved: A total of 97,252 charges were resolved Also a decrease over the year before EEOC attributed to the decline in staffing and resources…including the impact from furloughs. Resolution through conciliation occurred 1,437 times.

24 Resolutions By TypeFY 2012FY 2013 Settlements9,5248,625 8.6%8.9% Withdrawals w/Benefits5,4385,497 4.9%5.7% Administrative Closures16,45915,456

25 FLORIDA CHARGES 2013 Total Charges 7,957 % of all US 8.1% Charge Categories * Retaliation40.7% Title VII/Retaliation33.8% Race33.3% Sex28.8% * As a percentage of all state charges

26 Average time: In FY 2012, the average time to investigate and bring charges to resolution was 288 days The enforcement staff reduced that timeline by 21 days in FY 2013, to 267 days M onetary recovery: Charging parties recovered $372.1 million, a new record for the agency (up $6.7 million from the year prior)

27 Lawsuits filed: The EEOC filed 131 merits lawsuits, with 89 individual suits, 21 non-systemic class suits, and 21 systemic suits Title VII formed the basis of the majority of the cases (78) Americans with Disabilities Act (51) Age Discrimination in Employment Act (7) Equal Pay Act (5) Genetic Information Nondisclosure Act (3)

28 EEOC cases in 2013 The EEOC took 13 cases to trial in 2013 11 jury trials and 2 bench trials EEOC prevailed in 9 of them, resolved 1 by consent decree during trial, and lost 1 EEOC lost one bench trial, and another case is still pending following a bench trial 28

29 Whats happening at the EEOC? The EEOC Strategic Enforcement Plan 2013 - 2016 Commission enforcement focus hiring pay harassment protecting immigrant, migrant and other vulnerable workers addressing emerging and developing issues and preserving access to the legal system 29

30 Whats happening at the EEOC? EEOC continues to aggressively pursue: Pregnancy Discrimination Cases ADA Cases National Origin Cases 30

31 Whats happening at the EEOC? (Contd.) EEOC sued an employer for failing to hire women for operative positions (such as selector, receiving clerk, driver, yard jockey, driver trainee, forklift operator, and transportation supervisor) 31

32 Whats happening at the EEOC? (Contd.) The EEOC sued a tire and muffler company for failing to hire women as Managers, Assistant Managers, Mechanics, Tire Installers, and similar jobs because of their sex 32

33 Whats happening at the EEOC? (Contd.) The EEOC sued a restaurant for failing to hire people age 40 and older for front of the house positions The EEOC sued a retailer, claiming that it did not hire people because of their race (African-American or black) or national origin (Hispanic or Latino) and that the employer retaliated against employees who complained about discrimination 33

34 EEOCs Position on Background Checks The EEOCs most significant 2012 guidance was the enforcement guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 34

35 EEOCs Position on Background Checks (Contd.) The EEOC has filed lawsuits alleging that background checks have a discriminatory impact on minorities EEOC v. Freeman, No. 8:09-cv-02573(RWT) (D. Md. Aug. 9, 2013) Court found no facts to support theory of disparate impact where EEOC failed to identify the specific policy or policies causing the alleged disparate impact 35

36 EEOCs Position on Background Checks (Contd.) EEOC v. BMW – EEOC sued manufacturing facility in South Carolina alleging that its criminal background policy violated Title VII by disproportionately screening out African Americans from jobs (Pending) 36

37 EEOCs Position on Background Checks (Contd.) EEOC v. Dollar General – EEOC sued the big box store on behalf of applicant whose conviction records check report was incorrect and alleged that the use of the records check violated Title VII (Pending) 37

38 UNIONS!! 2013 Unionized Workforce GREW!! Overall most since 2009 BUT…. 38

39 UNIONS!! Government numbers FELL By 172,000 To 7.9 Million Local government most losses!! 39

40 UNIONS!! 40


42 UNIONS!! Public Sector – 38.7% Local government 44.1% Teachers Police Firefighters State 33.8% Federal 31.2% 42


44 DOL – FMLA Case Update Eleventh Circuit FMLA Case Law Update (2013) Tippins v. Honda Mfg. of Ala., LLC, 523 Fed. Appx 641 (11th Cir. July 15, 2013) Eleventh Circuit affirmed district courts holding in favor of employer that employees three-day absence for a dental condition did not qualify as a serious health condition involving continuing treatment She was not incapacitated for a continuous period of more than three days 44

45 DOL – FMLA Case Update Green v. U.S. Steel Corp., 2013 U.S. App. LEXIS 25268 (11th Cir. Dec. 19, 2013) Before employees termination, she had entered into a last chance agreement with employer because of prior instances of absenteeism The last chance agreement required her to provide a doctors note for any absences immediately upon returning to work Employer terminated her after absences Plaintiff claimed were related to her FMLA serious health condition (influenza) 45

46 DOL – FMLA Case Update Penaloza v. Target Corp., 2013 U.S. App. LEXIS 22172 (11th Cir. Oct. 31, 2013) Employer gave employee over 12 weeks of leave due to her pregnancy, in accordance with the employers policy of providing employees who timely completed FMLA forms 16 weeks of unpaid FMLA leave (i.e., 4 weeks longer than the statutory requirement) Employee was terminated two weeks after the 12 week leave period ended Employees FMLA interference claim failed because she could not show she was denied any benefit to which she was entitled under the FMLA 46

47 DOL – FMLA Case Update Giles v. Daytona State College, Inc., 2013 U.S. App. LEXIS 21711 (11th Cir. Oct. 25, 2013) Employee took FMLA leave to care for ailing parents Shortly after her return to work, her employer informed her that her annual contract would not be renewed for budgetary reasons She appealed the nonrenewal of her contract through the employers mediation process and ultimately was reinstated 47

48 DOL – FMLA Case Update Turner v. Fla. Prepaid College Bd., 522 Fed. Appx 829 (July 2, 2013) Employee requested FMLA leave after she was placed on a performance improvement plan When employee returned to work, she was terminated for her performance Employee claimed FMLA interference and retaliation Eleventh Circuit held that interference and retaliation claims survived summary judgment 48

49 DOL – FMLA Case Update Gilliard v. Ga. Dept. of Corrections, 500 Fed. Appx 860 (11th Cir. Dec. 7, 2012) Eleventh Circuit affirmed grant of summary judgment in favor of defendants on employees FMLA interference and retaliation claim Any issue of fact was not material because employee did not present more than a scintilla of evidence showing that her 12 week FMLA leave period was reduced by three days Employee did not establish that employers non- retaliatory reasons for her proposed five-percent salary reduction and termination were pretexts for retaliation 49

50 DOL – FMLA Case Update Davis v. Postmaster General, 2013 U.S. App. LEXIS 25257 (11th Cir. Dec. 19, 2013) A postal worker terminated after he failed to return from a long absence exceeding 12 weeks and failed to respond to multiple disciplinary notices He did not state a prima facie case for FMLA retaliation The former employee argued that he was entitled to FMLA leave for most of the period of absence because he was caring for his sick children Eleventh Circuit affirmed, that he failed to engage in statutorily protected conduct because his absence exceeded the 12 weeks protected by the FMLA 50

51 DOL – FMLA Case Update Badger v. MCG Health, Inc., 2013 U.S. App. LEXIS 21395 (11th Cir. Oct. 22, 2013) While employee was out on FMLA leave, her supervisor discovered that employee failed to: create files for important documents, maintain a required competency manual, appropriately discipline employees, minimize employee overtime, and…. maintain employee FMLA paperwork 51

52 Other Agency Updates DOL issued new hiring standards final rule guaranteeing minimum wage and overtime benefits to domestic care workers and remains aggressive vis a vis audits and seeking civil monetary penalties 52

53 53

54 Orange County Classroom Teachers Assn. v. School Dist. of Orange Co., 40 FPER I 157 (FL PERC October 8, 2013) The Commission found that the District had committed an unfair labor practice By refusing to allow a union to utilize its e-mail system during the time that its registration had lapsed By erroneously informing a newspaper, bargaining unit members, and the Union president that the Union could not serve as bargaining agent while its registration was in a lapsed state

55 Hollywood Fire Fighters, Local 1375, IAFF, INC., vs City of Hollywood, No. 4D12-2861 4 th DCA Jan. 8, 2014 Issue: Public Employees right to collectively bargain / interrelated constitutional right of a bargaining unit to be free from impairment of contracts PERCs interpretation of Fla Stat 447.095(1) – Financial Urgency violates these constitutional rights HELD: Disagrees with PERC in Headley v. City of Miami, 118 So. 3d 885 (Fla. 1 st DCA 2013) Certifies Conflict with the 1 st DCA & Directs PERC to apply Chiles

56 Legislation Enacted In 2013 56

57 Enacted Legislation Nothing overriding passed on federal level Several proposed bills at each end of political spectrum but few in the middle Significant STATE AND LOCAL LAWS have passed Ban the Box Laws & Increases to Minimum Wage 57

58 Ban the Box Minnesota passes ban the box law changing how employers consider job applicants criminal history (effective 1/1/14) Rhode Island passed similar legislation that applies to public and private employers Seattle law does more Currently at least 8 states or localities have broad laws limiting an employers right to inquire regarding criminal convictions – most just deal with timing issues California, Colorado, Connecticut, Illinois, Maryland and New Mexico have all adopted statewide regulations to ban the box for public sector employees Other localities like NYC, Chicago and Baltimore have followed suit in whole or in part in public sector and/or for contractors 58

59 Minimum Wage Floridas minimum wage $7.93 changed January 1, 2014 59

60 No Texting! Florida has joined 41 other states by passing a law prohibiting, as a secondary offense, manual texting, e- mailing and instant messaging on a wireless device while driving 60

61 Potential Federal Legislation In 2014 61

62 Potential Federal Litigation in 2014 Employment Non-Discrimination Act (ENDA) would prohibit discrimination on the basis of sexual orientation or gender identity Legislation most likely to pass 62

63 Potential Federal Litigation in 2014 Working Families Flexibility Act of 2013 would amend the FLSA to allow private employers to provide compensatory time off to employees in lieu of overtime under certain conditions 63

64 Potential Federal Litigation in 2014` Family and Medical Leave Inclusion Act would allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent Family and Medical Leave Enhancement Act would expand the FMLA to cover smaller employers, allow workers to take unpaid FMLA for parental involvement and family wellness 64

65 Potential Federal Litigation in 2014 Paycheck Fairness Act would shrink the pay gap between men and women 65

66 And in 2015 New rule requires home care employers to pay minimum wage, overtime to their direct care employees 66

67 Other Issues on the Horizon in 2014 67

68 Other Issues on the Horizon in 2014 Potential state or local legislation: Bullying Paid sick leave Ban the box Limiting credit checks Court actions: More wage and hour class actions Pregnancy discrimination 68

69 Other Issues on the Horizon in 2014 Federal Administrative Agencies: Continued Aggressiveness Continued Rulemaking Affordable Care Act - Impact/Implementation 69



72 72 THANK YOU Presented by: Karen M. Morinelli Jackson Lewis P.C. 100 South Ashley Drive Suite 2200 Tampa, FL 33602 (813) 512-3210

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