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Presentation on theme: "April 14, 2011 Keith Weddington Sarah Ford PARKER POE ADAMS & BERNSTEIN LLP EMPLOYMENT LAW UPDATE."— Presentation transcript:


2 AGENDA I. Judicial Decisions U.S. Supreme Court 4 th Circuit N.C. Appellate Courts II. Legislative Update III. Hot Topics 2

3 Supreme Court Decisions 3

4 Disparate Impact Lewis v. City of Chicago (Decided May 24, 2010) Plaintiffs who fail to file charge with EEOC within 180/300 days of employers adoption of discriminatory policy, may still assert a timely claim Adoption vs. Application 4

5 Disparate Impact Lewis v. City of Chicago (Decided May 24, 2010) Must establish prima facie disparate impact claim Employer uses a particular employment practice Practice causes a disparate impact on one of the prohibited bases Beware of comfort based on old familiar policies. 5

6 Privacy City of Ontario, CA v. Quon (Decided June 17, 2010) Court avoided making a broadly applicable ruling regarding employee privacy rights with respect to employer provided electronic devices Court assumed Quon had a reasonable expectation of privacy Public employee v. private employee 6

7 Privacy City of Ontario, CA v. Quon (Decided June 17, 2010) Reasonable search under the 4 th Amendment legitimate, work-related purpose not excessive in scope Be sure computer/internet usage policies keep pace with advancing technology (texting, instant messaging, social networks) Consistent training and enforcement 7

8 Background Checks NASA v. Nelson (Decided January 19, 2011) Court assumed, without finding, that a constitutional right to informational privacy exists Government has greater latitude as employer than when acting as sovereign Federal government may conduct wide-ranging background checks of workers employed by government contractors. 8

9 Background Checks NASA v. Nelson (Decided January 19, 2011) Employers (public and private) should evaluate background check procedures to: ensure reasonableness/job- relatedness avoid prohibited ADA/GINA protected inquiries ensure information obtained is kept secure and confidential 9

10 Third Party Retaliation Thompson v. North American Stainless, LP (Decided January 24, 2011) White v. Burlington Northern: Any conduct by employer that would dissuade a reasonable person from engaging in protected conduct = adverse action Terminated fiancé of employee who filed EEOC charge was within Zone of Interests protected by Title VII Policies and training materials should emphasize that 3 rd party retaliation is illegal 10

11 Cats Paw Staub v. Proctor Hospital (Decided March 1, 2011) Employer liable where: Supervisor acts with discriminatory animus Supervisor intends act to result in adverse action That act is a proximate cause of ultimate adverse employment action 11

12 Cats Paw Staub v. Proctor Hospital (Decided March 1, 2011) Employer may escape liability if ultimate adverse action unrelated to original biased action Practical Tips: Train all supervisory employees Regular performance reviews Conduct independent investigation, especially if employee challenges disciplinary action or has conflict with supervisor Get input from multiple sources 12

13 Protected Activity Kasten v. Saint-Gobain Performance Plastics (Decided March 22, 2011) Oral complaint regarding FLSA issue is sufficient to invoke protections of FLSAs anti-retaliation provision Oral complaint must be sufficiently clear and detailed for reasonable employer to understand it as an assertion of rights protected by FLSA Unresolved – complaint to employer vs. governmental body? 13

14 Protected Activity Kasten v. Saint-Gobain Performance Plastics (Decided March 22, 2011) Consider implementing formal process to review and respond to internal complaints Specify what information employee must provide employer in order to file a complaint 14

15 Attorneys Fees Fox v. Vice (Oral arguments heard May 21, 2011) Issue: Whether a court can award attorneys fees to civil rights defendants based on dismissal of claim when plaintiff has asserted other interrelated non-frivolous claims But for versus fairly attributable 15


17 Settlement of FMLA Claims Whiting v. Johns Hopkins Hospital (Decided March 14, 2011) Hopefully, the final word on waiver of FMLA claims Affirms reasonableness of DOLs 2007 regulation approving of the settlement or release of FMLA claims based on past employer conduct without the approval of DOL or court 17

18 Executive Exemption under FLSA Grace v. Family Dollar Store, Inc. Decided March 22, 2011 Salaried retail store manager was an executive employee exempt from FLSAs overtime provisions despite spending 99% of her time on nonexecutive tasks Time factor was not controlling Even while doing non-managerial tasks, Grace was responsible for running the store profitably and dealing with whatever issues arose

19 Sexual Harassment EEOC v. Cromer Food Services, Inc. (Decided March 3, 2011) Issue: Can employer be held liable for harassment of an employee by a third party? Employer is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it. Knowledge can be imputed to employer if a reasonable person, intent on complying with Title VII, would have known about the harassment 19

20 Volunteer Exemption Under FLSA Purdham v. Fairfax County School Bd. (Decided March 10, 2011) Golf coach was volunteer exempt from FLSA Volunteer = individual who performs hours of service for a public agency for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation 20

21 Volunteer Exemption Under FLSA Purdham v. Fairfax County School Bd. (Decided March 10, 2011) Employee of public agency exempt if: receives no compensation or is paid expenses or nominal fee, and volunteer services are different from normal duties Private employees cannot be volunteers 21

22 Calculating Damages Under FLSA Desmond v. PNGI Charles Town Gaming (Decided Jan. 18, 2011) Issue: Measure of damages in FLSA misclassification cases involving salaried non-exempt workers? Half-time methodology: 50% OT premiumprovided that employer & employee had mutual understanding salary covered all hours worked and employee made not less than minimum wage for every hour worked 22

23 North Carolina State Court Decisions 23

24 Non-Solicitation Agreements MJM Investigations, Inc. v. Sjostedt (Decided July 20, 2010) Employers failure to define current or prospect client rendered non-solicitation clause unenforceable Clearly define customers and prospects How determined? At what point in time? Limit to those for whom employer has legitimate need for protection. Be sure both noncompete and non- solicitation provisions each contain a time period (in case one is blue-penciled out) 24

25 Oral Employment Agreements Kornegay v. Aspen Asset Group, LLC (Decided April 12, 2011) Oral agreement to pay 20% commission bonus upheld Memo stating No Bonuses. No Commissions. No Nothing until Aspen sees fit & confident we are making money insufficient to negate bonus plan under NCWHA. Trial judges decision re: liquidated damages and attys fees is reviewed de novo for abuse of discretion. 25

26 Oral Employment Agreements Kornegay v. Aspen Asset Group, LLC (Decided April 12, 2011) Clear written agreement or policy re: bonuses and commissions is essential How calculated? When earned? When payable? When lost or forfeited? Any ambiguity will be construed against the employer. 26

27 Legislation 27

28 Americans with Disabilities Act Amendments (ADAAA) Signed into law on September 25, 2008 Amendments effective January 1, 2009 Final Rules issued March 25,

29 Final Rules Implementing ADAAA Primary Purpose: To make it easier for an individual seeking protection under the ADA to establish that he/she has a disability within the meaning of the ADA. Focus is on whether individual was/was not reasonably accommodated or otherwise discriminated against – NOT whether individual is disabled 29

30 Final Rules Implementing ADAAAA Claims under actual disability and record of versus claims under regarded as. No per se list of disabilities; but, non- exhaustive list of examples of conditions that would likely be considered disabilities. Goal: Courts should spend less time on determining coverage under the ADA and more time to determine if a discriminatory act occurred. 30

31 Impact on Employers More requests for accommodations More internal review More EEOC charges More lawsuits More retaliation complaints Fewer dismissals and early conclusions 31

32 Final Rules Implementing Genetic Information Nondiscrimination Act (GINA) Health insurers and employers cannot discriminate on the basis of an individuals genetic information 32

33 GINA Took effect on November 21,2009 Final Regulations Implementing GINA were issued on November 9, 2010 and took effect on January 10, 2011

34 What is Genetic Information? Includes Genetic test results Family medical history Does NOT include Information about employee gender or age Information about current disease/disorder Tests for drug/alcohol use 34

35 Who is Protected Under GINA? Applicants Employees Former employees 35

36 What Does GINA Prohibit? Prohibits use of genetic information in employment-related decisions Prohibits intentionally acquiring genetic information Prohibits harassment Prohibits retaliation 36 STRICT REQUIREMENT OF CONFIDENTIALITY

37 Genetic Information Nondiscrimination Act (GINA) Interplay between GINA, ADA, and FMLA Effect on Employer-Sponsored Wellness Programs Same remedies as Title VII Employee training is a must 37

38 Whats The Status? 38 PayCheck Fairness Act Protecting Older Workers Against Discrimination Act Employment Nondiscrimination Act Employee Free Choice Act


40 Hot Topics in 2011 Social Networking in the Workplace Misclassification of Independent Contractors Investigation of Systemic Discrimination Impact of Credit Checks in Hiring Form I-9 Audits 40

41 Social Networking Sites

42 Social Networking Statistics Facebook has 500 million active users ( 7/facebook_hits_500_million_user.html?referrer=em aillink) 7/facebook_hits_500_million_user.html?referrer=em aillink Twitter has more than 190 million users, tweeting 65 million times a day (June 8, 2010, By June 2008, Technorati was tracking over 112 million blogs ( many-blogs-are-there-is-someone-still-wondering/) 42

43 Whats the problem? Meet Kevin Colvin

44 Whats the problem? Cisco Fatty A Cisco applicant tweeted this: Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.

45 Your Social Media Policy Address time management Prohibitions may include: profanity about co-workers, false statements, confidential information, harassment Policy should be narrowly crafted with a disclaimer re labor rights

46 Misclassification of Independent Contractors U.S. DOL study found 10-30% of employers audited had misclassified workers IRS estimates it is losing $20 billion a year due to worker misclassification Obamas $25 million Misclassification Initiative Increasingly subject of FLSA suits

47 Independent Contractors v. Employee Why Does the Classification Matter? Employee Employer pays payroll taxes & withholds income taxes Employee may qualify for UC and WC Protection under anti-discrimination laws Protection under federal and state wage and hour laws Independent Contractor IC pays self- employment taxes & reports own income No UC or WC No overtime No protection under anti-discrimination and workplace safety laws 47

48 Factors Control of manner and means of work Skill required Source of tools and instruments Length of employment Place where work is performed Method of payment Receipt of benefits Vacation Opportunity for profit/loss Hired partys role in hiring and paying assistants 48

49 What Should You Do? Identify who you have classified as ICs Conduct an analysis of each position Reclassify? 49

50 Enforcement Initiative Systemic Gender Discrimination Nationwide focus for EEOC Prevent systemic discrimination, with focus on gender discrimination Class actions and large settlements and damages awards 50

51 What Should an Employer Do? Review policies on transfers and promotions and analyze compensation practices Conduct training for managers to address best practices in making hiring, pay and promotion decisions Conduct prompt and effective investigations of gender-based conduct or decisions in the workplace 51

52 Credit Checks in Hiring Process Whether employers use of credit checks as a condition of employment violates federal civil rights laws? Disparate impact against women and minorities EEOC heard testimony on October 20,

53 Form I-9 Audits by ICE/DHS Increased enforcement and higher fines Failure to verify authorization to work Paperwork violations Audit: Internal or External 53

54 54 Office Locations Charleston, SC Charlotte, NC Columbia, SC Myrtle Beach, SC Raleigh, NC Spartanburg, SC Kd Keith Weddington Sarah Ford Direct Dial Direct Dial

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