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1 PARKER POE ADAMS & BERNSTEIN LLP
EMPLOYMENT LAW UPDATE April 14, 2011 New Legislature beginning in 2011. House = Republications; Senate = Democrats What does it mean? – many bills in the hopper at the end 2010 are either dead in the water, will be back for debate, or may be repealed. Today’s presentation will focus on 3 areas: Judicial decision – mostly from an active SC, but also noteworthy Fourth Circuit and State cases Legislation, including rules and regs that recently were finalized pursuant to federal legislation Hot Topics Keith Weddington Sarah Ford PARKER POE ADAMS & BERNSTEIN LLP

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

3 Supreme Court Decisions

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 employer’s adoption of discriminatory policy, may still assert a timely claim Adoption vs. Application Facts: In July 1995, the City of Chicago gave a written exam to 26,000 people who applied for jobs in the fire department. Fire dept divided applicants into 3 tiers based on their exam scores (below 65; b/w 65 and 89; over 89). City announced this classification system in January 1996 and informed the applicants they would begin filling positions from those applicants who scored greater than 89 and then they would continue on down. Six African American firefighters filed EEOC charges claiming that the City’s reliance on the test created a disparate impact. Later a class action lawsuit was brought against the city, consisting of more than 6,000 African American applicants who were not offered a position. The City ended up conceding that the 89-point cutoff created a disparate impact; Question But the question remained as to whether the plaintiff’s suit was timely? Title VII requires a plaintiff to file a charge either 180 or 300 days from the date of the “unlawful employment practice.” (Here, the statute of limitations period was 300 days). Here, plaintiffs filed their charge more than 400 days after the city announced how it planned to utilize its test scores. Issue: Whether the plaintiff must file an EEOC charge within 300 days after the announcement of the City’s hiring practices OR may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice. Held Didn’t matter that the severe disparate impact was decided longer than 300 days ago; each time the decision was applied, a new 300 days began. Almost like a continuing violation. Without mentioning the Lilly Ledbetter Act, the Court rejected the City’s arguments that present effects of past discrimination could not lead to Title VII liability for the hiring test.  Instead, the Court distinguished disparate impact claims from disparate treatment claims, explaining that disparate impact claims do not require discriminatory intent.  Accordingly, the Court noted that plaintiffs bringing disparate impact claims do not need to show that deliberate discrimination occurred within the limitations period.   Significance Highlights the difficulty of what constitutes an unlawful employment practice If a policy or practice is in use, we now know the limitations period will run from each time the policy is applied. To limit liability, Ers should review their current policies and practices and consistently monitor the application of the policies and practices to ensure there is no disparate impact. 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. Facts: In July 1995, the City of Chicago gave a written exam to 26,000 people who applied for jobs in the fire department. Fire dept divided applicants into 3 tiers based on their exam scores (below 65; b/w 65 and 89; over 89). City announced this classification system in January 1996 and informed the applicants they would begin filling positions from those applicants who scored greater than 89 and then they would continue on down. Six African American firefighters filed EEOC charges claiming that the City’s reliance on the test created a disparate impact. Later a class action lawsuit was brought against the city, consisting of more than 6,000 African American applicants who were not offered a position. The City ended up conceding that the 89-point cutoff created a disparate impact; Question But the question remained as to whether the plaintiff’s suit was timely? Title VII requires a plaintiff to file a charge either 180 or 300 days from the date of the “unlawful employment practice.” (Here, the statute of limitations period was 300 days). Here, plaintiffs filed their charge more than 400 days after the city announced how it planned to utilize its test scores. Issue: Whether the plaintiff must file an EEOC charge within 300 days after the announcement of the City’s hiring practices OR may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice. Held Didn’t matter that the severe disparate impact was decided longer than 300 days ago; each time the decision was applied, a new 300 days began. Almost like a continuing violation. Without mentioning the Lilly Ledbetter Act, the Court rejected the City’s arguments that present effects of past discrimination could not lead to Title VII liability for the hiring test.  Instead, the Court distinguished disparate impact claims from disparate treatment claims, explaining that disparate impact claims do not require discriminatory intent.  Accordingly, the Court noted that plaintiffs bringing disparate impact claims do not need to show that deliberate discrimination occurred within the limitations period.   Significance Highlights the difficulty of what constitutes an unlawful employment practice If a policy or practice is in use, we now know the limitations period will run from each time the policy is applied. To limit liability, Ers should review their current policies and practices and consistently monitor the application of the policies and practices to ensure there is no disparate impact. 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 Facts: Police dept provided pagers to their employees. There was an overage on the pagers: Dept wanted to know whether it was from EE’s personal usage or just that the department didn’t get enough minutes. To figure this out, the department audited the pagers 1st question from the SC was whether there was a reasonable expectation of privacy. The court noted that the department had a written policy stating that the officers had no reasonable expectation of privacy; however, noted the court, the manager then verbally told the officers, don’t worry, as long as you pay your overages, we won’t audit your messages. So, despite the policy, the SC said the police officer DID HAVE a reasonable expectation of privacy. 2nd question – whether the search was reasonable under the 4th amendment (b/c they were a public employer). The court did a 2-step analysis under the 4th amendment to determine whether it was reasonable: Justified at its inception – Yes, reasonable grounds for suspecting the search was necessary Measures adopted were reasonably related to the objectives of the search For private employers, it would have been considered reasonable and normal to audit the messages. Significance While the facts of Quon do not apply to private employers, there is still much to learn from this case: Inspection of outsourced communication systems (text messages, cell phones) w/out an employee’s consent, likely violates the Stored Communications Act. Thus, 3rd pty vendors are unlikely to provide information to an employer w/out employee consent. Consistent training and enforcement of “acceptable use” policy is critically important to avoid disparate treatment claims. Good idea to regularly review and update your use policy to make sure it is broad enough to cover advancing technology such as texting, instant messaging and social networking. 6

7 Privacy City of Ontario, CA v. Quon (Decided June 17, 2010)
Reasonable search under the 4th 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 Facts: Police dept provided pagers to their employees. There was an overage on the pagers: Dept wanted to know whether it was from EE’s personal usage or just that the department didn’t get enough minutes. To figure this out, the department audited the pagers 1st question from the SC was whether there was a reasonable expectation of privacy. The court noted that the department had a written policy stating that the officers had no reasonable expectation of privacy; however, noted the court, the manager then verbally told the officers, don’t worry, as long as you pay your overages, we won’t audit your messages. So, despite the policy, the SC said the police officer DID HAVE a reasonable expectation of privacy. 2nd question – whether the search was reasonable under the 4th amendment (b/c they were a public employer). The court did a 2-step analysis under the 4th amendment to determine whether it was reasonable: Justified at its inception – Yes, reasonable grounds for suspecting the search was necessary Measures adopted were reasonably related to the objectives of the search For private employers, it would have been considered reasonable and normal to audit the messages. Significance While the facts of Quon do not apply to private employers, there is still much to learn from this case: Inspection of outsourced communication systems (text messages, cell phones) w/out an employee’s consent, likely violates the Stored Communications Act. Thus, 3rd pty vendors are unlikely to provide information to an employer w/out employee consent. Consistent training and enforcement of “acceptable use” policy is critically important to avoid disparate treatment claims. Good idea to regularly review and update your use policy to make sure it is broad enough to cover advancing technology such as texting, instant messaging and social networking. 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. See outline for details.

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 See outline for details.

10 Third Party Retaliation Thompson v
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 3rd party retaliation is illegal Overview: Title VII of CRA of 1964 makes it illegal for an employer to retaliate against an EE b/c of (1) Opposing am employment practice (make a charge, testify, assist in an investigation, or (2) Participate in an employment practice Facts: Thompson and his fiancée both worked for North American Thompson’s fiancée filed an EEOC Charge against the Company alleging gender discrimination 3 weeks after North American was notified of the Charge, the Company fired Thompson. Thompson filed a Charge, claiming that he was terminated in retaliation for his fiancée's protected activity (filing of the EEOC Charge). EEOC issued a for cause finding and Thompson sued Procedural History 6th Circuit agreed with North American and held that b/c Thompson did not himself engage in any statutory protected activity (oppose an unlawful practice, make a charge, testify, participate in an investigation), he had no such claim under Title VII. 3rd, 5th and 8th circuits agree. But, the EEOC consistently takes a position to the contrary. Here, North American argued that no such claim exists under Title VII. And, Thompson had conceded that he did not engage in any protected activity of his own or participate in his fiancée's protected activity. Question Presented: Does Title VII create a c/a for 3rd pty retaliation for persons who did not themselves engage in protected activity? Held: Harming a close colleague of a complainant may now constitute unlawful retaliation Consider: Law in this area is unclear. Depending on the state at issue, employees may be able to claim wrongful discharge under state law. ERs should be very careful not to retaliate against any relatives or friends of EEs who engage in protected activity and should take special care to ensure that all actions taken against such people are justified and well-documented.

11 Cat’s 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

12 Cat’s 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

13 Protected Activity Kasten v
Protected Activity Kasten v. Saint-Gobain Performance Plastics (Decided March 22, 2011) Oral complaint regarding FLSA issue is sufficient to invoke protections of FLSA’s 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? Overview FLSA anti retaliation provision prohibits an ER from retaliating against an EE b/c (among other things) the EE has “filed any complaint”. Facts Non-exempt EE of Saint-Gobain, was disciplined several for failing to follow the ER’s clock-in/clock-out procedures. Employee complains about the procedures, including that the location of the clocks were illegal under the FLSA Employee was ultimately discharged for repeated failure to follow company policy. Employee sued and alleged he was discharged in retaliation for having complained. Procedural History 7th Circuit held that although ”any complaint” under the FLSA includes an internal complaint against the company, an employee does not “file” such a complaint in this context when he fails to do so in written form. Court said the natural understanding of the phrase “file any complaint” necessarily requires the submission of some writing to an employer. Circuits are split Question Presented Whether an oral complaint is protected conduct under FLSA’s anti-retaliation provision Held: The scope of the statutory provision term “filed any complaint” under the FLSA’s anti-retaliation provision includes oral as well as written complaints. Consider ERs should treat verbal wage and hour complaint as seriously as written ones. Fully investigate the complaint, document the decision, and communicate back to the employee. 13

14 Protected Activity Kasten v
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 Overview FLSA anti retaliation provision prohibits an ER from retaliating against an EE b/c (among other things) the EE has “filed any complaint”. Facts Non-exempt EE of Saint-Gobain, was disciplined several for failing to follow the ER’s clock-in/clock-out procedures. Employee complains about the procedures, including that the location of the clocks were illegal under the FLSA Employee was ultimately discharged for repeated failure to follow company policy. Employee sued and alleged he was discharged in retaliation for having complained. Procedural History 7th Circuit held that although ”any complaint” under the FLSA includes an internal complaint against the company, an employee does not “file” such a complaint in this context when he fails to do so in written form. Court said the natural understanding of the phrase “file any complaint” necessarily requires the submission of some writing to an employer. Circuits are split Question Presented Whether an oral complaint is protected conduct under FLSA’s anti-retaliation provision Held: The scope of the statutory provision term “filed any complaint” under the FLSA’s anti-retaliation provision includes oral as well as written complaints. Consider ERs should treat verbal wage and hour complaint as seriously as written ones. Fully investigate the complaint, document the decision, and communicate back to the employee. 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” See outline for details of case.

16 FOURTH CIRCUIT DECISIONS

17 Settlement of FMLA Claims Whiting v
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 DOL’s 2007 regulation approving of the settlement or release of FMLA claims based on past employer conduct without the approval of DOL or court See outline for details

18 Executive Exemption under FLSA Grace v. Family Dollar Store, Inc
Executive Exemption under FLSA Grace v. Family Dollar Store, Inc. Decided March 22, 2011 Salaried retail store manager was an executive employee exempt from FLSA’s 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 See outline for details

19 Sexual Harassment EEOC v. Cromer Food Services, Inc
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 See outline for details

20 Volunteer Exemption Under FLSA Purdham v. Fairfax County School Bd
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 See outline for details.

21 Volunteer Exemption Under FLSA Purdham v. Fairfax County School Bd
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 See outline for details.

22 Calculating Damages Under FLSA Desmond v
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 premium—provided that employer & employee had mutual understanding salary covered all hours worked and employee made not less than minimum wage for every hour worked See outline for details.

23 North Carolina State Court Decisions

24 Non-Solicitation Agreements MJM Investigations, Inc. v
Non-Solicitation Agreements MJM Investigations, Inc. v. Sjostedt (Decided July 20, 2010) Employer’s 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) See outline for details

25 Oral Employment Agreements Kornegay v
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 judge’s decision re: liquidated damages and attys fees is reviewed de novo for abuse of discretion.

26 Oral Employment Agreements Kornegay v
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.

27 Legislation

28 Americans with Disabilities Act Amendments (ADAAA)
Signed into law on September 25, 2008 Amendments effective January 1, 2009 Final Rules issued March 25, 2011 In 2009, Congress amended ADA. Adopted in response to concerns among legislators that courts were defining disability in too narrow a manner, deciding many ADA cases o this threshold issue rather than looking at whether the plaintiff was not reasonably accommodated, or otherwise discriminated against. Final Regulations were issued on March 25, 2011 How do they work?

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

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.

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

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

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 What kind of information are we talking about

35 Who is Protected Under GINA?
Applicants Employees Former employees

36 What Does GINA Prohibit?
Prohibits use of genetic information in employment-related decisions Prohibits intentionally acquiring genetic information Prohibits harassment Prohibits retaliation Employment decisions relating to hiring or any term, condition or privilege of employment “Intentionally acquiring” – requesting, requiring or purchasing information for an applicant, employee or his/her family member Harassment – includes offensive/derogatory remarks about genetic information of a relative of the employee 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

38 What’s The Status? PayCheck Fairness Act
Protecting Older Workers Against Discrimination Act Employment Nondiscrimination Act Employee Free Choice Act WE DON’T KNOW!!! – Since the Republications have taken over the House, much of these acts are dead in the water. PayCheck Fairness Act – Intended to beef up the Equal Pay Act which prohibits disparity in compensation based on gender. The PayCheck Fairness Act would limit employer defenses to claims, expand damages to include compensatory and punitive damages and facilitate class action lawsuits. Also would increase the administrative burden on employers, by requiring employers to report the gender, race and salaries of its employees on a ? basis. POWADA – Seeks to overturn a recent Supreme Court decision that made it more difficult to prevail on age discrimination claims. POWADA would establish that the standard of proof for claims under the ADEA is the same as under Title VII (mixed motive), making it easier for plaintiffs to prevail on age discrimination claims. ENDA – Would prohibit employers with 15 or more employees from making employment decisions based on actual or perceived sexual orientation or gender identity. Also would prohibit associational discrimination or retaliation. Reintroduced April 6, 2011, rounding up 111 co-sponsors. But, 92 less than when 111th Congress closed. EFCA – INSERT Health Care Reform – on tap for the Republicans to repeal and amend. We’ll see.

39 HOT TOPICS IN EMPLOYMENT LAW

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

41 Social Networking Sites
Social Networking Sites Social networking sites = communities of people, oftentimes with something specific in common or with some specific shared goal, using web-based technologies that include highly accessible and scalable publishing techniques. E.g. Facebook started as college students only, then high schoolers, now everybody. LinkedIn is for business networking. Imbee is for kids; Friendster is for gamers; Orkut is Google’s social networking site; and Yammer is the social networking site for people who have the same company address. And we’ve all heard of Twitter, which blogger Chris Pirillo called, “a great place to tell the world what you’re thinking before you’ve had a chance to think about it.”

42 Social Networking Statistics
Facebook has 500 million active users (http://voices.washingtonpost.com/posttech/2010/07/facebook_hits_500_million_user.html?referrer= link) Twitter has more than 190 million users, tweeting 65 million times a day (June 8, 2010, TechCrunch.com) By June 2008, Technorati was tracking over 112 million blogs (http://www.blogherald.com/2008/02/11/how-many-blogs-are-there-is-someone-still-wondering/) ½ billion = population of US + Japan + Germany combined What’s the problem? Company has an image or brand it is trying to project

43 What’s the problem? Meet Kevin Colvin

44 What’s 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 What about disciplinary action? Be mindful of anti-retaliation and whistleblower statutes (cannot fire for a legitimate complaint).

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 Obama’s $25 million “Misclassification Initiative” Increasingly subject of FLSA suits

47 Independent Contractor
Independent Contractors v. Employee Why Does the Classification Matter? Employee Independent Contractor 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 IC pays self-employment taxes & reports own income No UC or WC No overtime No protection under anti-discrimination and workplace safety laws Employers have a financial incentive to classify workers as IC

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 party’s role in hiring and paying assistants Control manner and means, including assigning additional projects and employer discretion over hours worked and length of time worked Consider: Evolution of roles. IC may have been appropriate once, but no longer

49 What Should You Do? Identify who you have classified as ICs
Conduct an analysis of each position Reclassify? Consider involving an attorney: Knowledge Privilege deliberations

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 Focusing efforts on pursuing systemic enforcement litigation against companies. Systemic discrimination – typically involve an ER policy or practice that results in a disparate impact upon a group of persons in a protected class or a class action. Cases often focus on ER hiring and promotion policies or practices; Example: Having tests that have an impact on protected groups (credit checks, personality testing) Class Actions: In December 2010, USSC granted certiorari in Dukes v. Walmart in which the 9th Circuit Court of Appeals had affirmed certification of a class of current and former female Walmart employees estimated to the number of 1.5 million, alleging that wide-ranging discriminatory practices resulted in diminished pay and promotional opportunities for women in relation to men. Settlement: On March 1, 2010, the EEOC announced that it had secured a settlement with Walmart over a sex discrimination suit the Commission filed against the retailer. According to the EEOC, Walmart systematically denied jobs to female applicants from 1998 to Commission alleged Walmart violated Title VII b/c it has regularly hired male entry-level applicants for warehouse positions, but excluded female applicants who were equally or better qualified. Walmart will pay $11.7 million in back wages and compensatory damages, its share of employer taxes and up to $250,000 in admin fees to settle the lawsuit.

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 Focusing efforts on pursuing systemic enforcement litigation against companies. Systemic discrimination – typically involve an ER policy or practice that results in a disparate impact upon a group of persons in a protected class or a class action. Cases often focus on ER hiring and promotion policies or practices; Example: Having tests that have an impact on protected groups (credit checks, personality testing) Class Actions: In December 2010, USSC granted certiorari in Dukes v. Walmart in which the 9th Circuit Court of Appeals had affirmed certification of a class of current and former female Walmart employees estimated to the number of 1.5 million, alleging that wide-ranging discriminatory practices resulted in diminished pay and promotional opportunities for women in relation to men. Settlement: On March 1, 2010, the EEOC announced that it had secured a settlement with Walmart over a sex discrimination suit the Commission filed against the retailer. According to the EEOC, Walmart systematically denied jobs to female applicants from 1998 to Commission alleged Walmart violated Title VII b/c it has regularly hired male entry-level applicants for warehouse positions, but excluded female applicants who were equally or better qualified. Walmart will pay $11.7 million in back wages and compensatory damages, its share of employer taxes and up to $250,000 in admin fees to settle the lawsuit.

52 Credit Checks in Hiring Process
Whether employer’s 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, 2010 EEOC does not appear to be moving on this itself. May have been flagging the issue for plaintiff’s attorney. Look at policies – for whom are you doing credit checks; is it necessary in the context of the position 52

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

54 Office Locations Keith Weddington Sarah Ford 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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