Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: SPRING CONFERENCE

What Happened & What ’ s Next The Year In Review The Year In Review “ Hot Button ” Issues for 2013 “ Hot Button ” Issues for 2013

Title VII and EEOC

EEOC Touts Monetary Recoveries Record year for EEOC Record year for EEOC $365 million from mediations & conciliations $365 million from mediations & conciliations $36 million from investigations of systemic charges $36 million from investigations of systemic charges $44.2 million from litigation $44.2 million from litigation 99,412 charges in 2012 fiscal year 99,412 charges in 2012 fiscal year

Which type of EEOC Charge is the fastest growing? 1. Race 2. Age 3. Gender 4. Retaliation

Does Title VII protect transgendered employees? 1. Yes 2. No

Title VII Protects Transgendered Employees Macy v. Holder (2012) Macy v. Holder (2012) Historically, EEOC had ruled that discrimination on basis of sexual identity was not sex discrimination Historically, EEOC had ruled that discrimination on basis of sexual identity was not sex discrimination Reversal: gender identity discrimination is a form of sex stereotyping Reversal: gender identity discrimination is a form of sex stereotyping

Criticism of Employer Investigation is Not Protected Activity Brush v. Sears Holding Corp (2012) Brush v. Sears Holding Corp (2012) Employee criticized harassment investigation and decision not to call police Employee criticized harassment investigation and decision not to call police Ct: only protected if object to acts unlawful under Title VII Ct: only protected if object to acts unlawful under Title VII

Sloppy Handling of Sex Harassment Complaint Precludes S.J. Kurtts v. Chiropractic Strategies Group (2012) Kurtts v. Chiropractic Strategies Group (2012) Employee made internal complaint and expressed discomfort working with accused “harasser” Employee made internal complaint and expressed discomfort working with accused “harasser” Company made no effort Company made no effort

Failure to Accommodate Pregnant Employee May Violate Title VII Chapter 7 Trustee v. Gate Gourmet, Inc. (2012) Chapter 7 Trustee v. Gate Gourmet, Inc. (2012) Pregnant employee’s doctor imposed restrictions; supervisor says no light duty; fires her Pregnant employee’s doctor imposed restrictions; supervisor says no light duty; fires her Ct: have to at least consider whether light duty work available Ct: have to at least consider whether light duty work available

Can you require an employee to get a flu shot? 1. Yes 2. No 3. Maybe

Refusal to Receive Flu Shot Chenzira v. Cincinnati Children’s Hospital (2012) Chenzira v. Cincinnati Children’s Hospital (2012) Employee is a vegan; refuses mandatory flu shot based on religious belief Employee is a vegan; refuses mandatory flu shot based on religious belief Ct: duty to accommodate employee’s religious beliefs Ct: duty to accommodate employee’s religious beliefs

Americans With Disabilities Act

EEOC Issues ADA Guidance for Veterans With Disabilities Preventing disability discrimination Preventing disability discrimination Accommodation of veterans with disabilities Accommodation of veterans with disabilities

Wellness Program Fits ADA Safe Harbor Seff v. Broward County Seff v. Broward County Employees who declined to participate in wellness program charged $20/pay period Employees who declined to participate in wellness program charged $20/pay period Ct: No violation of ADA; safe harbor for insurance plans Ct: No violation of ADA; safe harbor for insurance plans

Does the ADA require a transfer to a vacant position? 1. Yes 2. No

ADA Requires Transfer to Vacant Position EEOC v. United Airlines 7 th Cir EEOC v. United Airlines 7 th Cir Employee can not perform own job Employee can not perform own job Ct: Not sufficient to let employee compete for vacant job; duty of accommodation requires transfer Ct: Not sufficient to let employee compete for vacant job; duty of accommodation requires transfer But don’t have to ignore union contract But don’t have to ignore union contract

The Family Medical Leave Act

New FMLA Rules Final regulations issued February 5, 2013,implementing National Defense Authorization Act of 2010 Final regulations issued February 5, 2013,implementing National Defense Authorization Act of 2010 Relating to military leaves Relating to military leaves Other changes to 2009 Regulations include intermittent leave Other changes to 2009 Regulations include intermittent leave Effective March 8, 2013 Effective March 8, 2013

New FMLA Regulations (Military)

1,226 Days Excluded!

New FMLA Regulations (Military)

New FMLA Regulations Use smallest increments of time as used for other types of leave Use smallest increments of time as used for other types of leave

New FMLA Regulations – Next Steps Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward: Update their FMLA policies in accordance with the new rule. Replace the current FMLA poster with this one. Make sure all FMLA Fact Sheets are up to date. Use the new DOL notification and certification forms, or adapt their own forms to be consistent with the new ones. Ensure that leave administrators are familiar with the changes that will take effect March 8.

Request To Take FMLA Before Eligible is Protected Pereda v. Brookdale Senior Living Communities Pereda v. Brookdale Senior Living Communities 8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months 8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months Court found Pereda’s termination for poor performance 9 months after being hired was unlawful Court found Pereda’s termination for poor performance 9 months after being hired was unlawful

Fair Labor Standards Act

Court Disqualifies Morgan & Morgan For Unethical Behavior Bedoya v. Aventura Limousine (2012) Bedoya v. Aventura Limousine (2012) Morgan & Morgan thrown off case Morgan & Morgan thrown off case threatening s to opposing counsel threatening s to opposing counsel set deposition in a Dunkin Donuts set deposition in a Dunkin Donuts ex parte communications to company attacking company’s attorney ex parte communications to company attacking company’s attorney

Pharmaceutical Sales Reps Are Exempt Christopher v. SmithKline Beecham U.S. (2012) Christopher v. SmithKline Beecham U.S. (2012) Pharmaceutical reps are making sales; exempt under outside sales exemption Pharmaceutical reps are making sales; exempt under outside sales exemption Overturns DOL interpretation of outside sales Overturns DOL interpretation of outside sales

On Call Time On premises or geographical limits On premises or geographical limits Pager/cell phone/smart phone Pager/cell phone/smart phone Personal use of time Personal use of time

Training Time Not compensable if: Not compensable if: Attendance is outside the employee’s regular working hours Attendance is outside the employee’s regular working hours Attendance is voluntary Attendance is voluntary Not directly related to job and Not directly related to job and No productive work performed No productive work performed

Public Hospitals

First Amendment Walden v. CDC Walden v. CDC Court: Personal beliefs and values are no excuse to refusing to perform job duties Court: Personal beliefs and values are no excuse to refusing to perform job duties

USERRA

Refusal To Accept Transfer is Not Resignation Under USERRA U.S. v. Ala. Dept. of Mental Health (2012) U.S. v. Ala. Dept. of Mental Health (2012) Employee declined transfer to another city at end of military leave Employee declined transfer to another city at end of military leave Ct: not a resignation; employee entitled to reinstatement Ct: not a resignation; employee entitled to reinstatement

Benefits

Affordable Care Act Upheld Supreme Court June, 2012 Supreme Court June, 2012 ACA is constitutional, except for mandate for states to expand Medicaid ACA is constitutional, except for mandate for states to expand Medicaid Several pieces already in effect Several pieces already in effect

Patient Protection and Affordable Care Act

What Now? After the election, it’s full steam ahead for implementation. After the election, it’s full steam ahead for implementation. By January 2014, unless delayed: By January 2014, unless delayed: Millions of Americans will have to obtain insurance or pay penalties, and Millions of Americans will have to obtain insurance or pay penalties, and Insurers will be banned from denying coverage based on pre-existing conditions for all individuals. Insurers will be banned from denying coverage based on pre-existing conditions for all individuals.

Implementation Schedule

2013 Changes Plans must provide a participant notice regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice). Plans must provide a participant notice regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice). Health flexible spending account limit will be $2,500. Health flexible spending account limit will be $2,500.

2014 and Beyond Some of the additional changes scheduled for implementation are: Some of the additional changes scheduled for implementation are: Establishment of state insurance exchanges. Establishment of state insurance exchanges. Imposition of a penalty on large employers not offering health insurance ($2,000 per full- time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange). Imposition of a penalty on large employers not offering health insurance ($2,000 per full- time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).

2014 and Beyond Automatic enrollment for employers with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and self- funded plans, including grandfathered plans). Automatic enrollment for employers with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and self- funded plans, including grandfathered plans).

2014 and Beyond Employers are required to provide a qualifying group health plan that meets the ACA requirements. Employers are required to provide a qualifying group health plan that meets the ACA requirements. Provides minimum essential benefits (for fully insured small group plans, also provides all required “essential health benefits”), Provides minimum essential benefits (for fully insured small group plans, also provides all required “essential health benefits”), Limits cost-sharing for such coverage, and Limits cost-sharing for such coverage, and Provides either a bronze, silver, gold, or platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan). Provides either a bronze, silver, gold, or platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).

2014 and Beyond “Essential health benefits” include (at this point): - - Ambulatory Patient Services - - Emergency Services - - Hospitalization - - Maternity and Newborn Care - - Mental Health and Substance Abuse Services - - Behavioral Health Treatment - - Laboratory Services - - Preventive and Wellness Services - - Chronic Disease Management - - Prescription Drugs - - Pediatric Services, including oral and vision care

2014 and Beyond Requirement for individuals to have health insurance or pay a tax penalty. Requirement for individuals to have health insurance or pay a tax penalty. Individuals without “minimum essential coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income Individuals without “minimum essential coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income

2014 and Beyond The penalty would be phased in accordingly: The penalty would be phased in accordingly: $95 in 2014, or 1.0% of taxable income $95 in 2014, or 1.0% of taxable income $325 in 2015, or 2.0% of taxable income $325 in 2015, or 2.0% of taxable income $695 in 2016, or 2.5% of taxable income $695 in 2016, or 2.5% of taxable income Beginning after 2016, the penalty will be increased annually according to cost-of- living adjustment Beginning after 2016, the penalty will be increased annually according to cost-of- living adjustment

2014 and Beyond Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days. Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days. Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre- existing condition, and they will be prohibited from excluding coverage for a pre-existing condition. Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre- existing condition, and they will be prohibited from excluding coverage for a pre-existing condition.

2014 and Beyond Establishment of health care choice compacts (2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines Establishment of health care choice compacts (2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines

Issues - Viability If enrolling in a health care plan is viewed as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest. If enrolling in a health care plan is viewed as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest. Much of the law’s success depends on having young, healthy people sign up for insurance. Much of the law’s success depends on having young, healthy people sign up for insurance. They have much lower health care expenses. They have much lower health care expenses. Their insurance premiums help offset the higher medical expenses of older, sick people in a health plan. Their insurance premiums help offset the higher medical expenses of older, sick people in a health plan.

Issues - Conflict State Exchanges State Exchanges Few states have proceeded with their implementation activities. Few states have proceeded with their implementation activities. Many states have not taken any action toward the establishment of a state health insurance exchange. Many states have not taken any action toward the establishment of a state health insurance exchange.

Issues - Enforcement IRS Enforcement IRS Enforcement Since the decision labeled the penalty a tax, it will be collected by the IRS. Since the decision labeled the penalty a tax, it will be collected by the IRS. The IRS may have few options for collection because: The IRS may have few options for collection because: Congress restricted the agency’s collection authority, Congress restricted the agency’s collection authority, The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and The IRS can only collect the money by withholding it from tax refunds or Social Security checks. The IRS can only collect the money by withholding it from tax refunds or Social Security checks.

Hot Button Issues For 2013

Supervisor Status Under Title VII Vance v. Ball Statue University Vance v. Ball Statue University U.S. Supreme Court will decide whether someone who directs employees’ work, but lacks other authority, is a supervisor U.S. Supreme Court will decide whether someone who directs employees’ work, but lacks other authority, is a supervisor Implications for harassment cases Implications for harassment cases

Offer of Judgment in FLSA Case Genesis Health Care Corp. v. Symczyk Genesis Health Care Corp. v. Symczyk U.S. Supreme Ct. will decide whether offer of full relief to named plaintiff moots an FLSA collective action U.S. Supreme Ct. will decide whether offer of full relief to named plaintiff moots an FLSA collective action

EEOC’s Strategic Action Plan

EEOC Strategic Action Plan (SAP) Targeted Approach Targeted Approach Integrated Approach Integrated Approach Accountability Accountability

Nationwide Priorities Eliminating Systemic Barriers in Recruitment and Hiring Eliminating Systemic Barriers in Recruitment and Hiring Exclusionary Policies and Practices Exclusionary Policies and Practices Channeling/Steering of Individuals Into Specific Jobs Due to Their Status in a Particular Group Channeling/Steering of Individuals Into Specific Jobs Due to Their Status in a Particular Group Restrictive Application Processes (i.e., pre- employment tests, background screens, date of birth screens and on-line applications). Restrictive Application Processes (i.e., pre- employment tests, background screens, date of birth screens and on-line applications).

Nationwide Priorities Protecting Immigrant, Migrant and Other Vulnerable Workers Protecting Immigrant, Migrant and Other Vulnerable Workers Disparate pay Disparate pay Job Segregation Job Segregation Harassment Harassment

Emerging Issues ADAAA – Proper Application of Defenses such as Undue Hardship, Direct Threat and Business Necessity ADAAA – Proper Application of Defenses such as Undue Hardship, Direct Threat and Business Necessity LGBT (Lesbian, Gay, Bisexual and Transgender Individuals) – Coverage Under Title VII Sex Discrimination Provisions LGBT (Lesbian, Gay, Bisexual and Transgender Individuals) – Coverage Under Title VII Sex Discrimination Provisions Accommodating Pregnancy – Woman Who Are Forced Into Unpaid Leave After Being Denied Accommodations Routinely Provided to Similarly Situated Employees Accommodating Pregnancy – Woman Who Are Forced Into Unpaid Leave After Being Denied Accommodations Routinely Provided to Similarly Situated Employees

Preserving Access To The Legal System Overly Broad Waivers Overly Broad Waivers Settlement Provisions That Prohibit Filing Charges with EEOC Settlement Provisions That Prohibit Filing Charges with EEOC Failure To Retain Records Required By EEOC Regulations Failure To Retain Records Required By EEOC Regulations Retaliation Retaliation

Nationwide Priorities Combating Harassment Combating Harassment Reevaluation of Strategies to Prevent Harassment such as Education/Outreach Reevaluation of Strategies to Prevent Harassment such as Education/Outreach

EEO Action Plan Review hiring/recruitment policies concerning requirements such as high school diplomas, criminal background checks, credit histories, applicant testing. Review hiring/recruitment policies concerning requirements such as high school diplomas, criminal background checks, credit histories, applicant testing. Review EEO statements (is it broad enough?) Review EEO statements (is it broad enough?) Training and practices concerning ADA accommodation, pregnancy accommodation, leave practices in conjunction with FMLA. Training and practices concerning ADA accommodation, pregnancy accommodation, leave practices in conjunction with FMLA. Review training methods and policies concerning discrimination and harassment in the workplace. Review training methods and policies concerning discrimination and harassment in the workplace. Revisit whether you are currently complying with OFCCP/affirmative action requirements and have current written affirmative action plans. Revisit whether you are currently complying with OFCCP/affirmative action requirements and have current written affirmative action plans.

Motivation and Support

Let’s Start With You Save Lives Save Lives Save Families Save Families Save Finances Save Finances Build Hope Build Hope

First – Help Yourself Recalibrate Recalibrate Start Day Off Right Start Day Off Right Health = Happiness Health = Happiness Love/Respect For Family/Friends Love/Respect For Family/Friends Be A Friend To Yourself Be A Friend To Yourself

First – Help Yourself Set Positive Goals Set Positive Goals Have Something To Look Forward To Have Something To Look Forward To Hide Sometimes Hide Sometimes Let Work Glorify God Let Work Glorify God

Final Thoughts  It Starts At Home

Questions