1. 11/18/2013
VICTOR CARDWELL & TOM WINN
W W W. W O O D S R O G E R S . C O M
LEGAL UPDATE
“But For” Retaliation
Standard
University of Texas Southwestern Medical
Center v. Nassar, 133 S.Ct. 2517 (2013)
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2. 11/18/2013
Supervisor Must Be
Empowered to Take Tangible
Employment Actions
Vance v. Ball State Univ., 133 S.Ct. 2434
(2013)
Enforceability of Non-Compete
Agreement Must Be Decided By
Arbitrator, Not Court
Nitro‐Lift Technologies, L.L.C. v.
Howard, 133 S.Ct. 500 (2012)
Private Contractor
Whistleblower Protections
Lawson v. FMR, LLC, No. 12‐3,
cert. granted, 133 S.Ct. 2387
(2013)
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3. 11/18/2013
Labor Management Relations
Act – Neutrality Agreement
Unite Here Local 355 v. Mulhall,
No. 12‐99, cert. granted, 133 S.Ct.
2849 (2013)
“Donning and Doffing”
Sandifer v. U. S. Steel Corp., cert.
granted 133 S.Ct. 1240 (2013)
Recess Board Appointments
NLRB v. Noel Canning, No. 12‐
1281, cert. granted, 133 S.Ct. 2861
(2013)
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4. 11/18/2013
Sleepless Lawyer May Not
Recover
Anderson v. Discovery
Communications, LLC, 2013 WL
1364345 (4th Cir. April 5, 2013)
NLRB’s Workers’ Rights Notice
Invalid
Chamber of Commerce v. NLRB,
2013 WL 2678592 (4th Cir. June 14,
2013)
Individual Liability for
Wrongful Discharge Tort
Claims Under Virginia Law
VanBuren v. Grubb, 284 Va. 584,
733 S.E.2d 919 (Va. S.Ct. 2012)
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5. 11/18/2013
NLRB, DOL, AND EEOC
Agency Update
DOL
Developments
U.S. v. Windsor
• Edith Windsor and Thea Spyer
• Same‐sex couple married in Ontario, residing
in NY
• Spyer died in 2009, leaving entire estate to
Windsor.
• Windsor sought federal estate tax exemption
for surviving spouses
• IRS denied exemption due to DOMA and
compelled her to pay $363,053 in estate taxes
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6. 11/18/2013
U.S. v. Windsor
• Windsor filed suit against U.S. in S.D.N.Y. –
claimed DOMA unconstitutional
• District Court and 2nd Circuit agreed with
Windsor
U.S. v. Windsor
U.S. S.Ct.
• Section 3 of DOMA unconstitutional under 5th
Amendment by restricting federal
interpretation of "marriage" and "spouse" to
apply only to heterosexual unions
• Requires federal gov’t to recognize same sex
marriages if lawful under state law
Where Are Same-Sex
Marriages Lawful?
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D.C.
Cal.
Conn.
Del.
Iowa
Mass.
N.H.
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Maine
Md.
Minn.
N.Y.
R.I.
Vt.
Wash.
N.J. (Oct. 21, 2013)
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7. 11/18/2013
U.S. v. Windsor
U.S. S.Ct.
• Impact on ERISA‐covered benefit plans?
• Impact on FMLA?
DOL Technical Release No. 2013-04
September 18th, 2013
“Guidance to Employee Benefit Plans on the Definition
of ‘Spouse’ and ‘Marriage’ under ERISA and the
Supreme Court's Decision in U.S. v. Windsor”
“[S]pouse" and "marriage" … in … ERISA and in related
department regulations should be read to include
same‐sex couples legally married in any state…,
regardless of where they currently live."
DOL Technical Release No. 2013-04
September 18th, 2013
“In general, . . . the term ‘spouse’ will be read to refer
to any individuals who are lawfully married under any
state law, including individuals married to a person of
the same sex who were legally married in a state that
recognizes such marriages, but who are domiciled in a
state that does not recognize such marriages. Similarly,
the term ‘marriage’ will be read to include a same‐sex
marriage that is legally recognized as a marriage under
any state law.”
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8. 11/18/2013
DOL Technical Release No. 2013-04
September 18th, 2013
“[T]he term ‘state’ means any state of the U.S.,
the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, Guam, Wake Island,
the Northern Mariana Islands, any other
territory or possession of the United States, and
any foreign jurisdiction having the legal
authority to sanction marriages.”
DOL Technical Release No. 2013-04
September 18th, 2013
“The terms ‘spouse’ and ‘marriage’ . . . do not include individuals
in a formal relationship recognized by a state that is not
denominated a marriage under state law, such as a domestic
partnership or a civil union, regardless of whether the individuals
who are in these relationships have the same rights and
responsibilities as those individuals who are married under state
law. The foregoing sentence applies to individuals who are in
these relationships with an individual of the opposite sex or
same sex.”
DOL Technical Release No. 2013-04
September 18th, 2013
“A rule that recognizes marriages that are valid
in the state in which they were celebrated,
regardless of the married couple's state of
domicile, provides a uniform rule of recognition
that can be applied with certainty by
stakeholders, including employers, plan
administrators, participants, and beneficiaries.”
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9. 11/18/2013
DOL Technical Release No. 2013-04
September 18th, 2013
“A rule for employee benefit plans based on state of
domicile would raise significant challenges for
employers that operate or have employees (or former
employees) in more than one state or whose
employees move to another state while entitled to
benefits.”
Windsor/DOMA/DOL Guidance &
FMLA
• What about the FMLA?
State of domicile or celebration?
• DOL’s guidance speaks to ERISA and benefit
plans.
• Does not speak to FMLA leave to care for
“spouses”
Windsor/DOMA
FMLA Regs (29 C.F.R. 825-122)
“Spouse means a husband or wife as
defined or recognized under state law for
purposes of marriage in the state where
the employee resides, including common
law marriage in states where it is
recognized.”
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10. 11/18/2013
Pre-Windsor FMLA Leave
for Same-Sex Spouses
• Prior to Windsor, FMLA also controlled by
DOMA.
• Therefore, even in states that recognized
same‐sex marriage, employers could deny
employees FMLA leave to care for their same‐
sex spouse
Fact Sheet #28F: Qualifying Reasons
for Leave Under FMLA
Updated Guidance – August 9th, 2013
• Clarifies that employee who resides in state that
allows same‐sex marriage is entitled to take FMLA
leave to care for same‐sex spouse
• Note ‐ law of state of residence applies, not the law
of the state where the employee works or where
marriage celebrated. (29 C.F.R. § 825.102).
• This could mean that employer could have
employees in same company location where one
employee could be eligible for FMLA and the other
not eligible based on state of residence.
• And, separate issue as to ERISA benefits eligibility
Windsor Leads to Green Card
October 10th, 2013
In response to Windsor, visa
petitions filed on behalf of
same‐sex spouses reviewed in
same manner as those filed on
behalf of opposite sex spouses
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Virginia woman and British woman
Couple for 16 years
Lived together in England for 10 years
Married in April in Maryland
Lawful permanent resident status
approved by U.S. Citizenship and
Immigration Services on October 10th
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11. 11/18/2013
Direct Care Workers
(New Directive 9/17/13)
• Minimum wage, overtime extended to direct
care workers
• workers who provide essential home care
assistance to elderly people and people with
illnesses, injuries or disabilities
• nearly two million workers — i.e., home
health and personal care aides, CNAs
Misclassified Workers
are entitled to overtime pay at
1.5x their regular rate
What can you do?
• Consider the FWW (Fluctuating workweek”)
(When the exempt status is unclear)
• All Job Descriptions should acknowledge the
job’s
flexible scheduling
extended business hours to meet special needs
salary covers all hours worked
the regular rate of pay will vary from week to week
Misclassification of Workers
• Misclassification Initiative
o IRS and DOL are teaming up on misclassification
issue.
o Kicked off in 2011
o Focus on interns/independent contractors and
employees.
• Focus for Virginia (2012‐present)
o Construction Industry
o Overtime / use of Independent contractors
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12. 11/18/2013
20 Factor Test
IRS has 20 Factor Test for Independent
Contractor (a few highlights):
• Does company provide instructions on how to
do the work, when it should be performed and
where it should be performed?
• Training provided by Company?
• Clerical/admin support provided by Company?
• Exclusive arrangement?
• Tools and equipment provided by Company?
6 Factor Test
for “Interns”
• Is the internship similar to training which would
be given in an educ. environment?
• Is internship for benefit of Intern?
• Does intern displace regular employees?
• Employer derives no immediate advantage from
the intern activities and on occasion operations
may be impeded.
• Intern is not necessarily entitle to a job at end.
• Employer and intern understand that no wages
are to be paid for internship.
EEOC
Developments
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13. 11/18/2013
New Criminal Background Check
Guidance
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Nature of crime
Date of offense
Duties of position
Case‐by‐case
NC and VA Statutes on Expungement
Title VII Protection?
• Sexual orientation, transsexualism,
gender identity not expressly
prohibited.
• Same sex harassment
Laws & Administrative Policies to Protect
Gay/Transgender Employees
• At least 32 states, including D.C.,
have implemented protections.
• To date, not VA
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14. 11/18/2013
Employment Non-Discrimination Act
(ENDA)
• Transgender‐inclusive versions of ENDA
introduced in U.S. Congress for many years
• Proposed legislation prohibits private
employers with more than 15 employees from
discriminating on the basis of sexual
orientation or gender identity
EEOC Decision
Macy v Holder
Employer who discriminates against
transgender employee or applicant on
basis of gender identity, change of sex,
and/or transgender status violates Title
VII’s gender discrimination prohibition.
Lessons from Macy
• Be aware of expanding definition of “sex
discrimination” in workplace
• Be mindful of new legal protections (both
state and federal) afforded to transgender
employees and applicants
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15. 11/18/2013
Genetic Information
Nondiscrimination Act of 2008
“GINA”
• Applies to all employers with at least 15
employees
• Became effective November 21, 2009
• EEOC responsible for enforcement
EEOC Settles 1st-Ever Genetic
Bias Lawsuit
• EEOC on 5/17/13 filed and settled its first
complaint alleging genetic discrimination
• Suit accused Fabricut Inc. of unlawfully asking
job applicant for family medical history in
post‐job offer medical examination
Religious Discrimination &
Harassment
• Title VII prohibits religious discrimination and
harassment
• Employers required to “reasonably
accommodate” religious practices of
employees if no “undue hardship” to
employer
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