This program will cover the hottest topics in labor and employment law for 2015, including EEOC’s strategic initiatives, recent wage and hour developments, the NLRB’s encroachment into the non-union workplace, policy issues to consider in the year ahead, continuing questions about social media challenges, and more. This program will be a fast-paced look at these and various other trends that will impact employers this year and beyond, and will be aimed at enabling participants to get ahead of the curve to identify potential risks within their organizations. • Goals for this webinar - Agenda • Agency Update • EEOC Strategic Initiatives • Medical Issues in the Workplace • Wage and Hour Developments • The NLRB in Your Workplace • Social Media Challenges • Unemployment • Reminders and Next Steps

1. 2015
Labor
&
Employment
Law
Update
April
23,
2015
Presented
by:
Alexis
C.
Knapp
SPHR,
MS-­‐HRM,
JD
Shareholder,
Li4ler
Mendelson

2. Plans
for
Today
• Goals
for
this
webinar
• Agenda
• Agency
Update
• EEOC
Strategic
IniFaFves
• Medical
Issues
in
the
Workplace
• Wage
and
Hour
Developments
• The
NLRB
in
Your
Workplace
• Social
Media
Challenges
• Unemployment
• Reminders
and
Next
Steps

3. Agency
Update
Same
Song,
Different
Verse?
• EEOC,
DOL
and
other
federal
agencies
have
bigger
budgets
and
more
invesFgators
than
ever
before
• Their
tacFcs
are
more
aggressive
• InformaFonal
campaigns
to
employees
• LoQy
enforcement
agendas

4. EEOC
FY
2014
Charge
AllegaJons
Basis
of
Charge
Filing
FY
2006
FY
2008
FY
2014
RETALIATION
22,555
32,690
37,955
RACE
27,238
33,937
31,073
SEX/GENDER
23,247
28,372
26,027
AGE
16,548
24,582
20,588
DISABILITY
15,575
19,453
25,369
NATIONAL
ORIGIN
8,327
10,601
9,579
RELIGION
2,541
3,273
3,549
TOTAL
CHARGES
75,768
95,402
88,778

5. EEOC
Strategic
IniJaJves
&
Noteworthy
LiJgaJon

6. EEOC
Strategic
Enforcement
Agenda
(2013-­‐2016)
• Pregnancy
AccommodaJon
Guidance
• Health
and
Wellness
Programs
• Background
Checks
• ProtecJons
for
Transgender
Employees
• Severance
Agreements

7. EEOC
Enforcement
Guidance
on
Pregnancy
DiscriminaJon
and
Related
Issues
(7/14/14)
• http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
• The “Rules”
• The PDA requires accommodations for pregnant women,
regardless of the severity of their pregnancy-related work
limitations, if the types of accommodations are provided to
other employees with similar abilities or inabilities to work.
• The ADA requires accommodation of pregnancy-related
disabilities, regardless of their relationship to a healthy and
routine pregnancy.
• Employers may not differentiate between those employees
who are injured on the job, and those who are pregnant, in
providing accommodations such as light duty.

8. Young
v.
UPS
The
United
States
Supreme
Court
Speaks
• What we wanted versus what we got
• Why the facts of Young complicate the answer
• What the Court said about the EEOC’s Guidance
• Commingling disparate treatment (intent) and
disparate impact (effects)?
• Mooted by the ADAAA?
• What does “light duty” mean to your organization?
• Where do we go from here?
• And do not forget the EEOC’s current enforcement
position—it will be the subject of litigation.

9. EEOC
TargeJng
Wellness
Programs
Under
ADA
and
GINA
• ADA
prohibits
“medical
exams
and
disability-­‐related
inquiries”
of
employees
as
part
of
health
plan
unless
parFcipaFon
is
voluntary.
• GINA
restricts
employers
from
requiring
geneFc
informaFon
and
prohibits
employers
from
using
geneFc
informaFon
to
make
employment
decisions.
• EEOC
has
sued
three
employers
over
their
wellness
programs
since
August
2014.
• But
what
about
the
ACA
and
HIPAA,
which
allow
(and
encourage)
such
incenFves?

10. EEOC
Issues
Proposed
RegulaJons
on
Wellness
Programs
and
the
ADA
• Thursday,
April
16,
2015—EEOC
issues
its
proposed
rule
(60
day
noFce
and
comment
period)
• To
shed
light
on
how
employers
can
use
incenFves
to
encourage
employees
to
parFcipate
in
wellness
programs
without
violaFng
the
ADA
• Proposing
a
hard
numerical
cap
• Employers
cannot
use
informaFon
obtained
to
discriminate
based
on
disability

11. Criminal
Background
Checks
• SubstanJve
• Disparate
impact
• Aggressive
enforcement
by
the
EEOC
• Individualized
analysis
• Relevant
factors
• No
blanket
policies
• Other
state
law
issues
• Procedural
• Fair
Credit
ReporFng
Act
(FCRA)
• FTC
enforcement
• IniFal
disclosure/authorizaFon,
pre-­‐adverse,
adverse
noFces
• Class
acFon
liFgaFon—frequent
mulF-­‐million
dollar
lawsuits
filed
against
employers

12. “Ban
the
Box”
LegislaJon
• Prohibits
consideraFon
of
criminal
convicFon
as
iniFal
screening
tool
on
applicaFon
• Rules
vary
widely,
depending
on
jurisdicFon
–
expanding
trend
• Public
v.
private
employers
• ...And
there
are
not
as
many
excepFons
as
you
would
think

13. EEOC
Focus
on
Transgender
Employees
• The
EEOC
filed
two
lawsuits
alleging
that
transgender
employees
had
been
fired
in
violaFon
of
Title
VII
• First
suits
in
history
challenging
transgender
discriminaFon
under
Title
VII
• Consistent
with
EEOC’s
posiFon
that
gender
idenFty
is
included
in
the
definiFon
of
sex
under
the
law
• Lawsuits
allege
that
employees
were
fired
for
failing
to
conform
with
employer’s
expected
gender
norms

14. EEOC
Challenges
Release
Agreements
• This
is
not
enFrely
new
–
the
EEOC
has
been
filing
lawsuits
challenging
provisions
of
release
agreements
for
almost
30
years
• But
the
new
a4acks
are
against
language
the
EEOC
had
previously
approved
• The
NLRB
is
joining
in
on
the
fun

15. Clauses
Under
Aaack
• CooperaFon
clauses
• Non-­‐disparagement
clauses
• Non-­‐disclosure
of
confidenFal
informaFon
• General
release
applying
to
claims
of
discriminaFon
of
any
kind
• Promise
not
to
file
a
claim/sue
• Lengthy,
single-­‐spaced
documents
• Remedies
including
a4orneys’
fees

16. Other
Basic
Reminders
RE:
Release
Agreements
• One
size
does
NOT
fit
all
• Reasons
• Age
of
employee
• Number
of
affected
employees
• Midstream
and
final
releases
• Basic
consideraFon
reminders
• Do
not
make
promises
or
commitments
about
unemployment,
and
do
not
reference
UIB
in
your
releases
• State
law
consideraFons
• Reread
your
templates
before
you
use
them—every
Fme

17. ConJnuous
AaenJon
on
Medical
Issues
In
The
Workplace

18. Who
is
a
“Spouse”
Under
the
FMLA?
• United
States
v.
Windsor:
USSC
held
that
the
provision
of
DOMA
denying
federal
benefits
to
same
sex
spouses
was
unconsJtuJonal
• Relevance?
Leave
to
care
for
a
spouse
with
a
serious
health
condiJon
• The
FMLA’s
historical
definiJon
of
“spouse”
• “Spouse
meant
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.”
29
C.F.R.
§825.122
• The
FMLA’s
2013-­‐2015
definiJon
of
spouse
post-­‐Windsor:
if
the
employee
resides
in
a
state
that
recognizes
same-­‐sex
marriage,
that
person
is
a
“spouse”
for
FMLA
purposes
(“place
of
residence”
rule)

19. Spouses
Under
the
FMLA
(cont’d)
• The
FMLA’s
new
and
current
definiJon
of
“spouse”
as
of
February
25,2015:
if
the
employee
was
married
in
a
jurisdicJon
that
recognizes
same-­‐sex
marriage,
regardless
of
where
they
reside,
that
person
is
a
“spouse”
for
FMLA
purposes
(“place
of
celebraJon”
rule)
• BUT
WAIT-­‐-­‐on
March
26,
2015,
a
federal
court
in
Texas
granted
an
applicaJon
for
preliminary
injuncJon
against
the
DOL’s
new
Rule—filed
by
the
states
of
Texas,
Louisiana,
Arkansas
and
Nebraska
• Argument:
the
Rule
conflicts
with
our
state
laws
regarding
marriage
• Court
said:
“…the
Department
of
Labor
must
stay
the
applicaJon
of
the
Final
Rule,
pending
a
full
determinaJon
of
this
maaer
on
the
merits”
• How
the
DOL
is
reading
the
request
• Hearing
requested
for
April
2015
• What
to
do
while
we
wait
for
an
answer?
• Regardless
of
the
outcome—it’s
not
just
as
simple
as
agreeing
to
call
it
all
FMLA
• The
risk
of
counJng
it
as
FMLA
• The
DOL’s
response
to
the
“How
will
we
know?”
quesJon

20. Leave
as
an
AccommodaJon
• Leave
under
the
ADA
when
FMLA
does
not
apply
• What
we
have
learned:
there
is
no
set
period
of
Fme
that
will
always
be
“enough”
• Document
your
communicaFon
efforts
• Don’t
be
afraid
to
ask
(properly)
• The
standard
for
undue
hardship
• What
are
your
replacement
plans?
• The
EEOC
is
being
aggressive
on
this
issue

21. The
FMLA
and
ADA
More
Enforcement
and
LiCgaCon
Trends
• Overbroad
requests
for
medical
informaFon
• “Full
release”
requirements
• “We
never
allow
______”
policies
(light
duty,
telecommuJng,
modified
schedules,
and
more)
• Lessons
from
recent
cases
• For
employers,
the
technicaliFes
ma4er
• For
employees,
they
ma4er
far
less
• Inflexible
policies
are
fatal
for
employers
• Engaging
in
the
process
is
much
of
the
ba4le—even
if
the
answer
is
“no”

22. And
What
About
Mandatory
Paid
Sick
Leave?
• Be
aware
of
every
jurisdicFon
in
which
you
have
employees
• There
is
no
such
thing
as
a
“one
size
fits
all”
policy
• But
do
not
throw
in
the
towel
just
yet—
you
may
offer
a
sufficient
benefit
(if
your
policy
explains
it
correctly)
• Federal
changes
coming?

23. Developments
and
AcJvity
in
Wage
and
Hour
Law

24. Changing
The
Rules
A
DirecCve
from
the
White
House
President
Obama,
declaring
that
“Americans
have
spent
too
long
working
more
and
gerng
less
in
return,”
ordered
the
Labor
Department
in
March
2014
to
revise
federal
rules
on
overFme
pay
to
make
millions
more
workers
eligible
for
extra
pay
when
they
work
more
than
40
hours
a
week.

25. AnJcipated
Rule
Changes
• Minimum
Salary
Level
• Highly
Compensated
Test
• DuJes
Tests
for
ExempJons
• Computer
Professional
ExempJon

26. Next
Steps
In
DOL
Process
• NoJce
of
proposed
rule
making
(was
anJcipated
for
February
2015—nothing
yet)
• Comment
Period
(30-­‐90
days)
• DOL
review
and
response
to
comments
• DOL
publishes
final
regulaJons

27. More
Wage
and
Hour
Updates
• Areas
of
Increased
Enforcement
and
LiFgaFon
• Misuse
of
the
independent
contractor
classificaFon
• Overuse
of
the
AdministraFve
ExempFon
• Not
appropriately
counFng
“work
Fme”
(work-­‐related
acFviFes)
• Failure
to
include
bonuses
in
the
regular
rate
for
overFme
purposes
• “CreaFve”
pay
models
• Reminders
• Time
worked
is
sacred—PAY
IT
(federal
and
state
law
issue)
• 25+
states
require
more
than
the
FLSA
• Do
not
rely
on
your
compeFtors’
pracFces

28. Why
We
Pay
So
Much
AaenJon
to
Wage
and
Hour
• Remember:
most
aggressive
DOL
in
history
• Can
be
easy
money
for
the
plainFff’s
bar
• The
damages
are
staggering
• Intent
does
not
ma4er
• Two
or
three
year
look-­‐back
• Every
person
in
the
posiFon?
• Liquidated
damages
(i.e.,
double)
• A4orney’s
fees
• Civil/criminal
and
employer/individual
• Average
FLSA/state
law
wage
se4lements
average
$4.8
M,
discriminaFon
lawsuits
=
$600k

29. THE
NATIONAL
LABOR
RELATIONS
BOARD
(NLRB)
Union
Law
in
the
Union
(and
Even
Non-­‐Union)
Workplace

30. The
NaJonal
Labor
RelaJons
Act
(1935)
• What
was
going
on
in
U.S.
history
• The
Great
Depression
• Industrial
RevoluFon
• Strikes
and
labor
unrest
(oQen
resulFng
in
violence)
• Substandard
working
condiFons
• The
basic
premise
of
the
NLRA
was
to
permit
employees
to
organize
and
try
to
secure
be4er
working
condiFons
for
themselves
• Established
the
framework
for
unionizaFon,
bargaining,
and
the
concept
of
“unfair
labor
pracFces”
by
both
unions
and
management
alike
• Note:
the
NLRA
deems
that
there
are
only
two
types
of
people
in
the
world
—”employees”
and
“supervisors”

31. SecJon
7
of
the
NLRA
Employees
shall
have
the
right
to
self-­‐organizaJon,
to
form,
join,
or
assist
labor
organizaJons,
to
bargain
collecJvely
through
representaJves
of
their
own
choosing,
and
…to
engage
in
other
concerted
acCviCes
for
the
purpose
of
collecCve
bargaining
or
other
mutual
aid
or
protecCon,
and
shall
also
have
the
right
to
refrain
from
any
or
all
of
such
acJviJes.

32. What
is
“Protected
AcJvity”
Under
the
NLRA?
• Employees
have
a
statutory
right
to:
• Discuss
wage
rates,
bonuses,
and
benefits
with
one
another
• Openly
discuss
thoughts
on
discipline
• Complain
about
unsafe
working
condiFons/refuse
to
work
in
unsafe
condiFons
• Complain
about
mismanagement
by
a
supervisor
or
manager
• Complain
about
a
policy
or
pracFce
or
decision
they
do
not
like
• CriFcize
management’s
acFons
• Enlist
outside
support
− What
does
this
do
to
good,
old-­‐fashioned
insubordinaFon?

33. Employer
Handbooks/Policies
Under
Aaack
for
“Chilling”
SecJon
7
AcJvity
• Social
media
• ConfidenJality
(including
pay
secrecy)
• Employee
(mis)conduct
• Contact
with
outsiders
• At-­‐will
employment
disclaimers
that
cannot
be
modified
• Complaint/dispute
resoluJon
policies
• Loitering/visitors/solicitaJon/bulleJn
boards
• ConfidenJality
of
invesJgaJons?
• Purple
CommunicaCons—whose
e-­‐mail
system
is
it
anyway?

34. New
“Quickie”
ElecJon
Rules
• New
rules
took
effect
April
14,
2015
• TradiFonal
labor
a4orneys
saying
this
is
the
most
significant
development
in
decades
• Highest
risk
=
NON-­‐UNION
WORKPLACES
• DramaFcally
speeds
up
the
Fme
for
an
elecFon
to
take
place
(within
a
couple
of
weeks!!)
• Speeds
up
your
required
response
Fme
• Requires
that
you
provide
the
Union
with
more
detailed
contact
informaFon
on
your
employees
• Congress
working
to
block,
but
for
now
these
rules
are
in
effect

35. The
Related
Challenge
of
Social
Media
and
the
Workplace

36. Did
Facebook
Single-­‐Handedly
Make
SecJon
7
Famous
Again?
§ Cases
filed
for
employees
terminated
for
Facebook
and
related
social
media
acJvity
§ Policies
are
important—but
one
size
does
not
fit
all—must
be
customized
§ Focusing
on
prevenJon
before
discipline
§ Dealing
with
it
when
it
finds
its
way
into
the
workplace
§ Password
protecJon
laws
§ Hundreds
of
cases
filed

37. To
Look
or
Not
to
Look
Employee
Posts
on
Social
Media
• What
you
can
review
• Social
media
content
on
publicly
available
sites
and
pages
is
fair
game
• Social
media
content
volunteered
by
co-­‐workers
is
fair
game
• BUT
you
may
not
gain
access
to
a
restricted
or
private
page,
either
directly
or
indirectly

38. Should
Managers
and
Employees
Be
“Friends?”
• Too
much
informaFon
of
all
kinds—
potenFally
protected
informaFon
(religion,
disability,
etc.)
• The
problem
of
the
“uncomfortable”
subordinate
• PotenFal
retaliaFon
issues

39. LinkedIn
and
Similar
RecommendaJons
• As
a
supervisor/manager,
you
should
not
be
giving
LinkedIn
or
other
professional
recommendaFons
regarding
the
performance
of
someone
you
used
to
supervise
or
who
was
in
your
direct
or
indirect
chain
of
command
• All
such
references
need
to
either
come
from
HR,
or
be
approved
through
them

40. Do
Not
Forget:
the
Rules
on
Responding
to
Unemployment
Claims
Have
Changed
• The
Federal
Unemployment
Insurance
Integrity
Act
(2011)
and
amendments
to
state
law
(2013)
• State
laws
require
employers/agents
to
Fmely
and
adequately
respond
to
UI
claims
you
intend
to
appeal
or
dispute
• A
pa4ern
of
failure
to
do
so
will
result
in
the
employer’s
account
being
charged
benefits
(regardless
of
former-­‐employee’s
eligibility)
• Civil
and
criminal
penalFes
may
apply

41. Miscellaneous
Reminders
• Privilege
issues—emails
are
forever
• “ConfidenFal”—what
it
is,
and
what
it
is
not
• Frivolous
charges
and
lawsuits
must
sFll
be
answered

42. Where
To
Go
From
Here
• It
is
Fme
to
really
look
at
your
handbook
and
related
policies
• Pause
before
discipline
or
terminaFons
based
on
conduct
(including
social
media
acFvity)
• Take
a
look
at
how
your
employees
are
classified
and
paid
• Train
and
sensiFze
managers
and
supervisors
to
listen
for
FMLA/ADA
cues
• Stay
plugged
in—much
is
on
the
way
(FLSA
regs,
background
check
issues,
new
categories
of
lawsuits,
NLRB
acFvity,
and
more)

43. HRCI
CerJficaJon
Credits:
"This
webinar
has
been
pre-­‐cerFfied
for
1
hour
of
general
recerFficaFon
credit
toward
PHR,
SPHR
and
GPHR
recerFficaFon
through
the
HR
CerFficaFon
InsFtute.
We
will
send
out
a
confirmaJon
e-­‐mail
with
the
Program
ID
code
to
note
on
your
HRCI
recerJficaJon
applicaJon
form
to
everyone
who
is
confirmed
as
aaended
and
watched
the
live
version
of
this
webinar.
The
use
of
this
seal
is
not
an
endorsement
by
the
HR
CerFficaFon
InsFtute
of
the
quality
of
the
program.
It
means
that
this
program
has
met
the
HR
CerFficaFon
InsFtute's
criteria
to
be
pre-­‐
approved
for
recerFficaFon
credit."
QUESTIONS?
G&A
Partners
info@gnapartners.com
(800)
253-­‐8562
*This webinar has been recorded and will be posted on the G&A website by Friday