During this presentation to the Mining Association of South Carolina, Matthew Korn provided an employment and labor law update for the mining industry, including recent initiatives from the Equal Employment Opportunity Commission and National Labor Relations Board.

1. Labor Law Update
for the Mining Industry
Mining Association of South Carolina
Mining Workshop – Building Partnerships for the Future
April 16, 2013
Presented by:
Matthew Korn
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
www.laborlawyers.com
Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston
Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans
Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC

2. The Highlights
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New areas of emphasis for the EEOC
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NLRB’s new agenda
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What employers can do
www.laborlawyers.com

3. New Emphasis Areas for the EEOC
www.laborlawyers.com

4. 2013 Strategic Enforcement Plan
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Eliminate systemic barriers in recruitment and
hiring
Protect immigrant, migrant, and other
vulnerable workers
Coverage of gay, lesbian, bisexual and
transgender
Pregnancy discrimination, harassment, and
retaliation
Age discrimination
Disability discrimination
www.laborlawyers.com

5. EEOC Litigation
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122 lawsuits filed in FY 2012
20% of charges and 8% of lawsuits were
systemic
EEOC obtained record-high $365 million
$36 million obtained from systemic
investigations (4 times that obtained
in 2011)
www.laborlawyers.com

6. Systemic Investigations
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EEOC pursued 580 systemic investigations in
FY 2012
Can begin as a single charge
Requires significant resources to reply
Can result in a large monetary settlement and
changes in policies
www.laborlawyers.com

7. Systemic Investigations
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Targeted areas for systemic investigations:
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Fitness for duty/medical examination policies
Leave/termination policies
Proficiency rules
Employment tests
Criminal background/credit checks
www.laborlawyers.com

8. Arrest and Conviction Records
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EEOC investigative strategy targeting prehire selection criteria impacting minorities
Criminal background checks under particular
scrutiny
– Disproportionate impact on African-Americans
and Hispanics due to higher conviction rates
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Pepsi reached a $3 million settlement with
the EEOC for using criminal background
checks to screen applicants
www.laborlawyers.com

9. New Guidance
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Must make an individualized assessment
Consider many factors:
– Nature and gravity of offense
– Time passed since conviction/sentence
completion
– Age at time of offense; age now
– Rehabilitation efforts
– Facts surrounding the offense
– Number of convictions and offenses
www.laborlawyers.com

10. New Guidance
– Has person performed same type of work, postconviction, with no criminal conduct
– Employment history before and after the offense
– Additional training/education
– Character references
– Relevance of conviction to job duties
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Need background check policy and procedure
that allows individualized assessment
www.laborlawyers.com

11. The NLRB’s New Agenda
www.laborlawyers.com

12. Meet The New NLRB
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Adjudicative decisions, guidance memos and
rule-making drive the NLRB’s agenda
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Facilitating organizing and expedite elections
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Reversing decades of precedent
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Increased focus on non-union employers
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Reinventing itself on heels of union decline
www.laborlawyers.com

13. Reshaping the Landscape
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Proposed Election Rule
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Notice Posting Requirement
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Speciality Healthcare – Micro-Units
www.laborlawyers.com

14. Practical Impact
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Easier for unions to obtain certification
Less time to identify issues/train supervisors
Employees basing futures on one side of
story
Room for peer pressure/intimidation
Process to allow unions to “cherry pick” units
All of this will fuel organizing activity
www.laborlawyers.com

15. Focus on Non-Union Workplaces
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Confidentiality
– wages/discipline/investigations
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Class Action Waivers
Dress Codes
Access Rules
Social Media Restrictions
At-will Disclaimers
www.laborlawyers.com

16. Policy Language to Avoid
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Restricting wage/discipline discussions
Outright prohibition on use of company
name/logo
Mandatory advance “approval” language
Prohibiting general discussions with media
Using generic terms like “unprofessional,”
“inappropriate,” or “harassing” behavior
Requiring concerns to first be raised with
management
www.laborlawyers.com

17. What Can Employers Do
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Focus on prevention of
issues
Pay your employees
correctly
Conduct annual
supervisory training
Be wary of all agency
investigator inquiries
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Document policies and
discipline
Stay alert to new legal
developments
Monitor “hot spots” for
enforcement activity
Update your employee
handbook
Make a “Top Ten” list
of proactive actions
www.laborlawyers.com

18. Final Questions
Presented by:
Matthew Korn
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
www.laborlawyers.com
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