This document provides a summary of a webinar on labor and employment law updates. The webinar covered several topics: increased enforcement by federal agencies; responding effectively to EEOC charges; issues around criminal background checks, wage regulations, and NLRB actions regarding non-union workplaces; challenges around leave, accommodations, social media policies, and unemployment benefits; and recommendations for reviewing handbooks and employment practices in light of changing laws. The presentation provided examples to illustrate legal issues and encouraged employers to audit policies and processes.

1. Labor and Employment
Law Update
The Good, the Bad, and the Ugly
Presented by:
Alexis C. Knapp, JD, SPHR
Littler Mendelson, PC

2. Plans for Today
• Goals for this webinar
• Agenda
– Agency update
– Background checks
– Wage and hour overhaul/hot
topics
– Union law run amok—the NLRB in
your workplace
– Social media issues
– Leave and accommodation
challenges
– Separation update: developments
in unemployment benefits and
separation agreement
• Disclaimers

3. Agency Update—General
• EEOC, DOL and other federal
agencies have bigger budgets
and more investigators than
ever before
• Their tactics are more
aggressive
• Informational campaigns to
employees
• Lofty enforcement agendas

4. 2013 Charge Allegations
Basis
of
Charge
Filing
FY
2006
FY
2008
FY
2013
RETALIATION
22,555
32,690
38,539
RACE
27,238
33,937
33,068
SEX/GENDER
23,247
28,372
27,687
AGE
16,548
24,582
21,396
DISABILITY
15,575
19,453
25,957
NATIONAL
ORIGIN
8,327
10,601
10,642
RELIGION
2,541
3,273
3,721
TOTAL
CHARGES
75,768
95,402
93,727

5. Responding to EEOC
Charges
• Miller v. Raytheon (5th Cir. 2013)
– Errors in an employer’s statement of position
considered circumstantial evidence of discrimination—
jury verdict for employee affirmed
– Implications?
• Strategic Recommendations RE: Statements of
Position
– GET MORE TIME IF YOU NEED IT
– Tell a story that makes sense
– Do not over-state
– Ensure you have documents and/or witnesses to prove
up anything in the SOP
– Know that if you identify things that you do not provide
now, they will ask for them later
– Remember your audience
– Remember it’s discoverable (and maybe admissible?)

6. Poll Question
• Does your company currently
conduct background checks?

7. Criminal Background Checks
• Substantive
– “Ban the box” legislation (30+ states)
– Other state law issues
– Disparate impact
• Aggressive enforcement by the EEOC
• Individualized analysis
• Relevant factors
• No blanket policies
• Procedural
– Fair Credit Reporting Act (FCRA)
– FTC enforcement
– Initial consent, pre-adverse, adverse notices
– Class action litigation—numerous seven-
figure settlements in 2013 alone

8. President Obama’s Push for Wage and Hour
Reform: “Giving America a Raise”
• March 13, 2014: President Obama directed U.S.
Secretary of Labor Thomas E. Perez to "modernize
and streamline” the white collar regulations (29
CFR 541)
• Experts are anticipating the following:
– Increase minimum salary for white collar
exempt employees (now $455 per week;
$23,660/yr)—could it double, or more?
– Revise or remove the “concurrent duties”
element of the Executive exemption (impact on
managers who perform some of the same
duties as their direct reports)
– Changes to the Computer Professional
exemption
– Focus on restaurant, retail, healthcare, financial
services, hospitality and information technology

9. “Giving America a Raise”—cont’d
• Will occupy significant Agency
resources for awhile
• New regulations probably 12-18
months away
• Congress could step in and deny
funding—so midterm elections may
have an impact
• On the heels of a recent minimum
wage increase for federal contracts
to $10.10/hour (via Executive
Order/Feb. 2014)

10. More Hot Wage and Hour Topics
• Misuse of the independent contractor
classification
• Overuse of the Administrative
Exemption
• Not appropriately counting “work
time” (work-related activities)
• Time worked is sacred—PAY IT
(federal and state law issue)
• Remember 25+ states require more
than the FLSA
• Do not rely on your competitors’
practices

11. Why We Pay So Much
Attention to Wage and Hour
• Remember: most aggressive DOL in history
• Can be easy money for the plaintiff’s bar
• The damages are staggering
– Intent does not matter
– Two or three year look-back
– Every person in the position?
– Liquidated damages (i.e., double)
– Attorney’s fees
– Civil/criminal and employer/individual
• Average FLSA/state law wage settlements
average $4.8 M, discrimination lawsuits =
$600k

12. The NLRB is Alive and Well
in the Non-Union Workplace
• The National Labor Relations Act, the NLRB,
and “protected, concerted activity”
• Some handbook policies drawing NLRB
attention
– Social media
– Confidentiality (including pay secrecy)
– Employee (mis)conduct
– Contact with outsiders
– At-will employment disclaimers that
cannot be modified
– Complaint/dispute resolution policies
– Loitering/visitors/solicitation
• Confidentiality of investigations?
• So where does that leave good old-fashioned
“insubordination?”

13. A Few Examples...
• Cruz-Moore/HUB
– Employee complains on Facebook about a co-worker saying she did not help clients
enough, and asks her fellow co-workers their opinions. Co-workers respond with
various comments, including:
• “What the f***. Try doing my job. I have 5 programs.”
• “What the h***. We don’t have a life as is.
• “Tell her to come do my f****** job n c if I don’t do enough.”
• “I think we should give our paychecks to our clients, so they can ‘pay’ the rent.’”
– Employees fired for violating the organization’s anti-harassment/anti-bullying policy
– NLRB REVERSED THESE TERMINATIONS
• Knauz BMW
– Policy that states “No one should be disrespectful or use profanity or any other
language which injures the image or reputation of the Dealership”
– UNLAWFUL
• Costco Wholesale Corp.
– Social media policy that allowed for discipline of employees for their on-line statements
that damage the company, defame any individual or damage any person’s reputation.
– UNLAWFUL

14. Another Example...
• Triple Play Sports Bar, 34-CA-12915 (Jan. 3, 2012)
– Facts
• Employee becomes frustrated with her manager’s method of
withholding taxes from her paycheck
• She logs onto Facebook and posts “my manager is an a**hole”
• Another employee “liked” the post
• They are both terminated for “performance reasons”
– NLRB judge orders reinstatement of the employees, because
they were engaged in protected, concerted activity discussing
issues related to work
– The co-worker’s “like” of the Facebook status constituted
“participation in the discussion that was sufficiently meaningful as
to rise to the level of concerted activity” under the NLRA (!?!??!)
• These organizations were all non-unionized!
• We are living in a new day

15. The NLRB—A Week in Review
• This Monday: The Fifth Circuit upheld
an NLRB order finding an employer
engaged in an unfair labor practice
by maintaining an overly-restrictive
confidentiality clause. Flex Frac
Logistics, LLC v. NLRB, Civ. A. No.
12-60752 (March 24, 2014).
• Yesterday, March 26, 2014: the NLRB
upheld a decision that Northwestern
University football players on
scholarship are EMPLOYEES under the
Act—and why this should keep you up
at night.

16. Poll Question
• Has social media found its way into
your workplace and created issues
within your company?

17. More Social Media Issues
§ Social
media
policies—customized
§ PrevenPon
versus
discipline
(watch
for
SecPon
7
acPvity)
§ When
it
finds
its
way
into
the
workplace
§ Password
protecPon
laws
§ Hundreds
of
cases
filed

18. • United States v. Windsor, 570 U.S. ___ (June 26, 2013): the provision of DOMA
denying federal benefits to same sex spouses is unconstitutional.
• Leave to care for a spouse with a serious health condition
• The FMLA’s definition of “spouse”
– “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.” 29 C.F.R. §825.122
• Where the employee resides
– Does the state recognize same sex marriage?
– CA, CT, DE, IA, MA, ME, MD, MN, NH, NY, RI, VT, WA and Washington D.C.
– The DOL’s August 9, 2013 memo to agency employees
• But what if a particular state does not recognize the marriage?
– The risk of counting it as FMLA
• The ironic result of the holding in some jurisdictions—can it really mean less
leave?
Same-Sex Marriage and FMLA: The
U.S. Supreme Court and the DOL

19. Pregnancy and Accommodation
• What the law says now
– Healthy pregnancies
– Pregnancies with complications
– What the ADAAA did to the analysis
• The EEOC’s 2012-2016 Strategic Enforcement Plan
– Among the “emerging issues” the Commission
plans to target is “accommodating pregnancy
when women have been forced onto unpaid leave
after being denied accommodations routinely
provided to similarly situated employees.”
• The limits to prior light duty/pregnancy case law
• State and local law
• The Pregnant Workers Fairness Act

20. Leave as an Accommodation
• Stop relying on FMLA
• There is no set period of time that
will always be “enough”
• Document your communication
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. What is Your Policy RE: Responding
to Unemployment Claims?
• The Federal Unemployment Insurance
Integrity Act (2011) and amendments
to state law (2013)
– State laws require employers/agents to
timely and adequately respond to UI
claims
– A pattern of failure to do so will result in
the employer’s account being charged
benefits (regardless of former-employee’s
eligibility)
– Civil and criminal penalties may apply

22. Unemployment, cont’d
• When benefits are awarded: to
contest or not to contest?
– Sworn testimony
– Free discovery
– Are you prepared?
• Do not make promises about
what the company will/will not do
in this process
• Do not promise a result
• Unemployment benefits are not
on the table as part of a
separation/severance agreement

23. Time to Revisit Severance
Agreements
• The EEOC is on the attack RE: reserving
employee rights to participate with agency
– EEOC v. CVS Pharmacy, Inc. (Filed
2/7/14 in N.D. Ill.)
• Will the NLRB join in the fun?
• One size does NOT fit all
– Reasons
– Age of employee
– Number of affected employees
– Midstream and final releases
– Other issues?
• Basic consideration reminders

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

25. What To Do Now
• It is time to really look at your
handbook
• Hit the pause button on
conduct-based terminations
• Get help with statements of
position
• Audit your pay practices and
your classifications
• Carefully review your pre-hire
processes
• Get your leave processes
cleaned up (and train your
employees)

26. Alexis
C.
Knapp,
JD,
SPHR
Li>ler
Mendelson,
PC

27. 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