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2019 Employment Law Legal Update January 22, 2019

2019 Employment Law Legal Update January 22, 2019. Joanne Braddock Lambert Jackson Lewis P.C. | Orlando , FL Joanne.Lambert@jacksonlewis.com 407-246-8447. Today’s Agenda. First Half- Federal Update Epic Decision Pay Equity Class Actions Wage and Hour. Today’s Agenda.

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2019 Employment Law Legal Update January 22, 2019

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  1. 2019 Employment Law Legal Update January 22, 2019 Joanne Braddock Lambert Jackson Lewis P.C. | Orlando, FL Joanne.Lambert@jacksonlewis.com 407-246-8447

  2. Today’s Agenda First Half- Federal Update Epic Decision Pay Equity Class Actions Wage and Hour

  3. Today’s Agenda Second Half- State Update Raising Florida’s Minimum Pay E-Verify Law Medical Marijuana Sexual Harassment Texting While Driving Ban

  4. FEDERAL UPDATE…

  5. Epic Decision

  6. Epic Systems - Background Epic Systems; Morris; Murphy Oil All 3 cases: employee signs an arbitration agreement containing a class action waiver; employee seeks to litigate FLSA and related state law clams through class or collective actions in federal court. Epic Systems (Seventh Circuit) & Morris (Ninth Circuit) vs. Murphy Oil (Fifth Circuit)

  7. Epic Systems Epic Systems Corp. v. Lewis,May 21, 2018 Provides certainty The Supreme Court held that an employer can require employees to agree to resolve disputes in arbitration and can include a waiver of the right to participate in a class or collective action in the agreement The Supreme Court rejected the argument that Class Action Waivers violate employees’ rights to act collectively

  8. Epic Systems > 50% of private employers already use arbitration agreements > 30% use Class Action Waivers

  9. Should My Company Implement An Arbitration Agreement and Class Action Waiver? Advantages of Arbitration No risk of runaway jury Greater privacy Shorter time to resolution Ability to tailor discovery rules

  10. Should My Company Implement An Arbitration Agreement and Class Action Waiver? Disadvantages of Arbitration In individual cases, arbitration tends to be more expensive for employers. Risk of coordinated, individual actions Difficult to obtain summary judgment Arbitrators tend to “split the difference” Almost no right to appeal

  11. Pay equity

  12. Equal Pay for Equal Work • Equal Pay Act 1963 • Prohibits arbitrary discrimination against women in the payment of wages • 2017 – state legislators in over 40 jurisdictions introduced bills related to equal pay

  13. April 2018: Rizo v. Yovino (Ninth Circuit) • April 2018: Rizo v. Yovino (Ninth Circuit) • California math consultant alleged Fresno County Superintendent of Schools violated the Equal Pay Act by improperly setting the salary of employees based on adding 5% to the new hires’ prior salary • Equal Pay Act – catchall exception: • “a differential based on any other factor other than sex”  • Held prior salary does not fall under catchall exception. Exception only applies to legitimate job-related factors, such as prior job performance or education

  14. Pay Equity – Best Practices • Set pay range for each position • Focus on objective standards • Consider auditing pay practices • Don’t rely on applicant’s prior salary • Involve multiple individuals in decision in order to ensure objectivity • Remember that even in jurisdictions where it is “legal” to ask about salary history (e.g. Florida), such questions could still constitute circumstantial evidence of gender discrimination

  15. Class Actions: No Sign of Slowing Down

  16. Class Actions: No Sign of Slowing Down #MeToo: A viral movement, a wave of claims ADA and cyberspace Plaintiff’s Bar Currently Targeting Online Hiring Practices Background Screening

  17. #MeToo: A viral movement, a wave of claims • #MeToo movement created a surge of government investigations and lawsuits, which come along with potentially crippling punitive damages and negative publicity. • The EEOC announced a string of settlements in class-based sexual harassment investigations, including: • January 2018: $340,000 settlement with a restaurant chain concerning claims of 15 former female employees, some of whom were teenagers at the time of the alleged harassment • November 2017: $75,000 settlement with a seafood supplieron behalf of 3 female employees concerning claims of persistent, sexually explicit comments by a male co-worker • October 2017: $100,000 settlement with a packing company on behalf of a class of female employees alleging sexual harassment by supervisors and other employees

  18. ADA and Cyberspace Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation. This covers practically all types of businesses that service the public Title III requires businesses to take affirmative steps to make “reasonable modifications” to their usual policies and procedures to service customers with disabilities Under Title III, a public accommodation is not just a physical brick-and-mortar establishment, it also extends to websites

  19. ADA and Cyberspace • Individuals who are blind or physically impaired access the internet through screen-reading software • Generally websites that comply with “WCAG 2.0 Guidelines” are considered accessible to these consumers • If a website does not adhere to these guidelines, its content may not be fully accessible to these consumers and this may give rise to litigation under Title III of the ADA • This is the contention of a recent wave of class actions targeting websites that are not fully accessible

  20. ADA and Cyberspace According to federal court dockets, in 2016, 260 website accessibility lawsuits were filed There have been thousands more since The surge came largely after a federal court in Florida held in June 2017 that a regional grocery store chain must ensure its website is ADA compliant In the employment law context, claims may arise under Title I of the ADA when, for example, a company accepts online applications and the online application system is not accessible to the visually impaired

  21. Plaintiff’s Bar Currently Targeting Online Hiring Practices The plaintiff’s bar has repeatedly targeted certain advertisements on social media sites that encourage individuals to apply for jobs at their company, using information obtained from user profiles The legal argument being asserted is that the advertisements are alleged class violations of federal, state, and local laws that prohibit age discrimination in employment advertising, recruitment, sourcing, and hiring, including the Age Discrimination in Employment Act

  22. Plaintiffs’ Bar Currently Targeting Online Hiring Practices The theory is as follows: certain social media sites have a feature that allows a user to see the reason they were identified to receive a particular advertisement.  The language under the targeted advertisement might state, for example, that the company intends for the ad to reach a certain demographic, i.e. people ages 28 to 45 who live or were recently in the United States Based on this evidence Plaintiffs allege the company “regularly targets younger prospective job applicants on [social media sites]” and, therefore, that the Company is likely engaged in other forms of hiring discrimination

  23. Background Screening Process • Fair Credit Reporting Act (FCRA) • Regulates collection & use of consumer information • Includes consumer reports, i.e. “background checks” • Companies are paying millions of dollars in FCRA class-action suits • Tip: • “Clear & conspicuous” • The disclosure form must be completelyseparate from the application • Do not include any extraneous information!

  24. Wage and Hour

  25. Status of DOL Overtime Rule

  26. Proposed Salary Threshold Rule – Coming in 2019 August 2017: federal judge prevented rule from taking effect July 2017: request for information from public 2019: DOL has indicated proposed rule will be issued in 2019. Secretary of Labor Alexander Acosta: $23,660 too low; $47,476 too high  Employers can expect increase to threshold at some point in future.

  27. Tip-Pooling Requirements • Tip Income Protection Act of 2018 (HR 5180) – all tips are property of the employees • Consolidated Appropriation Act – amends FLSA • “An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” • Does not affect practice of allowing employers to deduct credit card processing fees associated with processing credit card tips • Does not prohibit an employer from administering an otherwise lawful tip pool

  28. 80/20 “Rule” • The Background • Tip credit: under the FLSA, employer can pay tipped employee $2.13 per hour and take tip credit of $5.12 per hour – so long as tips + wage = the minimum wage ($7.25) for all hours worked • 80/20 Rule • Prevents employer from taking tip credit for employees who spend > 20% of time doing non-tip producing tasks • Recent Case • September 2018: Ninth Circuit Court of Appeals upheld the Department of Labor’s “80/20” rule (following 2011 Eighth Circuit decision; Seventh Circuit also supports)

  29. 80/20 “Rule” November 8, 2018 – DOL rescinded the “rule” Reissued Opinion Letter FLSA2009-23 (first promulgated during George W. Bush administration; eliminated the rule). “We do not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the Act are met” - DOL

  30. STATE UPDATE…

  31. Florida’s Legislative Session Florida’s Legislative Session does not start until March 5, 2019 but agendas and trends are beginning to take form Raising Florida’s Minimum Pay E-Verify Law Medical Marijuana Sexual Harassment Texting While Driving Ban

  32. Florida Minimum Wage • January 1, 2019: Florida Minimum Wage Increase • $8.25 $8.46 • Tipped Employees • $5.23  $5.44 • Florida employers, however, are increasingly pressured to raise workers’ pay even more • On January 16, 2019, Florida Congresswoman Stephanie Murphy introduced a bill to raise federal minimum wage to $15 an hour by 2024. • In support of the bill, Murphy stated that Florida’s minimum wage increase is still not enough for workers to support their families.

  33. “Raising Florida’s Minimum Wage” • The idea of a $15 per hour minimum wage is also being discussed at the state and local level. • In November 2020, a “Raising Florida's Minimum Wage” initiative may appear on the ballot as a constitutional amendment • The measure would increase the state’s minimum wage ($8.46) to: • $10.00 on September 30, 2021 • $11.00 on September 30, 2022 • $12.00 on September 30, 2023 • $13.00 on September 30, 2024 • $14.00 on September 30, 2025 • $15.00 on September 30, 2026 • From that point forward, future minimum wage increases would revert to being adjusted annually for inflation. • At the local level, the City of Miami Beach passed an ordinance that would require private sector employers to raise minimum pay to $13.51 an hour by 2021. The Florida Supreme Court is expected to hear arguments about the legality of the ordinance, previously struck down by circuit and appeals courts, in 2019.

  34. Florida Employers Have Begun to Increase Minimum Pay Some Florida employers have began implementing minimum pay increases on their own. JM Family Enterprises raised its minimum wage to $16 an hour, nearly double Florida’s minimum requirement. In 2018, following pressure from local unions, Walt Disney World agreed to raise its minimum pay to $15 an hour by October 2021. The raises are expected to bring an estimated $1 billion of additional wages into Central Florida’s economy during the four-year contract. Following in Disney’s footsteps, Universal and SeaWorld announced significant pay increases beginning February 3, 2019. Disney and Universal wage increases may influence wages for other employers in Florida, especially other tourist attractions and hotels.

  35. Florida’s E-Verify Law • Pre-filed December 11, 2018: • Proposed Bill – Requires all private employers to use the federal E-Verify system to verify the employment eligibility of newly hired employees, beginning January 1, 2020. • In addition, the Act would suspend employer licenses until registration with the E-Verify system. • The Act would also would provide a discharged employee who is a U.S. citizen or resident alien a private cause action against an employer who knowingly employs unauthorized aliens.

  36. Thwarting Sexual Harassment On January 4, 2019, the Florida Senate introduced a bill that creates the Task Force on the Prevention of Sexual Harassment and Misconduct. Among other things, the Task Force would prohibit public officers, qualified candidates, agency employees, and lobbyist from sexually harassing any person. A City of Miami Beach law, which goes into effect on August 1, 2019, requires Miami Beach hotels and hostels to provide housekeepers with panic buttons. These workers are particularly vulnerable to sexual harassment because they work in isolated conditions and often left alone with guests.

  37. Florida’s Medical Marijuana Law On January 17, 2019, Florida Governor, Ron DeSantis, announced that he wants to allow Floridians to smoke medical marijuana, and is urging lawmakers to change the state law banning the practice. DeSantis told lawmakers they will have “a couple of weeks” to address the smoking ban during the legislative session, or he will unilaterally greenlight smokable forms of medical marijuana by dropping the state’s appeal that seeks to reverse a judge’s ruling overturning the ban. Employees will still not be allowed to smoke medical marijuana or otherwise use marijuana in the workplace unless the employer permits use.

  38. Florida’s “Ban on Wireless Communications Devices While Driving Law” • Pre-filed November 20, 2018: • Proposed Bill – Authorizes law enforcement officers to stop motorists who talk or text on handheld mobile devices while driving. • Currently, texting while driving in Florida is against the law but is treated as a secondary offense. Which means drivers can only be charged with a violation if they are also stopped for a primary infraction such as speeding, running a red light, etc. • If passed, the new law would make texting while driving a primary offense. • The proposed law will still allow motorists to communicate via their cellphone using hands-free methods, such as Bluetooth connectivity. • Motorists are also permitted one tap to answer a call, but cannot actively engage with the handheld device while driving. (Exception: to report emergencies or obtain safety-related information.)

  39. Thank You With more than 850 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. jacksonlewis.com

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