Hot Topics in Labor & Employment Law 2010

1. Hot Topics in Labor & Employment Law 2010 The material provided herein is for informational purposes only and is not intended as legal advice or counsel.

2. Please help yourself to food and drinks Please let us know if the roomtemperature is too hot or cold Bathrooms are located past the reception desk on the right Please turn OFF your cell phones Please complete and returnsurveys at the end of the seminar

3. Hot Topics in Labor & Employment Law Legal Updates and Changes in the Law on Age Discrimination Pat Collins

4. Hiring Incentives to Restore Employment (HIRE) Act Grants employers an exemption for their 6.2% Social Security payroll contribution for every new “qualified employee” hired after February 3, 2010 and before January 1, 2011 Allows an additional income tax credit that is equal to 6.2% of paid wages for every new qualified employee retained for 52 consecutive weeks – up to $1000 – to be taken on the employer’s 2011 income tax

5. “Qualified Employee”Under the HIRE Act Has not been employed for more than 40 hours during the preceding 60-day period Is not being employed to replace another employee except one who quit voluntarily or was fired for cause (including downsizing) Is not “related” to the employer under the rules set forth in the U.S. Tax Code

6. Form W-11

7. Nursing Mother’s Amendment to the Fair Labor Standards Act Section 4207 of the Patient Protection and Affordable Care Act of 2010 Employers must provide a “reasonable break time” for an employee to express breast milk for her nursing child Employer must provide a place other than a bathroom that is “shielded from view and free from intrusion from coworkers and the public”

8. Nursing Mother’s Amendment to the Fair Labor Standards Act Employers with fewer than 50 employees are exempt if providing the break or the place to express breast milk would impose an “undue hardship” on the employer Does not preempt state laws relating to breastfeeding in the workplace if the state law is more protective of its employees

9. Department of Labor Opinion Letters The Wage and Hour Division of the Department of Labor will be eliminating the issuance of Opinion Letters The Wage and Hour Division will now apparently issue an “Administrator’s Interpretation” which relies upon the Wage and Hour Division’s generalized understanding of the duties that commonly accompany a position in an industry, and lacks any fact-specific inquiry

10. Emergency Responders Employment Protection Act Any member of a volunteer fire company, duly incorporated first aid, rescue or ambulance squad, or any member of any county or municipal volunteer office of emergency management may not be terminated or suspended for failing to report to work due to their service as a volunteer during a state of emergency declared by the president or governor, or their response to an emergency alarm

11. Emergency Responders Employment Protection Act The employee must provide to the employer: • Notice that the employee is performing emergency services at least one hour before he/she was to report to work • A copy of the incident report and a certification by the incident commander, affirming that the responder was actively engaged in and necessary for the emergency services, upon returning to work

12. Emergency Responders Employment Protection Act Employers are not expected to pay employees who are absent from work while responding to these emergency situations, but the employees may charge this time as vacation or sick time The law does not apply to employees who are deemed “essential employees”

13. Age Discrimination – Changes on the Horizon

14. Disparate Impact The adverse effect of a facially neutral employment practice that nonetheless discriminates against persons because of their race, sex, national origin, age, disability, etc. and that is not justified by business necessity.

15. Smith v. City of Jackson Police officers alleged that the City of Jackson violated the Age Discrimination in Employment Act (ADEA) by giving older officers less generous salary increases than the increases given to younger officers In its defense, the City offered a reasonable basis for its pay plan – the city was trying to make its police department more competitive by matching the salaries of surrounding communities

16. Smith v. City of Jackson U.S. Supreme Court held: • Plaintiffs failed to identify a specific test, requirement, or practice within the pay plan that has an adverse impact on older workers • An employer can use “reasonable factors other than age” (RFOA) as a defense to a disparate impact claim • A practice having a disparate impact on older workers need only be justified by reasonable non-age factors

17. EEOC Proposed Rule To invoke RFOA defense, employment practice must be: • Be reasonably designed to achieve a legitimate business purpose • Be administered in a manner that reasonably achieves goal

18. EEOC PROPOSED RULE Practice must be objectively reasonable when viewed by a “prudent employer” Employers must: • Measure impact • Consider alternatives with less significant impact

19. Disparate Treatment The employment practice of intentionally dealing with persons differently because of their race, sex, national origin, age, disability, etc.

20. Gross v. FBL Financial Services, Inc. Gross began working at FBL in 1987 and was promoted to the position of Claims Administration Director In 2003, when Gross was 54, FBL reassigned him to a lower position and gave most of his previous job responsibilities to another employee who was then in her early forties Gross sued FBL claiming that FBL demoted him due to his age in violation of the ADEA

21. Gross v. FBL Financial Services, Inc. U.S. Supreme Court held: • A plaintiff bringing an ADEA disparate treatment claim must prove that age was the “but-for” cause of the challenged adverse employment action • An employer does not carry the burden of proving that it would have made the same decision regardless of age, even if the employee were to produce some evidence of age discrimination in the decision making process

22. Gross v. FBL Financial Services, Inc. Congressional Fallout • Protecting Older Workers Against Discrimination Act • Would require that when a victim shows that age discrimination was a “motivating factor” behind a decision, the burden is on the employer to demonstrate that it complied with the law

23. Nini v. Mercer County Community College “Nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over seventy years of age . . . .” NJ Law Against Discrimination N.J.S.A. 10:5-12(a)

24. Nini v. Mercer County Community College FACTS • Rose Nini worked for College for 26 years • In 2004, College informed her that it was not going to renew her 3 year contract • Prior to this notice, Nini claims there were numerous comments made about her age, being employed too long, “getting rid of dead wood” • Contract expired in 2005; Nini terminated • Nini sued for age discrimination under LAD

25. Nini v. Mercer County Community College COURT DECISIONS Trial Court: Sided with the College • When contract expired, Nini was not terminated, she was not rehired • LAD permits employers to refuse to hire individuals over 70 Appellate Division: Sided with Nini • A contract non-renewal is the same as a termination • The over-seventy exception does not apply to terminations

26. Nini v. Mercer County Community College Supreme Court: Agreed with the Appellate Division and sided with Nini • LAD is liberally construed to afford as much protection as possible • If LAD did not protect contract renewals, loophole would allow employers to place aging employees under contract, not renew contract and fire older workers • Over-seventy exception has purpose of protecting employers from hiring and training employees with limited long term prospects • Long term employees already on the job require no training. Purpose of exception is not present

27. Interns, Trainees and Volunteers: Do Your Unpaid Employees Satisfy Wage & Hour Requirements? Chris Elko

28. “I definitely say my choice in grad school is definitely heightened by the economy. The idea that I can still continue my education provides me with a nice security blanket.” Lauren Apter – UC Berkley College Senior, as reported in the New York Times

29. Intern vs. Employee • Almost EVERYONE is an Employee • Employee = anyone “suffered or permitted” to work • DOL presumes all workers to be “employees” • Employees must be compensated • Minimum Wage • Overtime • These rules apply to private sector “for-profit” companies only

30. Intern vs. Employee • Unpaid Interns are a narrowly defined class • Title VII and NJLAD still applies • Trainees – Internship rules apply

31. Volunteers • Private “for-profit” – impermissible under any circumstances • Employees must be compensated for all time spent on the job • Private “non-profit” - permissible for public service, religious or humanitarian objectives • Public Sector – permissible • Employees may not “volunteer” to perform job-related tasks

32. DOs and DON’Ts

33. Authorities • United States Supreme Court Guidance • Department of Labor Opinion Letters • 2004 • 2006 • Department of Labor Fact Sheet #71

34. Portland Terminal Requirements • The training is similar to what would be given in a vocational school or academic educational instruction • The training is for the benefit of the trainees or students • The trainees or students do not displace regular employees, but work under their close observation • The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded • The trainees or students are not necessarily entitled to a job at the conclusion of the training period • The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training

35. Rule #1 • The training is similar to what would be given in a vocational school or academic educational instruction Compliance Tip • “Real world” skills count

36. Rule #2 • The training is for the benefit of the trainees or students Compliance Tip • College credits presumptively pass the test

37. Rule #3 • The trainees or students do not displace regular employees, but work under their close observation Compliance Tip • Hours worked may resolve this requirement

38. Rule #4 • The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded Compliance Tip • Supervision!

39. Rule #5 • The trainees or students are not necessarily entitled to a job at the conclusion of the training period Compliance Tip • Disclose up front that interns are not entitled to future employment

40. Rule #6 • The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training Compliance Tip • Wages include goods, room and board, etc.

41. Achieving Compliance • Documentation • Identify Position • Identify Pay/Future Hiring Expectations • Identify Tasks • Identify Supervision • Identify Hours

45. Wage & Hour Updates David Cassidy

46. NO MORE ADVICE FROM USDOL

47. Enforcement, Enforcement, Enforcement • USDOL to increase enforcement efforts • Will no longer answer requests for advisory opinions – specific advice • Will issue “Administrator’s Interpretation” periodically – generic advice • Employers will need to make hard judgment calls with advice of counsel

48. Advisory Opinion • Employers could set forth specific facts and policies • USDOL provided specific analysis and approval/disapproval – See C-2 • Provided clarity and a legal defense for employers

49. Administrator’s Interpretation • USDOL sets forth generic facts – may not be directly on point – See C-3 • Requires legal analysis to determine if it applies • Judge could see it otherwise – limited use depending on the facts

50. RECENT ADMINISTRATOR’S INTERPRETATION