Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478-621-2423

1. 2013 SPRING CONFERENCE Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478-621-2423 E-mail: jthompson@constangy.com

2. What Happened & What’s Next 2012 - The Year In Review “Hot Button” Issues for 2013

3. Title VII and EEOC

4. EEOC Touts Monetary Recoveries • Record year for EEOC • $365 million from mediations & conciliations • $36 million from investigations of systemic charges • $44.2 million from litigation • 99,412 charges in 2012 fiscal year

5. Which type of EEOC Charge is the fastest growing? • Race • Age • Gender • Retaliation

8. Does Title VII protect transgendered employees? • Yes • No

9. Title VII Protects Transgendered Employees • Macy v. Holder (2012) • Historically, EEOC had ruled that discrimination on basis of sexual identity was not sex discrimination • Reversal: gender identity discrimination is a form of sex stereotyping

10. Criticism of Employer Investigation is Not Protected Activity • Brush v. Sears Holding Corp (2012) • Employee criticized harassment investigation and decision not to call police • Ct: only protected if object to acts unlawful under Title VII

11. Sloppy Handling of Sex Harassment Complaint Precludes S.J. • Kurtts v. Chiropractic Strategies Group (2012) • Employee made internal complaint and expressed discomfort working with accused “harasser” • Company made no effort

12. Failure to Accommodate Pregnant Employee May Violate Title VII • Chapter 7 Trustee v. Gate Gourmet, Inc. (2012) • Pregnant employee’s doctor imposed restrictions; supervisor says no light duty; fires her • Ct: have to at least consider whether light duty work available

13. Can you require an employee to get a flu shot? • Yes • No • Maybe

14. Refusal to Receive Flu Shot • Chenzira v. Cincinnati Children’s Hospital (2012) • Employee is a vegan; refuses mandatory flu shot based on religious belief • Ct: duty to accommodate employee’s religious beliefs

15. Americans With Disabilities Act

16. EEOC Issues ADA Guidance for Veterans With Disabilities • Preventing disability discrimination • Accommodation of veterans with disabilities

17. Wellness Program Fits ADA Safe Harbor • Seff v. Broward County • Employees who declined to participate in wellness program charged $20/pay period • Ct: No violation of ADA; safe harbor for insurance plans

18. Does the ADA require a transfer to a vacant position? • Yes • No

19. ADA Requires Transfer to Vacant Position • EEOC v. United Airlines 7th Cir. 2012 • Employee can not perform own job • Ct: Not sufficient to let employee compete for vacant job; duty of accommodation requires transfer • But don’t have to ignore union contract

20. The Family Medical Leave Act

21. New FMLA Rules • Final regulations issued February 5, 2013,implementing National Defense Authorization Act of 2010 • Relating to military leaves • Other changes to 2009 Regulations include intermittent leave • Effective March 8, 2013

22. New FMLA Regulations (Military)

23. New FMLA Regulations (Military) 1,226 Days Excluded!

24. New FMLA Regulations (Military)

25. New FMLA Regulations Use smallest increments of time as used for other types of leave

26. New FMLA Regulations – Next Steps • Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward: • Update their FMLA policies in accordance with the new rule. • Replace the current FMLA poster with this one. • Make sure all FMLA Fact Sheets are up to date. • Use the new DOL notification and certification forms, or adapt their own forms to be consistent with the new ones. • Ensure that leave administrators are familiar with the changes that will take effect March 8.

27. Request To Take FMLA Before Eligible is Protected • Pereda v. Brookdale Senior Living Communities • 8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months • Court found Pereda’s termination for poor performance 9 months after being hired was unlawful

28. Fair Labor Standards Act

29. Court Disqualifies Morgan & Morgan For Unethical Behavior • Bedoya v. Aventura Limousine (2012) • Morgan & Morgan thrown off case • threatening emails to opposing counsel • set deposition in a Dunkin Donuts • ex parte communications to company attacking company’s attorney

30. Pharmaceutical Sales Reps Are Exempt • Christopher v. SmithKline Beecham U.S. (2012) • Pharmaceutical reps are making sales; exempt under outside sales exemption • Overturns DOL interpretation of outside sales

31. On Call Time • On premises or geographical limits • Pager/cell phone/smart phone • Personal use of time

32. Training Time • Not compensable if: • Attendance is outside the employee’s regular working hours • Attendance is voluntary • Not directly related to job and • No productive work performed

33. Public Hospitals

34. First Amendment • Walden v. CDC • Court: Personal beliefs and values are no excuse to refusing to perform job duties

35. USERRA

36. Refusal To Accept Transfer is Not Resignation Under USERRA • U.S. v. Ala. Dept. of Mental Health (2012) • Employee declined transfer to another city at end of military leave • Ct: not a resignation; employee entitled to reinstatement

37. Benefits

38. Affordable Care Act Upheld • Supreme Court June, 2012 • ACA is constitutional, except for mandate for states to expand Medicaid • Several pieces already in effect

39. Patient Protection and Affordable Care Act

40. What Now? • After the election, it’s full steam ahead for implementation. • By January 2014, unless delayed: • Millions of Americans will have to obtain insurance or pay penalties, and • Insurers will be banned from denying coverage based on pre-existing conditions for all individuals.

41. Implementation Schedule

42. 2013 Changes • Plans must provide a participant notice regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice). • Health flexible spending account limit will be $2,500.

43. 2014 and Beyond • Some of the additional changes scheduled for implementation are: • Establishment of state insurance exchanges. • Imposition of a penalty on large employers not offering health insurance ($2,000 per full-time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).

44. 2014 and Beyond • Automatic enrollment for employers with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and self-funded plans, including grandfathered plans).

45. 2014 and Beyond • Employers are required to provide a qualifying group health plan that meets the ACA requirements. • Provides minimum essential benefits (for fully insured small group plans, also provides all required “essential health benefits”), • Limits cost-sharing for such coverage, and • Provides either a bronze, silver, gold, or platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).

46. 2014 and Beyond “Essential health benefits” include (at this point): • Laboratory Services • Preventive and Wellness Services • Chronic Disease Management • Prescription Drugs • Pediatric Services, including oral and vision care • Ambulatory Patient Services • Emergency Services • Hospitalization • Maternity and Newborn Care • Mental Health and Substance Abuse Services • Behavioral Health Treatment

47. 2014 and Beyond • Requirement for individuals to have health insurance or pay a tax penalty. • Individuals without “minimum essential coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income

48. 2014 and Beyond • The penalty would be phased in accordingly: • $95 in 2014, or 1.0% of taxable income • $325 in 2015, or 2.0% of taxable income • $695 in 2016, or 2.5% of taxable income • Beginning after 2016, the penalty will be increased annually according to cost-of-living adjustment

49. 2014 and Beyond • Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days. • Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre-existing condition, and they will be prohibited from excluding coverage for a pre-existing condition.

50. 2014 and Beyond • Establishment of health care choice compacts (2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines