Missouri Municipal Attorneys' Association Employment Law Update 2011

1. MMAA Missouri Municipal Attorneys' AssociationEmployment Law Update 2011 Ivan L. Schraeder The Lowenbaum Partnership, LLC 222 South Central Avenue, Suite 901 St. Louis, Missouri 63105 314.746.4823 (telephone) 314.746.4848 (facsimile) ischraederoc@lowenbaumlaw.com The Lowenbaum Partnership, LLC

2. MMAA Missouri Collective Bargaining Cases Part I The Lowenbaum Partnership, LLC

3. Does collective bargaining authorized as a constitutional right under the Missouri Constitution encompass federal labor law concepts of “good faith” bargaining? • IAFF Local 77 v. City of St. Joseph, MO, Buchanan County Case No. 09BU-CV01900 • Not appealed • American Federation of Teachers v. Ledbetter, St. Louis City Circuit Case No. 0922-CC01773 • Pending Missouri Supreme Court argument and decision as American Federation of Teachers, Local 420, et al. v. Richard Ledbetter, et al. Case No. SC91766 • Briefs filed The Lowenbaum Partnership, LLC

4. Collective bargaining rights under Missouri Constitution do not require exclusive recognition because such would disenfranchise employees who do not want to engage in collective bargaining. • Springfield NEA v. Springfield School District, Greene County Case No. 31GR-85429 • Settled on appeal without decision The Lowenbaum Partnership, LLC

5. Do the collective bargaining rights under Missouri Constitution require a public employer to have a selection process for determining organization with bargaining rights or not? • Eastern Missouri Coalition of Police, FOP Lodge 15 v. City of Chesterfield, Missouri, ED Case No. ED95366 • Decided May 3, 2011 • Transferred to Missouri Supreme Court as Case No. SC91736 • Briefs filed • Eastern Missouri Coalition of Police, FOP Lodge 15 v. City of University City, Missouri, ED Case No. 95364 • Decided May 3, 2011 • Transferred to Missouri Supreme Court as Case No. SC91737 • Briefs filed The Lowenbaum Partnership, LLC

6. Cases withdrawn related to bargaining unit elections: • Grandview NEA v. Grandview School District • Election held • LIUNA Local 1031 v. City of Wentzville, Missouri • Decertification election held • Other St. Louis County Circuit collective bargaining cases filed in Berkeley, Bel-Ridge, Ferguson, Hazelwood and Jennings • Jennings: election and unit ordered The Lowenbaum Partnership, LLC

7. What contract enforcement action is available under a collective bargaining agreement adopted by the school board granting grievance hearings to a dismissed employee? • Ciafullo v. Hazelwood School District, Case No. 11SL-CC02477 • Filed June 17, 2011 The Lowenbaum Partnership, LLC

8. MMAA Federal Enactments Part II The Lowenbaum Partnership, LLC

9. Patient Protection & Affordable Care Act (PL111-148) • Requires employers to provide reasonable break time for employee to express milk for one year after birth • Provide room secluded from view other than a bathroom. The Lowenbaum Partnership, LLC

10. ADA • Regs: 29 CFR 1630 (Effective 03.25.11) • Issues: • Protected persons • Disability discrimination amended on to EEO • Drugs and alcohol issues • Qualified individual with or without accommodation • Essential functions of the job critical The Lowenbaum Partnership, LLC

11. ADA • Purposes of 2009 Amendments: • Reinstate Rehabilitation Act of 1973 Section 504 definition interpretation • Overturn two Supreme Court cases: • Sutton v. United Airlines (1999) • Toyota Motor Mfg. v. Williams (2002) • Require EEOC to revise its rules to comply with amendments • Redefine “substantially limits” The Lowenbaum Partnership, LLC

12. ADA • Effect of Amendments: • “Disability” is expanded • Person does not have to be disabled to be disabled • “Major life activities” are expanded • Expands “what regarded as” means – employer just has to think • Narrows available defenses for employers • Litigation will be more complicated The Lowenbaum Partnership, LLC

13. ADA • Practical Implications: • Rethink old approach • Look at singular action rather than multiples • Review essential functions lists • Seek professional assistance quicker • Retrain supervisors & managers on new provisions and purposes • Prepare for worse litigation positions The Lowenbaum Partnership, LLC

14. FMLA: Military Personnel Related Amendment • 26 weeks of leave (SERVICE MEMBER FAMILY LEAVE) • amends the FMLA by permitting a spouse, son, daughter, parent, or next of kin (next of kin is the individual’s closest blood relative) to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy. The Lowenbaum Partnership, LLC

15. FMLA: Military Personnel Related Amendment • If medically necessary, the NDAA leave may be taken intermittently or on a reduced schedule. Like traditional FMLA leave, none of the leave time must be paid. Like traditional FMLA leave, the employer may require that the employee exhaust any available vacation time available before continuing the NDAA leave on an unpaid basis. The Lowenbaum Partnership, LLC

16. FMLA: Military Personnel Related Amendment • The certification to be provided by the health care provider in the case of service members is the same as that required for “traditional” FMLA leaves. The law provides that an employer may require that a request for leave due to a “qualifying exigency” be supported by a certification. The Lowenbaum Partnership, LLC

17. FMLA Regulations • Changes to FMLA • Prior service that counts towards 12 months employment required for FMLA eligibility if break in service is less than 7 years, unless break in service was the result of; • Military service; or • A written agreement, such as a collective bargaining agreement, spells out an employer’s intention to rehire the employee after the break in service, e.g., to continue education or for childrearing The Lowenbaum Partnership, LLC

18. FMLA Regulations • Employee Eligibility • Use FLSA principles to determine if employee meets 1250 hour requirement; • Employees returning from National Guard or reserve duties shall be credited for hours of work that would have been performed but for the military service The Lowenbaum Partnership, LLC

19. FMLA Regulations • Clarifies that if an employer allows an employee to take leave before s/he is eligible for leave, the employee is entitled to a full twelve (12) weeks of leave upon reaching eligibility. The Lowenbaum Partnership, LLC

20. FMLA Regulations • Serious Health Condition • Clarifies that some common ailments – such as the common cold, flu, earaches, upset stomach and headaches usually are not – but may be “serious health conditions” if they otherwise meet the definition. • “Treatment” includes examination for diagnostic purposes and evaluations of the condition; • Cosmetic treatments (acne, plastic surgery) are not serious health conditions unless in-patient care is required or complications develop; The Lowenbaum Partnership, LLC

21. FMLA Regulations • Serious Health Condition • Absence resulting from substance abuse does not qualify • Treatment “two or more times” must be within 30 days of the first day of incapacity; • Treatment means an in-person visit to a health care provider; • The first in-person visit must occur within 7 days of the first day of incapacity • Exception: extenuating circumstances The Lowenbaum Partnership, LLC

22. FMLA Regulations • Male employees are entitled to FMLA leave to accompany their pregnant spouses to pre-natal appointments or for their spouses who have severe morning sickness or need physical or psychological care; • Employees must be actively employed to be eligible for FMLA leave – i.e., employees on layoff status are not eligible for leave. The Lowenbaum Partnership, LLC

23. FMLA Regulations • Clarifications to substitution of paid leave • Paid time off runs concurrently with FMLA leave; • Employers must notify employees of any additional requirements for using paid leave, and advise employees they are entitled to unpaid FMLA leave if they choose not to meet requirements of paid leave policies; The Lowenbaum Partnership, LLC

24. FMLA Regulations • Employers and employees may agree to supplement disability or workers compensation benefits with paid leave; • Employers may require FMLA certifications even if employee uses paid leave; • Employees may still decline light duty and remain on FMLA leave. The Lowenbaum Partnership, LLC

25. FMLA Regulations • Public-but not private- employers may require employees to use accrued compensatory time concurrently with FMLA leave. The Lowenbaum Partnership, LLC

26. FMLA Regulations • Employers may disqualify employees from a bonus or award when employees fail to qualify because of an FMLA absence. EXAMPLES: Perfect attendance bonus, hours worked bonuses, sales goals NOTE: Employers must treat employees on FMLA leave the same as those on non-FMLA leave. The Lowenbaum Partnership, LLC

27. FMLA Regulations • Employers may voluntarily settle past FMLA claims without approval of the Department of Labor or a court written notice stating: • Reason(s) for the requested leave; • Anticipated duration of the leave; • Anticipated start date of the leave. The Lowenbaum Partnership, LLC

28. FMLA Regulations • Fitness For Duty Certification • Employers may authenticate and clarify fitness for duty certifications. • Employer may request that health care provider assess employee’s ability to return to work by using the essential functions of the job as a guide. • Essential functions list must be included with eligibility notice The Lowenbaum Partnership, LLC

29. FMLA Regulations • Fitness For Duty Certification • May seek fitness for duty for employees on intermittent leave every 30 days if: • Employee has used leave in last 30 days. • There are reasonable safety concerns. The Lowenbaum Partnership, LLC

30. FMLA Regulations • Other Clarifications • Holidays • Scheduled Overtime • “Reasonable” attempt not to disrupt Employer operations • Light duty does not count towards FMLA entitlement • Fixed Ragsdale retroactive designation issue. The Lowenbaum Partnership, LLC

31. FMLA - Military Leave Regulations • Spouse/Parent/Child: Same definitions • “Next of kin” – nearest blood relative in order of priority • Blood relatives granted legal custody of service member • UNLESS: Service member designated someone in writing. The Lowenbaum Partnership, LLC

32. FMLA - Military Leave Regulations • “Next of Kin” – If no one is designated, all family members in the same level of relationship to the service member may take FMLA leave either consecutively or simultaneously The Lowenbaum Partnership, LLC

33. FMLA - Military Leave Regulations • “Needed to Care For” – same as general FMLA regulations • Physical and psychological care • Basic needs • Transportation • Reassurance The Lowenbaum Partnership, LLC

34. FMLA - Military Leave Regulations • Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty. • Short notice deployment – 7 calendar days or less • Leave limited to 7 calendar days • Military events and related activities: • To attend official ceremony, program or event sponsored by military related to active duty or call to active duty status • To attend family support or assistance programs and informational briefing sponsored or promoted by the military, military service organizations, or the Red Cross related to active duty or call to active duty status. The Lowenbaum Partnership, LLC

35. FMLA - Military Leave Regulations • Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty. • Childcare and School Activities: • To arrange for alternatives when active duty or call to active duty necessitates a change • To provide childcare on an urgent, immediate need basis (but not routinely) • To enroll in or transfer to a new school or daycare facility • To attend meetings with staff at school or daycare facility The Lowenbaum Partnership, LLC

36. FMLA - Military Leave Regulations • Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty. • Financial and Legal Arrangements: • To make or update financial or legal arrangements, such as power of attorney, bank signature authority, enrolling in DEERS, obtaining military I.D. cards, or preparing a will or living trust • To act as military member’s representative before governmental agencies regarding military service benefits during active duty, call to active duty and/or for 90 days after active duty ends. The Lowenbaum Partnership, LLC

37. FMLA - Military Leave Regulations • Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty. • Counseling • To attend counseling from someone other than a health care provider for self, military member or child of military member if need is related to active duty or call to active duty • Rest and Recuperation • To spend time with military member on short-term, temporary rest and/or recuperation leave during period of deployment • Eligible employees make take up to 5 days leave. The Lowenbaum Partnership, LLC

38. FMLA - Military Leave Regulations • Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty. • Post-Deployment Activities: • To attend annual ceremonies, reintegration events and any other official ceremony or program within 90 days following end of active duty • To address issues associated with death of military member on active duty, such as meeting and recovery of body and funeral arrangements • Additional Activities: • Any other activities agreed upon by employer and employee The Lowenbaum Partnership, LLC

39. Genetic Information Non-Discrimination Act • Prohibits employers and health insurance carriers from using genetic information in employment and imposes strict confidentiality requirements • EEOC Regulations were issued and are now effective – 29 CFR 1635 (01.10.11) The Lowenbaum Partnership, LLC

40. MMAA State Enactments Part III The Lowenbaum Partnership, LLC

41. Prohibits employers from placing microchips in employees • Section 285.035 RSMo • Civil aviation services employment release time • Section 41.1000 RSMo The Lowenbaum Partnership, LLC

42. MMAA Miscellaneous Cases Part IV The Lowenbaum Partnership, LLC

43. Chamber of Commerce of US v. Whitney, 131 S. Ct. 954 (2011) • Upholds Arizona Immigration Law • U.S. statute does not pre-exempt a state’s right to regulate business relationships with state regulated entities • Supports recent MO immigration reform efforts (2009-2010) The Lowenbaum Partnership, LLC

44. Borough of Duryea, PA v. Guarnieri, 131 S. Ct. 1553 (2011) • Same standard of review applied to public employee 1st Amendment right to “petition government as 1st Amendment free speech standards”. • Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 951 (2011) • No class action available in Title VII actions where size of group, number of supervisors with discretion or decision making and location separated significant facts to be appealed. The Lowenbaum Partnership, LLC

45. Pearson v. Callahan, 129 S. Ct. 808 (2009) • Police officers may have qualified immunity for actions taking in “belief” that they were lawful even though later determined to be illegal The Lowenbaum Partnership, LLC

46. Snyder v. Phelps, 131 S. Ct. 1207 (2011) • Picketing at military funerals is free speech protected by 1st amendment • Connick v. Thompson, 131 S. Ct. 1350 (2011) • Failure to train prosecutors adequately on duty to produce on a single case is not actionable under 1983. The Lowenbaum Partnership, LLC

47. City of Ontario v. Quon, 130 S. Ct. 2619 (2010) • What is reasonable expectation of privacy of police officer using personal cell phone on duty • Manasco v. Board of Police Commissioners (St. L. City #4:11CV00557CDP) • Use of personal cell phones related to work investigation The Lowenbaum Partnership, LLC

48. NASA v. Nelson, 131 S. Ct. 746 (2011) • What is reasonable expectation of privacy relating to employment background checks • Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011) • USERRA protected discrimination based on supervisor’s anti-military attitude The Lowenbaum Partnership, LLC

49. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U. S. 2011 (2011) • FLSA related workplace complaints protected from retaliation • Thompson v. North American Stainless, 131 S. Ct. 863 (2011) • anti-retaliation protection for fiancée discrimination complaint The Lowenbaum Partnership, LLC

50. 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009) • Grievance procedure can waive individual statutory rights under collective bargaining where clearly addressed • Lewis v. City of Chicago, 130 S. Ct. 2191 (2010) • Time for filing of disparate claim of discrimination is when application of neutral practice is violated The Lowenbaum Partnership, LLC