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2014 Employment Law Update

Holly L. Cini Beverly W. Garofalo Hartford Office (860) 522-0404 cinih@jacksonlewis.com garofalob@jacksonlewis.com. 2014 Employment Law Update. No Good Deed. Overtime considerations Individual employee preferences Injuries - Workers’ Compensation Social media Dress code. CHRO.

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2014 Employment Law Update

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  1. Holly L. Cini Beverly W. Garofalo Hartford Office (860) 522-0404 cinih@jacksonlewis.com garofalob@jacksonlewis.com 2014 Employment Law Update

  2. No Good Deed . . . Overtime considerations Individual employee preferences Injuries - Workers’ Compensation Social media Dress code

  3. CHRO 2146 new claims filed in FY ’13-’14 (July 1, 2013-June 30, 2014) 16% increase over previous year (1850) Closed 2303 cases as compared to 2146 opened 97 dismissed on MAR determination (vs. 800 ten years ago) 935 settled (vs. 481 ten years ago) Disability claims up 3%, more than any other protected class

  4. EEOC 93,727 charges filed in FY 2013, a 5.7% decrease (99,412 last year) 294 CT claims (53% increase in last five years) Retaliation claims still most pervasive - 41.1% Race, sex (including sexual harassment and pregnancy), disability next

  5. Legislative Developments - Connecticut Minimum Wage (P.A. 14-1) $9.15/hour on 01/01/15 $9.60/hour on 01/01/16 $10.10/hour on 01/01/17 Highest minimum wage of any state in the nation as of 2017

  6. Legislative Developments - Connecticut Paid Sick Leave law (H.B. 5269; eff. 01/01/15) Revises method of calculating threshold for applicability from quarterly to October 1; Prohibition on terminating or transferring employees to another job site to come under the 50-employee threshold; Allows for accrual calculation on whatever 365-day year employers choose to use, vs. the current requirement that it run on a calendar year (Jan. 1 – Dec. 31) cycle; Adds radiologic technologists to the list of “Service Workers”

  7. Legislative Developments - Connecticut • P.A. 14-159 (eff. Jan. 1, 2015) - Allows for a “sleep time” exclusion from overtime pay requirements for certain employees employed by third-party providers such as home care agencies (“companionship services”); • P.A. 14-9 – Expands the types of deposits that automatically exempt up to $1,000 from bank executions against a judgment debtor’s account to include electronic direct deposits that are readily identifiable as wages • P.A. 14-109 – Expands the types of employers who can require a credit check on employees/applicants to include mortgage servicing companies and brokers.

  8. Proposed Legislation – Connecticut Imposition of a punitive tax on employers with 500+ employees for each non-exempt employee paid less than 130% of minimum wage (HB 5069); Requirement that retailers pay non-exempt employees who work on Thanksgiving or Christmas day 2.5 times their normal hourly rate (HB 5280); Proposal to create a new state-run Roth IRA plan that would require employers with 5+ employees that do not offer a similar benefit to participate (SB 249); Elevating “unemployed” to a protected class status (HB 5054 and 5274)

  9. EEOC Guidance on Pregnancy Discrimination “Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII. Thus, the PDA extended to pregnancy Title VII’s goals of [achieving] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of . . . employees over other employees.” – EEOC Commissioner Chai R. Feldblum, July 14, 2014. Young v. United Parcel Service, No. 12-1226 – Certiorari granted July 1, 2014; to be decided by USSC in 2015 session

  10. EEOC Enforcement Trends • EEOC’s top systemic enforcement priorities: • Investigation of “systemic barriers” in recruitment and hiring, including pre-employment tests & assessments: • criminal History Background Checks, Credit Checks • personality Profiles, Behavioral Assessments • cognitive Ability Tests • structured Interviews • physical Requirements • Systemic pay discrimination

  11. Litigating with the EEOC EEOC v. Supervalu, Inc. and Jewel-Osco, (N.D. Ill July 2014) – EEOC sued claiming violation of the ADA. In 2011, the parties entered a 3 year consent decree to resolve the case. One year later, EEOC filed a second claim, alleging the employer did not adhere to the consent decree as to 3 employees. EEOC v. UPS (N.D. Ill. March 2014) – EEOC sued claiming a UPS policy that calls for “employee separation” after 12 months of leave violated the ADA. Is attendance an essential job function?

  12. U.S. SUPREME COURT Sandifer v. United States Steel Corp.,134 S. Ct. 870 (2014) Plaintiffs argued the time they spent changing into and out of safety equipment should be compensable under the FLSA because the safety equipment did not constitute “clothes” within the meaning of the exemption. USSC held for the defendant, finding that protective gear is “clothing”, and the time spent “donning and doffing” is not compensable by operation of the FLSA (29 U.S.C. § 203(o)).

  13. U.S. Supreme Court Burwell v. Hobby Lobby Stores, No. 13-354 (2014): For-profit employers that are closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the Affordable Care Act requirements on contraceptive coverage for employees.

  14. OFCCP New Regulations re: Vietnam Era Veterans’ Readjustment Assistance Act “VEVRAA” (eff. March 24, 2014) Prohibits federal contractors from discriminating in employment against protected veterans, and requires affirmative action to recruit, hire, promote, and retain these veterans. Contractors with an AAP already in place on the effective date have additional time to come into compliance with the AAP requirements. This compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle. Hiring Benchmarks; Data Collection; Job Listings; Records Access

  15. Court Decisions - FMLA Escribav. Foster Poultry Farms (9th Cir. Feb. 25, 2014) An employer did not violate the federal Family and Medical Leave Act for terminating an employee for violating its no-show, no-call policy, where the employee elected not to take protected FMLA leave, even though the reason for the employee’s need for time off would have been covered under the statute

  16. Court Decisions - ADA EEOC v. Ford Motor Co. (6thCir. April 22, 2014) In holding that allowing telecommuting may be a reasonable accommodation, the Court noted: “[A]dvancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace.”

  17. Court Decisions – Class Action Waivers in Arbitration Agreements • American Express Co. v. Italian Colors Restaurant Continuation of trend to strictly enforce arbitration agreements. • March 2014: 11th Circuit (Walthourv. Chipio Windshield Repair LLC) • August 2013: 2nd Circuit (Sutherland v. Ernst & Young LLP) • Very limited grounds to invalidate class waiver • Strong dissent concerned about vindication of rights. • May 2014: Walthour plaintiffs file cert petition asking Supreme Court to consider whether the FLSA confers a non-waivablesubstantive right to collective action, and whether the law contains a congressional command barring the enforcement of arbitration agreements or class action waivers.

  18. Court Decisions - Retaliation Trend continues to increase, despite Nassardecision • Inherently hard to defend; • So many statutes with retaliation provisions • Jury verdicts in retaliation cases are exploding: • March 2014: St. Louis Circuit Court awards $7.2 million in punitive damages to police officer who claimed retaliation for having complained of sexual harassment • March 2014: Illinois state court awards $3 million toChicago State University employee who claimed retaliation for reporting alleged misconduct by top university officials. • September 2013: California court affirms jury award of $4,650,000 in favor of employee who reported wage and hour violations.

  19. Court Decisions – Sexual Harassment Orton-Bell v. State of Indiana, (7th Cir. July 21, 2014) Plaintiff, a prison security guard, complained when she learned 2 night-shift workers were having sex on her desk. Her manager suggested she should “probably wash off her desk every morning” in response The court held there was no evidence to support a hostile environment claim because had the office belonged to a man, it likely would have been used in the same manner, and therefore the act was not a result of her gender.

  20. Court Decisions Edwards v. Nicolai (NY, Case No. 160830) - Plaintiff, a Manhattan yoga instructor, is claiming gender discrimination after being told she was fired for being “too cute.” Her manager (a Playboy playmate) let her go because her manager’s husband found Plaintiff attractive. (Reminiscent of the 2012 in an Iowa Supreme court ruling of Nelson v. Knight, in which case a dental assistant was fired for being “too sexy” for the employer and the court dismissed the claim, ruling that it was her attractiveness and not her gender, that prompted the decision).

  21. Court Decisions Sarrazin v. Coastal, Inc. (Conn. S.C. April 2014) Plaintiff, a plumbing foreman, sought to be compensated for commuting time because he carried his tools to and from the workplace with him. The CT Supreme Court disagreed and found against Plaintiff, but in so doing rejected the CT DOL’s interpretation of how to apply “travel time” requirements under CT law, leaving open the question of whether the CT DOL’s “Guide to Wage & Workplace Laws” is a reliable resource

  22. NLRB • USSC rules the recess appointments were invalid (June 2014), and therefore likely all decisions made by those individuals are invalid • Gave a thumbs up to employees who use the “Like” button on FB to endorse comments about the workplace (August 2014)

  23. NLRB • Still scrutinizing workplace policies for Section 7 violations: • “ We will not make negative comments about our fellow team members” and “We will not engage in or listen to negativity or gossip” in a Values Policy deemed unlawful; • Policy requiring employees to maintain confidentiality of personnel information, including home and cellphone numbers, deemed unlawful; • Car dealership’s policy calling for “courtesy” deemed unlawful; • General Counsel still commenting on “at-will” disclaimer language

  24. Executive Orders President Obama has issued a number of Executive Orders with impact on workplaces nationally, including those related to: LGBT as protected classes; Minimum Wage increases; Arbitration Agreements prohibitions Also circulating a “Pledge” for companies to commit to adopting flex policies

  25. Thank You! Workplace law. In five time zones and 55 major locations coast to coast.

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