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HOT LEGAL TOPICS

LEGAL HOT TOPICS AND STRATEGIES FOR STAYING OUT OF HOT “LEGAL” WATERS GREATER VALLEY FORGE HUMAN RESOURCE ASSOCIATION NOVEMBER 1, 2007 JACQUELINE SHULMAN, ESQUIRE jacqueline.shulman@obermayer.com. HOT LEGAL TOPICS. Navigating EEO-1 Reporting Changes No-Match Letters Update

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HOT LEGAL TOPICS

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  1. LEGAL HOT TOPICS AND STRATEGIES FOR STAYING OUT OF HOT “LEGAL” WATERSGREATER VALLEY FORGE HUMAN RESOURCE ASSOCIATIONNOVEMBER 1, 2007JACQUELINE SHULMAN, ESQUIRE jacqueline.shulman@obermayer.com

  2. HOT LEGAL TOPICS • Navigating EEO-1 Reporting Changes • No-Match Letters Update • Jobs For Veterans Act • Federal & PA Minimum Wage Update • EEOC Revises ADEA Regulations • TEVA Pharmaceuticals – FMLA Waivers • Smokin’ Joes – Sex Harassment • Best Buy – Security Searches/$$

  3. 1. EEO-1 Reporting Changes • 100 or more employees or 50 or more and federal contracts of $50,000 • Reports due by September 30 • Used by EEOC and OFCCP • Changes to Racial & Ethnic Categories • Self-Identification Preferred • Changes to Job Categories • www.eeoc.gov/eeo1survey/howtofile.html

  4. 2. No-Match Letter Update • Letters sent to Employers when SS# doesn’t match up with employee’s name • August 19, 2007 – Final Rule expanded definition of “Constructive Knowledge” • Could now be a basis for taking action against employees (e.g. discharge) if cannot confirm • Fear it would lead to increases claims of discrimination if termed but eligible to work in US • Injunction in San Francisco froze new regs and the mailing of No-Match letters

  5. 3. Jobs for Veterans Act • For federal contractors (OFCCP) • Requires affirmative action to hire vets and refrain from discrimination • $25,000 threshold raised to $100,000 for contracts after Dec. 1, 2003 • Can use the same AAP for both old and new regulations • Still requires listing of job openings • Job Bank shut down on June 30, 2007 • www.dol.gov/esa/ofccp/index.html

  6. 4. PA & Federal Minimum Wage • Pennsylvania • 11 or more employees – Current is $7:15 • 10 or fewer – Current is $6.65 until 7/1/08 • Trainee Exemption – under age 20 – first 60 days of employment only- not less than $5.15 • Must notify at time of hire of both wages • Federal • Currently below PA • No impact until July 24, 2009 - $7.25 • But must display poster now

  7. 5. New ADEA Regulations • ADEA does not bar employers from favoring older workers over younger ones, even when all are older than 40 • Rule issued by EEOC after SC Case • Rule notes that ADEA does not require employers to prefer older individuals • Limit collecting of age-identifying info

  8. 6. TEVA and FMLA Waivers • District Court- Eastern District of PA -2006 • Legal for severance agreement to include a waiver of past FMLA violations • Not legal for employees to prospectively waive FMLA right to take leave or right to sue • Retaining the severance payment does not make an illegal agreement enforceable

  9. 7. Smokin’ Joes Tobacco Shop • District Court – Eastern District of PA - 2007 • Employee’s sexual history/marital status relevant in determining if hostile environment existed (to see if she was subjectively offended by comments) • Employee’s discussions with her co-workers about her sex life outside workplace showed she may not have been offended by supervisor’s comments. • Best to have Zero Tolerance for sex talk in workplace

  10. 8. Best Buy and Security Searches • Philadelphia Court of Common Pleas – 2007 Proposed Class Action lawsuit • Alleges hourly employees not compensated for daily security checks after punching out • Alleges hourly employees routinely forced to work through meal and break periods without compensation • Harkens back to Wal-Mart - $140 million in 2006 (for working OT and through breaks without proper compensation)

  11. How to Stay out of Hot Water • 1. “Smart” Supervising • 2. Follow the Golden Rule (Avoiding Harassment Claims) • 3. 10 Tips for Termination without Litigation

  12. 1. “Smart” Supervising • Know which hat you wear • Fair and consistent treatment • Each employee is an individual • Be a good listener • Respond promptly • Be a good communicator • Be Proactive with employee concerns • Be Respectful (Follow the Golden Rule)

  13. 2. Follow the Golden Rule • Be a Professional • Do unto others as you would have others do unto you; or • Don’t do anything to someone else that you would not like done to you (or someone you care about)

  14. 3. Termination Without Litigation • Termination is Capital Punishment of the workplace • If it’s not in writing, it didn’t happen • If it feels good, don’t do it • If the employee is surprised, you haven’t done your job • Consistent and Fair Treatment • Human Resources is your friend

  15. IF ALL YOU REMEMBER… • Fair and Consistent Treatment • It’s a Supervisor’s job to set the tone for the staff (Act Professionally) • Follow the Golden Rule • Educate that Human Resources is everyone’s Best Friend!!

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