The Year in Review: 2010

1. The Year in Review:2010 Nicole M. Sandoz, Esq.

2. Today’s Presentation • Trends and Highlights • New Laws • Key Court Decisions • Your “To Do List” • “Red Flag” Issues

3. Wage and Hour Lawsuits • Class Actions • Misclassified as Exempt • Missed Meals and Breaks • Donning and Doffing • Off-the-Clock Work • Wage Order-based claims • Pay Stubs

4. Expanding Discrimination Claims • Class Actions • New Theories EEOC Sues Care Provider over Failure to Stop Client’s Sexual Harassment EEOC Accuses Piggly Wiggly of Anti-Male Bias EEOC Accuses Wal-Mart of Religious Bias EEOC Hits US Steel with ADA Suit over Random Alcohol Testing EEOC Sues Towing Company over Medical Leave Policy EEOC Sues DHL Alleging Job Assignments Based on Race EEOC Nails Rite Aid Using Broader ADA EEOC Sues Washington Apple Grower for Sexual Harassment

5. Availability of and Right to Use Information vs. Privacy Rights

6. “Desk Rage” Among U.S. Workers “ Rudeness, impatience, people being angry – we used to do that kind of stuff at home but at work, we were professional. Now it’s almost becoming trendy to do it at work.” Anti-bullying legislation has been introduced in 17 states

7. Health Care Reform:What You Need to Know • Short-term Policy Changes • Coverage for children through age 26 • No denial for children with pre-existing conditions • Long-term Developments • Key Date: 2014 • New whistleblower rule Other changes apply in the next plan year for plans that are not grandfathered DWT Employee Benefits attorneys can assist you with your policies

8. Your To Do List • Discuss health care reform compliance with carriers upon renewal • Develop and implement policy for nursing mothers (existing CA requirement)

9. GINA Regulations • GINA: federal discrimination protection for “genetic information” (effective November 2009) • Regulations finalized November 2010: • Harassment is included • Set boundaries for the real and virtual worlds • Provide “safe harbor” language

10. Your To Do List • Revise EEO and anti-harassment policies to include genetic information; develop/revise social media policy • Revise FMLA policy and forms to include GINA “safe harbor” language • Educate supervisors about the boundaries under GINA

11. Federal Law: HIRE Act • Tax benefits to hire previously unemployed workers • Exemption from employer’s share of social security tax • Tax credit for each qualified employee retained for 52 weeks

12. Your To Do List • Discuss HIRE Act with your CFO/business manager if conducted any hiring since 03/19/2010.

13. Key California Legislation • Meal break exemption for employees in certain industries (AB 569) • Organ and bone marrow donation leave (SB 1304) • New background check disclosures for January 2012 (SB 909)

14. Your To Do List • Evaluate whether new meal break exemptions may apply. • Update leave policies to include organ and bone marrow donation leave. • Check in with background check vendors towards end of year to confirm compliance.

15. Agency Updates: EEOC • 93,277 Charges (2nd highest ever) • Most common: • 10% increase in ________ claims • Staffing trends race and retaliation disability Coming Soon! Revised ADA Regulations and Guidance

16. Proposed EEOC Regulations: Age Discrimination Disparate Impact Cases • An employment practice is okay if a “reasonable factor other than age” justified it. • What makes a practice reasonable? Relevant factors: • Common business practice? • Related to business goal? • Steps to define accurately, apply fairly? • Steps to assess adverse impact? • Severity of harm? • Other options available

17. “Red Flag” Reminder • If concerned that one of your policies may have a more significant impact on older employees, use the standards outlined in the proposed regulations to closely evaluate the policy.

18. California Case Review • Produce brokers were not farm workers’ “employer” in wage and hour suit (Martinez v. Combs) • Three-year limitations period for waiting time penalties (Pineda v. Bank of America) • California rules on “stray remarks” doctrine (Reid v. Google)

19. California Case Review • Unlimited sick leave policy did not create unlimited right to kin care leave (McCarther v. Pacific Telesis) • Invalidated arbitration agreement (Trivedi v. Curexo)

20. A New Direction Bright v. 99¢ Only Stores • Labor Code 1198: Wage Orders set the “standard conditions of labor”; employment under conditions “prohibited by the order is unlawful.” • The plaintiff, a retail cashier, was able to use section 1198 to sue under the Private Attorneys’ General Act (“PAGA”) for not being able to sit while working, a Wage Order requirement.

21. California Case Review • Can a subsequent employer be liable if it upholds the prior employer’s noncompete? ____________(Silguero v. Creteguard) • Still waiting for a ruling on Brinker You Betcha!

22. US Supreme Court Review

23. A Few Key Supreme Court Decisions • Disparate impact claim can arise on use of the alleged discriminatory practice, not just the adoption of the practice. (Lewis v. Chicago) • Search of public employee’s text messages was a reasonable, not unconstitutional, search. (Ontario v. Quon)

24. Upcoming Supreme Court Cases • Does a public employer’s inquiries into applicant’s counseling history, drug use violate constitutional right to privacy? (NASA v. Nelson) • Is an oral complaint protected under the FLSA’s anti-retaliation provisions? (Kasten v. Saint-Gobain Performance Plastics) Interpreting the statute, which protects one who “has filed any complaint”

25. Upcoming Supreme Court Cases • Can an employer be liable based on intent of officials who did not make the employment decision? (Staub v. Proctor Hospital) • Does Title VII permit a retaliation claim for one who did not engage in protective activity but is closely associated with one who did? (Thompson v. N. American Stainless) Update: _______________ Cat’s paw? Evaluating the “cat’s paw” theory But of course! Thompson’s fiancée had filed an EEOC charge.

26. Upcoming Supreme Court Cases • What is the proper standard for class-wide discrimination claims? (Wal-Mart v. Dukes) • Can Arizona impose sanctions on employers who hire unauthorized aliens – or is it solely a federal issue? (Chamber of Commerce v. Whiting) 1.5 million members of the class!

27. Department of Labor • Unpaid Interns: hard to meet the test in for-profit employers • Therefore, must be paid at least minimum wage

28. Your To Do List • Audit your pay practices • unpaid interns, indep. contractors • exempt classifications • meal periods and rest breaks • hours worked (inc. pre- and post-shift) • calculation of “regular rate of pay” • pay stubs • wage order conditions Consider having the audit conducted under attorney-client privilege to protect the confidentiality of the results

29. FMLA Update • DOL issues guidance about “in loco parentis.” Extends to one who intends to assume parental responsibility and provide day-to-day care or financial support for a child.

30. USERRA • Freyer v. ASAP Fire & Safety • Remember: • returning service members entitled to same or equivalent position • after return, can only be terminated forcause within specified period. $505,000!

31. Looking Ahead • Employee Free Choice Act? • Anti-bullying laws? • Paid sick leave? • Paycheck Fairness Act? • Continued pressure on wages and benefits? • The re-hire wave?

32. Thank You!