Assembling the Employment Law Puzzle

1. Assembling the Employment Law Puzzle VIRGINIA EMPLOYMENT COMMISSION 2012 EMPLOYER CONFERENCE Robert J. Barry (757) 624-3268 rjbarry@kaufcan.com

2. The Basics • Virginia is an “at-will” employment state. • For non-governmental employees, no cause is needed to fire anyone at any time for any reason or for no reason at all. • Contracts can remove employees from at-will status. • Binding policies or property rights in continued employment can change status.

3. The Basics • Virginia is also a “right-to-work” state. • This means that an employer cannot require employees to become or remain members of a union as a condition of their employment. • On the flip side, an employer cannot require employees to abstain or refrain from membership in a union.

4. The Basics

5. The Basics

6. The Basics • Title VII • Age Discrimination in Employment Act • Americans with Disabilities Act • Fair Labor Standards Act • Family and Medical Leave Act • Uniform Services Employment and Re-Employment Rights Act • National Labor Relations Act • State statutes and common law

7. Title VII You knew: It’s the basic federal law covering employment discrimination based on race, color, sex, religion and national origin. It prohibits discrimination “in the terms and conditions of employment.” It provides for back pay, front pay, compensatory and punitive damages, and fee shifting. Pretty much everyone is protected under Title VII (we all have a sex, a color, a race, a religion, etc.).

8. Title VII But did you know . . . A whole new “protected category” has arrived! Genetic Information Nondiscrimination Act of 2008 (Title VII remedies for discrimination based on genetic characteristics) “Genetic information” largely defined as genetic test results; can include “the manifestation of a disease or disorder in family members” of an employee – which could possibly lead to much broader coverage.

9. Title VII • Sexual orientation discrimination is not currently prohibited under Title VII or Virginia law. • Sexual orientation is a protected characteristic in some jurisdictions, however, including the District of Columbia, Montgomery County, MD, and California. • Be wary of sex stereotyping.

10. Title VII: Sexual Harassment Since at least 1985, severe and pervasive harassment constitutes “sex discrimination” in violation of Title VII. An employer has an affirmative defense to vicarious liability in cases where no ultimate employment decision is made based on the harassment (Faragher and Ellerth).

11. Title VII: Race Discrimination EEOC is targeting race claims for enforcement, particularly when combined with other protected categories (e.g., race and disability) in its E-RACE enforcement initiative. Focus in cases brought by EEOC seems to be nooses, swastikas, and graffiti!

12. Title VII: National Origin Discrimination You knew: Title VII makes it unlawful to discriminate in employment based on national origin. Most often seen in the context of “English-Only” policies in the workplace (which are acceptable if they are limited to actual work time and are reasonably necessary) and, post-9-11, to claims of discrimination based on national origin and religion by Arab-origin employees (e.g., EEOC victory in Phoenix late 2007 in Nur v. Alamo Car Rental -- $250,000 punitives).

13. Title VII: National Origin Discrimination But did you know . . . A supervisor’s comments about an employee’s accent is “direct evidence” of national origin discrimination, because accent and origin are “inextricably linked” (Gold v. Federal Express East, US Court of Appeals for the Sixth Circuit, June 2007).

14. Age Discrimination in Employment Act You knew: “Age” is a protected category under the 1973 Age Discrimination in Employment Act. For federal law purposes, you are old at age 40. The Virginia Human Rights Act also covers “Age.” Virtually every local Human Rights ordinance covers “Age” as a protected category.

15. Age Discrimination in Employment Act But did you know . . . The number of age discrimination claims filed with the EEOC jumped nearly 30% from 2007 to 2008. This number fell somewhat in 2009, but remains at nearly 23,000 per year. Contributing factors: increased number of layoffs; managers unfamiliar with layoff pitfalls; age-related comments more socially acceptable It is not illegal to favor an older employee over a younger one, even when the younger employee is over the age of 40. Final EEOC regulations published July 6, 2007, implementing 2004 General Dynamics v. Cline.

16. Americans with Disabilities Act You knew: The Americans with Disabilities Act imposes a general obligation on covered employers to provide a “reasonable accommodation” to a qualified employee with a disability, provided it does not result in “undue hardship” to the employer.

17. Americans with Disabilities Act But did you know . . . The ADA Amendments Act of 2008 (effective 1/1/09) substantially broadens coverage. The Amendment retains the basic definition of “disability”: an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment; however, it broadens the interpretation of “disability.” The EEOC will revise its definition of “substantially limits.”

18. Americans with Disabilities Act “Major life activities” now includes, among other things: Reading, bending, communicating, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Mitigating measures (except contacts/glasses) are no longer considered when determining whether an individual is disabled. ADA now covers temporary impairments and impairments that are “in remission.” Cases will now focus on whether discrimination occurred, whether the employee is “qualified,” and whether a reasonable accommodation was offered, as opposed to whether the employee has a disability.

19. Fair Labor Standards Act You knew: The federal minimum wage was increased in 2007 for the first time in many years. As of July 24, 2009, the federal minimum wage is $7.25/hour.

20. Fair Labor Standards Act But, there are several other FLSA issues to consider, such as… As of March 23, 2010, employers must provide a reasonable break time for nursing mothers to express breast milk in a place, other than a bathroom, that is shielded from view and free from intrusion. The break need not be compensated. Non-exempt employees and the use of PDAs Are the employees compensated for after-hour email review? Is the employer requiring or permitting the work? Is the time spent de minimis or substantial? Develop policies accordingly (prohibit, limit, or record)

21. Fair Labor Standards Act Other FLSA issues to consider: Well-intentioned, non-exempt employees who are working longer and harder to avoid potential layoffs Ensure all time is properly recorded and paid. Collective/class actions are on the rise Commentators have described it as the largest and fastest growing area of employment litigation. These lawsuits challenge a variety of policies and practices, such as: classification of exempt workers, meal and rest breaks, and off-the-clock work. Depending on the size of the company and the potential class, the resolution costs can be enormous.

22. Family and Medical Leave Act • You knew: • Under FMLA, an eligible employee is entitled to 12 weeks of unpaid leave in a one-year period due to: • The birth or adoption of a child; • If the employee is needed to care for a son, daughter, spouse, or parent who has a serious health condition; or • If a serious health condition makes the employee incapable of performing the functions of his or her position.

23. Family and Medical Leave Act • But did you know… • The 2009 regulations provide two new types of family military leave. • Also, Section 565 of the National Defense Authorization Act, signed by Obama on October 28, 2009, expanded these military leave provisions. • Military Caregiver Leave: • Provides up to 26 weeks in a 12-month period to care for a spouse, child, parent of next of kin who incurred serious injury or illness during military duty. • This leave also applies to veterans who were members of the Armed Forces within 5 years preceding the date of medical treatment. An “injury” can include an existing injury that was aggravated by service. • Qualifying Exigency Leave: • Provides up to 12 weeks to attend to “exigencies” that may arise when a spouse, child or parent is on active duty or called to active duty as a member of the National Guard or Reserves in support of a contingency operation. “Exigencies” may include: attending to childcare/school activities, making financial/legal arrangements, etc.

24. USERRA You knew: Obligation to re-employ anyone called up for active service Covers service in all uniformed services of the United States (including uniformed sector of U.S. Public Health Service)

25. USERRA But did you know . . . An employee who returns from military service and is reinstated under USERRA is no longer an “at-will” employee, for six months to a year (depending on the length of service) after reinstatement. Such an employee can ONLY be terminated for cause, such as unacceptable or unprofessional public behavior, incompetent or inefficient performance of duties, or criminal acts. DOL Final Regulations in 2005 take the position that individual supervisors can be personally liable!

26. National Labor Relations Act You knew: The NLRA is a Depression-era statute that is directed towards protecting the right of workers to unionize Virginia is a “Right-To-Work” state, and we have vanishingly-few union employers outside of the far western part of the state and the shipbuilding trades NLRA protects concerted activity even in a non-union workplace What is concerted activity?

27. National Labor Relations Act But did you know . . . The NLRB is relatively powerful at the moment. The Employee Free Choice Act of 2009 (proposed but not passed) would have made union certification a simpler process with mandatory binding arbitration to get initial contracts, if no agreement

28. Current Issues: NLRB Posting • As of November 14, 2011, both union and non-union employers are required to post the rights of employees under the NLRA • You may obtain a copy of this posting at www.nlrb.gov

29. Current Issues: Unemployment • Involuntary, part-time workers in the United States have approximately doubled in number since 2007 • 42.9% of the current unemployed population is long-term unemployed (6 million people) • EEOC Charges have increased by 20% since 2007

30. Document Retention and Electronic Discovery You knew: Effective December 2006, the Federal Rules of Civil Procedure were amended to include many new rules for the recovery and sharing (with the other side!) of electronic information Failure to preserve your electronic files after litigation is “reasonably likely” can result in sanctions or even a default judgment

31. Document Retention and Electronic Discovery But did you know . . . Windows VISTA has just made your life even more miserable! “Transactional NTFS” (“TxF”) generates a detailed time-line of user events, access, for months “Shadow Copy” kept on unused hard-drive space, perhaps forever, and easier to find EVIL