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Fall Labor & Employment Seminar

Join Terry Potter, Laura Staley, and Anthony Grice for a seminar on the latest developments in employment law. Topics include social media policies, GPS tracking, FMLA updates, and more. Don't miss out on this informative event!

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Fall Labor & Employment Seminar

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  1. Fall Labor & Employment Seminar Thursday, October 7, 2010

  2. Current Developments in Employment Law Terry Potter Laura Staley Anthony Grice

  3. Plaza Auto Center F’ing mother f’ing F’ing crook Asshole Stupid Nobody liked him Everyone talked about him behind his back

  4. Kiewitt Power “It’s going to get ugly” “Better bring his boxing gloves”

  5. Atlantic Steel Test 4 Factors – Balanced 1) Place of discussion 2) Subject matter of discussion 3) Nature of employee’s outburst 4) Provoked by employer’s ULPs?

  6. Sears Holdings Corp.Advice Memo Social Media Policy “Prohibited subjects” • Confidential or proprietary information, intellectual property, explicit sexual references • Disparagement of company’s executive leadership, employees or strategy

  7. Guard Publishing Co. E-Mail Policy • Not a violation to prohibit use of employer’s e-mail system for any non-job related solicitations Unlawful Surveillance? • Facebook • Twitter • Organizing Committee websites

  8. GPS Tracking • Privacy Issues • Elgin v. St. Louis Coca-Cola Bottling Co. (E.D. Missouri) • Intrusion upon seclusion claim • GPS tracking device was not substantial intrusion upon seclusion

  9. GPS Tracking (continued) • Unionized environment • City of Modesto (California) • Employer violated state labor laws by installing GPS on Union President’s truck • East Coast Mechanical Contractors (NLRB Advice Memo) • Installing GPS devices on the vehicles of employees known to be union organizers constitutes violation of §8(a)(1) of NLRA

  10. GPS Tracking (continued) • Policy Suggestions and Best Practices • Policy Suggestions • Right to monitor • Right to discipline • Method of data collection, storage and security • Best Practices • Limit to on duty activities • Inform employees they will be monitored • Limit access to data to those who need to know

  11. FMLA Update • Illinois Family Military Leave Act • Employers required to provide up to 30 days of unpaid leave for spouse or parent of service member • July 30, 2010 Amendment • Makes adult children and grandparents of service members eligible for leave • Allows employers to reduce Illinois family military leave time by any days of FMLA leave granted due to military service • Amendment takes effect January 1, 2011

  12. Video Clip

  13. K2 and Synthetic Marijuana • Missouri law banning K2 became effective on August 28, 2010 • New legal equivalents • K3, Heaven Sent, Syn • Modify existing substance abuse policies and provide notice to all employees

  14. Case Law Update Co-Employees’ Negligence Claims • Missouri Workers’ Compensation Statute • Immunity from negligence claims after workplace injury • Employees vs. Employers • Old standard was “negligence plus”

  15. Co-employees’ Negligence Claims (Cont.) • Strict construction amendment in 2005 • Court recognized strict construction of Act’s exclusivity provision • Robinson v. Hooker (Western District Court of Appeals, August 2010) • Co-employees are not “employers” under the Act – exclusivity doesn’t apply • No more “negligence plus” • Case not necessarily persuasive • Additional jurisprudence could overturn

  16. Facebook Status Update

  17. Case Law Update (continued) FACEBOOK CONSIDERATIONS • Does what happens on Facebook stay on Facebook? • Does your company have a Facebook page? • Most recent case - Jabbar v. TravelServices, Inc. (D. Puerto Rico)

  18. Jabbar v. TSI Plaintiff: “…remind me that taking pictures in the shade is really a disservice to my wonderful chocolate skin.” Co-worker: “That is why you always have to smile!!!”

  19. Jabbar v. TSI (cont.) • Did Company know or should they have known about harassment? • Company activity pictures on Facebook • Court considered whether Facebook account belonged to company • “it cannot be assumed that TSI knew or should have known about the alleged discriminatory comment that was posted [on Facebook]…”

  20. Pending Legislation • Employment Non-Discrimination Act (ENDA) (H.R. 3017, S. 1584) • Protects sexual orientation (already laws in CA, OR, NJ, CO) • What will change: Under the ENDA, employers would no longer be able to make employment decisions based on an individual’s perceived or actual sexual orientation or gender identity • EEOC would have the power to issue regulations and enforce the ENDA

  21. Honest Mistake?

  22. Congrats, Uncle Jenn!

  23. Sober Pregnancy

  24. True Love is Amazing

  25. Research Fail

  26. Back in the Day

  27. Back in the Day

  28. Back in the Day

  29. Back in the Day

  30. Office of Federal ContractCompliance Programs(OFCCP)FY 2011 Enforcement Priorities:Is Your Organization at Risk? Jerry K. Rodriguez

  31. OFCCP Budget and New Organization FY 2009 $84,172,000 FY 2011 $113,433,000 • 35% Increase in OFCCP’s budget from FY 2009 to FY 2011 • OFCCP Director (Patricia Shiu) reports directly to DOL Secretary (Hilda Solis) • Midwest Region: 49 new Compliance Officers • OFCCP’s goal to expedite compliance audits

  32. OFCCP Strategic Goals • Prepare workers for good jobs and fair compensation • “Narrow wage and income inequality” • Assure fair and high quality work-life environment • “Break down barriers to fair and diverse workplaces”

  33. Executive Order 11246 • E.O. 11246 • Continued focus on diverse hiring and fair compensation • Particular emphasis on entry level applicants • More reviews of construction contractors/ARRA • OFCCP looking at changes to regulations covering construction contractors

  34. Section 503 of Rehabilitation Act • Increased emphasis at OFCCP, including onsite audits • Consult sample onsite checklist to prepare • Review Employment Resource Referral Directory for outreach • ANPR issued June 2010 • Giving consideration to setting numerical goals

  35. Vietnam Era Veterans’ Readjustment Assistance Act(VEVRAA) • VEVRAA • Increased emphasis on VEVRAA compliance, including onsite audits

  36. Executive Order 13496 • E.O. 13496 • Notice Posting Requirements: • Notification of NLRA organizing rights • Certain federal contractors are exempt

  37. OFCCP Jurisdiction • OFCCP jurisdiction over more healthcare employers is looming • Recipients of Medicare/Medicaid are exempt • UPMC Braddock (2009): OFCCP has jurisdiction over hospitals providing care to government employees under HMO • Florida Hospital (pending): Does OFCCP have jurisdiction over recipients of Tricare reimbursements? • Stay tuned

  38. New Focus on Complaint-Driven Audits • Individual complaint investigations increasing • No longer sending all individual complaints to EEOC

  39. Pay Equity • White House Task Force • Includes EEOC, OFCCP and DOJ • Women paid 77 cents for every $1 to men • Not just blue collar jobs • Improve Interagency Coordination • Collect Data • Educate employers on obligations and employees on rights • Paycheck Fairness Act

  40. BREAK 15 Minutes

  41. Current Enforcement Trends, What Types of Claims the EEOC Finds Interesting, and How it Processes Charges of Discrimination Special Guest: Rebecca Stith, EEOC Senior Trial Attorney Moderators: Bob Tomaso & David Schenberg

  42. EEOC Decides to Sue • Important Principles • Perhaps Economics Do Not Attract Private Counsel • Broad Relief • Systemic Violations • More Than One (1) Victim

  43. Pitfalls for Employers • Retaliation • Failure to Produce Requested Documents • Failure to Respond • Electronic Discovery/Preservation • Being Angry

  44. Trends? • Impact of Social Media • Religious Discrimination (Swift) • Equal Pay Act • No EEOC Suits in 2008 • Two lawsuits in 2009 • Association Discrimination • ADAAA

  45. Impact of a “Cause” Finding • Not Much

  46. Independent Contractor: A Risky Classification Randy Thompson Elena Minkin Parker

  47. Independent ContractorAttractions • Staff up/staff down quickly • Easier budgeting • Hire only for specific needs • May limit liability under state and federal employment laws • No tax withholdings • Generally no immigration checks

  48. Proper Classification is Critical • Generally, individual is employee if company retains rightto control means and manner of performance • With independent contractor, company controls only the resultof the work

  49. Misclassification Risks • Tax liability • Back pay • Benefits • Overtime • Civil penalties • Criminal penalties

  50. Lawsuits • Microsoft: $97 million class action settlement • FedEx: $1 billion sought in class action

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