general session.pptx [read-only]

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2015 Labor & Employment ConferenceApril 23, 2015

The Impact of Legalized Marijuana in the Workplace

Vance Knapp303.299.8162

[email protected]

Background

• 23 states and the District of Columbia have legalized possession and use of limited amounts of marijuana for medical purposes.– Legislation pending in at least 11 other states.

• Alaska, Colorado, Oregon and Washington state have also legalized limited amounts of marijuana for recreational purposes.

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Marijuana is Still Illegal Under Federal Law or Is It?

On August 29, 2013, The U.S. Department of Justice issued a memorandum to all U.S. Attorneys updating its Guidance on marijuana enforcement.

• The DOJ is deferring its right to challenge legalization efforts at this time.

Federal Status

Marijuana remains classified as a Schedule I narcotic under the Federal CSA.

• Marijuana cultivation, distribution, possession and use are still criminal acts under federal law.– Marijuana is in the same category as Cocaine, Heroin,

LSD and Ecstasy.

• Drug Free Workplace Act Federal Contractors and Subcontractors receiving $100,000 or more.

ADA Issues Involving Marijuana

• ADA does not require employers to accommodate the use of marijuana. – However, if an employee enters a substance abuse

program, employers have to accommodate the employees participation.

• ADA does not consider drug testing to be a medical examination.

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Accommodation of Medical Marijuana

• Safe Harbor if employee reports addiction to marijuana– Does not protect employee who is actively using

marijuana.– Consider Last Chance Agreements for failed drug

tests.

Can I Regulate My Employees’ Use of Marijuana?

YES!

• At a minimum, employers in all 50 states and the District of Columbia can regulate an employee’s use of marijuana by:– Prohibiting marijuana possession and use at work; and – Reporting to work impaired or under the influence of

marijuana.– Colorado employers can completely prohibit

possession and use at work, and can also have policies restricting an employee’s use.

Can I Regulate My Employees’ Use of Marijuana?

Colorado’s Lawful Off-Duty Activities Statute, C.R.S. §24-34-402.5, makes it a discriminatory or unfair employment practice to terminate an employee who is engaged in lawful off-duty, off-premises activities.

• Still No Decision! – Coats v. Dish Network, the Colorado Court of Appeals

held that medical marijuana use is not lawful for purposes of Colorado’s Lawful Off-Duty Activities Statute. This case was argued before the Colorado Supreme Court in November, a decision is currently pending.

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Policy Options

• Is Marijuana use addressed in your collective bargaining agreement with your unionized workers? – If so, what are the requirements for drug testing and

discipline?

• Beware local drug testing ordinances.

How Should I Address Marijuana Use in My Employment Policies?

Review your substance abuse policy to ensure its restrictions concerning marijuana use are consistent with the restrictions contained in your respective jurisdiction.

• E.g., “Acme Company does not permit the possession, distribution or use of illegal substances (including medical and recreational marijuana).”

• Treat similarly-situated employees the same.

Waiting For The Roberts CourtAbsurdism, Existentialism, or Both?

Bill Wright303.299.8086

[email protected]

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Flux in the Universe

• Perez v. Mortgage Bankers Association (2015)– Did DOL lawfully turn 180° on exempt status of

mortgage loan officers without notice and comment rulemaking?

– Yes, this time. Notice and comment rulemaking not required, but courts give less weight to mere guidance and interpretation.


• Effect of Perez v. Mortgage Bankers Assoc.– Alternative agency actions:

EEOC Guidance, DOL Opinion Letters.– Do we really have to put up with reversals of

compliance policy with each change in presidential administrations?

• Yes.


• Contrast with Integrity Staffing Sols., Inc. v. Busk (2014)– Compensable time does not necessarily include:

• Time spent as required by the employer• Time spent for the benefit of the employer• Time the employer could have saved the employee

by better management.– Compensable time includes the “principal activities”

and those activities “integral and indispensable” to the safe and effective performance of the principal activities.

• Relies on 1950’s readings of the Portal-to-Portal Act.

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Magical Thinking

• Young v. UPS (2015)– Employer offers light duty to workers injured on the

job and others.– Employer denies light duty to lifting-restricted

pregnant worker.– Result: disparate treatment lawsuit.

• Ruling: The denial might be discriminatory.– Employee may prove pretext by showing “significant

burden” on pregnant workers and employer’s justification is not “sufficiently strong” to justify the burden.

Magical Thinking

• Effect of Young v. UPS– You MIGHT have to open your workers comp. light-

duty assignments to restricted pregnant workers.– The issue will turn on whether so many people are

able to get light duty work that a reasonable jury could find the fact that pregnant workers are excluded shows discriminatory animus.

– As Scalia said, “poof.”

Looking For Meaning

• Mach Mining v. EEOC (2015?)– Supreme Court to help EEOC find its reason for being.

• Conciliation– Title VII duty to “conciliate” after finding cause.– EEOC’s practice is NOT settlement or mediation.– Hide the ball and ask for it all.

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Looking For Meaning

• Possible effects of Mach Mining v. EEOC?– Lower courts disagree:

• Something has to occur, but we can’t say what.• EEOC should behave like a reasonable partner-in-

compliance.– Waiting for the Roberts Court . . .

• Will the EEOC start helping us comply with the law?

– Probably not.

Is Religion The Answer?

• EEOC v. Abercrombie & Fitch (2015?)– Limit it to the facts:

• Applicant wearing hijab turned down.• Applicant did not ask for accommodation.• Interviewer assumed wearing hijab was required

by applicant’s faith.– Does an applicant have to raise the issue of

accommodation with the employer?• Even if the need was obvious to the employer?

Is Religion The Answer?

• Possible effects of EEOC v. Abercrombie & Fitch?– In interviews, will you be required to raise any

“obvious” need for accommodation?• Probably.

– Is this a step toward conflating “reasonable accommodation” under Title VII with “reasonable accommodation” under the ADA?

• Probably not.

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The Big Issue

• The Same Sex Marriage Cases (2015?)– Obergefell v. Hodges– Tanco v. Haslam – DeBoer v. Snyder – Bourke v. Beshear

• Oral argument set for April 28, 2015.

The Big Issue

• Issues in the Same Sex Marriage Cases.1. Does the Fourteenth Amendment require a state to

license a marriage between two people of the same sex?

2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The Big Issue

• Possible effects of the Same Sex Marriage Cases?– If the Supreme Court finds a fundamental right to

marry, how will states protect the religious freedom of business owners and corporations?

– Religious Freedom Restoration Act(s)• Federal law applied to government action.• State proposals apply to individual and corporate

action.– What’s in your corporate mission statement?

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BYOD: OMG!

Emily Keimig303.299.8240

[email protected]

Benefits

• Save on the cost of devices

• Employee comfort level

• Employee productivity

• Employee convenience

• Efficiency of communication

• Simple reimbursement polices

Risks

• Intellectual Property

• Financial Records

• Trade Secrets

• Business Plans

• Employee PII

• Third Party PII

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The Legal Patchwork Of Data Protection

• Payment Card Industry Standards

• Consumer Data (FTC; California; VPPA; Cable Act)

• Health Information (HIPAA)

• Financial Institutions (Gramm-Leach-Bliley Act)

The Legal Patchwork Of Data Protection

• PII Data Breach

• Reporting Requirements (Variation from state to state)

• FCRA

• Common Law Claims (invasion of privacy; breach of contract; fraud; unjust enrichment)

What Do We Use ODs For?

• Personal and business communication of all types

• Email

• Texting/Messaging

• Social Media

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Who Should You Be Worrying About And Why?

• Third-party thieves or hackers

• Anyone with access to the information

Smartphones Alone

• Consumer Reports. May, 2014.– About 3.1 million American consumers were victims of

smartphone theft in 2013– Double 2012– About 1.4 million smart phones lost and never

recovered

Data About Data Security And Breaches

• Reportable versus non-reportable breaches mean many data breaches are never disclosed or reported in statistics

• 40-70% caused by employees

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The Role Of Employees

• Bad actors or victims?

• Possibly both

The Role Of Employees: OMG

• Small et al. v. University Medical Ctr. Of NevadaFLSA and state wage law claimsClass action

• Special Master assigned, subpoenaed Sprint’s records− Text messages on iPhones, Google phones,

Blackberries, etc., were not preserved− No analysis regarding relevance− Death penalty sanctions and fees

What Can You Do To Mitigate The Risks And Costs?

• BYOD policy

• Employee training on policies

• Limit access

• Remote wipe ability

• Encryption

• Short lock out times

• Security software

• Litigation holds that are prompt and meaningful

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The National Labor Relations Board’s New Ambush Election Rules

Bernie Siebert303.299.8222

[email protected]

History of the Rules

• Unions have long sought to shorten the time between petition and election

• Rules first proposed in 2011

• Initial rules struck down by U.S. District Court for the District of Columbia (lack of quorum when rules adopted)

• Rules re-proposed February 6, 2014– Nearly identical to the 2011 rules– Failed to address the more than 65,000 comments

submitted

History of the Rules

• Multiple days of hearings with speakers on both sides of issue

• Final rules adopted, published in the Federal Register December 15, 2014 to be effective April 14, 2015

• Legal actions commenced in Washington D.C. and Texas challenging the rules

• No rulings in either case

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No Need for the New Rules

• NLRB elections currently very efficient

• Median time to election 38 days following the filing of a petition

• 94% of all elections held within a median of 56 days from filing of the petition

No Need for the New Rules

• Unions currently winning 70% of elections

• Any imbalance in time due to Union issues, when to file, blocking charges

• Shortening time frame will only serve to prevent the Employer from adequately advising employees of their rights and the pros and cons of unionization

Effect of the New Rules

• NLRB - “The Final Rule will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”

• In general the new rule will shorten time frames for elections, prevent litigating most issues, extremely limit challenges to rulings by the Regional Director, increase the authority of Regional Directors.

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BE PREPARED!!

• Make sure employees know the Company’s position on Unions:

We believe strongly that all ABC Company employees are able to speak for themselves and should have the right to do so. Outsiders can interfere with that right and can interfere with our ability to operate our Company in the best interests of our employees, customers, and shareholders. For these reasons, our policy is to oppose the formation of labor unions at ABC locations. Labor unions do not create jobs and they do not provide job security. All of us working together to make a strong, healthy company can do this. Because of our belief in these principles, we will comply with the law at all times to protect our employees and the Company from any attempt to unionize our employees.

Highlights of the New Rules

• Petitions may be filed electronically

• NLRB will communicate with parties electronically

• Petition must be served electronically on all parties (or by fax on the Employer)

• Petition must include the showing of interest with originals to the Region within 2 days

• Along with the petition, the filing party must serve a Statement of Position form and a “Description of Procedures in R Cases”


• The Regional Office will serve Notice of Hearing (normally to be held within 8 days); Statement of Position Due Date (noon the day prior to the hearing), plus another copy of petition, statement of position form, Description of Procedures in R Cases.

• Employer required to post (or serve electronically if that is the normal communication method) initial Notice of Election to Employees.

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• Statement of Position is a critical document– Jurisdiction and commerce information– Whether there is agreement with proposed unit, if not,

specifically why not and who should be included or excluded

– Classifications, locations or other groupings that are sought to be included

– Individuals in the claimed unit whose vote will be challenged and the reason for the challenge

– Any bar– Other issues– Position on election details, balloting, date, time, location,

payroll cutoff– Representative for service of documents

Statement of Position

• Any issues not included on Statement are presumptively waived, including the ability to challenge persons not named in the Statement.

• Importance of the Statement of Position forms cannot be emphasized enough.

• As part of the Statement, a list of eligible voters must be supplied with name, work location, shift and job classification must be produced. The list must be in Microsoft Word (doc. or docx.) in a font size equal to or greater than Time New Roman 10 pt.

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Statement of Position

• Union must respond to the Statement of Position on the day of the hearing.

• Hearing is solely limited to the issue of whether it is appropriate to conduct an election.

• Issues of unit, inclusion or exclusion of individuals, and eligibility cannot be litigated at pre-election hearing.

Hearing

• Prior to close of hearing HO will get the positions of the parties on payroll cut-off, dates, time and method of election.

• Only oral argument—no post hearing briefs

• Request for Review can be filed at anytime up to 14 days after a final disposition of the proceedings by RD – need permission to file “Special Appeal.”

Post Hearing Review

• Only where there are “extraordinary circumstances” where the issue would otherwise “evade review” will Request for Review be granted pre-election.

• No stay of election unless “clear showing that it is necessary under the specific circumstances of the case.”

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Voter List

• Within two days of decision and direction of Election, voter list (formerly Excelsior list) must be produced.

• List must include name, work location, job position, shift, home address, home phone, cell phone and e-mail address.

• List must be filed electronically in a format approved by the GC (probably Microsoft Word).

• Parties shall not use the voter list for anything not related to the representation proceeding or other Board proceeding related to the R case.

BE PREPARED!!

• Get professional advice– What is an appropriate unit at your Company– What groups of employees posses a “community of

interest”– What job classifications should be included/excluded– Which employees are “supervisors”

Voter List

• Union entitled to have Voter List for 10 days prior to the election, but the 10 day period can be waived.

• Notice of Election must be posted for three full working days prior to the election and sent electronically posted/emailed to employees.

• At election, persons may be challenged even if not on the list provided with Statement of Position.

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Post Election

• Post election objections must be filed within 7 days of the election together with an offer of proof.

• Post election hearing (if any) will be held 21 days after the tally of ballots.

Post Election

• Except for “Consent” election agreements, all post election rulings by HO subject to discretionary review by the Board.

• Blocking charges must be accompanied by offer of proof which includes the names of all witnesses and their expected testimony.

• Witnesses must promptly be made available to the Region.

Questions

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If It Ain’t Broke, Break It

Patrick Scully303.299.8218

[email protected]

If It Ain’t Broke, Break It … from the 90’s

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No Notice, No Comment

• Perez v. Mortgage Bankers Association, et al., ---S.Ct.---, 2015 WL 998535 (Mar. 9, 2015).

• The Supreme Court said that Interpretative Rules issued by agencies do not have to undergo notice-and-comment rulemaking procedures even if they contradict or substantially change previously issued Interpretative Rules.

• DOL permitted to change its position after four years regarding whether mortgage-loan officers were exempt from the overtime provisions of the FLSA even though it did not allow for notice and comment prior to changing its position.

NLRB Reverses Itself

• NLRB’s attack on arbitrations– Rejecting its own deferral doctrine

• Babcock & Wilcox, 361 NLRB No. 132 (December 15, 2014).

– Striking down class waivers• Murphy Oil, 361 NLRB No. 72 (October 28, 2014)

• Purple Communications, 361 NLRB No. 126 (December 11, 2014).

Arbitration Works, Let’s Not Arbitrate

• Babcock & Wilcox, 361 NLRB No. 132 (December 15, 2014).

• Proponent of deferral must “demonstrate that the parties presented the statutory issue to the arbitrator, the arbitrator considered the statutory issue…, and Board law reasonably permits the award.”

• Applies not only to post arbitration deferral, but pre-arbitration deferral and requests to defer to grievance settlements.

• Decision not subject to appeal, change in discretionary policy.

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Effect of Babcock & Wilcox

• “We are not seeking to turn arbitrators into Administrative Law Judges”

• Decision will not (?) reduce deferral in practice

• Wright Line is just like “just cause” (or vice versa)

• What about remedies?

• Are settlements in grievance arbitration now subject to Independent Stave?

• What about witness statements?

• Who benefits?

• Who loses?

ADR STILL BAD…

• Murphy Oil, 361 NLRB No. 72 reaffirmed D.R. Horton, 357 NLRB No. 184 (1/9/2012) which was denied enforcement and negated by the Noel Canning decision.– Notwithstanding 5th Circuit’s denial of enforcement

• NLRB reiterates that class waivers in arbitration agreements unlawful under the NLRA.

• FAA and USSC’s decision in Concepcion notwithstanding.

• Circuits have found NLRB’s rationale unpersuasive.

• NLRB claims that FAA and Concepcion concern only procedural rights, not substantive rights.

• But suggests that substantive, not procedural rights are intended to be waived.

Purple Reign?

• Purple Communications, 361 NLRB No. 126 (December 11, 2014).

• Overturned Register Guard, 351 NLRB 1110 (2007).

• “We will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.”

• Employer can justify restriction with “special circumstances”? Like…..?

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Effect of Purple Communications

• “Our decision today is a limited one.”

• Email system not like a wall…not compelled speech of employer…(how is property interest defined?)

• Employers may continue to monitor email systems “for legitimate management reasons….”

• Surveillance?

• What is working time?

• What are viable options for employers?

• How will Unions take advantage?

• How will elections change?

Franchisor = Joint Employer

• 13 Unfair Labor Practice Complaints issued against McDonald’s and franchisees.

• NLRB’s decision in Browning Ferris, 32-RC-109684.

• General Counsel urged the Board to adopt a new standard for joint employer.

• “Under totality of circumstances, including the way separate entities have structured their commercial relationship, the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its [joint employer’s] absence.”

EEOC Joint Employer

• Amicus Curiae brief of the EEOC, Browning Ferris, 32-RC-109684.

• Theory already questioned Brunner v. Jimmy John’s (N. Dist. Illinois, April 8, 2015).

• The EEOC urged the Board to adopt the same joint-employer standard that the EEOC uses

• “EEOC’s standard is more flexible, more readily adaptable to evolving workplace relationships and realities, and more consistent with the goals of remedial legislation such as Title VII and the NLRA.”

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EEOC Definition of Joint Employer

• The EEOC’s Compliance Manual states “The term ‘joint employer’ refers to two or more employers that are unrelated or that are not sufficiently related to qualify as an integrated enterprise, but that each exercise sufficient control of an individual to qualify as his/her employer.” Special Issues Regarding Multiple Entities: Joint Employers, 2 EEOC Compliance Manual § 2-III(1)(a)(iii)(b) (2009).

• To determine whether one or both businesses exercise sufficient control, the EEOC considers: who hires and fires, who assigns work, who controls daily activities, who furnishes equipment, where the work is performed, who pays the worker, who provides employee benefits, how the worker is treated for tax purposes, and whether the worker and the putative employer believe that they are creating an employer-employee relationship.

Department of Labor Persuader Rule

• Change “advice” exception

• Require attorneys/firms to register

• Designed to capture attorney review/supervisor training

• Opposed by ABA

• Attack on attorney-client privilege

• Solutions?

DOL Wage & Hour Rules

• Redefine Exempt/Non-Exempt

• Expected first quarter 2015?

• Change “salary basis”

• Increase to 50K yearly could affect 5-10 million workers

• “Primary duty” test – Adoption of California’s 50% rule?– Limitations on training– Limitation to work on “policies”

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Hazardous to Your Health: Are Wellness Programs Helping or Hurting

Your Bottom Line?

Brooke Colaizzi303.299.8471

[email protected]

EEOC v. Orion Energy Sys.

• EEOC v. Orion Energy Systems (E.D. Wis.)

• EEOC v. Flambeau (W.D. Wisc.)

• EEOC v. Honeywell Int’l. (D. Minn.)

Thing in common: Chicago district office

ADA and Wellness Programs

• Medical examinations and inquiries are key

• Wellness program = employee health program

• Is the program “voluntary?”

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And the EEOC says . . . .

• Program must be designed to promote health or prevent disease

• Mere collection of information or cost-shifting insufficient


• Voluntary– Cannot require participation– Cannot deny access to coverage or benefits– Cannot take adverse action for non-participation– If group health plan, provide written notice about

medical info disclosure


• Incentives– Financial and “in-kind”– May not exceed 30% of total cost of employee-only

coverage

• Example: Employee-only coverage is $5k– $250 reward for HRA and $1,500 reward for class not

ok– $1,500 reward only ok

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• Rules apply to participatory and health-contingent programs

• Accommodation must be provided for all programs


• Confidentiality of medical information

• If group health plan, HIPAA rules apply as to privacy and security

• Best practice– Persons handling medical info should not be

decision-makers

Rules in Practice

• $1,000 in Starbucks gift cards is still an “incentive”

• Pay attention to more than just premium shifting

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Rules in Practice

• HIPAA may apply when ADA does not; ADA may apply when HIPAA does not– ADA incentives apply to any program that uses

medical information/exams– HIPAA: incentive limits apply to health-contingent

programs only– Smoking cessation: methods of proof and permissible

incentives differ– Reasonable alternatives for all programs

Rules in Practice

• Notice requires:– What information collected– Who receives the information– How the information is used– What restrictions apply to disclosure– How the entity prevents improper disclosure

Rules in Practice

• Do not forget GINA– Family medical history– Must ALWAYS be optional; no incentives permitted

• Compliance with this rule does not ensure compliance elsewhere

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Rules in Practice

• Check back for final rules

“You Posted What on Facebook?!?” Best Practices for

Monitoring Your Employees

Doug Towns404.567.4398

[email protected]

Social Media and the Workplace

• Employment issues through the lens of social media

• What are your employees and applicants using?– Facebook, LinkedIn, Google+, MySpace, Twitter,

Cafemom, Ning, Snapchat, Vine, Flickr, YouTube

• According to a SHRM study, 39% of employers surveyed monitor employees’ social media usage and 33% have disciplined employees for improper usage.– 60% do not have a formal social media policy

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Employees Acting Badly

• A Taco Bell employee snapped a photo of a co-worker licking a stack of taco shells.

• Even though the shells were provided during a training session and were supposedly on their way to the trash, Taco Bell immediately suspended (and planned to terminate) the employee for violating food-handling procedures.

More Employees Acting Badly

• A customer snapped this photo of a Wendy’s employee eating soft serve ice cream directly from the machine.

• Wendy’s initiated a company investigation.– “If true, this is totally inexcusable . . . We are

investigating and will take action.”

Trap – Potential Hiring Discrimination Claims

• Using the Internet to obtain information about a candidate may increase risks under anti-discrimination statutes.

• Gaskell v. Univ. of Ky. (E.D. Ky. 2010)– Gaskell sued the university for religious discrimination after

it did not hire him.• During an Internet search, the hiring committee

discovered articles that Gaskell authored on astronomy and the Bible.

– The court denied summary judgment for the university, finding direct evidence of discrimination. The university eventually settled the case.

• Potential Arguments– LinkedIn (age)

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Trap – Potential Disparate Impact Hiring Claims

• Some employers rely primarily on social media for recruiting.

• Demographic trends on social media sites may expose employers to potential disparate impact claims:– Race - Caucasians and Asians are over-represented on LinkedIn.– Age -

Trap – Potential Discrimination Claims

• “Friending” - the Company may become “tainted” by information learned from an employee’s social media page– Under the ADA, employers cannot discriminate on the

basis of a person’s disability.

– GINA prohibits employers from acquiring an employee’s or applicant’s genetic information, including information about an individual’s family medical history.

• “Endorsements”– Consistent with employment actions?

Trap – Discipline Over Concerted Activity

• Hispanics United of Buffalo, Inc. (NLRB Dec. 14, 2012)– Lydia Cruz sent a text message to her co-worker,

threatening to tell the company’s director that employees were not doing their jobs. The co-worker posted the text message content to Facebook.

• Other co-workers responded on Facebook, objecting to the assertion that their work performance was substandard.

• After Cruz complained to her employer about these Facebook posts, the employer terminated the co-workers for “bullying” Cruz.

– The NLRB found that the terminations violated Section 7.

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Trap – “Overbroad” Policies and the NLRA

• Dish Network Corp. (NLRB Apr. 30, 2013)– A company’s employment policy prohibited employees from

disparaging the employer on company time and communicating with the media or government agencies without company approval.

– The NLRB found that the anti-disparagement policy violated the NLRA.

• Karl Knauz Motors, Inc. (NLRB Sept. 28, 2012)– BMW terminated the employee pursuant to a “Courtesy” rule:

• “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite[,] and friendly to our customers, vendors[,] and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

– The NLRB found that employees could reasonably believe that the rule prohibiting chills Section 7 rights.

Trap – Monitoring Social Media and Retaliation

• Although employers can monitor employees’ social media use, they should pay careful attention to the temporal proximity of any employee complaints.

• Zakrzewska v. The New School (S.D.N.Y. 2008) – The court allowed an employee to amend her complaint by

adding a retaliation claim under New York’s sexual harassment law, ruling that Internet monitoring can constitute retaliation.

• The court found that “[i]n consequence, I cannot foreclose the possibility that a trier of fact reasonably could find that defendants’ alleged covert monitoring of plaintiff’s personal Internet use at work ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Trap – Confidential Information and HIPAA

• Covered entities and business associates face direct liability when any member of their workforce makes unauthorized disclosures of protected health information (“PHI”) in violation of HIPAA.

• Covered entities may violate HIPAA when their employees post PHI to social media sites.

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Trap – State Limits on Employee Monitoring

• Currently, more restrictive than federal law• Connecticut

– Employers who engage in any type of electronic monitoring must “give prior written notice to all employees who may be affected.”

• Exception - an employer may monitor without giving notice if it has “reasonable grounds” to believe that the employee is engaged in conduct that is illegal or creates a hostile work environment.

• Delaware– Employers may not monitor without notice and the employee

must acknowledge the notice in writing or electronically.• Exception - notice is not required if law enforcement

conducts the monitoring pursuant to a court order (but no other exception).

Trap – States Ban Access to Social Media Accounts

• Tennessee– The Employee Online Privacy Act of 2014, which became effective

January 1, 2015, prohibits employers from demanding usernames or passwords linked to social networking sites from employees and applicants.

– The statute prohibits employers from forcing employees and applicants to display their social networking profiles for review.

• Oklahoma– Effective November 1, 2014, employers are prohibited from demanding

usernames or passwords linked to social networking sites from employees and applicants.

– The statute also prohibits employers from forcing employees and applicants to display portions of their social networking profiles for the employer.

• New Hampshire, Rhode Island, Wisconsin, Maine, and Louisiana also passed similar statutes in 2014.

Trap – Off-Duty Conduct State Statutes

• Various states prohibit employers from discharging employees for engaging in specific lawful activities:– The use of lawful products (i.e., tobacco or alcohol):

• Minnesota, Montana, Nevada, and Wisconsin

• Other states with broader “off-duty conduct” protections:– Colorado – Prohibits an employer from firing an employee

“due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”

– New York – Prohibits an employer for firing an employee “because of off-duty conduct, including . . . legal recreational activities outside of work.”

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Terminable Offense for a School Teacher?

• Litigation/Counseling Point – Could this be the social media claim of the future?

Social Media to Support (non)Hiring Decisions

Social Media as a Defense to FMLA Claims

• Lineberry v. Richards (E.D. Mich. 2013)– While on FMLA leave, an employee took a planned

vacation to Mexico and posted pictures on Facebook, including shots of her on a motorboat and holding beer bottles in her hand.

• Confronted with the pictures, she claimed that she used a wheelchair during vacation, but later admitted to lying.

• The employer terminated her for FMLA misuse and dishonesty.

– The court dismissed the FMLA claim because the employer had legitimate reasons for its decision to terminate her.

• Counseling Point – when possible, focus on the misrepresentation, not the social media post itself.

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Social Media as Grounds for Termination

Social Media as a Defense to Harassment Claims

• Social media may provide employers with a legal defense.– Gelpi v. Autozoners (N.D. Ohio 2014)

• Court granted MSJ for employer in sexual harassment suit based, in part, on Gelpi’s own Facebook page which “reveals that she was very comfortable with sexual humor,” especially given her “participation in sexual jokes and banter at work.”

• Litigation Point:– Search the Internet– This evidence may be powerful in litigation/settlements.

Social Media and Defending FLSA Claims

• Electronic evidence sometimes is used against employers to prove off-the-clock work.

• However, social media may be helpful in exemption cases.

• Litigation Point:• Review LinkedIn - lists “duties” and may be at

odds with a subsequent claim that the employee/plaintiff performed low level, non-exempt tasks.

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Social Media as a Trade Secret or Property Right

• Employers may own certain employee social media information as a trade secret.– Christou v. Beatport, LLC (D. Colo. 2012)

• The court found a night club’s “login information for profiles on MySpace” and “lists of MySpace ‘friends’ ” was not necessarily public information and that the night club stated a trade secret claim.

• Practice Points:– Who owns the phone number– Consider who has access to company databases and

social media sites (e.g., Facebook pages, blogs)

Social Media in Restrictive Covenant Litigation

• TEKsystems, Inc. v. Hammernick (D. Minn. 2010)– An employer alleged that its former employee’s LinkedIn

communications violated their restrictive covenant. • On LinkedIn, the employee allegedly “connected” with

sixteen contract employees and sent a message to one, asking if he was “still looking for opportunities,” and that she “would love to have [him] come visit [her] new office and hear about some of the stuff [they] are working on.”

• Finding that the employee’s LinkedIn conduct violated the covenant, the court granted the employer’s request for a permanent injunction to enforce it.

– Litigation Point:• Area of discovery – not just email and forensic analysis of

computer, but consider social media sites.

Next Steps• Review and update Social Media policies • Policy questions – “friending” and “liking”• Consider a social media and “electronic

use” audit • Review “Company property” policies –

who owns what?• Minimize employees’ expectation of

privacy• Update investigation policies and

procedures• Seek out (and preserve) evidence on social

media• Repeat all of the above as technology evolves

– Your next performance review and Google Glass!!

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Coastal Squeeze:State Law Changes

Elizabeth Chilcoat303.299.8070

[email protected]

Ban the Box / Fair Chance Campaigns

• Ban the Box Laws– Prohibit employers from asking whether a job

candidate has been convicted of a crime.

• Fair Chance Laws– Prohibits employers from checking a candidates.

criminal background until the candidate is a finalist, or has been given a conditional job offer.

• In place in 100 cities, counties, and states.

Ban the Box / Fair Chance Campaigns

• Do not prohibit employers from relying on criminal history to determine whether to hire someone.

• Hurdles to disqualifying a candidate based on criminal history.

• In Colorado, state agencies and state licensing agencies cannot conduct a background check until a candidate is selected as a finalist.

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Paid Sick Leave

• Require some amount of paid leave.

• Some laws contain exemptions for very small businesses.

• Paid sick leave is extremely popular with voters – each time it has been put on a ballot, it has been approved.

• Seattle, WA, NY City, NY, and all of California have adopted.

Minimum / Living Wage

• States and municipalities are increasingly raising the minimum wage.

• Concerns about employees working full-time who are still on state welfare benefits.

• Some of these increases are significant – e.g., Seattle raised its minimum wage to $15/hr., phased in over time.

• Some of these initiatives are pursued at the ballot box instead of through traditional legislation.

Increased Penalties

• For failure to pay wages in a timely and accurate manner.– New York increased penalties for failure to pay wages

from $50/week to $50/day, effective January 1, 2015.– Last session in Colorado, a bill was introduced that

would make non-payment of wages actionable as wage theft.

• Current statutory law contains a procedure and incentives for collecting unpaid wages after termination, but not during employment.

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Increased Penalties

• For Child Labor Violations– California now permits treble damages against an

employer that retaliates against any person who filed a claim or civil action based on the person’s employment while a minor.

– Statute of limitations is tolled until the individual reaches the age of 18.

Expansion and Contraction of Anti-Discrimination Laws

• California extended state protections against discrimination based on race, religion, national origin, disability, sex, sexual orientation, etc. to volunteers and unpaid interns.

• Voters in Springfield, MO voted to repeal that city’s ban on discrimination based on sexual orientation.

Religious Freedom / Gay Rights Legislation

• One of the foremost areas of cultural and legal development today: gay rights.

• The two collide when it comes to questions of whether a business may discriminate based on sexual orientation based on the business owner’s religious beliefs.

• Burwell v. Hobby Lobby Stores, Inc. expanded the understanding of who can have a religious belief.

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Religious Freedom/ Gay Rights

• Indiana and Alabama tried to enact laws to recognize a business’s religious right to deny service. – Just a short step to recognizing a business’s religious right

to discriminate based on protected characteristics that conflict with religious doctrine.

• Significant public backlash led Indiana and Alabama to reconsider their laws.

• North Dakota’s legislators soundly defeated sexual orientation anti-discrimination law.

• Same-sex marriage legal in most states, entitling gay employees to federal and state protections.

If I'm Not an Independent Contractor, What Am I?

From Uber Drivers to Exotic Dancers to Cheerleaders

John Wymer404.567.4376

[email protected]

The Rise of “Independent Contractors”

“The rise of ‘independent contractors’ is the most significant legal trend in the American workforce –contributing to low pay, irregular hours and job insecurity.”

Former U.S. Secretary of LaborRobert Reich

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Reich: “What difference does it make?”

• Reich’s answer:– No Social Security– No 40-hour work week with time and a half for overtime– No worker health and safety– No worker’s compensation– No family and medical leave– No minimum wage– No pension protection– No unemployment insurance– No protection against employment discrimination, including

harassment– No labor and collective bargaining protections– Lower net pay because independent contractors bear costs usually

borne by employers• Whether a worker is properly classified (and treated) as an “employee”

or “independent contractor” is a Big, Big Deal!

Uber

• December 2014: Uber had 163,000 drivers whom it treats as independent contractors– Expected to double by June 2015

• Defendant in a nationwide putative class action suit –Douglas O’Conner, et al v. Uber Technologies, Inc., et al Case No. C-13-3826 EMC (U.S. District Court for the Northern District of California)

• Uber better pray its decision to classify its drivers as “independent contractors” is determined to be correct

Independent Contractor v. Employee

• As important as it is, the independent-contractor-versus-employee issue isn't “sexy.”

• Or is it?

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Headlines

• Attack on the use (or misuse) of an independent contractor business model is in its early stages with legal battles being fought in some unlikely industries.

“Court Approves $2.3 M Agreement to Settle About 185 Erotic Dancers’ FLSA Claims,” Daily Labor Report, December 30, 2014. (Collective action filed in the Northern

District of Texas against Jaguar Gold Club; Texas v. JGC Dall LLC, No. 3:11-CV-02749 (12/14/14))

“Strippers Say Sapphire Club in NY Cheated Them On Pay.” Employment Law 360, March 5, 2015.

Headlines

“4.3 Million Deal OK’d Settling Dancers’ Wage Claims Against Strip Clubs”

Daily Labor Report, October 14, 2014. Melody Flynn and Marlina Antoinette De Truff v. N.Y. Dolls

Gentlemen’s Club S.D. N.Y. No 1:13-CV-06530

Certifying class of exotic dancers on the payroll between September 17, 2007 and April 1, 2014

Headlines

“NYC Strip Club Pays Up To $15M To Settle Dancer’s Wage Suit”

Employment Law 360, April 1, 2015.Hart, et al v. Rick’s Cabaret Int’l, Inc. S.D.N.Y., (Case No. 1:09-

CV-03043)

Settlement covering some 2,200 “entertainers” who worked at Rick’s Cabaret during a 7-year period beginning in

Sept. 2007; Club prohibited dancers from chewing gum, required them to “maintain” their appearance, weight and breath.

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Headlines

“Plan B Exotic Dancers Near Class Certification Win In Wage Row,”

Employment Law 360, April 15, 2015.

Judge tentatively granted class certification to a class of up to 800 dancers at Los Angeles strip club Plan B, where

dancers alleged they were required to sign “sham ‘independent contractor’ arrangements,” had to pay Plan B

a “dance fee” and were charged “fines” for being late, missing shifts or not wearing make-up.

Headlines

“Hustler Club Says Dancer Wage Suit Must Go To Arbitration”

Employment Law 360, April 8, 2015.

Suit against Larry Flynt’s Hustler Club alleging, among other things, the Club sold customers scrip they could then

use to pay or tip dancers, but when dancers went to redeem them for cash, the Club kept a portion for itself.

Arbitrate or Sue

• Can a strip club (oops, gentlemen’s club) force an exotic dancer to arbitrate rather than sue pursuant to an arbitration provision in a written contract?– Jackson v. S.A.W. Entertainment, Ltd., 829 F. Supp

2nd 1018 (N.D. Cal 2009)• Denying strip club’s motion to compel arbitration

– Roe, et al v SFBSC Management, LLC, 2015 BL 57045 (N.D. Cal. 2015)

• Denying defendant’s motion to compel arbitration where dancers alleged they were “mostly naked” and often “intoxicated” when they signed their contracts.

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What Other Bastions of American Society Are Under Attack?

• “Cincinnati Ben-Gals Hit With Cheerleader Wage-Hour Suit,” (February 13, 2014).

• Krystal C., et al v. New York Jets, LLC, filed May 6, 2014– Cheerleaders were members of the “Flight Crew”

• Jacqulyn S., et al v. Buffalo Bills, Inc., et al– Cheerleaders were members of the “Buffalo Jills”– Women trying out required to pay a $50 tryout fee; spectators required to pay

$5 to watch the tryouts– Worked 8 hours every game day for $90 despite making 20-35 unpaid

appearances at corporate, community and charity events– Women were required to pass a “jiggle test” and required to obtain approval

before changing their hair color or style or before working in any other capacity in other promotions; subject to a Code of Conduct

• Lacy T., et al v. The Oakland Raiders, Superior Court of Alameda County, California– Members of the “Raiderettes”

• Note: Seattle Seahawks already pay their “Sea Gals” minimum wage and overtime

What Is The Test for Differentiating an Employee from an Independent Contractor?

• The answer is a lawyer’s favorite answer:It depends

• “Depends on what,” you ask– Depends on what law(s) is/are at issue

The IRS, EEOC, DOL Test

• Under the Internal Revenue Code, the IRS uses the so-called “20-factor test.” – IRS estimates it loses billions in tax revenue every year and is

now “cracking down” on the misclassification of independent contractors.

• EEOC has a “non-exhaustive” list of 16 factors.

• For purposes of wage-and-hour law (FLSA), the U.S. Department of Labor applies an “economic realities” test.

• Under other laws (such as the NLRA), the “common-law of agency” test applies.

• Bottom line– Someone could be an employee for purposes of one law and an

independent contractor for purposes of another law.

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Reich’s Test

• Many people favor a single, uniform test for independent contractor status.

• Reich’s proposed test– Any business that accounts for at least 80% or more

of the pay someone gets, or receives from that worker at least 20% of her/his earnings, is presumed to be that person’s employer, not a contractor.

No One Factor Is Determinative

• More determinative factors– Right to control – Economic realities – Service integral to the employer’s business– Who furnishes tools, materials, equipment?– Payment basis – Tax and benefits treatment of the worker – Does the worker hire and compensate assistants?– Does the worker possess licenses, certifications?– Is there a corporation or other form of business

organization?

No One Factor Is Determinative

• Less determinative factors– Intent of the parties

• Is there a written independent contractor agreement?

– Right to discharge– Is work performed on or away from the employer’s

premises?– Level of expertise required– Duration of the relationship– Employer’s right to assign the worker other tasks

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Practical Advice

1. Do you have contact with persons or entities who might be considered employees?

2. Obtain legal review of those contracts and relationships.

3. If the independent-contractor/employee question is unclear:– Change the relationship so that it falls more

comfortably into the independent contractor category– Convert the person(s) or entity(ies) to employees– Discontinue the practice all together.

4. Include an arbitration provision.

Questions

general session.pptx [read-only]

Documents