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HOT LEGAL TOPICS FOR
HR PROFESSIONALS
Obermayer Rebmann Maxwell & Hippel LLP
Jacqueline Shulman, Esq.
October 17, 2011
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HOT TOPICS
What’s Up With the NLRB: Beyond the
Employee Free Choice Act
The EEOC & GINA: More Alphabet Soup for
Employers
FLSA Misclassification: Avoiding the Sand
Traps
What Else is Hot: Watch out for Office
Romances and more
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WHAT’S UP WITH THE NLRB?
June 21, 2010: DOL issued Final Rule
All federal contractors ($100,000) &
subcontractors ($10,000) must post notices
advising employees of their NLRA rights.
Applies to union & non-union employers.
Electronically as well as by the time clock.
Train your supervisors.
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WHAT’S UP WITH THE NLRB?
October 22, 2010: NLRB determined that employers
who have committed unfair labor practices will be
required to post remedial notices both in paper form
and electronically (e-mail, intranet, internet).
NLRB will base which form of electronic notice is
appropriate on manner in which employer
disseminates info to employees.
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WHAT’S UP WITH THE NLRB? November 2, 2010: NLRB issued a complaint against AMR for violating
NLRA when it fired employee who criticized boss on her Facebook page.
Company “Blogging and Internet Posting Policy” prohibited
“disparaging, discriminatory, or defamatory comments when discussing
the Company or the employee’s superiors, co-workers and/or
competitors”.
Policy found to be “overly broad” and employee’s disparaging remarks
protected concerted activity. Case settled before hearing.
September 2, 2011 – NLRB ALJ found non-profit unlawfully discharged 5
employees who posted comments about working conditions on
Facebook (social media policy not involved).
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WHAT’S UP WITH THE NLRB?
December 21, 2010: NLRB issued a Notice of Proposed Rule-
making requiring private sector union and non-union employers
to notify employees of their rights under the NLRA.
Same notice requirements as June, 2010 federal
contractor/subcontractor Final Rule.
Only agricultural, railroad & airlines exempted.
August 30, 2011: Issued Final Rule.
November 14, 2011: Rule becomes effective.
Posting available on www.nlrb.gov after November 1, 2011.
Supervisor training key.
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WHAT’S UP WITH THE NLRB?
January 28, 2011 – Parexel International, LLC, NLRB
held that an employer’s discharge of an employee
was unlawful even though employee had not actually
engaged in any protected activities.
Complained to her supervisor about her wages.
Violation of Section 7 rights for what she might do in
the future.
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WHAT’S UP WITH THE NLRB?
The Mischief Continues under Lafe Solomon
April 20, 2011 – The NLRB found Boeing C. violated federal
labor law by building a second production line for its 787
Dreamliner at a non-union facility in South Carolina. Boeing is
fighting the decision. May 12, 2011, three senators introduced
the Job Protection Act to preserve Right-to-work laws.
Proposed Rule Change on Conduct of Elections – The
proposed rule shortens the time frame for union election
campaigns and further seeks to limit the employer’s ability to
campaign within the new time frame.
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THE EEOC AND GINA
EEOC Final Regulations on the Genetic Information
Nondiscrimination Act (GINA).
Effective January 10, 2011.
Applies to employers of 15 or more EEs.
To clarify GINA’s confusing provisions.
Unlawful to use genetic information to make
employment decisions.
Restricted from requesting, requiring or purchasing
genetic information.
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THE EEOC AND GINA
Also stringent limitations on disclosure of genetic
information.
Employers must maintain information as a
confidential medical record.
QUERY: HOW MANY OF YOU ARE INTERESTED IN
YOUR EMPLOYEES’ GENETIC INFORMATION? IS IT
REALLY AN ISSUE?
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THE EEOC AND GINA
Still Pitfalls to avoid – especially in regard to
“Family Medical History”.
Very broad definitions for Genetic
Information and Genetic Tests.
But does not include tests for infectious or
communicable diseases.
Only includes drug test if testing to
determine genetic disposition.
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THE EEOC AND GINA
General prohibition against acquiring Genetic
Information (scary part – water cooler chats).
Two exceptions to Prohibition
Employer “inadvertently” obtains the information;
and
Employer offers health or genetic services,
including services through a voluntary wellness
program.
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THE EEOC AND GINA
“Inadvertent” Exception
Question like “How are you today” or “Is your mother
feeling better” could elicit an inadvertent disclosure of
genetic information.
Be cautious with follow-up questions.
Best Practice Tip: Explicitly exclude interest in an
individual’s genetic information or family medical history
in requests for information regarding a disability
accommodation, FMLA certifications or with
employment–related medical examinations.
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THE EEOC AND GINA
More on “Inadvertent” Exception.
If it’s not in writing – it can’t be explicit.
Use EEOC recommended language on any form you
send to a health care provider to conduct a medical
examination on an employee or to provide
information.
Specific language can be found on page 5 of
enclosed Obermayer Alert on GINA.
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THE EEOC AND GINA
“Voluntary Wellness” Exception
“Okay” to acquire Genetic Information if part of health and
genetic services offered as part of a Voluntary Wellness
Program.
Specific Requirements to be considered “Voluntary”:
Employer neither requires the individual to provide genetic information nor penalized any individual who refuses to provide such information;
Must provide knowing, voluntary and written authorization before employee participates in program;
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THE EEOC AND GINA
More on “Voluntary Wellness” Exception.
Individual’s authorization must be written so the individual is
likely to understand it;
It must describe the type of genetic information that will be
obtained and the general purpose for which it will be used;
Must describe the restrictions on disclosure of genetic
information;
Employer can only receive genetic information in the aggregate,
not on specific individuals; and
Generally may not offer financial inducements for individuals to
provide genetic information (New EEOC Opinion letter).
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THE EEOC AND GINA
Confidentiality and Posting Requirements
Employers must maintain all records containing genetic
information on forms and in medical files that are separate from
an employee’s personnel file.
Must treat all such forms and files as confidential.
Documents prior to November 21, 2009 need not be removed
from personnel file – although still prohibited from disclosing
such genetic information.
Must post notice to employees and applicants in a conspicuous
place.
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THE EEOC AND GINA
PRACTICE TIPS!!
Revisit personnel policies and procedures to ensure compliance with
GINA.
Train Supervisors/Managers/HR staff on GINA requirements and
prohibitions.
Update EEO policies to include Genetic Information as a protected
category.
Review personnel files, remove all genetic information and place in
separate file.
With ADA Accommodations, FMLA medical certifications, Fitness for
duty, exclude interest in genetic information or family history.
Include “special warning” if asking for medical certification from
Health Care Provider.
Review terms of “Wellness Programs” to insure voluntary.
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AVOIDING FLSA SANDTRAPS
It’s all about the dollars – Federal, state and
local coffers are empty.
Alphabet soup of new laws have been
proposed (W&H, UC, ERISA).
Major focus – Misclassification of Independent
Contractor versus Employee.
Added scrutiny on misclassification of Non-
exempt versus Exempt employees.
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AVOIDING FLSA SANDTRAPS
INDEPENDENT CONTRACTOR
IRS 20 Factor Test.
UC, EEO, FLSA have similar tests.
Primary focus – The amount of control exercised by
the Employer.
The closer to the person hired to paint your house –
the more likely you have an Independent
Contractor.
The farther you get from the house painter, the
more likely you have an employee.
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AVOIDING FLSA SANDTRAPS
INDEPENDENT CONTRACTOR?
Hired to do data entry for a special project;
Expected time to complete – 60 days;
Works in the Company office on Company
equipment;
Being paid by the hour; and
Works a 35 hour workweek.
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AVOIDING FLSA SANDTRAPS
INDEPENDENT CONTRACTOR?
Hired to install new computer system;
Expected time to complete – 60 days;
Works in the Company office on Company
purchased equipment;
No fixed work schedule; and
Paid when installation completed.
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AVOIDING FLSA SANDTRAPS
EXEMPT/NON-EXEMPT TIPS
Red Flag – Everyone is Exempt!
Pure Inside Salesperson – Non-exempt.
Loan officer/underwriter – Non-exempt
Learned Professions – Trainees, may not be
exempt.
PA does not recognize Computer exemption.
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AVOIDING FLSA SANDTRAPS
EXEMPT?
College Degree in Chemistry;
Paid a salary of more than $455 weekly;
Primary duty – to go on-site where hazardous
waste has been reported to be located and
determine if the waste is hazardous, and if so, what
is to be done with it;
In an emergency, may help to remove the waste
from the site; and
Paid compensatory time- no overtime
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WHAT ELSE IS HOT?
Thompson v. American Stainless
U.S. Supreme Court ruling – January, 2011.
Created new breed of retaliation claim.
Eric Thompson and his fiancé, Miriam Regalado
worked for American Stainless.
Thompson fired 3 weeks after Regalado filed sex
discrimination claim with EEOC.
SC – Fear of firing could have prevented Regalado
from filing EEOC claim.
Gave Thompson right to file as “aggrieved” person
under Title VII.
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WHAT ELSE IS HOT?
More on Thompson v. American Stainless
SC declined to identify fixed class of unlawful 3rd party
reprisals.
SC did say that Firing a “close family member” will
almost always meet standard but “mere
acquaintance” almost never so.
Another good reason to not have Family members
working together.
Retaliation (any adverse action) can turn a meritless
discrimination claim into a bonanza for an employee.
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WHAT ELSE IS HOT?
SON/DAUGHTER DEFINED UNDER FMLA:
November, 2010 – DOL “Administrative
Interpretation”.
Goal is to insure that employees who assume
role of caring for child received parental rights
to FMLA, regardless of legal or biological
relationship.
Applauded by non-traditional families.
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WHAT ELSE IS HOT?
Criminal Offender Record Information Law
(CORI)
New law in Massachusetts – proposed in other
states (NJ, PA).
With few exception, Mass. employers no longer and
ask about criminal convictions on initial Job
Applications and very limited on information they
can obtain or use from criminal history checks.
PA law limits use of criminal background checks.
Now illegal in Philadelphia for private as well as
city employers to request criminal history
information on application or during first interview.
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WHAT ELSE IS HOT?
Even without CORI, Equal Employment Opportunity
Commission (EEOC) takes the position that the use
of criminal conviction records has an adverse effect
on racial minorities and therefore unlawful absent a
business necessity.
To determine business necessity, factor in the
nature, gravity and job-relatedness of the offense
and when the offense occurred. Blanket “no-hire”
policies with poor credit or criminal record very
risky.
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WHAT ELSE IS HOT?
Staub v. Proctor Hospital - Cat’s Paw
March 1, 2011 – Supreme Court held hospital liable
for discrimination where lower-level supervisors
with discriminatory motive influenced, but did not
make, an adverse employment decision.
USERRA decision (Staub a reservist and civilian
technician in hospital).
VP of Human Resources only reviewed the file
before making decision to discharge.
Do your homework/Get the documentation.
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WHAT ELSE IS HOT?
Kasten v. Saint-Gobain Performance Plastics
March 22, 2011 – Supreme Court held that the
Fair Labor Standards Act (FLSA) prohibits
employers from retaliating against employees on
the basis of an oral complaint.
Rejected argument that FLSA only protected
written complaints.
Never good idea to ignore oral complaints.
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WHAT ELSE IS HOT?
March 24, 2011 – Final Rule on Americans with
Disabilities Amendments Act (ADAAA)
implemented.
EEOC posted good Q&A and Fact Sheet.
Employers of 15 or more employees.
Employer focus and best defense – Good
Interactive Discussion with employee to provide
reasonable accommodations.