year in review - blank rome in review presented by ... overview:post election hangover 2. supreme...

Employment, Benefits and Labor Briefing: Practical Solutions to New Trends and Developments in Employment Law

© Blank Rome LLP 2013. All Rights Reserved1

Year In Review

Presented by

Scott F Cooper Blank Rome LLP

#EBLTrends; @BlankRomeLLP

Scott F. Cooper, Blank Rome LLP Lucas Hanback, Blank Rome LLP

• 30 minute session

• Covers major developments in the Courts, Congress, l l t d i i

Introduction

local governments and various agencies

• To help you spot the tip of the iceberg!

9 #EBLTrends; @BlankRomeLLP



1. Overview: Post Election Hangover

2. Supreme Court Focus on Collective

A ti

YEAR IN REVIEW AGENDA

6. Harassment ‐ New Responsibilities

7. Americans With Disabilities Act –

N I t t tiActions

3. Legislative Watch – New Laws and

Regulations

4. Whistleblower Issues – Changing

Dynamics

5. Retaliation in the Spotlight

New Interpretations

8. Social Media Issues

9. NLRB Controversy

10. Time Away From Work – New and

Local Wrinkles


Now that election is over, President Obama still faces challenges

Hot Button Issues:

• Divided Government

• Obama reruns to office but more Republicans sent to Congress

Overview – Post Election Hangover

• The Economy

• Still 7.5% Unemployment

• College grads having difficulty finding jobs

• Immigration

• Major legislation with amnesty provision being debated

• Sequestration

– Ripple effects to businesses


• Gun Control

– State v. Federal and workplace safety issues



• The Economy –– Recovery still anemic

Overview – Post Election Hangover

– Unemployment numbers still at 7.5%

– College grads having difficulty finding jobs

• Tied into issues surrounding rising student debt

• Immigration– Major legislation on immigration reform being debated

– Potential amnesty for 11+ Million illegal immigrants


y g g

– Big implications for employers

– Arizona v. US – immigrants not required to carry ID, police can’t arrest people suspected of being illegal immigrants, but if arrested for other reasons they can investigate immigration status

• Budget impact having ripple effects to state and local governments– Businesses with any ties to government feeling effects

Overview – Post Election Hangover:Sequestration

Businesses with any ties to government feeling effects

• Court case disposition time and enhanced filing fees

• Leads to wage and hour issues with private employers who have business with the government– For example, docking the pay of exempt employees for

furlough days may cause those employees to lose their exempt status.

• Employers must still follow reduction in force principles to avoid discrimination issues


– Review for impact on protected classes

• Issues with benefits coverage– confirm whether plans permit benefit continuation during

furloughs or hours reduction



• It is a states’ rights issue pitting state laws against one size fits all federal

h

Overview – Post Election Hangover: The Gun Violence Debate

approach • It is also a workplace issue tied into

worker safety– Some states, including KY and MN, allow

restrictions but require stickers on the door if a gun is not allowed inside

– Other states, including TX, WS, ME, and NH (proposed) prohibit certain


NH (proposed), prohibit certain restrictions on firearms by employers

– Other states undecided – PA, NJ, NY, and DE

• Ties to workplace bullying issues

• Restricting availability of class actions

• Genesis HealthCare Corp v Symczyk

Supreme Court Focus on Collective Actions

• Genesis HealthCare Corp. v. Symczyk

– Plaintiff has no independent legal standing to pursue class claims on basis of conditional certification once her claim is moot

• Comcast Corp. v. Behrend

– Party seeking class certification must offer


y g“evidentiary proof” and court must conduct a “rigorous analysis” when evaluating evidence




– Plaintiff has no independent legal standing to

Changing Class Action Landscape

Plaintiff has no independent legal standing to pursue class claims on basis of conditional certification once her claim is moot

– Did not address whether offer of judgment moots plaintiff’s case

• Has larger implications for class certification generally


certification generally

– Opens opportunity to use offers of judgment in class certification cases not only as fee shifting mechanism but as way to moot the case where only one plaintiff

• Supreme Court of the United States held that a putative Fair Labor Standards Act (“FLSA”) collective action was properly dismissed where the lead plaintiff’s claim was moot and no other plaintiffs had joined the litigation.

Genesis HealthCare Corp. v. Symczyk

• Plaintiff alleged that her employer failed to compensate employees for work performed during scheduled meal breaks. Before any other employees joined the litigation, the employer made an offer of judgment that would have satisfied the plaintiff’s individual claim. Plaintiff did not accept the offer, but the district court dismissed as moot both the individual and collective action claims. Third Circuit agreed on appeal that the plaintiff’s individual claims were moot, but reinstated the plaintiff’s collective action claims.

– Because the Third Circuit had restored her collective action claims, the plaintiff did not challenge the mootness of her individual claim before the Supreme Court. Supreme Court assumed, without deciding, that this aspect of the Third Circuit’s decision was correct.

Th S C ’ d i i l f l d i ifi li h f d l


• The Supreme Court’s decision left unresolved a significant split among the federal Courts of Appeals. Left unanswered important questions including whether a plaintiff’s refusal to accept an offer of judgment that would fully satisfy his or her claim renders the claim moot.

– Third Circuit had held previously that an unaccepted offer of judgment may moot a plaintiff’s individual claim, other Courts of Appeals have held that the viability of a plaintiff’s claim is not affected by her decision to reject a fully satisfactory offer of judgment.



• Comcast Corp. v. Behrend– Has implications for all class actions where

l i tiff k l tifi ti d R l

Changing Class Action Landscape

plaintiffs seek class certification under Rule 23(b)(3)

– Party seeking class certification must offer “evidentiary proof” to satisfy the requirements of Rules 23(a) and 23(b)

– Court must conduct a “rigorous analysis” when evaluating evidence

– Individual issues of damages can defeat class


gcertification if not amenable to class‐wide resolution

• Decision makes it significantly more difficult for plaintiffs to obtain certification of damages classes

• Plaintiffs brought federal antitrust claims, alleging that defendants engaged in “anticompetitive clustering.”

Comcast Corp. v. Behrend

p g– offered theory that defendants deterred competition from “overbuilders” which the district court

used to certify a class of more than two million current and former subscribers

– defendants appealed under Rule 23(f) and Third Circuit affirmed on basis that“[a]t the class certification stage we do not require that Plaintiffs tie each theory of antitrust impact to an exact calculation of damages, but instead that they assure us that if they can prove antitrust impact, the resulting damages are capable of measurement and will not require labyrinthine individual calculations.”

• Supreme Court held that plaintiff seeking certification “must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).”

• Comcast will have significant implications not only for antitrust class actions, but all l i i hi h l i iff k l ifi i f d l i d l


class actions in which plaintiffs seek class certification of damages claims under Rule 23(b)(3).

– Decision confirms that the party seeking class certification must offer “evidentiary proof” to demonstrate that the requirements of Rule 23(a) and Rule 23(b) are satisfied and that the court must conduct a rigorous analysis when evaluating that evidence.

– Moreover, the decision establishes that individual issues of damages can defeat class certification where those issues are not amenable to class‐wide resolution.




– Did not address whether offer of judgment moots plaintiff’s

Genesis HealthCare Corp. v. SymczykFLSA’s Changing Landscape

– Did not address whether offer of judgment moots plaintiff s case

– But did decide that plaintiff has no independent legal standing to pursue class claims on basis of conditional certification once her claim is moot

• Has larger implications for class certification generally


– Opens opportunity to use offers of judgment in class certification cases not only as fee shifting mechanism but as way to moot the case where only one plaintiff

• FLSA suits remain the fastest growing area of litigation

• Affordable Care Act Implementation Underway

Legislative Watch – New Laws and Regulations

• Increase in Minimum Wage– Federal Minimum Wage Act of 2013 would

increase minimum wage from $7.25 to $10.00 by 2015

– Ten states also increased minimum wage effective Jan. 1, 2013

• NY and NJ also planning increases

P lif ti f “F b k” l d


• Proliferation of “Facebook” laws passed by States– Prevent employers from requiring

candidates to disclose log in information– Potential Federal law in the works



• ACA Implementation – Already here, or coming soon:– OSHA Whistleblower Rules

Mi i V l

Legislative Watch Affordable Care Act Implementation

– Minimum Value

– Summaries of Benefits and Coverage

– State Exchanges

– Employer Penalties

– Pre‐existing Condition Exclusions

– Dependent Coverage

• Facebook Lawsl i ff i d


– Currently in effect in CA, MI, DE, IL, MD, UT, NM and AR.

– NJ legislature enacted a bill. Governor sent back with recommended changes. Changes currently being voted on in Senate.

– Introduced or Pending in at least 15 other states

– Sen. Blumenthal (D. Conn.) is reportedly drafting a bill in the U.S. senate

• Criminal Records Guidance from OFCCP– Individualized assessments and job related

Legislative Watch – New Laws and Regulations

exclusions required

– Local Laws too – Philly “Ban the Box” ordinance bans employers from asking about criminal records in application or first interview

• New DOL Rules on FMLA for Veterans– Significantly expand the military family leave

provisions under the FMLA


provisions under the FMLA

• EEOC Activity– Strategic Enforcement Plan

– EEOC v. Houston Funding II Limited et al. –Title VII protection for breastfeeding



• DOL FMLA Rules expand the military family leave provisions under the FMLA in several important ways:

• Employees may now take qualifying exigency leave to care for family members serving in the l d dd h l d

Legislative Watch

Regular Armed Forces in addition to the National Guard or Reserves.

• Employees may take military caregiver leave to care for servicemembers with injuries or illnesses that existed prior to active duty and were aggravated in the line of duty.

– Family members of veterans with a serious health condition or illness may now take military caregiver leave if the veteran was a member of the Armed Forces within the previous five years.

– Increases Rest and Recuperation exigency leave time from five to 15 days.

• OFCCP Criminal Records Guidance to Federal Contractors• Nearly one in three adults now has a criminal record, and racial and ethnic disparities are reflected

in incarceration rates,

• Hiring policies and practices that exclude workers with criminal records may run afoul of anti‐


g p p ydiscrimination laws.

• Directs use of EEOC guidance

• ensure that any criminal conduct exclusions are job related and consistent with business necessity.

• Conduct individualized assessments that are narrowly tailored to the specific circumstances of the job at issue.

• EEOC Strategic Plan– Strategic Plan six national priorities:

• (1) eliminating barriers in recruitment and hiring;

Legislative Watch

(1) eliminating barriers in recruitment and hiring;

• (2) protecting immigrant, migrant and other vulnerable workers;

• (3) addressing emerging and developing employment discrimination issues;

• (4) enforcing equal pay laws;

• (5) preserving access to the legal system; and

• (6) preventing harassment through systemic enforcement and targeted outreach.

– In addition to the national priorities, the Plan also seeks the development of local and federal sector priorities and seeks to ensure "consistent and integrated enforcement" throughout the private, public, and federal sectors.


• EEOC v. Houston Funding II Limited et al.– Fifth Circuit rules that Title VII protects nursing mothers from being fired for lactating or

expressing breast milk

– Worker Donnicia Venters was allegedly fired after asking to use a breast pump at work.



• Lawson v. FMR LLC, et al. (Supreme Court)

Whistleblower Issues – Changing Dynamics

)– Whether private contractors of public companies are protected by Sarbanes‐Oxley

• Increasing attempt by employers to keep whistleblower complaints in‐house


– Severance provisions requiring:

• foregoing a whistleblower reward

• disclosing or refraining from engaging in communications with the Government

• Jackie Hosang Lawson and Jonathan M. Zang v. FMR LLC et al. (Supreme Court)– Lawson and Zang were employees of private company under contract with a public

company to provide advisory services

Whistleblower Issues – Changing Dynamics

p y p y

– Lawson alleged she was harassed and ultimately forced to quit because she provided Fidelity managers with information on inappropriate expense reporting, retention of investment company fees, and methodologies for reporting or accounting for mutual fund expenses and operations. Zang contended he was fired for informing Fidelity management that disclosures that were being prepared for submission to the Securities and Exchange Commission did not accurately reflect the details of some fund managers' compensation.

– First Circuit says only people who work for public companies are protected by the Sarbanes Oxley Act, which protects whistleblower activity

• As response to Dodd Frank’s SEC whistleblower reward program – increasing


As response to Dodd Frank s SEC whistleblower reward program increasing attempt by employers to keep whistleblower complaints in‐house– Employers increasingly requiring employees to agree to settlement or severance

provisions requiring:

• foregoing a whistleblower reward

• disclosing or refraining from engaging in communications with the Government

– Practice has lead to calls for SEC rulemaking to prohibit this practice



• University of Texas Southwestern Medical Center v. Nassar ‐ Standard of proof for Title

Retaliation in the Spotlight

VII retaliation

– “But for” causation v. mixed motive

• All federal circuits now recognize Title VII claims for retaliatory hostile work environment claims

• Number of claims still on the rise


• Number of claims still on the rise

• Decision expected from Supreme Court on Standard of proof for Title VII retaliation

– Is “but for” causation v. mixed motive

Retaliation in the Spotlight

– University of Texas Southwestern Medical Center v. Nassar

• Supreme Court may also decide scope of deference afforded to agencies when interpreting retaliation provisions

– Jackie Hosang Lawson and Jonathan M. Zang v. FMR LLC et al.

• All federal circuits now recognize Title VII claims for retaliatory hostile work environment claims– 11th circuit was last to adopt in Gowski, et al v. Peake, et

al.


• According to the EEOC, there was an unprecedented rise in the number of retaliation claims filed in 2011 and 2012– Experts generally blame the weak economy for this

increase in filings



• Issues is Whether the retaliation provision of Title VII, and similarly worded statutes require a plaintiff to prove but‐for causation, or instead require only proof that the employer had a mixed motive.

• Dr. Naiel Nassar, who is of Middle Eastern descent, was hired by the University of Texas Southwestern Medical Center (UTSW) in 1995 to work at the Amelia Court Clinic His immediate supervisor at the Clinic

University of Texas Southwestern Medical Center v. Nassar

Medical Center (UTSW) in 1995 to work at the Amelia Court Clinic. His immediate supervisor at the Clinic was Dr. Philip Keiser, whose supervisor at UTSW was Dr. Beth Levine. After being hired in 2004, Levine immediately began inquiring into Nassar’s productivity and billing practices. In 2005, after interviewing a candidate who was of Middle Eastern descent, Levine stated in Nassar’s presence, “Middle Easterners are lazy.” In 2006, after hiring the candidate, Levine made a similar statement in Keiser’s presence. Keiser informed Nassar of these comments as well as the fact that Levine scrutinized Nassar’s productivity more than any other doctor. Around this time, Nassar applied for a promotion that Levine actively undermined. In 2006, Nassar resigned from the UTSW faculty and cited Levine’s harassment and the creation of an unhealthy work environment in his resignation letter. Nassar resigned with the understanding that he would be offered a position at the Amelia Court Clinic unaffiliated with the UTSW, but the Clinic was forced to withdraw its offer after heavy opposition from the UTSW faculty, who have an agreement with the Clinic regarding positions to be filled by faculty doctors.

• In 2008 Nassar sued UTSW under Title VII of the Civil Rights Act of 1964 and argued that UTSW had


In 2008, Nassar sued UTSW under Title VII of the Civil Rights Act of 1964 and argued that UTSW had constructively discharged and retaliated against him. The jury found in favor of Nassar and awarded him back pay and compensatory damages. The U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part, holding that there was sufficient evidence to support the retaliation claim but insufficient evidence to support the claim of constructive discharge.

• UTSW argues that Nassar needs to prove that retaliation was the sole motivating factor for the negative employment action. In contrast, Nassar argues that he need only show that retaliation was a motivating factor, but not necessarily the only one, for the negative employment action

• Employers must prevent harassment by non‐employees

Harassment – New Responsibilities

by non employees

– EEOC Guidance – Applies to all forms of harassment

– Second Circuit ‐ Summa v. HosftraUniversity:

• Employers can be liable if they “k h ld h k ” f


“knew or should have known” of third party harassment and failed to take action

• New Alert: Workplace Bullying



• EEOC guidance –

– employer is “responsible for the acts of non‐employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non‐employees ” 29 C F R § 1604 11(e) (emphasis

Harassment – New Responsibilities

legal responsibility which the employer may have with respect to the conduct of such non employees. 29 C.F.R. § 1604.11(e) (emphasis added).

– EEOC Guidance also followed by several Circuits including 4th, 7th, 9th, 10th and 11th

• Summa v. Hosftra University, 708 F.3d 115 (2d Cir. 2013):

• Plaintiff Lauren Summa worked as a manager of the football team.

– suffered repeated harassment by team members, all of whom were students. (insulting Facebook pages, lewd comments)

– Coach promptly disciplined players when plaintiff complained, and school’s Equality Officer conducted anti‐harassment training a few months later.

– The court held that Hofstra University could be liable if it “failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.”

– The court analyzed whether the response was “immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility the employer has with respect to the employee’s behavior.” The court found that each time Summa complained, Hofstra reacted immediately and appropriately, including disciplining the players involved, and provided training to the entire athletics department to pre ent f t re incidents of harassment The co rt concl ded that “[b]eca se defendants took the needed


entire athletics department to prevent future incidents of harassment. The court concluded that “[b]ecause defendants took the needed remedial action in this case, the harassment carried out by some players on the football team cannot be imputed to the University and its personnel.”

• Employers must have adequate reporting mechanisms, they must take reports seriously, and they should conduct thorough investigations of complaints

• Increasing focus on workplace bullying– Recent surveys by Workplace Bullying Institute

find

Harassment ‐Workplace Bullying

find

• 35% of workers have experienced bullying firsthand (additional 15% witness)

• Bullying is 4X more prevalent than illegal harassment

• Has negative impacts on worker productivity• Difficult problem for employers because

conduct may not rise to the level of illegal harassment or discrimination


harassment or discrimination• Employers focusing on various strategies:

– Violence prevention

– Training

– Social Media Rules



• EEOC – cancer, diabetes, epilepsy and intellectual disabilities are covered

Americans with Disabilities Act – New Interpretations

intellectual disabilities are covered within the definition of “disability”

• EEOC’s $240M verdict in EEOC v. Hill's Country Farms, Inc.


• Increased Focus in Strategic Enforcement Plan

• EEOC v. Hill's Country Farms, Inc., d/b/a Henry's Turkey Service– defendant violated Title I of the Americans With Disabilities Act ("ADA") by subjecting 32

intellectually disabled employees to unlawful harassment and discriminatory treatment.


• The EEOC alleged on the employees' behalf that the defendant subjected them to derogatory and humiliating name‐calling based on their disabilities, and physical abuse, including hitting and kicking by the defendant's supervisory employees.

• The Complaint further alleged that the defendant discriminated against the employees by relegating them to substandard living conditions, providing inadequate attention to illnesses and injuries, imposing excessively harsh discipline, denying restroom breaks and paying substandard wages as compared to those paid to similarly situated non‐disabled workers.

• The jury initially awarded $5.5 million in compensatory damages, plus $2 million in punitive damages, to each of the 32 employees, for a total of $240 million.

– That initial award marked the largest verdict ever obtained by the EEOC.

F ll i th t i l th t t d j d t i th t f $50 000


• Following the trial, the court entered judgment in the amount of $50,000 compensatory and punitive damages per employee, for a total judgment of $1.6 million because of the ADA's limits on compensatory and punitive damages .

• Despite the sharp reduction in the verdict, this case should nevertheless stand as a reminder to employers of the potentially steep cost of violating the ADA.



• EEOC Strategic Enforcement Plan also indicates increased focus on ADAAA


indicates increased focus on ADAAAissues

– Policy exceptions for disabled employees

• American Psychiatric Association just released new edition of Diagnostic and Statistical Manual of Mental Disorders


– Contains new mental disorders for which no guidance exists in courts

• EEOC Strategic Enforcement Plan focuses on:

– Whether employers perform and/or document an interactive


– Whether employers perform and/or document an interactive, individual evaluation of the disabled person’s circumstances, as compared to the requirements of the job; and

– Whether employers consider whether a reasonable accommodation, (including a policy exception) would enable the individual to perform the essential functions of the job.




• Employees are increasing connecting personal devices to company networks

Continuing New Social Media Issues

to company networks

• Personal mobile phones that were used for work email or other company activity are liable to be confiscated and examined for evidence during discovery or investigation

• NLRB Third Social Media report issued by Acting General


NLRB Third Social Media report issued by Acting General Counsel

• NLRB Social Media Report– supplements two prior reports issued in January 2012 and August

Social Media Issues

2011 by the NLRB.

– Ambiguous policies without limiting language or context are more likely unlawful, while “rules that clarify or restrict their scope by including examples of clearly illegal or protected conduct, such that they could not reasonable be construed to cover protected activity, are not unlawful.”

– Inclusion of a “savings clause,” providing a policy will be


administered in compliance with the NLRA, will not cure an otherwise overbroad or ambiguous policy.

– In light of these decisions, employers should look carefully at their social networking and disciplinary policies to ensure compliance with the NLRA.



• NLRB has been extremely active issuing decisions affecting employers, including invalidating:

h db k li i ti di t t

NLRB Controversy Richard Griffin

– handbook policies preventing media contacts

– policies preventing employees from discussing workplace investigations

– social media policies prohibiting employees from posting messages damaging to the company

• BUT Recess appointments unconstitutional under Noel Canning v NLRB decision

Sharon Block

Terrence Flynn


Canning v. NLRB decision

– Potentially invalidates over 1,500 NLRB decisions since 2010 – including those listed above

– Will likely head to Supreme Court

Terrence Flynn

• DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54– policies prohibited employees from contacting the media and required

employees to contact public relations personnel before speaking to the

NLRB Actions

employees to contact public relations personnel before speaking to the media

• Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93– Policy directed employees making a complaint to refrain from discussing

the matter with their coworkers while the investigation was ongoing.

• Costco Wholesale Corp., 358 NLRB No. 106– policy prohibited employees from electronically posting messages that


p y p p y y p g g"damage the Company, defame any individual or damage any person's reputation."

• All policies were invalidated by the NLRB because "employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications”



• Since 2010, NLRB has only had a quorum without recess appointments for a little over two months

– 6/22/10 – 8/27/10

• During this period, 48 of the 126 decisions issued relied on a recess appointment for quorum

All other decisions since 2010 are potentially invalid

Potential Impact of Noel Canning

– All other decisions since 2010 are potentially invalid

• Major cases:

– D.R. Horton Appeal in 5th Circuit –

• employers may not require as a condition of employment that employees agree to a blanket waiver of rights to pursue their employment claims by means of class actions.

– Others

Social Media

• Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) (holding that employer's handbook rule prohibiting "disrespectful" language or "any other language which injures the image or reputation of the Dealership" was unlawful).

Off‐Duty Employee Access Rules

• Sodexo America LLC, 358 NLRB No. 79 (2012) (holding that employer's off‐duty access rule was invalid because the rule granted the employer "unfettered discretion" to determine which employees could access the facility while off duty).


• Marriott Int'l, Inc., 359 NLRB No. 8 (2012) (holding that the employer's policy of prohibiting off‐duty employees from accessing the employer's property without managerial approval was unlawful).

Dues Check‐Offs

• WKYC‐TV, Gannett Co., 359 NLRB No. 30 (2012) (holding that an employer's duty to collect union dues from employees pursuant to a dues check‐off provision continues even after the expiration of the collective bargaining agreement).

Employee Discipline

• Alan Ritchey, Inc., 359 NLRB No. 40 (2012) (holding that unionized employers must give the union notice and an opportunity tobargain before imposing discretionary discipline involving demotions, suspensions, and terminations where the applicable collective bargaining agreement does not establish a grievance‐arbitration process).

• Reminder: Watch state and local regulations wherever you operate

Time Away from Work: New and Local Wrinkles

• Philadelphia’s proposed paid sick days – Vetoed by Mayor in April, likely to resurface– Other states and cities have or are

considering this too (NYC, DC, San Francisco and Portland)

• Domestic violence proposal– NY Bill to give victims of domestic violence


90 days of job protection

• PTO for Disasters – Questions in wake of Hurricane Sandy and

tornadoes– FLSA and state law issues



• Philadelphia Sick Leave– After two year fight, dies in City Council when they could not get 12


votes needed to override Mayor’s veto

– Supporters vow to fight on, so bill will likely resurface

• Debate in other cities with state legislatures– Milwaukee established its own requirement in 2011, but Wisconsin

lawmakers overturned it.

– Kansas, Tennessee, Mississippi, Louisiana and Arizona have also d l b i l l i k l di


approved laws banning local sick leave ordinances.

– In Florida, a ban approved by lawmakers is awaiting Gov. Rick Scott’s signature, and a similar measure is pending in the Michigan Legislature—even though no city in Michigan has approved a sick leave law.

• NY Domestic Violence Bill ‐ approved by a New York State Senate labor committee in April

– gives victims of domestic violence 90 days of job protection


gives victims of domestic violence 90 days of job protection

– Workers denied the right to take time off would have cause to sue for wages, benefits or other compensation — as well as job reinstatement — and could collect damages if a willful violation is found.

– A sworn statement, police documentation or other evidence would suffice to make a worker eligible for the protection, according to the legislation

• PTO for disasters governed by FLSA –– Depends on exemption status

• Exempt – must be paid for any day where work performed (including work


p p y y p ( gfrom home), but need not be paid for week in which no work performed

• Non‐exempt – must be paid for hours actually worked unless CBA says otherwise

– Also check “reporting time” exemptions in NY, NJ and CT

– May be able to force employees to use PTO, but should review policies and handbooks first



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• Tremendous amount happening

• Prevention still best defense

Conclusion

• Prevention still best defense


year in review - blank rome in review presented by ... overview:post election hangover 2. supreme...

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