Hot Topics in Employment Law - SHRM

Hot Topics in Employment Law
What to Expect from Courts, Congress &
Agencies
Greg Hare, Esq.
Managing Shareholder
Ogletree Deakins-Atlanta
[email protected]
404-870-1758
Georgia House passes medical
marijuana bill
Feb 25, 2015
The Georgia House of Representatives voted overwhelmingly Wednesday to
decriminalize the possession of a form of medical marijuana. Under
legislation House lawmakers passed 158-2 and sent on to the state Senate,
Georgians who bring the marijuana derivative cannabidiol obtained outside of
Georgia into the state for treatment of certain illnesses would not be subject
to prosecution.
The bill includes a provision to form a state commission to look for ways to
create a growth/distribution model for medical marijuana within a
sufficiently narrow scope to satisfy objections of those worried about
encouraging recreational use of the drug.
The original bill also was expanded as it went through the House to allow
cannabidiol for treatment of a wider range of diseases that affect adults as
well as children, including cancer, multiple sclerosis, amyotrophic lateral
sclerosis (ALS), Parkinson's disease and sickle cell anemia.
LEGAL MARIJUANA
• Medical
– Georgia + 23 states
• Recreational?
– Colorado, Washington, Alaska, etc.
– Soon, Oregon & D.C.
• Stoned at Work? Drug Test Failures?
• When in Doubt, Run Your Business!
CRIMINAL BACKGROUND CHECKS
EEOC SAYS: NO BLANKET RULE
• Screening process should include “an individualized
assessment”
• Look at correlation between job duties and the past
criminal conduct
• Any exclusion must be “job related” and consistent
with “business necessity”
Nathan Deal signs ‘ban the box’
hiring policy
February 24, 2015
Job seekers applying for work with the state of Georgia will no longer
need to disclose prior criminal convictions on their initial applications.
Gov. Nathan Deal signed an executive order implementing a “ban the box”
policy that outlaws a requirement for people with criminal histories to
disclose that information on a job form. “Such policies will allow returning
citizens an opportunity to explain their unique circumstances in person to a
potential employer,” read the order.
The council’s report said it was a barrier to employment that could exclude
released inmates from consideration even if they are qualified for
the job and the conviction has no bearing on the work.
What Does This Mean …?
• Nothing for private sector in GA!
– Only applicants for state jobs
• Nationally?
– 6 states ban the box for all employers
– 13 states, only public sector
• And what about the EEOC’s push?
COURTS SAY…
EEOC IS OVERREACHING!
• Peoplemark, Inc. (Oct. 2013):
– EEOC accused company of refusing to hire
applicants with criminal record
– Court ordered EEOC to pay $750K in fees and costs
• Freeman Event Planning (Aug. 2013):
– EEOC’s allegation that criminal checks have
disparate impact on minorities is a mere “theory
in search of facts to support it”
– EEOC approach “condemns use of common sense”
Caution Still Key …
Despite EEOC Background Check Loss
February 23, 2015
The Fourth Circuit 's recent rejection of a U.S. Equal
Employment Opportunity Commission lawsuit against event
services company Freeman marked the second resounding
loss in less than a year for the agency …, but lawyers say
employers that use similar hiring screens should continue to
exercise caution.
Friday's ruling calling the work of EEOC expert “utterly
unreliable.”
PRUDENT PRACTICE SAYS
• Be prepared to state justification for your
background check practice
• Plus up your job descriptions, e.g.:
– This position is financially sensitive because it
involves handling of money
– This position is safety sensitive because employee
will be entering customer homes
– This position is security sensitive because employee
will be entrusted with valuable merchandise/cargo
WELLNESS PROGRAMS …
UNDER ATTACK?
Why have a Wellness Program?
•
•
•
•
•
Healthier lifestyles
Team building
Reduce company’s aggregate healthcare costs
200+ employees = 94% have wellness
All good, right?
BUT …
• Don’t forget the ADA restrictions on subjecting
employees to physical & medical examinations
• Must be …
– Job related
– Consistent with business necessity
OK, SO WHAT’S THE NEWS?
EEOC v. Orion Energy Systems (ED Wisc Aug 2014)
• Wellness program required employees to …
– Disclose medical history
– Blood tests
– Range of motion test
• Employee refused because …
– She perceived it as not voluntary
– Feared for confidentiality
• Company then …
– Forced employee to pay 100% hc premiums
– Fired her the month after refusal to partake
• EEOC sued for ADA violation
AND AGAIN …
EEOC v. Flambeau Plastics (WD Wisc Oct 2014)
• Wellness program required employees to …
– Health risk assessment – medical history
– Biometric test – blood-work and body measurements
– Participants got 75% of hc premium covered
• Employee was on LOA
– Congestive heart failure & cardiomyopathy
– Missed wellness roll-out
– Denied chance to re-test upon return
• Company foisted 100% of hc premium to him
– Couldn’t afford = canceled
• EEOC sued for ADA violation
EEOC VIEW
• “Voluntary” means non-participants …
– Can’t be punished with huge penalties (100%)
– Can’t have hc coverage canceled
– Can’t be disciplined/fired/harassed
• Otherwise, participation is really, actually
“mandatory”
– Which violates ADA
• Key Takeaway
– Incent participants, don’t punish abstainers
She’s Not Here
Pregnancy & Postpartum Issues
• Understanding exposures
– FMLA, PDA & Title VII
• Pre-delivery
– Medical appointments, pop-up absences
• Young v. UPS (US Sup Ct 2015)
– What if pregnant employee can’t perform
essential functions?
– Light duty, like wc employees?
• Post-partum: what if still unable …?
Ultimate Issue
Pregnancy & Postpartum Issues
• Does law merely require employers to refrain
from discrimination, based on pregnancy?
• Or, does it require affirmative accommodation
of pregnant/post-pregnant employees … i.e.,
like under the ADA?
SAME SEX ISSUES IN THE WORKPLACE –
LATEST UPDATE
U.S. v. Windsor (Sup. Ct. June 2013)
• not a blanket federal mandate requiring legal
recognition of SSM
• rather, it adds fresh paint to principle that
“the states . . . possess full power over the
subject of marriage and divorce” (Haddock v.
Haddock, Sup. Ct. 1906)
• federal government should not interfere with
state-level definitions of “marriage”
SO THEN WHAT HAPPENED???
• Marriage = 1 Man, 1 Woman
– State Statutes
– Constitutional Amendments
– Voter-Approved Initiatives (Prop 8)
• Can the courts overturn the “will of the
people”?
LAWSUITS ABOUND…
• Constitutional Challenges: Arguing that …
– SSS have a fundamental right to share in the
institution of marriage under equal protection
clause
• Many courts struck down bans on SSM
– Overturned majority rule …
• 37 states now allow; 13 do not
• Supreme Court will to give clarity
– Oral argument in April
– Decision in June
WHAT DOES ALL THIS MEAN FOR
EMPLOYERS?
• SSS are “married” for all federal purposes
(everywhere):
– Can file joint tax return
– Can inherit property – taxation like a spouse
– Can be “spouse” for health insurance
– Can be “spouse” for retirement benefits
DOL Finalizes Expanded Same-Sex
Couples' FMLA Rights
February 23, 2015
The U.S. Department of Labor will finalize a rule to extend the
Family and Medical Leave Act’s protections to married samesex couples regardless of whether the state they live in
recognizes their union, the agency announced on Monday.
The final rule, which will be published on Feb. 25 and will
take effect on March 27, means that same-sex spouses can
avail themselves of the same right to federal job-protected
leave as opposite-sex married couples, the DOL stated in its
announcement of the final rule on Monday.
EEOC Files Historic Sex Bias Suits For
Transgender Workers
Law360, New York - September 25, 2014
The U.S. Equal Employment Opportunity Commission on Thursday filed its
first ever lawsuits over alleged sex discrimination against transgender
individuals, targeting a funeral home and an eye clinic that purportedly fired
employees who were transitioning from male to female.
In two separate suits, the EEOC claims Michigan-based Harris Funeral Homes
Inc. and Florida-based Lakeland Eye Clinic discriminated against two
transgender workers by firing them for being transgender and not conforming
to “the employer’s gender-based expectations,” according to statements
from the agency.
Dress Codes?
Employers perhaps may be required to allow
employees to appear and to dress consistent
with their gender expression regardless of
their physical gender.
FLSA REFRESHER ON
OVERTIME EXEMPTIONS
OVERTIME EXEMPTIONS
Under the Fair Labor Standards Act
•
•
•
Jobs are classified as either Exempt or
Non-exempt
Exempt means the position does not require
overtime pay
Non-exempt means the position requires overtime
pay for over 40 in a week … which requires accurate
record keeping
WHY ARE SOME JOBS EXEMPT?
• Practical Answer – for those who play some
role in running the Company, they get paid a
fixed amount to accomplish their job
– i.e., not based on how many hours they work or
when they work
EXEMPT vs. NON-EXEMPT
How do we know if a position is exempt or
non-exempt? May be exempt if it meets:
1. Salary Basis (but more)
2. Salary Level
3. Duties Tests
WHAT IS THE CURRENT SALARY LEVEL?
• At least $455 per week, on a salaried
basis
• That’s not a lot …
– $23,660 vs. $24,250?
WHAT ARE THE DUTIES OF EXEMPT
POSITIONS ?
• Most Common Exemptions
– Executive
– Administrative
– Professional/Creative
– Computer Professional
– Outside Sales
• Primary Duties Test
– Not sole duty
– Not majority of duties
Prepare for Imminent FLSA White-Collar
Regulations
• Raise the Floor
– $40,000 -$50,000 could become minimum salary for
OT exemption
• Primary Duties would become a quantitative
“math equation”
– Greater than 50% of hours worked on exempt tasks
(the “CA Rule”)
• Purpose & Effect
– Turn many, many more workers into hourly wage
earners
NLRB UPDATE
Welcome to Ambush Elections!
• Effective date: April 14, 2015
• Dramatically speeds up union organizing timeline
– No longer 42-50 days
– Maybe as short as 10-20 days
• Coupled with NLRB’s other recent pro-union
decisions ...
– Cherry-picking voters
– Union access to company email
• Employer beware!
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Gregory Hare
Ogletree Deakins
191 Peachtree St., # 4800
Atlanta, GA 30303
(404) 870-1758
greg.hare.ogletreedeakins.com