Kootenai County Bar Association CLE Lunch Presentation Employment and Labor Law Updates and Trends November 5, 2012 12:30-1:00 p.m. Presented by: Scott A. Gingras Winston & Cashatt, Lawyers sag@winstoncashatt.com 250 Northwest Blvd., Suite 206 Coeur d Alene, ID 83814 Phone: (208) 667-2103 Fax: (509) 838-1416 I. DISCRIMINATION AND DISABILITY LAW A. Final Regulations of ADAAA EEOC Fact Sheet on Final Regulations: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm What is the Same? o Still requires employers to provide reasonable accommodations to qualified individual with a disability unless undue hardship or direct threat to the health or safety of employee or others; o Still prevents employers from discriminating against known disability; o A qualified individual with a disability is still defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position; and o Disability still means a physical or mental impairment that substantially limits one ore more major life activities, a record of such impairment, or being regarded as having such impairment. What is Different? o New regulations make it easier for employees to qualify for protection; o Regulations confirm that determining whether an individual qualifies as disabled requires individualized analysis rather than mere reference to a diagnosis; o Regulations create presumption that individuals who suffer from certain conditions will qualify ( there will be some impairments that virtually always constitute a disability ); and o Blindness; mobility impairments requiring use of wheelchair, diabetes, cancer, HIV infection, and a variety of mental disorders, among others. Scott A. Gingras, Winston & Cashatt 1 P a g e
Final Regulations of ADAAA -Rules of Construction - Regulations establish various rules of interpretation to be used in determining whether an individual is substantially limited in performing a major life activity. B. Disabled Veterans: Key Points: o Disabled veterans are covered by ADA/ADAAA (Disability rating from VA); o Service connected disabilities are covered if they meet definition of disability; o May need accommodation during application process; o Employers may need to ask veterans whether reasonable accommodation is needed, even if none has been requested; o EEOC says critical for employer to initiate the conversation; and ADA obligations differ from those under USERRA: USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job whether or not the veteran has a service connected disability. USERRA also applies to all employers, regardless of size. C. High School Diploma Requirement by Employers May Have Disparate Impact Discrimination Job-Related and Business Necessity - If an employer adopts a high school diploma requirement for a job, and that requirement screens out an individual who is unable to graduate because of a learning disability that meets the ADA s definition of disability, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions [fundamental duties] in question can easily be performed by someone who does not have a diploma. Reasonable Accommodation - Even if the diploma requirement is job related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him from meeting it can perform the essential functions of the job, with or without a reasonable accommodation. It may do so, for example, by considering relevant work history and/or by allowing the applicant to demonstrate an ability to do the job s essential functions during the application process. D. Cat s Paw Theory Staub v. Proctor Hospital, 131 S.Ct. 1186 (S. Ct. 2011). Scott A. Gingras, Winston & Cashatt 2 P a g e
Cat s Paw Liability if: o Biased individual is a supervisor; o Biased supervisor intended the adverse action to occur; and o Biased supervisor actions were the proximate cause of adverse action. Employer defense: independent investigation results in a discharge for reasons unrelated to the supervisor s biased action. E. Limitations on Use of Background Checks Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm Arrest - The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity; but, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. Conviction - In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct; but in certain circumstances there may be reasons for an employer not to rely on the conviction record alone when making an employment decision. DisparateTreatment v. Disparate Impact: Disparate Treatment (intentional discrimination) Liability- A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability). Disparate Impact (unintentional discrimination) Liability: An employer s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity. F. Are Interns Protected by Discrimination Laws? unpaid or volunteer interns: coverage as an employee under EEOCenforced laws likely will turn on whether the intern receives "significant remuneration" in some form, such as a pension, group life insurance, workers' compensation, or access to professional certifications. Scott A. Gingras, Winston & Cashatt 3 P a g e
Paid interns - are not volunteers, and therefore have different considerations. In these cases, courts must weigh all aspects of the intern's relationship with the employer, focusing in particular on whether the employer controls the means and manner of the intern's work performance. II. WAGE AND HOUR LAW - INTERNS The Fair Labor Standards Act (FLSA) defines the term employ very broadly as including to suffer or permit to work. Covered and non-exempt individuals who are suffered or permitted to work must be compensated under the law for the services they perform for an employer. Internships in the for-profit private sector will most often be viewed as employment, unless trainees test is met. Interns in the for-profit private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a work week. Three potential categories under the FLSA that interns can fall under: o A learner or apprentice who does not enjoy employee status under the FLSA and thus is not covered at all by the statute; o A full-fledged employee under the FLSA, entitled to minimum wage; or o A learner or apprentice, who enjoys employee status under the FLSA, but who nevertheless, may be paid less than the minimum wage pursuant to the statute s learner exemption. Six-Part Test for un-paid Interns: The Wage and Hour Division of the United States Department of Labor, borrowing heavily from the reasoning from the Supreme Court, has applied a six-part test to determine whether an individual is an employee for purposes of the FLSA: (The Division requires that all six criteria be met in order to find that trainees or students are not employees within the meaning of the FLSA, i.e. that they are not entitled to the Act s minimum wage and overtime provisions.) o The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school. o The training is for the benefit of the trainees or students. o The trainees or students do not displace regular employees, but work under their close observation. o The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion his/her operations may actually be impeded. o The trainees or students are not necessarily entitled to a job at the conclusion of the training period. o The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training. Scott A. Gingras, Winston & Cashatt 4 P a g e
Stipends and tuition assistance are generally not considered payment of wages for the purpose of determining whether a student is an employee. DOL Fact Sheet http://www.dol.gov/whd/regs/compliance/whdfs71.htm#.ujbxvfnhnma III. LABOR LAW A. TERMINATION OF EMPLOYEES BASED ON CONCERTED ACTIVITY SECTION 7 CONCERTED ACTIVITY - Employees shall have the right to... engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection... Section 8 Unfair Interference - It is unfair for an employer to interfere with, restrain, or coerce employees in the exercise of the [NLRA] rights. Who is Covered? o Most private sector workplace; U.S. Postal Service. o Does Not Apply to: Federal, State and Local Employees; Airline and Railroad Employees; Agricultural and Domestic Workers; or Independent Contractors. Sections 7 and 8 apply to both unionized and non-unionized employees ELEMENTS FOR CONCERTED ACTIVITY: o Statement(s) concerning terms and conditions of employment. o Employee acts with or on authority of other employees and not solely by and on behalf of himself. o Where individual employees seek to initiate or induce or prepare for group action. o Can be met even where no current plan to act. WHEN DOES A POST LOSE PROTECTION? o Communications Between Employees and Supervisors - Weigh: Whether discussion provoked by unfair labor practice Disruption to workplace Level of disparagement to employer or services Location of communication Nature of outburst IS DEFAMATION A DEFENSE? Employee statements will be found unprotected where disparaging upon the quality of the company s product or policies and reasonably calculated to harm the company s reputation and reduce its income B. Employment Arbitration Agreements D.R. Horton, Inc. and Michael Cuda,- January 3, 2012 NLRB Decision Employer s compulsory pre-dispute arbitration agreement that contained Scott A. Gingras, Winston & Cashatt 5 P a g e
class action waiver and required employee to bring claims individually violated Section 7 of the NLRA and substantive right to bring claims collectively. o Holds mandatory employee arbitration agreements requiring employees submit collective or joint actions to arbitration violates NLRA; o Does not apply to arbitration agreements resulting from collective bargaining. BUT- the Supreme Court fired back at the NLRB s direction in the case CompuCredit Corp v. Greenwood, 132 S.Ct. 665 (2012) January 10, 2012 - held that courts must enforce arbitration agreements according to their terms even when the claims at issue are federal statutory claims, UNLESS the FAA s mandate has been overridden by an expressly stated contrary congressional command. C. Is Attack on At-Will Employment Next? IV. IMMIGRATION LAW A. I-9 Compliance What is the big deal? o Failure to comply with the law; o Potential receipt of and the need to respond to Notice of Inspection; o The need to complete time-consuming internal audit; o Threat of fines; o Threat of criminal penalties. Unlawful Conduct includes: o Aiding, abetting and harboring illegal aliens; o Actual knowledge that workers are unauthorized; and o Constructive knowledge of the same: Failure to complete or improperly complete I-9 Having information that indicates employee is not authorized to work. Civil Fines (increased from $32k in 2003 to over $32 million in 2010, with several companies over $2 million fines/forfeitures. o For example, failing to comply with Form I-9 Requirements - $110 to $1,100 per form. I-9 Form requirements DO NOT Apply to: o Applicants; o Independent Contractors; o Individuals Employed by Contractor Providing Contract Services; o Individuals hired before 11/7/86 who are continuing in employment and have reasonable expectations of employment. THANK YOU! Scott A. Gingras, Winston & Cashatt 6 P a g e