Legal Update: Current Employment and Labor Issues

1
Legal UpdateCurrent Employment and Labor
Issues

• James M. Patterson, Jr.

2
Free Speech?

• Employee called supervisor a REDNECK SOB and
• a BASTARD
• Winston Salem Journal v. NLRB (2005)
• After examining the wordsthere was no tenable
  excuse for his behavior

3
Why Are You Vulnerable?Americas Color Adjustment
4
Americas Color Adjustment-2000 Census Facts

• 58 growth in Latino population since 1990
• 12.9 identify as African-American 12.2
  identify as Latino
• 6.8 million identify as multi-racial

5
Americas Color Adjustment-2000 Census Facts

• 54 million Americans with disabilities
• More than 30 million are between 16-64
• 40 are online and spend twice the time logged on
  as non-disabled people

6
Americas Color Adjustment-2000 Census Facts

• Median income for Asian Americans is 10,000 more
  than whites
• Ethnic media reaches diverse consumers better
  than general-market media
• Asian-American consumer purchasing power will
  quadruple between 1990 and 2007

7
Americas Color Adjustment-Challenges in the 21st
Century

• Managing the transition to a more diverse society
• Inter-ethnic and inter-racial tension and
  conflicts
• Everyone belongs to a minority group
• White men lt50 of labor force
• 1 in 4 employees is a minority
• Latinos will lead African-Americans as the
  largest minority group

8
Prohibited Discrimination-Title VII

• Desert Palace v. Costa (2003) proving employment
  discrimination under Title VII just got easier
• Mixed-motive case legitimate and discriminatory
  reasons motivated adverse action burden of
  proof can shift
• Plaintiff doesnt need direct evidence of
  discrimination to reach a jury, but what evidence
  will do?

9
U.S. Supreme Court Review

• Faragher/Ellerth Rulings
• Tangible Employment Action Strict Liability
• No Tangible Employment Action Affirmative
  Defense May Be Available

10
U.S. Supreme Court Review

• Affirmative Defense
• Employer exercised reasonable care to prevent and
  correct promptly any sexually harassing behavior
  and
• Employee unreasonably failed to take advantage of
  preventive or corrective opportunities provided
  by the employer or to avoid harm otherwise.

11
U.S. Supreme Court Review

• Pennsylvania State Police v. Suders
• Is Constructive Discharge A Tangible
  Employment Action?

12
U.S. Supreme Court Review

• Only If Official Acts
• (Such As Humiliating Demotion, Extreme Cut In
  Pay, Transfer That Leads To Unbearable Working
  Conditions)

13
Prohibited Discrimination-Title VII

• Protected Bias
• Skin color
• Punitive Damages
• Bryant v. Aiken Regl Med. Ctrs (4th Cir. 2003)
• Employers good-faith efforts to comply with
  Title VII may save it
• Review policies to ensure effectiveness
• Provide and document employee training
• Consider internal audit of employment practices

14
Prohibited Discrimination-Title VII

• Fair and Accurate Credit Transactions Act of
  2003 removes 3rd party investigations from
  notice and disclosure requirements
• Increase in harassment class actions
• E-harassment

15
Prohibited Discrimination-ADEA

• General Dynamics Land Sys. v. Cline (2004) ADEA
  doesnt protect younger workers from decisions
  that favor older workers
• Implication retiree health coverage, severance

16
National Labor Relations Board

• IBM Corporation, 341 NLRB No. 148 (2004)
• Employees in Non-Union Settings Lose Right to
  Have Representative Present in Meetings That
  Might Result in Discipline

17
Court of Appeals Review

• Smith v. City of Salem, 378 F. 3d 566 (6th Circ.
  2004)
• Court upholds a Transsexuals sex Stereotyping
  Claim
• Failure to conform to stereotypical gender norms.

18

• Smith v. City of Jackson, Miss. (oral argument
  Fall 2004) are disparate impact claims viable
  under the ADEA?
• EEOC v. Warfield-Rohr Casket Co. (4th Cir. 2004)
  age-based remarks precluded summary judgment

19
Prohibited Discrimination-ADA

• Record of Disability Raytheon v. Hernandez
  (2003)
• No rehire policy for misconduct can trump ADA
  claimants claim of disparate treatment, unless
  can show pretext
• Both disparate treatment and disparate impact
  claims are viable under ADA

20
Administrative Enforcement-EEOC

• Fiscal Year 2003
• Resolved 87,000 charges of discrimination
• 236M in monetary benefits and other relief for
  victims from resolved charges
• 149 in monetary benefits, as well as injunctive
  relief, from lawsuits
• Most common charges race, sex/gender,
  retaliation, age

21
Administrative Enforcement-EEOC

• Mediation programs
• Universal Agreements to Mediate (UAMs)
• Referral Back Pilot Program
• April 22 Issued final rule exempting retiree
  health plans from ADEA coverage

22
Sarbanes-Oxley Act

• Broad requirements for reporting, disclosure, and
  auditing of financial practices
• Protects employee whistleblowers
• Employer can be liable even if employee is wrong
  about violation, as long as employees belief is
  reasonably held
• US DOL has enforcement authority
• Impact on executive compensation and retirement
  plans

23
Sarbanes-Oxley Act

• Specifically applies only to public companies,
  but private employers and non-profits should also
  take heed
• Anti-retaliation provision protects any person
  for providing truthful information about a
  federal offense
• Falsification/destruction of any record intended
  to influence investigation of US agency carries
  20-year prison sentence
• Martha Stewart
• EEOC investigation
• OSHA investigation

24
Fair Pay Overtime Regulations Whats New?

• New rule clarifies exemptions for executive,
  administrative, professional, outside sales,
  computer employee, and highly compensated
  employees
• Minimum salary level for exempt employees 455
  week/23,660 year
• Deductions and safe harbor rule
• Effective August 21, 2004
• DOL Enforcement Task Force

25
Fair Pay Overtime Regulations Whats New?

• Effective August 21, 2004
• DOL Enforcement Task Force
• DOL online outreach program is available at
  www.dol.gov/fairplay, including components of the
  final rules, fact sheets, an online training
  seminar (video), and other DOL guidance.

26
Fair Pay Overtime Regulations Employer Action

• Assess current to see if anyone will lose exempt
  status
• Assess employees job duties
• Review pay practices
• Implement policy explaining salary deductions for
  exempt employees and incorporating complaint
  mechanism
• Ensure non-exempt employees record hours worked

27
Other Pay Issues

• FLSA and overtime watch for
• Employees working two non-exempt jobs at same
  location
• Out-of-town travel
• Inadequate records of hours worked
• Liability 2 or 3 years of unpaid overtime
• Equal Pay Act

28
E-Mail

• No reasonable expectation of privacy in
  employer-supplied e-mail accounts and computers
• E-mail is recoverable and discoverable
• POLICIES Monitoring, Document Retention

29
Legal UpdateCurrent Employment and Labor
Issues

• James M. Patterson, Jr.