Jeffery L. ThompsonConstangy, Brooks & Smith, LLP

Telephone: 478-621-2423E-mail: jthompson@constangy.com

2013 SPRING CONFERENCE

What Happened & What’s Next

2012 - The Year In Review “Hot Button” Issues for 2013

Title VII and EEOC

EEOC Touts Monetary Recoveries

Record year for EEOC $365 million from mediations &

conciliations $36 million from investigations of

systemic charges $44.2 million from litigation 99,412 charges in 2012 fiscal year

Which type of EEOC Charge is the fastest growing?

1. Race

2. Age

3. Gender

4. Retaliation

Does Title VII protect transgendered employees?

1. Yes

2. No

Title VII Protects Transgendered Employees

Macy v. Holder (2012) Historically, EEOC had ruled that

discrimination on basis of sexual identity was not sex discrimination

Reversal: gender identity discrimination is a form of sex stereotyping

Criticism of Employer Investigation is Not Protected

Activity Brush v. Sears Holding Corp (2012) Employee criticized harassment

investigation and decision not to call police

Ct: only protected if object to acts unlawful under Title VII

Sloppy Handling of Sex Harassment Complaint Precludes

S.J.

Kurtts v. Chiropractic Strategies Group (2012)

Employee made internal complaint and expressed discomfort working with accused “harasser”

Company made no effort

Failure to Accommodate Pregnant Employee May Violate

Title VII Chapter 7 Trustee v. Gate Gourmet,

Inc. (2012) Pregnant employee’s doctor imposed

restrictions; supervisor says no light duty; fires her

Ct: have to at least consider whether light duty work available

Can you require an employee to get a flu shot?

1. Yes

2. No

3. Maybe

Refusal to Receive Flu Shot

Chenzira v. Cincinnati Children’s Hospital (2012)

Employee is a vegan; refuses mandatory flu shot based on religious belief

Ct: duty to accommodate employee’s religious beliefs

Americans With Disabilities Act

EEOC Issues ADA Guidance for Veterans With Disabilities

Preventing disability discrimination Accommodation of veterans with

disabilities

Wellness Program Fits ADA Safe Harbor

Seff v. Broward County Employees who declined to

participate in wellness program charged $20/pay period

Ct: No violation of ADA; safe harbor for insurance plans

Does the ADA require a transfer to a vacant position?

1. Yes

2. No

ADA Requires Transfer to Vacant Position

EEOC v. United Airlines 7th Cir. 2012 Employee can not perform own job Ct: Not sufficient to let employee compete

for vacant job; duty of accommodation requires transfer

But don’t have to ignore union contract

The Family Medical Leave Act

New FMLA Rules

Final regulations issued February 5, 2013,implementing National Defense Authorization Act of 2010

Relating to military leaves Other changes to 2009 Regulations

include intermittent leave Effective March 8, 2013

New FMLA Regulations (Military)

New FMLA Regulations (Military)

1,226 Days

Excluded!

New FMLA Regulations (Military)

New FMLA Regulations

Use smallest increments of time as used for other types of leave

New FMLA Regulations – Next Steps

Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward:

Update their FMLA policies in accordance with the new rule.

Replace the current FMLA poster with this one. Make sure all FMLA Fact Sheets are up to date. Use the new DOL notification and certification

forms, or adapt their own forms to be consistent with the new ones.

Ensure that leave administrators are familiar with the changes that will take effect March 8.

Request To Take FMLA Before Eligible is Protected

Pereda v. Brookdale Senior Living Communities

8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months

Court found Pereda’s termination for poor performance 9 months after being hired was unlawful

Fair Labor Standards Act

Court Disqualifies Morgan & Morgan For Unethical Behavior

Bedoya v. Aventura Limousine (2012)

Morgan & Morgan thrown off case threatening emails to opposing

counsel set deposition in a Dunkin Donuts ex parte communications to company

attacking company’s attorney

Pharmaceutical Sales Reps Are Exempt

Christopher v. SmithKline Beecham U.S. (2012)

Pharmaceutical reps are making sales; exempt under outside sales exemption

Overturns DOL interpretation of outside sales

On Call Time

On premises or geographical limits Pager/cell phone/smart phone Personal use of time

Training Time

Not compensable if: Attendance is outside the employee’s

regular working hours Attendance is voluntary Not directly related to job and No productive work performed

Public Hospitals

First Amendment

Walden v. CDC Court: Personal beliefs and values

are no excuse to refusing to perform job duties

USERRA

Refusal To Accept Transfer is Not Resignation Under USERRA

U.S. v. Ala. Dept. of Mental Health (2012)

Employee declined transfer to another city at end of military leave

Ct: not a resignation; employee entitled to reinstatement

Benefits

Affordable Care Act Upheld

Supreme Court June, 2012 ACA is constitutional, except for

mandate for states to expand Medicaid

Several pieces already in effect

Patient Protection and Affordable Care Act

What Now?

After the election, it’s full steam ahead for implementation.

By January 2014, unless delayed: Millions of Americans will have to obtain

insurance or pay penalties, and Insurers will be banned from denying

coverage based on pre-existing conditions for all individuals.

Implementation Schedule

2013 Changes

Plans must provide a participant notice regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice).

Health flexible spending account limit will be $2,500.

2014 and Beyond

Some of the additional changes scheduled for implementation are: Establishment of state insurance

exchanges. Imposition of a penalty on large

employers not offering health insurance ($2,000 per full-time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).

2014 and Beyond

Automatic enrollment for employers with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and self-funded plans, including grandfathered plans).

2014 and Beyond

Employers are required to provide a qualifying group health plan that meets the ACA requirements. Provides minimum essential benefits (for fully

insured small group plans, also provides all required “essential health benefits”),

Limits cost-sharing for such coverage, and Provides either a bronze, silver, gold, or

platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).

2014 and Beyond

“Essential health benefits” include (at this point):- Ambulatory Patient Services- Emergency Services- Hospitalization- Maternity and Newborn Care- Mental Health and Substance

Abuse Services- Behavioral Health Treatment

- Laboratory Services- Preventive and Wellness

Services- Chronic Disease

Management- Prescription Drugs- Pediatric Services,

including oral and vision care

2014 and Beyond

Requirement for individuals to have health insurance or pay a tax penalty. Individuals without “minimum essential

coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income

2014 and Beyond

The penalty would be phased in accordingly:

$95 in 2014, or 1.0% of taxable income

$325 in 2015, or 2.0% of taxable income

$695 in 2016, or 2.5% of taxable income

Beginning after 2016, the penalty will be increased annually according to cost-of-living adjustment

2014 and Beyond

Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days.

Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre-existing condition, and they will be prohibited from excluding coverage for a pre-existing condition.

2014 and Beyond

Establishment of health care choice compacts (2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines

Issues - Viability

If enrolling in a health care plan is viewed as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest.

Much of the law’s success depends on having young, healthy people sign up for insurance. They have much lower health care expenses. Their insurance premiums help offset the

higher medical expenses of older, sick people in a health plan.

Issues - Conflict

State Exchanges Few states have proceeded with their

implementation activities. Many states have not taken any action

toward the establishment of a state health insurance exchange.

Issues - Enforcement IRS Enforcement

Since the decision labeled the penalty a tax, it will be collected by the IRS.

The IRS may have few options for collection because:

Congress restricted the agency’s collection authority,

The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and

The IRS can only collect the money by withholding it from tax refunds or Social Security checks.

Hot Button Issues For 2013

Supervisor Status Under Title VII

Vance v. Ball Statue University U.S. Supreme Court will decide

whether someone who directs employees’ work, but lacks other authority, is a supervisor

Implications for harassment cases

Offer of Judgment in FLSA Case

Genesis Health Care Corp. v. Symczyk

U.S. Supreme Ct. will decide whether offer of full relief to named plaintiff moots an FLSA collective action

EEOC’s Strategic Action Plan

EEOC Strategic Action Plan (SAP)

Targeted Approach

Integrated Approach

Accountability

Nationwide Priorities

Eliminating Systemic Barriers in Recruitment and Hiring Exclusionary Policies and Practices Channeling/Steering of Individuals Into Specific

Jobs Due to Their Status in a Particular Group Restrictive Application Processes (i.e., pre-

employment tests, background screens, date of birth screens and on-line applications).

Nationwide Priorities

Protecting Immigrant, Migrant and Other Vulnerable Workers Disparate pay Job Segregation Harassment

Emerging Issues

ADAAA – Proper Application of Defenses such as Undue Hardship, Direct Threat and Business Necessity

LGBT (Lesbian, Gay, Bisexual and Transgender Individuals) – Coverage Under Title VII Sex Discrimination Provisions

Accommodating Pregnancy – Woman Who Are Forced Into Unpaid Leave After Being Denied Accommodations Routinely Provided to Similarly Situated Employees

Preserving Access To The Legal System

Overly Broad Waivers Settlement Provisions That Prohibit Filing

Charges with EEOC Failure To Retain Records Required By EEOC

Regulations Retaliation

Nationwide Priorities

Combating Harassment Reevaluation of Strategies to Prevent

Harassment such as Education/Outreach

EEO Action Plan Review hiring/recruitment policies concerning

requirements such as high school diplomas, criminal background checks, credit histories, applicant testing.

Review EEO statements (is it broad enough?) Training and practices concerning ADA

accommodation, pregnancy accommodation, leave practices in conjunction with FMLA.

Review training methods and policies concerning discrimination and harassment in the workplace.

Revisit whether you are currently complying with OFCCP/affirmative action requirements and have current written affirmative action plans.

Motivation and Support

Let’s Start With You

Save Lives Save Families Save Finances Build Hope

First – Help Yourself

Recalibrate Start Day Off Right Health = Happiness Love/Respect For Family/Friends Be A Friend To Yourself

First – Help Yourself

Set Positive Goals Have Something To Look Forward To Hide Sometimes Let Work Glorify God

Final Thoughts

It Starts At Home

Questions