2014 Labor and Employment Law Conference Hartford Office of Jackson Lewis P.C. June 11, 2014

2014 Employment Law Update

Holly L. CiniBeverly W. GarofaloHartford Office(860) 522-0404cinih@jacksonlewis.comgarofalob@jacksonlewis.com 2

2No Good Deed . . . Overtime considerationsIndividual employee preferencesInjuries - Workers CompensationSocial mediaDress code3

3CHRO2146 new claims filed in FY 13-14 (July 1, 2013-June 30, 2014)16% increase over previous year (1850)Closed 2303 cases as compared to 2146 opened97 dismissed on MAR determination (vs. 800 ten years ago)935 settled (vs. 481 ten years ago)Disability claims up 3%, more than any other protected class4

4EEOC93,727 charges filed in FY 2013, a 5.7% decrease (99,412 last year)294 CT claims (53% increase in last five years)Retaliation claims still most pervasive - 41.1%Race, sex (including sexual harassment and pregnancy), disability next

55Legislative Developments - ConnecticutMinimum Wage (P.A. 14-1)$9.15/hour on 01/01/15$9.60/hour on 01/01/16$10.10/hour on 01/01/17Highest minimum wage of any state in the nation as of 2017

66Legislative Developments - ConnecticutPaid Sick Leave law (H.B. 5269; eff. 01/01/15)Revises method of calculating threshold for applicability from quarterly to October 1;Prohibition on terminating or transferring employees to another job site to come under the 50-employee threshold;Allows for accrual calculation on whatever 365-day year employers choose to use, vs. the current requirement that it run on a calendar year (Jan. 1 Dec. 31) cycle;Adds radiologic technologists to the list of Service Workers

77Legislative Developments - ConnecticutP.A. 14-159 (eff. Jan. 1, 2015) - Allows for a sleep time exclusion from overtime pay requirements for certain employees employed by third-party providers such as home care agencies (companionship services);P.A. 14-9 Expands the types of deposits that automatically exempt up to $1,000 from bank executions against a judgment debtors account to include electronic direct deposits that are readily identifiable as wagesP.A. 14-109 Expands the types of employers who can require a credit check on employees/applicants to include mortgage servicing companies and brokers.

88Proposed Legislation ConnecticutImposition of a punitive tax on employers with 500+ employees for each non-exempt employee paid less than 130% of minimum wage (HB 5069);Requirement that retailers pay non-exempt employees who work on Thanksgiving or Christmas day 2.5 times their normal hourly rate (HB 5280);Proposal to create a new state-run Roth IRA plan that would require employers with 5+ employees that do not offer a similar benefit to participate (SB 249);Elevating unemployed to a protected class status (HB 5054 and 5274)

99EEOC Guidance on Pregnancy DiscriminationCongress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII. Thus, the PDA extended to pregnancy Title VIIs goals of [achieving] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of . . . employees over other employees. EEOC Commissioner Chai R. Feldblum, July 14, 2014.Young v. United Parcel Service, No. 12-1226 Certiorari granted July 1, 2014; to be decided by USSC in 2015 session1010EEOC Enforcement TrendsEEOCs top systemic enforcement priorities:Investigation of systemic barriers in recruitment and hiring, including pre-employment tests & assessments:criminal History Background Checks, Credit Checks personality Profiles, Behavioral Assessmentscognitive Ability Tests structured Interviewsphysical RequirementsSystemic pay discrimination

1111Litigating with the EEOCEEOC v. Supervalu, Inc. and Jewel-Osco, (N.D. Ill July 2014) EEOC sued claiming violation of the ADA. In 2011, the parties entered a 3 year consent decree to resolve the case. One year later, EEOC filed a second claim, alleging the employer did not adhere to the consent decree as to 3 employees.EEOC v. UPS (N.D. Ill. March 2014) EEOC sued claiming a UPS policy that calls for employee separation after 12 months of leave violated the ADA. Is attendance an essential job function? 1212U.S. SUPREME COURTSandifer v. United States Steel Corp.,134 S. Ct. 870 (2014)Plaintiffs argued the time they spent changing into and out of safety equipment should be compensable under the FLSA because the safety equipment did not constitute clothes within the meaning of the exemption.USSC held for the defendant, finding that protective gear is clothing, and the time spent donning and doffing is not compensable by operation of the FLSA (29 U.S.C. 203(o)).

1313U.S. Supreme Court Burwell v. Hobby Lobby Stores, No. 13-354 (2014): For-profit employers that are closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the Affordable Care Act requirements on contraceptive coverage for employees.1414OFCCPNew Regulations re: Vietnam Era Veterans Readjustment Assistance Act VEVRAA (eff. March 24, 2014)Prohibits federal contractors from discriminating in employment against protected veterans, and requires affirmative action to recruit, hire, promote, and retain these veterans. Contractors with an AAP already in place on the effective date have additional time to come into compliance with the AAP requirements. This compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.Hiring Benchmarks; Data Collection; Job Listings; Records Access

15Court Decisions - FMLAEscriba v. Foster Poultry Farms (9th Cir. Feb. 25, 2014)An employer did not violate the federal Family and Medical Leave Act for terminating an employee for violating its no-show, no-call policy, where the employee elected not to take protected FMLA leave, even though the reason for the employees need for time off would have been covered under the statute

16Court Decisions - ADAEEOC v. Ford Motor Co. (6th Cir. April 22, 2014)In holding that allowing telecommuting may be a reasonable accommodation, the Court noted: [A]dvancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace.

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Court Decisions Class Action Waivers in Arbitration Agreements

American Express Co. v. Italian Colors Restaurant Continuation of trend to strictly enforce arbitration agreements.March 2014: 11th Circuit (Walthour v. Chipio Windshield Repair LLC) August 2013: 2nd Circuit (Sutherland v. Ernst & Young LLP)Very limited grounds to invalidate class waiverStrong dissent concerned about vindication of rights.May 2014: Walthour plaintiffs file cert petition asking Supreme Court to consider whether the FLSA confers a non-waivable substantive right to collective action, and whether the law contains a congressional command barring the enforcement of arbitration agreements or class action waivers.1818Court Decisions - Retaliation Trend continues to increase, despite Nassar decision Inherently hard to defend;So many statutes with retaliation provisionsJury verdicts in retaliation cases are exploding:March 2014: St. Louis Circuit Court awards $7.2 million in punitive damages to police officer who claimed retaliation for having complained of sexual harassmentMarch 2014: Illinois state court awards $3 million to Chicago State University employee who claimed retaliation for reporting alleged misconduct by top university officials.September 2013: California court affirms jury award of $4,650,000 in favor of employee who reported wage and hour violations.

1919Court Decisions Sexual HarassmentOrton-Bell v. State of Indiana, (7th Cir. July 21, 2014)Plaintiff, a prison security guard, complained when she learned 2 night-shift workers were having sex on her desk. Her manager suggested she should probably wash off her desk every morning in responseThe court held there was no evidence to support a hostile environment claim because had the office belonged to a man, it likely would have been used in the same manner, and therefore the act was not a result of her gender. 202021

21Edwards v. Nicolai (NY, Case No. 160830) - Plaintiff, a Manhattan yoga instructor, is claiming gender discrimination after being told she was fired for being too cute. Her manager (a Playboy playmate) let her go because her managers husband found Plaintiff attractive.

(Reminiscent of the 2012 in an Iowa Supreme court ruling of Nelson v. Knight, in which case a dental assistant was fired for being too sexy for the employer and the court dismissed the claim, ruling that it was her attractiveness and not her gender, that promptedthe decision).

Court Decisions22Court DecisionsSarrazin v. Coastal, Inc. (Conn. S.C. April 2014)Plaintiff, a plumbing foreman, sought to be compensated for commuting time because he carried his tools to and from the workplace with him.The CT Supreme Court disagreed and found against Plaintiff, but in so doing rejected the CT DOLs interpretation of how to apply travel time requirements under CT law, leaving open the question of whether the CT DOLs Guide to Wage & Workplace Laws is a reliable resource2323NLRBUSSC rules the recess appointments were invalid (June 2014), and therefore likely all decisions made by those individuals are invalidGave a thumbs up to employees who use the Like button on FB to endorse comments about the workplace (August 2014)

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24NLRB25Still scrutinizing workplace policies for Section 7 violations: We will not make negative comments about our fellow team members and We will not engage in or listen to negativity or gossip in a Values Policy deemed unlawful;Policy requiring employees to maintain confidentiality of personnel information, including home and cellphone numbers, deemed unlawful;Car dealerships policy calling for courtesy deemed unlawful;General Counsel still commenting on at-will disclaimer language

25Executive OrdersPresident Obama has issued a number of Executive Orders with impact on workplaces nationally, including those related to:LGBT as protected classes;Minimum Wage increases;Arbitration Agreements prohibitionsAlso circulating a Pledge for companies to commit to adopting flex policies

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