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HOT LEGAL TOPICS FOR

HR PROFESSIONALS

Obermayer Rebmann Maxwell & Hippel LLP

Jacqueline Shulman, Esq.

October 17, 2011

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HOT TOPICS

What’s Up With the NLRB: Beyond the

Employee Free Choice Act

The EEOC & GINA: More Alphabet Soup for

Employers

FLSA Misclassification: Avoiding the Sand

Traps

What Else is Hot: Watch out for Office

Romances and more

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WHAT’S UP WITH THE NLRB?

June 21, 2010: DOL issued Final Rule

All federal contractors ($100,000) &

subcontractors ($10,000) must post notices

advising employees of their NLRA rights.

Applies to union & non-union employers.

Electronically as well as by the time clock.

Train your supervisors.

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WHAT’S UP WITH THE NLRB?

October 22, 2010: NLRB determined that employers

who have committed unfair labor practices will be

required to post remedial notices both in paper form

and electronically (e-mail, intranet, internet).

NLRB will base which form of electronic notice is

appropriate on manner in which employer

disseminates info to employees.

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WHAT’S UP WITH THE NLRB? November 2, 2010: NLRB issued a complaint against AMR for violating

NLRA when it fired employee who criticized boss on her Facebook page.

Company “Blogging and Internet Posting Policy” prohibited

“disparaging, discriminatory, or defamatory comments when discussing

the Company or the employee’s superiors, co-workers and/or

competitors”.

Policy found to be “overly broad” and employee’s disparaging remarks

protected concerted activity. Case settled before hearing.

September 2, 2011 – NLRB ALJ found non-profit unlawfully discharged 5

employees who posted comments about working conditions on

Facebook (social media policy not involved).

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WHAT’S UP WITH THE NLRB?

December 21, 2010: NLRB issued a Notice of Proposed Rule-

making requiring private sector union and non-union employers

to notify employees of their rights under the NLRA.

Same notice requirements as June, 2010 federal

contractor/subcontractor Final Rule.

Only agricultural, railroad & airlines exempted.

August 30, 2011: Issued Final Rule.

November 14, 2011: Rule becomes effective.

Posting available on www.nlrb.gov after November 1, 2011.

Supervisor training key.

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WHAT’S UP WITH THE NLRB?

January 28, 2011 – Parexel International, LLC, NLRB

held that an employer’s discharge of an employee

was unlawful even though employee had not actually

engaged in any protected activities.

Complained to her supervisor about her wages.

Violation of Section 7 rights for what she might do in

the future.

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WHAT’S UP WITH THE NLRB?

The Mischief Continues under Lafe Solomon

April 20, 2011 – The NLRB found Boeing C. violated federal

labor law by building a second production line for its 787

Dreamliner at a non-union facility in South Carolina. Boeing is

fighting the decision. May 12, 2011, three senators introduced

the Job Protection Act to preserve Right-to-work laws.

Proposed Rule Change on Conduct of Elections – The

proposed rule shortens the time frame for union election

campaigns and further seeks to limit the employer’s ability to

campaign within the new time frame.

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THE EEOC AND GINA

EEOC Final Regulations on the Genetic Information

Nondiscrimination Act (GINA).

Effective January 10, 2011.

Applies to employers of 15 or more EEs.

To clarify GINA’s confusing provisions.

Unlawful to use genetic information to make

employment decisions.

Restricted from requesting, requiring or purchasing

genetic information.

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THE EEOC AND GINA

Also stringent limitations on disclosure of genetic

information.

Employers must maintain information as a

confidential medical record.

QUERY: HOW MANY OF YOU ARE INTERESTED IN

YOUR EMPLOYEES’ GENETIC INFORMATION? IS IT

REALLY AN ISSUE?

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THE EEOC AND GINA

Still Pitfalls to avoid – especially in regard to

“Family Medical History”.

Very broad definitions for Genetic

Information and Genetic Tests.

But does not include tests for infectious or

communicable diseases.

Only includes drug test if testing to

determine genetic disposition.

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THE EEOC AND GINA

General prohibition against acquiring Genetic

Information (scary part – water cooler chats).

Two exceptions to Prohibition

Employer “inadvertently” obtains the information;

and

Employer offers health or genetic services,

including services through a voluntary wellness

program.

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THE EEOC AND GINA

“Inadvertent” Exception

Question like “How are you today” or “Is your mother

feeling better” could elicit an inadvertent disclosure of

genetic information.

Be cautious with follow-up questions.

Best Practice Tip: Explicitly exclude interest in an

individual’s genetic information or family medical history

in requests for information regarding a disability

accommodation, FMLA certifications or with

employment–related medical examinations.

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THE EEOC AND GINA

More on “Inadvertent” Exception.

If it’s not in writing – it can’t be explicit.

Use EEOC recommended language on any form you

send to a health care provider to conduct a medical

examination on an employee or to provide

information.

Specific language can be found on page 5 of

enclosed Obermayer Alert on GINA.

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THE EEOC AND GINA

“Voluntary Wellness” Exception

“Okay” to acquire Genetic Information if part of health and

genetic services offered as part of a Voluntary Wellness

Program.

Specific Requirements to be considered “Voluntary”:

Employer neither requires the individual to provide genetic information nor penalized any individual who refuses to provide such information;

Must provide knowing, voluntary and written authorization before employee participates in program;

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THE EEOC AND GINA

More on “Voluntary Wellness” Exception.

Individual’s authorization must be written so the individual is

likely to understand it;

It must describe the type of genetic information that will be

obtained and the general purpose for which it will be used;

Must describe the restrictions on disclosure of genetic

information;

Employer can only receive genetic information in the aggregate,

not on specific individuals; and

Generally may not offer financial inducements for individuals to

provide genetic information (New EEOC Opinion letter).

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THE EEOC AND GINA

Confidentiality and Posting Requirements

Employers must maintain all records containing genetic

information on forms and in medical files that are separate from

an employee’s personnel file.

Must treat all such forms and files as confidential.

Documents prior to November 21, 2009 need not be removed

from personnel file – although still prohibited from disclosing

such genetic information.

Must post notice to employees and applicants in a conspicuous

place.

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THE EEOC AND GINA

PRACTICE TIPS!!

Revisit personnel policies and procedures to ensure compliance with

GINA.

Train Supervisors/Managers/HR staff on GINA requirements and

prohibitions.

Update EEO policies to include Genetic Information as a protected

category.

Review personnel files, remove all genetic information and place in

separate file.

With ADA Accommodations, FMLA medical certifications, Fitness for

duty, exclude interest in genetic information or family history.

Include “special warning” if asking for medical certification from

Health Care Provider.

Review terms of “Wellness Programs” to insure voluntary.

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AVOIDING FLSA SANDTRAPS

It’s all about the dollars – Federal, state and

local coffers are empty.

Alphabet soup of new laws have been

proposed (W&H, UC, ERISA).

Major focus – Misclassification of Independent

Contractor versus Employee.

Added scrutiny on misclassification of Non-

exempt versus Exempt employees.

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AVOIDING FLSA SANDTRAPS

INDEPENDENT CONTRACTOR

IRS 20 Factor Test.

UC, EEO, FLSA have similar tests.

Primary focus – The amount of control exercised by

the Employer.

The closer to the person hired to paint your house –

the more likely you have an Independent

Contractor.

The farther you get from the house painter, the

more likely you have an employee.

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AVOIDING FLSA SANDTRAPS

INDEPENDENT CONTRACTOR?

Hired to do data entry for a special project;

Expected time to complete – 60 days;

Works in the Company office on Company

equipment;

Being paid by the hour; and

Works a 35 hour workweek.

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AVOIDING FLSA SANDTRAPS

INDEPENDENT CONTRACTOR?

Hired to install new computer system;

Expected time to complete – 60 days;

Works in the Company office on Company

purchased equipment;

No fixed work schedule; and

Paid when installation completed.

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AVOIDING FLSA SANDTRAPS

EXEMPT/NON-EXEMPT TIPS

Red Flag – Everyone is Exempt!

Pure Inside Salesperson – Non-exempt.

Loan officer/underwriter – Non-exempt

Learned Professions – Trainees, may not be

exempt.

PA does not recognize Computer exemption.

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AVOIDING FLSA SANDTRAPS

EXEMPT?

College Degree in Chemistry;

Paid a salary of more than $455 weekly;

Primary duty – to go on-site where hazardous

waste has been reported to be located and

determine if the waste is hazardous, and if so, what

is to be done with it;

In an emergency, may help to remove the waste

from the site; and

Paid compensatory time- no overtime

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WHAT ELSE IS HOT?

Thompson v. American Stainless

U.S. Supreme Court ruling – January, 2011.

Created new breed of retaliation claim.

Eric Thompson and his fiancé, Miriam Regalado

worked for American Stainless.

Thompson fired 3 weeks after Regalado filed sex

discrimination claim with EEOC.

SC – Fear of firing could have prevented Regalado

from filing EEOC claim.

Gave Thompson right to file as “aggrieved” person

under Title VII.

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WHAT ELSE IS HOT?

More on Thompson v. American Stainless

SC declined to identify fixed class of unlawful 3rd party

reprisals.

SC did say that Firing a “close family member” will

almost always meet standard but “mere

acquaintance” almost never so.

Another good reason to not have Family members

working together.

Retaliation (any adverse action) can turn a meritless

discrimination claim into a bonanza for an employee.

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WHAT ELSE IS HOT?

SON/DAUGHTER DEFINED UNDER FMLA:

November, 2010 – DOL “Administrative

Interpretation”.

Goal is to insure that employees who assume

role of caring for child received parental rights

to FMLA, regardless of legal or biological

relationship.

Applauded by non-traditional families.

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WHAT ELSE IS HOT?

Criminal Offender Record Information Law

(CORI)

New law in Massachusetts – proposed in other

states (NJ, PA).

With few exception, Mass. employers no longer and

ask about criminal convictions on initial Job

Applications and very limited on information they

can obtain or use from criminal history checks.

PA law limits use of criminal background checks.

Now illegal in Philadelphia for private as well as

city employers to request criminal history

information on application or during first interview.

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WHAT ELSE IS HOT?

Even without CORI, Equal Employment Opportunity

Commission (EEOC) takes the position that the use

of criminal conviction records has an adverse effect

on racial minorities and therefore unlawful absent a

business necessity.

To determine business necessity, factor in the

nature, gravity and job-relatedness of the offense

and when the offense occurred. Blanket “no-hire”

policies with poor credit or criminal record very

risky.

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WHAT ELSE IS HOT?

Staub v. Proctor Hospital - Cat’s Paw

March 1, 2011 – Supreme Court held hospital liable

for discrimination where lower-level supervisors

with discriminatory motive influenced, but did not

make, an adverse employment decision.

USERRA decision (Staub a reservist and civilian

technician in hospital).

VP of Human Resources only reviewed the file

before making decision to discharge.

Do your homework/Get the documentation.

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WHAT ELSE IS HOT?

Kasten v. Saint-Gobain Performance Plastics

March 22, 2011 – Supreme Court held that the

Fair Labor Standards Act (FLSA) prohibits

employers from retaliating against employees on

the basis of an oral complaint.

Rejected argument that FLSA only protected

written complaints.

Never good idea to ignore oral complaints.

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WHAT ELSE IS HOT?

March 24, 2011 – Final Rule on Americans with

Disabilities Amendments Act (ADAAA)

implemented.

EEOC posted good Q&A and Fact Sheet.

Employers of 15 or more employees.

Employer focus and best defense – Good

Interactive Discussion with employee to provide

reasonable accommodations.

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WHAT ELSE IS HOT?

STAY TUNED.

SOMETHING ELSE IS JUST AROUND THE CORNER!