Legislative Update 2014 - MT\|SHRM€¦ · The EEOC says criminal background checks can be...

$Page 1: Legislative Update 2014 - MT\|SHRM€¦ · The EEOC says criminal background checks can be discriminatory because African-Americans are convicted of crimes at higher rates than Caucasians.$
Legislative Update

2014

Presented by:

M. Kim Vance

[email protected]

615.726.5674

mailto:[email protected]

2 www.bakerdonelson.com © 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC


Agenda • Who will be making employment laws in

2014?

• What laws are “in play?”

• Should you participate

in the process?

• How should you prepare

your organization for

employment law changes?


Who is making our employment laws?

• NLRB is driving the law regulating social

media in connection with employment.

• States are driving the law on using

criminal convictions as part of the

screening process for employees.

• EEOC is driving the law on sexual

orientation and transgender discrimination.

• Congress is . . .


Laws that are “in play?”

• Limiting the use of criminal convictions in

screening candidates for employment.

(Ban the Box Laws)

• Expansion of Title VII to require

reasonable accommodations for pregnant

employees.

• Administering FMLA – new rules on

coverage of same sex spouses in some

states and a new bill in Congress requiring

paid leave.


What laws are “in play?”

• The Employment Nondiscrimination Act

pending in Congress prohibiting

discrimination based on sexual orientation

and transgender status.

• The ultimate impact of the Affordable Care

Act on employers (birth control coverage

for example).

• Union organization and elections.


Laws In Play

Criminal Background

Checks


The EEOC says criminal background checks

can be discriminatory because African-

Americans are convicted of crimes at higher

rates than Caucasians.

The EEOC issued guidelines that don't prohibit

the use of criminal checks, but urge employers

to use individualized inquiries considering the

crime, its relation to an applicant's potential

job, and how much time has passed since the

conviction.


The EEOC keeps trying to get the federal

courts to accept its interpretation of the law

regarding criminal background checks in a

class action lawsuit against Freeman Co.

This lawsuit alleged the company’s use of

criminal background checks had a disparate

impact on minorities.


MARYLAND FEDERAL COURT

THROWS OUT THE EEOC’S LAWSUIT

AGAINST FREEMAN CO. AND HAD

THIS TO SAY ABOUT THE EEOC’S

INTERPRETATION OF THE LAW.

August 9, 2013


"The story of the present action has been

that of a theory in search of facts to

support it," Judge Titus wrote in a

stinging rebuke to the EEOC.

"But there are simply no facts here to

support" the EEOC's claim that black

applicants were improperly discriminated

against,” the judge said.


The Judge also noted:

Roughly 87% of employers use criminal-

background checks in hiring, according

to a 2012 survey by SHRM.

Even the EEOC conducts criminal

background checks in its own hiring

process.


“The EEOC has placed many employers

in the ‘Hobson’s choice’ of ignoring

criminal history and credit background,

thus exposing themselves to potential

liability for criminal and fraudulent acts

committed by employees, on the one

hand, or incurring the wrath of the EEOC

for having utilized information deemed

fundamental by most employers.”

EEOC v. Freeman Co.


Judge Titus ruled that Freeman Co.’s use

of criminal checks "appears reasonable

and suitably tailored to its purpose of

ensuring an honest workforce." He said

that Freeman limited its review to

convictions in the past seven years and

didn't penalize applicants for arrests that

didn't result in conviction.


Ban The Box Laws


Indiana Indiana Passes New Legislation Restricting Criminal History Information

Reported in Background Checks (June 2012)

Massachusetts Massachusetts Employers Face New Obligations When

Conducting Background Checks Involving Criminal History Records (March 2012)

Minnesota Minnesota Enacts “Ban the Box Law” Prohibiting Employment

Application Criminal History Checkmark Boxes and Restricting Criminal Record

Inquiries Until After Interviews or Conditional Job Offers (May

2013)

Newark, New Jersey Employers in Newark, New Jersey Must Comply with a

New Ordinance Broadly Restricting Their Discretion to Rely on Criminal Records

for Employment Purposes (October 2012)

Ohio Ohio Joins Handful of States that Offer Tort Liability Protections for

Businesses that Hire and Employ Rehabilitated Ex-Offenders (August 2012)

http://www.littler.com/publication-press/publication/indiana-passes-new-legislation-restricting-criminal-history-informatio




http://www.littler.com/publication-press/publication/massachusetts-employers-face-new-obligations-when-conducting-backgroun




http://www.littler.com/publication-press/publication/minnesota-enacts-%E2%80%9Cban-box-law-prohibiting-employment-application-crimi









http://www.littler.com/publication-press/publication/employers-newark-new-jersey-must-comply-new-ordinance-broadly-restrict





http://www.littler.com/publication-press/publication/ohio-joins-handful-states-offer-tort-liability-protections-businesses-







State Law Chart: Criminal/Background

Checking

http://www.shrm.org/LegalIssues/StateandLoca

lResources/StateandLocalStatutesandRegulati

ons/Documents/Criminalandbackground%20ch

ecks.pdf

City and County Chart: Ban the Box

http://www.nelp.org/page/-

/SCLP/2011/CityandCountyHiringInitiatives.pdf

?nocdn=1

https://owa.bdbcmail.com/OWA/redir.aspx?C=fa93829531fb4f60ab0c5b44363f4d73&URL=http://www.shrm.org/LegalIssues/StateandLocalResources/StateandLocalStatutesandRegulations/Documents/Criminalandbackground checks.pdf





https://owa.bdbcmail.com/OWA/redir.aspx?C=fa93829531fb4f60ab0c5b44363f4d73&URL=http://www.nelp.org/page/-/SCLP/2011/CityandCountyHiringInitiatives.pdf?nocdn=1






Laws In Play

Pregnancy

Discrimination Under

Title VII


EEOC has a renewed focus

on pregnancy

discrimination and

granting accommodations

for pregnancy in the

workplace.

But, the Courts have not been so

easy to convince.


Young v. UPS, Inc.

• UPS offers light duty work to those

employees injured while on the job or

suffering from an impairment cognizable

under the ADA. Under UPS policy, a

pregnant employee can continue working as

long as she can perform the essential

functions of her job, but is ineligible for light

duty work for any limitations arising solely as

result of her pregnancy.


The Facts . . .

• At some point in September 2006, Plaintiff

left her supervisor a note from Dr. Thaddeus

Mamlenski indicating that she should not lift

more than twenty pounds for the first twenty

weeks of her pregnancy and not more than

ten pounds thereafter.

• HR informed Plaintiff that UPS policy would

not permit her to continue working as long as

she had the twenty-pound lifting restriction.


Troupe v. May Dep’t Stores Co., 20

F.3d 734, 738 (7th Cir. 1994)

• The Pregnancy Discrimination Act does not,

despite the urgings of feminist scholars . . .

require employers to offer maternity leave or

take other steps to make it easier for

pregnant women to work. Employers can

treat pregnant women as badly as they treat

similarly affected but nonpregnant employees

. . . ."


The “Supremes” Take The Stage

• April 2013 – Ms. Young asks the Supreme

Court to hear the case.

• May 2013 – Amicus (Friend of the Court)

briefs filed by Law Professors and

Women’s Rights Organizations

• October 2013 – The Supreme Court asks

the Solicitor General to weigh in on

whether to take the case or not.


Pregnant Workers Fairness

Act (PWFA), H.R. 5647 and S.

3565

• The bill requires employers to make the

same sorts of accommodations for

pregnancy, childbirth, and related

medical conditions that they do for

disabilities.


Laws In Play

Sexual Orientation and

Transgender

Discrimination


“The EEOC has held that discrimination

against an individual because that person is

transgender (also known as gender identity

discrimination) is discrimination because of sex

and therefore is covered under Title VII of the

Civil Rights Act of 1964.”

See Macy v. Department of Justice, EEOC

Appeal No. 0120120821 (April 20, 2012).


“The Commission has also found that claims by

lesbian, gay, and bisexual individuals alleging

sex-stereotyping state a sex discrimination claim

under Title VII.”

See Veretto v. U.S. Postal Service, EEOC

Appeal No. 0120110873 (July 1, 2011); Castello

v. U.S. Postal Service, EEOC Request No.

0520110649 (Dec. 20, 2011).


Stacy v. LSI Corporation

• Case alleged transgender discrimination

as sex discrimination under Title VII of the

1964 Civil Rights Act

• Decision issued by Third Circuit Court of

Appeals on November 13, 2013

• Court affirmed summary judgment for the

employer finding the employee failed to

prove the employer’s reasons for its action

were a pretext for unlawful discrimination.

• Why is this case of interest?


Employment Nondiscrimination Act

of 2013

• Passed by the Senate on November 7,

2013 – historical movement by Congress

• Referred to the House and now in

committee

• Text of the bill: prohibits employment

discrimination based on sexual orientation

and gender identity.


Employment Nondiscrimination Act

of 2013

• The term “gender identity” as used in the

Senate version of the bill means the

gender-related identity, appearance, or

mannerisms or other gender-related

characteristics of an individual, with or

without regard to the individual’s

designated sex at birth.


Laws In Play

FMLA


The Impact of Striking Down

DOMA on the FMLA

• In states that recognize same sex

marriages, eligible employees can now

take time off to care for a same-sex

spouse who has a serious health condition

under the FMLA.

• Train managers to recognize and report

potential FMLA coverage for same-sex

spouses in states where this applies.


Family and Medical Insurance

Leave Act – pending bill

• Introduced in the House and Senate on

December 12, 2013.

• The proposed legislation would offer leave

to every individual regardless of the size of

his or her current employer and regardless

of whether such individual is currently

employed by an employer, self-employed or

currently unemployed, as long as the

person has sufficient earnings and work

history.


Family and Medical Insurance

Leave Act – pending bill

• The legislation would provide up to 12

weeks of paid leave each year to qualifying

workers for the birth or adoption of a new

child, the serious illness of an immediate

family member or a worker’s own medical

condition

• Workers would be eligible to collect benefits

equal to 66 percent of their typical monthly

wages up to a capped monthly amount that

would be indexed for inflation.


Laws In Play

The NLRB


Issue: Whether the President’s

appointments to the NLRB during a

Senate Recess were appropriately

processed.

If the Noel Canning ruling is upheld, it's

possible that all of the NLRB's decisions

from August 27, 2011 to July 31, 2013

could be voided.

The NLRB Appointments


NLRB Gives Up on Poster

• On January 6, 2014 the NLRB announced

it would not appeal rulings striking down its

mandate that employers post notices

advising employees of the rights under the

National Labor Relations Act.


The “Free Choice Act”

• Now that Senate filibuster rules have been

changed, will Democratic leadership try to

push through some version of the Free

Choice Act?

• Stay tuned to SHRM publications for the

latest details

• Continue Union Avoidance training

• Stay vigilant for union organizing activity


Laws In Play

The Affordable Care Act


Key Parts of the Affordable Care Act

(aka “ObacaCare”) Delayed until

2015

• In early July, the Obama administration

announced that it would delay parts of the

Affordable Care Act until 2015.

• Included in the delay was implementation of the

"employer mandate," which will require

businesses with more than 50 employees

provide health insurance to their workers or pay

a penalty.

• The Supreme Court is set to rule on the issue of

providing birth control under the ACA.


Laws In Play

Damages Under The

Tennessee Human

Rights Act


What else is on the horizon?

• A potential increase in the minimum

wage?

• Extension of unemployment benefits up for

vote this month in Congress?

• The state of the economy and its impact

on business and job growth yet to be

seen.


Should you participate

in the process?


How can you prepare your

organization for potential

employment law changes?


What Questions

Do You Have?

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