Lori M. Carr and Terah Moxley

Gender Stereotyping Discrimination FLSA Amendments to Overtime Exemptions Independent Contractor Status Joint Employment Non-Competes Social Media Background Checks Employee Leave under the FMLA/ADA Pregnancy Discrimination/Accommodation

Title VII

Texas Labor Code

15 or more employees

Discrimination based on perceived differences in ability or behavior based on gender

Failure to conform to stereotypical gender norms

This has been the law since 1989Price Waterhouse v. Hopkins, 490 U.S. 288 (1989)

Recent application by the 5th CircuitEEOC v. Boh Bros. Constr. Co., (5th Cir. 2013)

Theoretical expansion of “protected groups” to:

◦ Transgender◦ Lesbian◦ Gay◦ Bisexual

If employment decisions based on stereotypes

Amendment to minimum salary threshold for Executive, Administrative, Professional and Computer Exemptions

From $455/wk ($23,660/yr)

To $970/wk ($50,440/yr)

And may include annual automatic increases

When?

Who will it affect?

What do you need to do now?

$10.10 minimum wage for certain federal contractors

New or renewed federal contracts after 1/1/15◦ Procurement construction contracts covered by

Davis Bacon Act◦ Service contracts covered by Service Contract Act◦ Concession Contracts over $2,500◦ Services on federal property (whether for govt.

workers or general public)

2010 Memorandum of Understanding between Department of Labor and Internal Revenue Service

26 state labor departments have also entered into MOUs with the DOL to share information and conduct joint investigations

Texas has an MOU with the DOL applying to government contractors

Department of Labor Memo (July 15, 2015)

Definition of “employee” under FLSA and FMLA

Adopts the “economic realities test”

Several factors◦ Is the work an integral part of the ER’s business?◦ Does the worker’s skills affect his opportunity for

profit/loss?◦ Relative investment◦ Does work require special skill/initiative?◦ Is relationship permanent or indefinite?◦ Nature and degree of ER’s control

Bottom line: “most workers are employees”

FLSA Overtime claims

◦ Misclassifications are more prone to attracting collective and class actions

FMLA (50+ employees w/in 75 mile radius)

◦ Are you counting number of employees correctly?◦ Are you providing leave and other FMLA benefits?

Drivers

Misclassification as independent contractors

Seeking reimbursement for expenses

Judge found fact issue that drivers are employees under the California “economic realities” test

Change to 30 years of law:

1. Are both entities “employers” within the meaning of the common law?

2. Do the entities share or codetermine those matters governing the essential terms and conditions of employment?

Significant Difference: Reserved authority, even if not exercised, is clearly relevant to the joint-employment

inquiry.

NLRB vs.

NLRB issued 19 complaints against McDonald’salleging it had violated the rights of itsfranchisees’ employees as a joint employer

Hearing scheduled to begin in Manhattan onMarch 10, 2016.

NLRB press release regarding McDonald’s complaints:

“through its franchise relationshipand its use of tools, resourcesand technology,” McDonald’s“engages in sufficient control

over its franchisees’ operations”to make it a joint employer

NLRB press release regarding McDonald’s complaints:

joint-employer allegationsagainst McDonald’s are furthersupported by the franchisor’s

“nationwide response to franchiseeemployee activities”

Photo Credit: http://www.chicagotribune.com/business/ct-mcdonalds-fight-for-15-protests-photos-20150520-photogallery.html

Photo Credit: http://www.zerohedge.com/news/2015-05-24/mcdonalds-responds-minimum-wage-protests

If it quacks like a duck….

A non-solicitation of customers agreement is a non-compete

A non-solicitation of employees agreement is a non-compete

In writing

Ancillary to an otherwise enforceable agreement (usually a confidentiality agreement)

Reasonable limitations◦ i.e., impose no greater restraint than is necessary to

protect the goodwill or other business interest of the Company

Don’t be greedy

Must be reasonable as to:◦ Duration◦ Geographical scope (can substitute client list)◦ Activity to be restrained

Identify the confidential information you’re seeking to protect and customize your non-compete to protect that information

National Labor Relations Act

◦ Applies to most private sector employers

◦ Employees have right to engage in “concerted activity”

Can you refuse to hire an applicant or discipline/terminate an employee based on her social media use?

It depends.

Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012)

U.S. NLRB Office of the General Counsel Advice Memorandum, Lee Enters., Inc. d/b/a Arizona Daily Star, Case 28-CA-23267 (Apr. 21, 2011)

Pier Sixty, LLC, 362 NLRB No. 59 (Mar. 31, 2015)

Is a concerted activity?

Three D, LLC v. N.L.R.B., Nos. 14-3284, 14-3814, 2015 WL 6161477 (Oct. 21, 2015)

NLRB also closely scrutinizes social media policies

◦ NLRB has issued multiple reports providing guidance on permissible policies

◦ Third report provided a sample policy

Fair Credit Reporting Act

EEOC

Fair Credit Reporting Act

◦ Applies when employers seek “consumer reports” for applicants or employees

◦ Requires employee consent and specific disclosures

◦ Lawsuits for violations of the FCRA are on the rise

Fair Credit Report Act

◦ Must disclose to applicant/employee that a consumer report for employment purposes may be obtained

◦ Disclosure must be “clear and conspicuous” and in a stand-alone document

The $6.8M Sentence:

“I release the Company, its employees, its authorized agents and representatives from any liability in connection with any decisions made concerning my employment based on information reported.”

EEOC

◦ Need to have legitimate business reason for considering criminal background history information in hiring/employment process

20 states and over 100 cities and counties have adopted◦ Austin, Travis County, Dallas County

Federal Fair Chance Act pending in Congress

Family and Medical Leave Act◦ Applies to employers with 50+ employees◦ Permits up to 12 weeks unpaid, job-protected leave

for “serious medical condition”

Americans with Disabilities Act◦ Applies to employers with 15+ employees◦ Covers qualified applicants/employees with a

“disability” who, with or without a “reasonable accommodation,” can perform the essential functions of their job

Attendance/Leave Policies

◦ Inflexible leave policies

◦ No-fault attendance policies

◦ Might have to adjust your policy as a reasonable accommodation under the ADA

The Pregnancy Discrimination Act

◦ Applies to employers with 15+ employees

◦ Requires employers to treat pregnant workers the same as non-pregnant workers who are “similar in their ability or inability to work”

◦ EEOC stepping up enforcement efforts

Accommodation

◦ Policies cannot impose a “significant burden” on pregnant workers

◦ Employers must have a “sufficiently strong” reasons to justify any burden on pregnant workers

◦ Cost alone is not going to be a sufficient justification

Questions?