Employment Law Update

Transcription

1 Pennsylvania SHRM State Council Presents: 10 th Annual Pennsylvania Legislative & Legal Conference April 12, 2010 Employment Law Update Lynn C. Outwater, Esq. Jackson Lewis LLP One PPG Place, 28 th Floor Pittsburgh, PA

2 2009 EEOC Statistics The EEOC received 93,277 charges of discrimination in 2009, down from 95,402 in Retaliation 33,613 charges Race Discrimination 33,579 charges Sex Discrimination 28,028 charges Age Discrimination 22,778 charges Disability Discrimination 21,451 charges Sexual Harassment - 12,696 charges National Origin Discrimination 11,134 charges Monetary benefits paid to victims of discrimination in 2009: $376 million. 2

3 Wage and Hour Class Actions The number of wage and hour (FLSA) class actions filed continues to far outpace class actions involving other employment claims. The top 10 wage and hour class action settlements in 2009 totaled $363.6 million. The top 10 employment discrimination class action settlements in 2009 totaled $86.2 million. 3

4 Mikula v. Allegheny County (3d Cir. 2009) Can I have a bigger pay check? County s failure to answer request for raise is a compensation decision under Ledbetter Act.

5 EEOC Proposes New Factors to Evaluate Defense in Age Discrimination Lawsuits The Equal Employment Opportunity Commission has proposed redefining a key defense available to employers facing claims by employees under the Age Discrimination in Employment Act. The agency s Notice of Proposed Rulemaking, released February 18, 2010, would amend its Differentiations Based on Reasonable Factors Other than Age regulation, 29 C.F.R , by identifying new criteria for establishing the reasonable factor other than age defense in age discrimination cases. 5

6 Age Discrimination Cases November 2009 Pennsylvania federal jury awards two terminated scientists $6.2 million against their employer, a chemical producer, for age discrimination February 2010 Pennsylvania software company settles an age discrimination lawsuit brought by the EEOC for $175,000 6

7 7 Case Developments

8 Ricci v. DeStafano (U.S. Supreme Court, June 29, 2009) City improperly discriminated on the basis of race when it refused to certify the results of a promotional test on which white and Hispanic firefighters outperformed their black colleagues. 8

9 Gross v. FBL Financial Services, Inc. (U.S. Supreme Court, June 18, 2009) ADEA plaintiffs are not entitled to Mixed Motive instruction. Claims Administration Claims Administration Manager Director 9

10 Crawford v. Metropolitan Government of Nashville (U.S. Supreme Court, Jan. 26, 2009) Title VII antiretaliation covers responses to internal harassment investigations. Welcome to Nashville Thank you. You re fired! Did you see inappropriate behavior? Yes. Let me tell you about it 10

11 Prowel v. Wise Bus. Forms Inc. (3d Cir. 2009) Held an employee established claims of sexual harassment and retaliation under Title VII based on his failure to conform to gender stereotypes. 11

12 Schaar v. Lehigh Valley Health Services Inc. (3d Cir. 2010) Lay evidence and medical evidence combined may be used to show serious health condition. 12

13 Erdman v. Nationwide Insurance Company (3d Cir. 2009) Employer cannot avoid liability by firing employee before FMLA leave begins. NO. You re fired for even asking. May I PLEASE have FMLA Leave to take care of my daughter? 13

14 UPDATE: Erdman v. Nationwide Insurance Company (M.D. Pa., Jan. 15, 2010) Employee who was fired after she requested leave to care for her disabled child is entitled to a trial on her claims. NO. You re fired for even asking. May I PLEASE have FMLA Leave to take care of my daughter? 14

15 Brown v. Nutrition Management Services (E.D. Pa. 2009) FMLA Liquidated Damages No Affirmative Steps = No Good Faith Reasonable Belief

16 Weaver v. Harpster (Pa. 2009) No wrongful termination remedy based on PHRA public policy for employees not covered by PHRA. Come hither. Let You re me my harass only you. employee. HAHAHAHAHA! Futile Lawsuits

17 17 Legislation

18 President Signs Expansion of FMLA Coverage for Military Families On October 28, 2009, the President signed the 2010 National Defense Authorization Act (NDAA) that included provisions expanding Family and Medical Leave Act military family leave benefits. It extends FMLA exigency leave coverage to family members of active duty members of the Armed Forces. It also expands the potential period during which FMLA caregiver leave might be provided, eligible employees may take FMLA caregiver leave for up to five years after the veteran ends active duty. The expanded FMLA rights are effective immediately. 18 Employers should amend their FMLA policies to reflect these expanded military family leave rights.

19 PA Child Porn Law And Employee Internet Use Employers should note a Pennsylvania law change regarding child pornography, along with a related state Supreme Court ruling. As of September 14, 2009, Pennsylvania law made it illegal for any person to intentionally view child pornography. The law is a follow-up to the state Supreme Court decision, Commonwealth v. Diodoro (Pa. 2009), which held that searching for images on the Internet and viewing them on a computer can be considered controlling child pornography. 19

20 Pennsylvania Proposes Guidance on Employer's Consideration of Applicants' Criminal Records The Pennsylvania Human Relations Commission ( PHRC ) has proposed a new guidance for investigating claims of employment discrimination based on race and national origin. Should an employer reject a Black or Hispanic applicant because of his or her criminal record, the PHRC will presume the rejection is due to discrimination in violation of the Pennsylvania Human Relations Act. 20

21 21 Labor Update

22 22 Organized Labor s Continued Decline

23 2009 A Union Membership Decrease The number of union members rose in 2008 by 428,000 members to a total of 16.1 million across the U.S. In 2009, the number of union members dropped by 771,000 members for a total of 15.3 million across the U.S. In 2009, union membership in the private sector decreased from 7.6% in 2008 to 7.2% in

24 Union Membership Four states had union membership rates over 20% in 2009 New York (25.2%) Hawaii (23.5%) Alaska (22.3%) Washington (20.2%) Pennsylvania (15%) 24 The lowest union membership rates? South Carolina (4.5%) Arkansas (4.2%) North Carolina (3.1%)

25 2009-Union Elections Fewer private sector union elections: 588 elections during first half of 2009, compared to 813 during the same period in A higher union winning percentage: Unions won 73.1% of private sector elections during first half of 2009, versus 66.5% in same period of

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27 EFCA Original Key Provisions Mandatory certification of a union based solely on a majority of employees signing cards or a petition Mandatory interest arbitration for a two-year, first contract Treble back pay Up to $20,000 civil damages for willful or repeated employer violations of the NLRA 27

28 Current Status In Congress Stalled during health care debate. Now on life support after Mass. Senate election? 28

29 Possible EFCA Compromises No Card Check Quickie elections Equal Access to Employees for Campaign Purposes Baseball style arbitration Triple damages for employer violations of NLRA 29

30 30 A New National Labor Relations Board And Its Effect On Labor Law

31 The Current, Downsized NLRB Board has operated with 2 of 5 members since New Chair Wilma Liebman On the Board since Term expires 8/11 Appointed Chair by Pres. Obama 1/20/09 Served on the legal staff of the Teamsters and the Bricklayers and Allied Craftsmen 31 Member Peter Schaumber. Appointed by Pres. Bush. Chair from March 2008-January 2009 Serving second term, expires in 2010

32 NLRB Vacancies March 23, Supreme Court heard arguments concerning validity of decisions issued by 2 member NLRB. Bush nominations to fill vacancies were blocked by Senate Democrats. Obama nominations have been blocked by Senate Republicans, plus Lincoln (D. Ark.) and Nelson (D. Neb.), over nomination of Craig Becker, SEIU attorney. 32

33 Recess Appointment Speaking at the AFL-CIO s executive meeting in March 2010, Secretary of Labor Hilda Solis implied that President Obama would use a recess appointment to put Craig Becker on the NLRB. Insiders hint that this will occur during the April recess. 33

34 Changes to Solicitation and Distribution Rule Requirements on the Horizon? An employer s rule limiting employee solicitation on premises is unlawful because, although it contains an otherwise lawful working time restriction, it fails to explain the meaning of working time, a Regional Director of the National Labor Relations Board has alleged. The agency complaint, issued on behalf of the Board s prosecutor, its General Counsel, may augur a change in the law by the NLRB. 34

35 Executive Orders- Leveling The Playing Field I believe that we have to reverse many of the policies towards organized labor that we ve seen these last eight years, policies with which I ve sharply disagreed. I do not view the labor movement as part of the problem, to me it s part of the solution. We need to level the playing field for workers and the unions that represent their interests, because we know that you cannot have a strong middle class without a strong labor movement. President Obama 1/30/09 35

36 President Obama Issues Four Pro Labor Executive Orders Revoke the Beck Notice Requirements and impose new posting requirements for government contractors. (EO 13496) Require contractors to offer a right of first refusal of employment to employees of prior contractor (EO 13495) Prohibit contractors from seeking reimbursement for expenses to persuade employees not to join a union (EO 13494) Authorizes federal executive agencies to require every contractor on a large-scale construction project to negotiate or become a party to a Project Labor Agreement (EO 13502) 36

37 37 Are You Prepared to Post This In Your Workplace?

38 Requirements of Requires covered contractors and subcontractors to (1) post a notice advising employees of the right to form a union, and (2) commit not to interfere with employee rights Contractors must bind subcontractors necessary to the performance of the contract Must post at work sites where activities related to the performance of the contract are performed Must post electronically if the organization customarily posts electronically 38

39 Are You a Federal Contractor? Primary Contract of $100,000 or more Must have clause in contract or Contract Amendments No dollar threshold for subcontractors; need only perform work necessary to the performance of the primary contract 39

40 Labor Predictions 2010 Organizing activity will increase Corporate campaigns will continue to be strongest weapon New NLRB will reverse precedent and change election process 40

41 41 Corporate Campaigns

42 NLRB Precedents At Risk Under A New NLRB Oakwood Care Center, 343 NLRB 659 (2004) Regular employees and leased/ agency may not be included in the same bargaining unit without the consent of ALL employers. 42

43 NLRB Precedents At Risk Under A New NLRB Register Guard, 351 NLRB No. 70 (2007) 3-2 majority held that employers are entitled to promulgate and enforce blanket business only e- mail policies, because employers have a basic property right regarding systems 43

44 Top NLRB Precedents Likely To Be Overturned Under New Labor Board Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) Passed by the Bush board, Oakwood clarified the statutory terms assign, responsibility to direct, and independent judgment to allow employees with these responsibilities to be classified as supervisors and thus be unable to organize. Connection to RESPECT Act 44

45 Top NLRB Precedents Likely To Be Overturned Under New Labor Board IBM Corp., 341 NLRB 1288 (2004) 3-2 majority held that employees do not have Weingarten rights in non-unionized workplaces 45

46 Strategic Actions Necessary To Survive The Employment Law Revolution Determine an appropriate philosophy. Follow lawful and effective policies. Know thy agents/supervisors: You are liable for all they do and all they fail to do in an employment law context. Train all your agents/supervisors. Walk the talk. Hold all accountable for all of the above. 46