Hot Topics in Employment Law. Patrick Hicks Littler Mendelson Founding Shareholder of the Nevada Offices

Transcription

1 Hot Topics in Employment Law Patrick Hicks Littler Mendelson Founding Shareholder of the Nevada Offices

2 Settlements and Verdicts 2

3 A Growing Concern The monetary value of settlements of the top ten private plaintiff employment discrimination class-action lawsuits in 2010 totaled $346.4 million More than four times the amount in 2009 In 2013, the EEOC collected more than $372.1 million from employers A NEW RECORD! EEOC Enforcement Statistics

4 Madison Square Garden Head Coach of New York Knicks Accused by executive of making unwelcome sexual advances and inappropriate sexual remarks Federal award of $11.6 million in punitive damages alone

5 Toyota President and chief executive of Toyota Motor, North America. Accused by personal assistant of making unwanted sexual advances and inappropriate comments Plaintiff sues seeking $210 million in damages The parties settled for an undisclosed sum

6 Keane, Inc. President and CEO of Keane, Inc Accused of sexual harassment by top level executive and one other female employee Keane, Inc. pays to settle the suits Keane admits to poor judgment and makes joint decision with Board to step down

7 EEOC v. Abercrombie & Fitch: Gender & Race Discrimination Settlement The EEOC sued on behalf of females, blacks, Hispanics and Asian Americans claiming race and sex discrimination in violation of Title VII Allegedly failed to hire due to their race and gender. And that if they were hired, they were not placed on the sales floor, but in a back room Settled for $50 million

8 Lack Of Response Seen As Ratifying Action Two Lebanese men, allegedly called "terrorists," "camel jockeys" and other epithets by terminal manager California jury $50 million in punitive damages and $11 million in compensatory damages $1 million assessed against manager personally

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10 Individually Liable? Engages in harassment or discrimination Defames an employee Inflicts emotional distress Falsely imprisons during investigation Commits assault/battery

11 Negligent Hiring & Supervision

12 Investigating Your Prospective Employees Checking references Background Checks

13 Increasing Restrictions on Criminal Checks Ban-The-Box Laws 17 jurisdictions now prohibit private employers from requesting criminal history information in the employment application States: HI, IL, MA, MN, NJ, RI Cities: Baltimore (MD), Buffalo (NY), Columbia (MO), Chicago (IL), Montgomery County (MD), Philadelphia (PA), Prince George s County (MD), Rochester (NY), San Francisco (CA), Seattle (WA), and Washington D.C.

14 Arbitration

15 Advantages In General Reduced Litigation Costs Faster Resolution Greater Privacy Arbitrator Replaces Jury Increased Predictability Enhanced Settlement Potential Possible Insurance Discount

16 Disadvantages In General Increased Usage Summary Judgment/Other Dispositive Motions Will Likely Not Be Granted Reduced Appellate Rights and Options Employee Resistance and Skepticism Potential for Unionization Legal Uncertainty

17 Employment Litigation Update

18 U.S. Supreme Court Opens Term With Employment Law Focus Do workers at Amazon fulfillment centers have to be paid while waiting at security to depart work? Justices rule security screenings are not integral and indispensable to the workers jobs and therefore not compensable Integrity Staffing Solutions, Inc. v. Busk (2014)

19 If Employer Pays for the Phone, Can Employer Search the Phone? U.S. Supreme Court holds that smartphone seized during arrest cannot be searched (without a warrant) If employee uses personal device for business reasons, employer s ability to search the device will likely be limited California v. Riley (2014)

20 High Court Hears Workplace Religious Discrimination Case Store declined to hire applicant who wore headscarf to interview, per company dress code Question presented: Must potential employees notify employer of their religion, and request accommodation? The Supreme Court heard oral argument on February 25, 2015 Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.

21 Ninth Circuit Considers: Is ADHD a Disability? Policeman suspended for bullying, aggression, and tyrannical style While on disciplinary leave, diagnosed with ADHD Loses job, sues under ADA Jury: Employee was disabled, was fired because of disability, awards over $560,000 + $140,000 in fees Appellate court: Employee was not disabled; employer wins Weaving v. City of Hillsboro (2014)

22 Cases To Watch

23 Pending U.S. Supreme Court Cases Mach Mining v. EEOC Argued on 1/13/2015 Whether courts can review EEOC conciliation and dismiss a suit if they decide the EEOC did not satisfy its statutory obligation to try to informally resolve claims prior to filing a lawsuit

24 Cases to Watch in 2015 Coats v. Dish Networks Colorado s Supreme Court heard arguments on 9/30/2014 The Court s decision will define whether employers must tolerate medicalmarijuana use by their employees The outcome also has implications for recreational marijuana use, which presents similar questions

25 Workplace Investigations: Creating A Record And A Pattern Of Practice 25

26 Necessary Elements to All Investigations 1. Acknowledgment memo to Complainant 2. Interview Complainant 3. Interview Witnesses 4. Interview the Accused 5. With the interviews, gather any physical evidence (texts, posts, documents, photos) 6. Close-Out Memos to the Complainant and Accused the accused individually

27 Memo to Complainant Date he/she came to you with concern Complaint will be investigated promptly and he/she advised of results

28 Interviewing the Complainant Obtain as much detailed FACTUAL information from the complainant as possible PUT QUOTES IN QUOTES Listen impartially without committing yourself Ask open-ended questions Is there anything else?

29 Interviewing Witnesses Don t be married to your outline Take accurate notes and finalize them once interview is over Ideally, have someone else take notes while you ask questions At end of questions, always ask, Is there anything else you would like to discuss or tell me?

30 Interviewing the Accused Have a written list of all allegations; Ask first Do you know why you are here? Go through every allegation with specificity; Listen give the accused time to respond in full;

31 Documentation - Common Mistakes If you include a question on your outline Do not leave it blank, include an answer or a note not asked. Do NOT make Legal Conclusions She was harassed. Do NOT make written recommendations before end of investigation. Failing to report fact findings only. Failing to preserve all documents collected and/or notes in investigation.

32 Preparing the Final Report Address all allegations raised; Identify the policies, procedures, and ethics standards that pertain to the allegations; Identify whether the allegation was or was not substantiated by investigation; Consider how similar situations have been handled in the past; AND Identify steps that will be taken, if appropriate.

33 Final Memo to the Accused Address all allegations raised by Complainant Identify your factual findings and conclusions for each issues/allegations: We conclude that this allegation: Occurred as alleged Probably did not occur We are unable to determine with reasonable certainty if this incident occurred because Issue discipline, if appropriate. Remind Accused that termination will result if any further violations and/or retaliation.

34 Hot Topics in Employment Law April 2015 Patrick Hicks Littler Mendelson Founding Shareholder of the Nevada Offices (702)