Hot Topics in Employment Law

Transcription

1 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work Top 10 Employment Law Developments SCMA 2014 Conference Presented by: Fred Manning Phone: (803) Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Hot Topics in Employment Law 1) NLRB Policies 2) Mandatory Binding Arbitration 3) Social Media 4) BYOD 5) Appearance Policies Hot Topics in Employment Law 6) Continuing Wage/Hour Pitfalls 7) Pregnancy/Breast Feeding 8) Bring Your Gun to Work 9) Ban the Box 10) EEOC Systemic Focus 1

2 NLRB Policies Confidentiality policies Personal or financial information Investigations Non-disparagement or courtesy rules At-will disclaimers Off-duty employee access Mandatory Binding Arbitration Federal Arbitration Act broadly construed by the Supreme Court in 2013 Status of class-action waivers based on NLRB decisions more certain, but still questionable Opt-out clauses, explicitly reserving right for employees to bring charges, important NLRB Protections (Even for Non-Union Employees) If employees are discussing terms and/or conditions of employment, e.g. wages, discipline may be inappropriate in certain circumstances as the employees may be engaging in protected activity. 2

3 The Issue The law gives employees the right to discuss their wages, benefits, supervisors, and other terms and conditions of employment Firing an employee for doing so is unlawful But what if the discussion occurs on Facebook or Twitter? General Counsel says that social media is the 21 st century equivalent of the water cooler Risks May Outweigh the Potential Gains Facebook/MySpace profile indicates applicant: race, religion, disability, sexual orientation or other protected categories Important defense for failure to hire claim is actual ignorance of protected characteristic Handle All Discipline Consistently All discipline based on online content must be handled in a consistent, non-discriminatory and non-retaliatory manner. Example: Airline dismissed a female flight attendant after discovering inappropriate photographs of the employee in her airline uniform posted on her blog. The flight attendant sued the airline alleging, among other things, sex discrimination because the airline purportedly failed to discipline male employees who maintained blogs containing similar content. 3

4 Stored Communications Act Federal statute that prohibits intentional, unauthorized access to private electronic communications such as Facebook or Hotmail Creates privacy expectation in private electronic communications Developing a Lawful Policy Incorporate other policies (harassment, workplace violence, etc.) Prohibit malicious, obscene, threatening, intimidating, bullying, etc. behavior Maintain confidentiality (be sure to define) Update regularly Educate Employees Employers should train employees on the company s expectations regarding use of internet-based social media and educate employees on appropriate vs. inappropriate use of social networking sites. Employees that understand the personal and professional risks of inappropriate activity will be much more likely to self-regulate their online behavior. 4

5 BYOD? Bring Your Own Device Policies are becoming increasingly popular Use of employee-owned device for business (dual-purpose) raises a host of legal issues May be unavoidable as high-level executives demand access on personal devices (e.g., iphone, ipad, tablet, laptop, etc.) Security Red Flags Security plans for dual-purpose devices will involve IT department and legal department Create a policy that documents security measures, informs employees of security risks Review federal and state law regarding data breach Privacy Concerns Computer Fraud and Abuse Act don t go beyond authorized access to device Stored Communications Act beware of saved passwords State privacy laws employees DO have a reasonable expectation of privacy for employeeowned device! 5

6 Managing the Risks Clear and unambiguous consent to monitor, access, investigate, wipe, preserve and/or use or disclose data Determine method for preserving data for discovery Consider sandboxing companydata from personal data Appearance Policies Does your appearance policy violate federal law regarding discrimination on the basis of race, national origin, gender, or religion? No cornrows? No hijabs? Women must wear makeup? Sikh employee with dagger? Church of Body Modification The Church of Body Modification represents a collection of members practicing ancient and modern body modification rites. We believe these rights are essential to our spirituality. Practicing body manipulation rituals strengthens the bond between mind, body, and soul. By doing so, we ensure that we live as spiritually complete and healthy individuals. 6

7 Requirements for valid policy Based on valid business justification? Consistently applied? Reasonable accommodations? FLSA & State Wage/Hour Claims Collective Actions are up 70% since 2000 Typical Claims: Failure to provide breaks Failure to provide meal periods Failure to pay overtime Failure to pay wages upon termination Penalties: Key driving force Hypothetical My manager tells me that I must stay within my labor budget. I tell hourly paid employees that if they need to work after the scheduled time, clock out and then wrap it up. Is this okay? 7

8 Duties Nonexempt Employees An employer must keep records of all time the employer knows about or has reason to know about not just time employee is required or asked to work No working off the clock Keep accurate records of all time a nonexempt employee works each workday and each workweek Should be signed by employee Work time vs. non-work time Unpaid Interns Several lawsuits filed in 2013 regarding unpaid interns Are interns receiving credit? Are they benefiting your Company? Effect of lawsuits on internships Pregnancy Discrimination Illegal to use pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently Examples Refuse to hire pregnant applicants Terminate an employee when pregnant Different benefits Issues with breast feeding rooms 8

9 Guns in the Workplace More states adopting laws regarding guns in the workplace (including parking lots) Carefully monitor developments and consider policies Workplace violence concerns heightened due to national focus on this issue Ban the Box Many states and municipalities considering ban the box initiatives Aimed at removing criminal history inquiries from job applications Continue to monitor developments in SC New EEOC Enforcement Strategies Deeper Investigation (watch position letters) More On-sites Systemic Discrimination Class Claims 9

10 Systemic Discrimination EEOC traditionally focused on individual discrimination charges...but things are changing What is Systemic Discrimination Anyways? Pattern/Practice of Discrimination Facially neutral policy that has an adverse impact on members of a protected category (race, sex, age, etc.) Intent is not required to prove disparate impact Employers with significant numbers of applicants or employees should review policies to determine impact Systemic Targets Employment tests (both pre and post offer) Credit Reports (credit score criterion) Criminal background check records 10

11 Implications of Systemic Focus Garden-variety individual EEOC charges often grow into EEOC systemic investigations of employer s overall applicant and hiring process. Employer s response to Charge may trigger for systemic discrimination investigation. We treated Charging Party just like all other applicants pursuant to our policy defense can open the door to a systemic focus. Final Questions? Presented by: Fred Manning Phone: (803) fmanning@laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa 11