Inside the EEOC - Dufford & Brown

Report
Hot Topics in Employment Law and
New Challenges for Employers
Lawrence D. Stone, Esq.
Christian D. Hammond, Esq.
DUFFORD & BROWN, P.C.
1700 Broadway, Suite 2100
Denver, CO 80290
(303) 861-8013
1
Overview
I.
The EEOC Opts for Quality not Quantity.
II.
It’s a Bull Market for Wage-Hour Litigation.
III. The Evolving Demise of Independent Contractors.
IV. Reefer Madness.
V.
The NLRB Flexes its Muscles.
VI. Social Media in the Workplace – A New Age is Dawning.
VII. The Affordable Care Act’s Impact on Human Resources.
VIII. Conclusion.
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I. The EEOC Opts for Quality Not Quantity
A.
All Charges Filed Nationally in Fiscal Year 2012.
Nature of Claim
Total Charges Filed
99,412
Race
Sex
National Origin
Religion
Color
Retaliation-All Statutes
Retaliation-Title VII only
Age
33,512
30,356
10,883
3,811
2,662
37,836
31,208
22,857
33.70%
30.50%
10.90%
3.80%
2.70%
38.10%
31.40%
23.00%
Disability
26,379
26.50%
1,082
1.10%
280
0.30%
Equal Pay Act
GINA
3
FY 2012
B.
EEOC Resolutions by Type in 2012
FY 2012
Settlements
9,524
8.60%
Withdrawals with Benefits
5,438
4.90%
Administrative Closures
16,459
14.80%
No Reasonable Cause
75,511
67.90%
4,207
3.80%
Reasonable Cause
4
C.
5
All Suits Filed by the EEOC Nationally
D.
Colorado Federal District Court Verdicts Over the
Past 11 Years (2001 – 2012)
Nature of Claim
Cases Won by
Plaintiffs
Plaintiffs’
Success Rate
Average Verdict
Retaliation
34
22
65%
$254,894
Gender
32
13
41%
$521,248
Race/National Origin
23
6
26%
$680,636
Disability
19
10
53%
$1,138,010
Age
10
3
33%
$342,832
Public Employee
9
4
50%
$414,681
Religion
2
2
100%
$535,000
Public Policy
Violation
4
2
50%
$446,872
Breach of Contract
4
2
50%
$140,001
137
64
52%
$497,130 (avg.)
TOTAL
6
Cases
Tried
The 64 cases tried to plaintiffs’ verdicts in the last 11 years have resulted in
awards totaling $42,155,409.
II. It’s a Bull Market for Wage-Hour Litigation
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A.
Misclassification.
B.
A salary does not equate to an exempt status.
C.
Working off-the-clock.
D.
Work-related communications with employees on unpaid leave.
E.
Unpaid interns.
F.
Compensatory time off.
G.
Mandatory meetings, training, travel time, and “donning and doffing”
clothing required for work.
H.
Improper deductions from salaries.
I.
Inadequate time records.
III. The Evolving Demise of Independent
Contractors
A.
Governmental oversight – D.O.L., UI Division, I.R.S., H.H.S.
B.
A true independent contractor is a worker who contracts with another to
accomplish a result using his/her own methods and who is not subject to the
control of the person who engaged him/her.
C.
General Rule: If an employer controls not only the end result of a worker’s
project, but also the means and manner for how the worker will achieve that
end result, the worker is likely an employee. But if the employer controls only
the end result and has no control over how the worker will achieve that result,
the worker is more likely to be an independent contractor.
D.
Why be concerned?
1.
2.
3.
4.
5.
6.
8
Tax liability.
Applicability of wage – hour laws.
Applicability of discrimination laws.
Tort liability.
Insurance coverage – liability/workers compensation.
ERISA liability.
III. The Evolving Demise of Independent
Contractors
D.
Common tests applied:
1.
Is the worker told where, when, and how to perform the work?
2.
Does the company set the hours of work?
3.
Does the company supply the tools (computers, cell phones, business
cards, etc.) and materials necessary for the work?
4.
Does the company determine the sequence of the work?
5.
Does the company provide more than minimal training to the worker?
6.
Does the company provide benefits such as paid vacation and
insurance?
7.
Is the worker required to work exclusively for the company?
8.
Is the worker required to give regular reports to the company?
“Yes” answers tend to favor an employee/employer relationship,
rather than an independent contractor/company relationship.
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IV. Reefer Madness
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A.
Employers are not required to permit or accommodate marijuana
in the workplace.
B.
Amendment 64 states that employers can have policies restricting
the use of marijuana by employees.
C.
Marijuana cannot be consumed openly and publicly.
D.
Colorado’s “lawful” off-duty activities statute.
E.
Use or possession of marijuana remains illegal under federal law.
F.
Uncertainty regarding the legislative implementation of Amendment
64 and the role the federal government will play.
V. The NLRB Flexes its Muscles
A.
Section 7 of the National Labor Relations Act (NLRA).
1.
or
Grants employees the right “to self-organization, to form, join,
assist labor organizations … and to engage in other
concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.”
2.
employees in
Employers may not “interfere with, restrain, or coerce
the exercise of” their Section 7 rights, which apply to both union
and
nonunion employees and employers.
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V. The NLRB Flexes its Muscles
B.
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Examples of overbroad policies.
1.
“Don’t release confidential guest, team member, or company
information.”
2.
Policy prohibiting employees from making “disparaging, discriminatory
or defamatory comments when discussing the company or the
employee’s superiors, co-workers, and/or competitors.”
3.
Policy prohibiting employees from “revealing, including through the
use of photographs, personal information regarding co-workers,
company clients, partners, or customers without their consent.”
4.
“I further agree that the at-will employment relationship cannot be
amended, modified or altered in any way.” Runs afoul of the right to
engage in concerted activity to change employee’s at-will status.
5.
Encouraging employees not to “friend” co-workers.
6.
Requiring employees to report a co-worker’s social media activity.
7.
Do not discuss compensation/bonus.
V. The NLRB Flexes its Muscles
C.
Confidentiality of internal investigations.
1.
May violate employees’ rights to engage in concerted
activities, unless the employer can establish that:
a.
Witnesses need protection.
b.
Evidence is in danger of being destroyed.
c.
Testimony is in danger of being fabricated.
2. The EEOC has taken a similar position.
13
Social Media in the Workplace – a New
Age is Dawning
VI.
A.
Employer concerns.
1.
Pre-employment – Should employers access social media sites?
a.
2.
14
Colorado’s pending legislation – H.B. 13-1046
During employment.
a.
Monitoring employees’ use of social media.
b.
Employee privacy concerns.
c.
Employees’ misuse of social media could cause the employer
problems relating to hostile work environment, bullying, or
discrimination claims; defamation claims; improper disclosure
of confidential/proprietary information; and embarrassment to
the company.
d.
Should you discipline employees based on their social media
communications? Don’t run afoul of the NLRA!
Social Media in the Workplace – a New
Age is Dawning
VI.
3.
Do you need a social media policy?
a.
Avoid vague or ambiguous language that may have a “chilling”
effect.
b.
Acceptable policies:
c.
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i.
Prohibiting discriminatory comments, unlawful harassment,
bullying, and threats of violence.
ii.
Prohibiting employees from impersonating the company.
iii.
Prohibiting dissemination of trade secrets.
iv.
Prohibiting use for personal purposes.
Include a “savings” clause.
VII. The Affordable Care Act’s Impact on
Human Resources
Human resource professionals will likely be asked to take part in the
following areas:
16
A.
Educating employees.
B.
Determining whether your company has 50 or more full-time equivalent
employees.
C.
If so, determining which current employees must be offered health
insurance coverage because they qualify as full-time.
D.
Determining whether new hires will be full-time or part-time employees.
E.
Ensuring part-time employees continue to work less than 30 hours per
week.
F.
Working closely with your company’s health insurance provider and/or
broker.
G.
Ensuring that all required disclosures to employees are being made.
H.
Watching for potential retaliation and whistle-blower issues.
VIII. Conclusion
Questions?
If you have questions about any of these topics, please do not hesitate to
contact us as indicated below:
Larry Stone
(303) 837-6313
[email protected]
Chris Hammond
(303) 837-6323
[email protected]
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About Dufford & Brown, P.C.
With 25 attorneys, Dufford & Brown is a full-service civil practice law
firm founded in 1960. In addition to providing counseling to companies
on virtually all aspects of employment law and defending companies in
administrative proceedings and lawsuits, Dufford & Brown’s attorneys
also represent business and individual clients on corporate formation,
securities, real estate, oil & gas, contract review, corporate and general
litigation, natural resources, family law, wills and estates, and other
legal matters.
For more information about these and other services, please contact
our office at:
Dufford & Brown, P.C.
1700 Broadway, Suite 2100
Denver, CO 80290-2101
(303) 861-8013
www.duffordbrown.com
Thank You!
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