2013 SPRING CONFERENCE
Jeffery L. Thompson
Constangy, Brooks & Smith, LLP
Telephone: 478-621-2423
E-mail: [email protected]
What Happened & What’s Next


2012 - The Year In Review
“Hot Button” Issues for 2013
Title VII and EEOC
EEOC Touts Monetary Recoveries

Record year for EEOC


$365 million from mediations & conciliations
$36 million from investigations of systemic
charges

$44.2 million from litigation

99,412 charges in 2012 fiscal year
Which type of EEOC Charge is the
fastest growing?
1.
Race
2.
Age
3.
Gender
4.
Retaliation
Does Title VII protect
transgendered employees?
1.
Yes
2.
No
Title VII Protects Transgendered
Employees



Macy v. Holder (2012)
Historically, EEOC had ruled that
discrimination on basis of sexual identity
was not sex discrimination
Reversal: gender identity discrimination is
a form of sex stereotyping
Criticism of Employer Investigation is
Not Protected Activity



Brush v. Sears Holding Corp (2012)
Employee criticized harassment
investigation and decision not to call police
Ct: only protected if object to acts
unlawful under Title VII
Sloppy Handling of Sex Harassment
Complaint Precludes S.J.

Kurtts v. Chiropractic Strategies Group
(2012)


Employee made internal complaint and
expressed discomfort working with
accused “harasser”
Company made no effort
Failure to Accommodate Pregnant
Employee May Violate Title VII



Chapter 7 Trustee v. Gate Gourmet, Inc.
(2012)
Pregnant employee’s doctor imposed
restrictions; supervisor says no light duty;
fires her
Ct: have to at least consider whether light
duty work available
Can you require an employee to
get a flu shot?
1.
Yes
2.
No
3.
Maybe
Refusal to Receive Flu Shot



Chenzira v. Cincinnati Children’s Hospital
(2012)
Employee is a vegan; refuses mandatory
flu shot based on religious belief
Ct: duty to accommodate employee’s
religious beliefs
Americans With Disabilities Act
EEOC Issues ADA Guidance for
Veterans With Disabilities


Preventing disability discrimination
Accommodation of veterans with
disabilities
Wellness Program Fits ADA Safe
Harbor



Seff v. Broward County
Employees who declined to participate in
wellness program charged $20/pay period
Ct: No violation of ADA; safe harbor for
insurance plans
Does the ADA require a transfer to
a vacant position?
1.
Yes
2.
No
ADA Requires Transfer to Vacant
Position

EEOC v. United Airlines 7th Cir. 2012

Employee can not perform own job


Ct: Not sufficient to let employee compete for
vacant job; duty of accommodation requires
transfer
But don’t have to ignore union contract
The Family Medical Leave Act
New FMLA Rules




Final regulations issued February 5,
2013,implementing National Defense
Authorization Act of 2010
Relating to military leaves
Other changes to 2009 Regulations include
intermittent leave
Effective March 8, 2013
New FMLA Regulations (Military)
New FMLA Regulations (Military)
1,226 Days
Excluded!
New FMLA Regulations (Military)
New FMLA Regulations

Use smallest increments of time as used for
other types of leave
New FMLA Regulations – Next Steps






Employers covered by the FMLA should do the following
by March 8, or as soon as possible afterward:
Update their FMLA policies in accordance with the new
rule.
Replace the current FMLA poster with this one.
Make sure all FMLA Fact Sheets are up to date.
Use the new DOL notification and certification forms, or
adapt their own forms to be consistent with the new
ones.
Ensure that leave administrators are familiar with the
changes that will take effect March 8.
Request To Take FMLA Before Eligible
is Protected



Pereda v. Brookdale Senior Living
Communities
8 months after being hired Pereda advised
she would need to take birth/FMLA leave
in five months
Court found Pereda’s termination for poor
performance 9 months after being hired
was unlawful
Fair Labor Standards Act
Court Disqualifies Morgan & Morgan
For Unethical Behavior

Bedoya v. Aventura Limousine (2012)

Morgan & Morgan thrown off case

threatening emails to opposing counsel

set deposition in a Dunkin Donuts

ex parte communications to company
attacking company’s attorney
Pharmaceutical Sales Reps Are
Exempt



Christopher v. SmithKline Beecham U.S.
(2012)
Pharmaceutical reps are making sales;
exempt under outside sales exemption
Overturns DOL interpretation of outside
sales
On Call Time

On premises or geographical limits

Pager/cell phone/smart phone

Personal use of time
Training Time

Not compensable if:

Attendance is outside the employee’s regular
working hours

Attendance is voluntary

Not directly related to job and

No productive work performed
Public Hospitals
First Amendment


Walden v. CDC
Court: Personal beliefs and values are no
excuse to refusing to perform job duties
USERRA
Refusal To Accept Transfer is Not
Resignation Under USERRA



U.S. v. Ala. Dept. of Mental Health (2012)
Employee declined transfer to another city
at end of military leave
Ct: not a resignation; employee entitled to
reinstatement
Benefits
Affordable Care Act Upheld



Supreme Court June, 2012
ACA is constitutional, except for
mandate for states to expand Medicaid
Several pieces already in effect
Patient Protection and
Affordable Care Act
What Now?


After the election, it’s full steam ahead for
implementation.
By January 2014, unless delayed:


Millions of Americans will have to obtain
insurance or pay penalties, and
Insurers will be banned from denying coverage
based on pre-existing conditions for all
individuals.
Implementation Schedule
2013 Changes


Plans must provide a participant notice
regarding the upcoming exchanges (after
Department of Labor issues guidance
regarding the notice).
Health flexible spending account limit will be
$2,500.
2014 and Beyond

Some of the additional changes scheduled for
implementation are:


Establishment of state insurance exchanges.
Imposition of a penalty on large employers
not offering health insurance ($2,000 per fulltime employee) ($3,000 for an employee who
receives tax-subsidized coverage through an
exchange).
2014 and Beyond

Automatic enrollment for employers with
more than 200 full time employees will be
required for new full time employees, with an
opt-out notice (applies to insured and selffunded plans, including grandfathered plans).
2014 and Beyond

Employers are required to provide a qualifying group
health plan that meets the ACA requirements.



Provides minimum essential benefits (for fully insured
small group plans, also provides all required “essential
health benefits”),
Limits cost-sharing for such coverage, and
Provides either a bronze, silver, gold, or platinum
level of coverage (meaning benefits that are the
equivalent to (respectively) 60%, 70%, 80%, or 90%
of the full benefits provided by the plan).
2014 and Beyond
“Essential health benefits” include (at this
point):
-
Ambulatory Patient Services
Emergency Services
Hospitalization
Maternity and Newborn Care
Mental Health and Substance
Abuse Services
- Behavioral Health Treatment
- Laboratory Services
- Preventive and Wellness
Services
- Chronic Disease
Management
- Prescription Drugs
- Pediatric Services,
including oral and vision
care
2014 and Beyond

Requirement for individuals to have health
insurance or pay a tax penalty.

Individuals without “minimum essential
coverage” would be required to pay a penalty
tax of the greater of $695 per year, up to a
maximum of three times that amount per
family ($2,085), or 2.5% of household income
2014 and Beyond

The penalty would be phased in accordingly:
 $95
in 2014, or 1.0% of taxable income
 $325
in 2015, or 2.0% of taxable income
 $695
in 2016, or 2.5% of taxable income
 Beginning
after 2016, the penalty will be
increased annually according to cost-ofliving adjustment
2014 and Beyond


Beginning in 2014, the maximum waiting
period an employer can impose upon an
employee is 90 days.
Beginning on or after January 1, 2014, plans
and insurers will be required to eliminate
restrictions on plan entry based on a preexisting condition, and they will be prohibited
from excluding coverage for a pre-existing
condition.
2014 and Beyond

Establishment of health care choice compacts
(2016) under which two or more states form
arrangements to allow individuals to purchase
qualified health plans across state lines
Issues - Viability


If enrolling in a health care plan is viewed as
optional for U.S. citizens because of the low
penalties, those who consider themselves
healthy are less likely to enroll because it is not
in their economic best interest.
Much of the law’s success depends on having
young, healthy people sign up for insurance.


They have much lower health care expenses.
Their insurance premiums help offset the higher
medical expenses of older, sick people in a health
plan.
Issues - Conflict

State Exchanges

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Few states have proceeded with their
implementation activities.
Many states have not taken any action toward
the establishment of a state health insurance
exchange.
Issues - Enforcement

IRS Enforcement


Since the decision labeled the penalty a tax, it will be
collected by the IRS.
The IRS may have few options for collection because:



Congress restricted the agency’s collection
authority,
The IRS cannot file a tax lien against individuals
who do not comply with the health insurance
mandate, and
The IRS can only collect the money by withholding
it from tax refunds or Social Security checks.
Hot Button Issues For 2013
Supervisor Status Under Title VII



Vance v. Ball Statue University
U.S. Supreme Court will decide whether
someone who directs employees’ work, but
lacks other authority, is a supervisor
Implications for harassment cases
Offer of Judgment in FLSA Case


Genesis Health Care Corp. v. Symczyk
U.S. Supreme Ct. will decide whether
offer of full relief to named plaintiff
moots an FLSA collective action
EEOC’s Strategic Action Plan
EEOC Strategic Action Plan (SAP)

Targeted Approach

Integrated Approach

Accountability
Nationwide Priorities

Eliminating Systemic Barriers in Recruitment and
Hiring

Exclusionary Policies and Practices

Channeling/Steering of Individuals Into Specific
Jobs Due to Their Status in a Particular Group

Restrictive Application Processes (i.e., preemployment tests, background screens, date of
birth screens and on-line applications).
Nationwide Priorities

Protecting Immigrant, Migrant and Other Vulnerable
Workers

Disparate pay

Job Segregation

Harassment
Emerging Issues

ADAAA – Proper Application of Defenses such as
Undue Hardship, Direct Threat and Business
Necessity

LGBT (Lesbian, Gay, Bisexual and Transgender
Individuals) – Coverage Under Title VII Sex
Discrimination Provisions

Accommodating Pregnancy – Woman Who Are
Forced Into Unpaid Leave After Being Denied
Accommodations Routinely Provided to Similarly
Situated Employees
Preserving Access To The Legal
System

Overly Broad Waivers

Settlement Provisions That Prohibit Filing
Charges with EEOC

Failure To Retain Records Required By EEOC
Regulations

Retaliation
Nationwide Priorities

Combating Harassment

Reevaluation of Strategies to Prevent
Harassment such as Education/Outreach
EEO Action Plan




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Review hiring/recruitment policies concerning
requirements such as high school diplomas, criminal
background checks, credit histories, applicant testing.
Review EEO statements (is it broad enough?)
Training and practices concerning ADA
accommodation, pregnancy accommodation, leave
practices in conjunction with FMLA.
Review training methods and policies concerning
discrimination and harassment in the workplace.
Revisit whether you are currently complying with
OFCCP/affirmative action requirements and have
current written affirmative action plans.
Motivation and Support
Let’s Start With You

Save Lives

Save Families

Save Finances

Build Hope
First – Help Yourself

Recalibrate

Start Day Off Right

Health = Happiness

Love/Respect For Family/Friends

Be A Friend To Yourself
First – Help Yourself

Set Positive Goals

Have Something To Look Forward To

Hide Sometimes

Let Work Glorify God
Final Thoughts

It Starts At Home
Questions