2013 Employment Law
Year in Review
WMACCA Employment and Labor Forum
January 23, 2014
Darryl Franklin (Sr. Counsel, Marriott International)
Robin McCune (Sr. Counsel, Northrop Grumman)
Karen Rindner (Associate GC, Neustar, Inc.)
Greg Watchman (Associate GC, Freddie Mac)
Disclaimers


In the spirit of encouraging an
open exchange of ideas, the
comments the presenters or
audience members make
today are not for attribution.
The presenters’ comments are
made only on behalf of
themselves (not their
employers), and do not
constitute legal advice.
2
Legislative & Regulatory
Developments
3
Immigration Reform

June 2013: Bill passed Senate, stalled in House (comprehensive overhaul
included higher H-1B limit, border security improvements and 13-year path to
citizenship)

Key Issue in 2014:
◘ Obama top priority
◘ Boehner indicating support for reform
◘ Election year: Hispanic vote

Hurdles: GOP favors legalization over path to citizenship
Individual bills vs. comprehensive one

State Laws in 2013 filling gap: CA, IL, CO, MD, CT,
OR, and DC: all passed laws letting undocumented
immigrants get driver’s license
4
ENDA

Senate passed Employment Non-Discrimination Act (S.815) (11/13)

For employers > 15 employees: unlawful to discriminate based on
sexual orientation or gender identity (actual or perceived)
◘ Exception for religious entities (if exempt from religious
provisions of Title VII)

Prognosis: House Speaker Boehner will not bring up to House for
vote (preventing passage of the bill for foreseeable future); however,
possible Executive Order in 2014.

21 states have mini-ENDAs
5
Unemployment
Insurance Integrity

Federal Trade Adjustment Assistance Extension Act of 2011required states to adopt new UI integrity laws by 10/21/13

Goal: Eliminate payment of UI benefits in error. DOL claims that
19% of UI benefits overpayment due to ER’s untimely response or
inaccurate information provided. In 2011, overpayments estimated at
$14 B or 11% of all UI claim payouts

How: Employers must provide complete and timely response to
state agency’s first request for information. Can’t not respond!

Penalties for Employers and TPAs: vary by state but include civil
fines, penalties, losing credit for payment of UI benefits later
overturned or paid in error, ER still “charged” for claim in experience
6
UI Integrity: Impact on
Separation & Settlement Agreements

Revise template: remove language about “not contesting UI benefits”
Include clear language in agreement as to how employer will
respond to state UI offices—including precise reason for separation

Don’t make verbal/written promises to departing employees about UI
benefits

Train HR to consult with counsel if receive UI info request about
former EE with separation or settlement agreement


VA law (SB775) more strict than federal law requires.
7
Regulatory Update
8
OFCCP Final Rule:
Veterans/Disabled
9
OFCCP Final Rule:
Veterans & the Disabled – Part 1

Requires use of veterans hiring “benchmark”




Contractors can use national benchmark (7-8%) or
develop their own based on criteria provided in regs
Requires 7% goal for disabled in each job group
Requires notice of AA policy to employees
Expands self-identification requirements:


Self-ID must occur prior to offer (to track veteran and
disabled applicants)
Contractors must re-survey workforce every 5 years &
remind employees of right to update status at least once
10
between surveys
OFCCP Final Rule:
Veterans & the Disabled – Part 2



Includes recordkeeping requirements (applicant
data, evaluations of effectiveness of outreach
and recruitment efforts), and analysis of
applicant data for veterans and the disabled
Requires contractors to notify subcontractors of
AA policy and request their support (previously
optional); adds required language for
subcontractor flow-down provisions
Effective 3/24/14 (but no new AAP required until
next plans created)
11
Other OFCCP Actions

OFCCP Revises Field Manual:




OFCCP issued a revised FCCM 8/23/13; significant overhaul of
500-page manual, which guides OFCCP’s investigators
Directs staff to go beyond scope of desk audit issues when on site
(was optional)
Appears to rescind two-year rule for scope of scheduling letter;
continuing violation theory cited to allow agency to reach back as
far as 1960s & 70s to reach violations
OFCCP Replaces Pay Bias Guidelines & Interpretive
Standards:


Old guidelines & interpretive standards too prescriptive & narrow;
addressed only one form of pay discrimination, and used rigid
investigation procedures
12
Replaced with case-by-case approach
New I-9 Form




Introduced in March 2013 by USCIS
Mandatory since May 8, 2013
Longer format and more detailed instruction
New Information Fields:


Email address and telephone number (not required/can list
“N/A”)
Foreign Passport Number and Country of Issuance
13
SEC Executive
Pay Gap Rule


WHAT: “Pay ratio” disclosure rule for public companies
pursuant to §953 (b) of Dodd-Frank
Specifics:




Median annual total comp of all employees
Annual total comp of CEO
Ratio of median pay to CEO Pay
WHEN: Proposed 9/18/13 with 60 day comment period;
Effective first fiscal year starting after effective date of
rules. Disclosure in annual report or proxy statements
thereafter.
14
Recent Supreme Court
Decisions
15
Recent Supreme Court
Decisions

Vance v. Ball State

SC asked to decide who is a “supervisor” when
determining whether an employer is strictly liable
for hostile work environment claims


Ruling: “an employer may be vicariously liable for
an employee’s unlawful harassment only when the
employer has empowered that employee to take
tangible employment action against the victim.”
Rejects EEOC broad definition of a “supervisor”
as being “nebulous” and “a study in ambiguity”
16
Recent Supreme Court
Decisions

UT Southwestern Medical Center v. Nassar

Issue: Causation standard applied to retaliation
claims


Ruling: SC held that a plaintiff must prove that
retaliation was the reason, not a reason for the
adverse employment action.
SC -- EEOC’s position that mixed motive theory
applies to retaliation claims “unpersuasive”
17
Recent Supreme Court
Decisions

Atlantic Marine Construction Co. v. District Court for
Western District of Texas
 In federal courts, a forum-selection clause may be
enforced through a motion to transfer venue under 28
U.S.C. §1404(a)
 “When the parties have agreed to a forum, the district
court should ordinarily transfer the case to the forum
specified in that clause.”
 Burden on party challenging forum selection cause to
show public interest factors overwhelmingly disfavor
a transfer.
18
Genesis Healthcare Corp.
v. Symczyk (April 2013)



Defendant may avoid wage and hour class
actions by mooting claim of named Plaintiff
P brought class action claim that employer
violated FLSA by auto deduct 30 min/shift
for meal break
D made offer of judgment under Fed Rule
Civ Pro 68 for all unpaid wages, atty fees
costs, which P did not accept
19
Windsor v. U.S. (June 2013)


Section 3 of Defense of Marriage Act ruled
unconstitutional, so definition of “spouse”
under federal law includes same sex
IRS and DOL have acted in the wake of
Windsor, announcing the extension of
FMLA rights, tax recognition, and the
application of benefits for same-sex
couples and their families
20
EEO Developments
21
EEOC Loses Ground on
Background Checks

Part 1
Court Slams EEOC for Background Check Suit

EEOC Suit: Employer used a seven-year criminal check for all
jobs, and a credit check only for “credit-sensitive” jobs; checks
done after conditional offer. The EEOC sued, asserting that the
practices had a disparate impact on minorities, and that they
were not justified by business necessity.

SJ for Employer: The district court held that the EEOC failed to
identify a specific practice within the criminal and credit check
process that caused a disparity, and that the EEOC’s experts
relied on flawed data (“an egregious example of scientific
dishonesty”) and failed to demonstrate a disparate impact. The
court also observed that the EEOC itself conducts criminal
checks on all hires and credit checks on 90% of hires.
22
EEOC Loses Ground on
Background Checks



Part 2
Blasting the EEOC’s Background Check Initiative: The EEOC
“has placed many employers in the ‘Hobson’s choice’ of ignoring
criminal history and credit background, thus exposing themselves to
potential liability for criminal and fraudulent acts committed by
employees, on the one hand, or incurring the wrath of the EEOC for
having utilized information deemed fundamental by most
employers. Something more, far more, than what is relied upon by
the EEOC in this case must be utilized to justify a disparate impact
claim based upon criminal history and credit checks. To require
less would be to condemn the use of common sense, and this is
simply not what the discrimination laws of this country require.”
EEOC v. Freeman, No. RWT 09cv2573 (D. Md. 8/9/13)
EEOC appealed to 4th Circuit (11/6/13)
23
EEOC Loses Ground
on Background Checks


Part 3
Kaplan Higher Learning (N.D. Ohio 1/28/2013)
(dismissing EEOC’s disparate impact claim
based on employer’s credit checks; unreliable
data used to demonstrate disparate impact)
Peoplemark (6th Cir. 2013) (upholding fee award
of $750,000 against EEOC; agency continued to
litigate case after learning that company did not
have a blanket “no felons” hiring policy)
24
EEOC Loses Ground
on Background Checks


Part 4
The State of Texas has filed suit to invalidate
the EEOC’s enforcement guidance on
background checks, issued in April 2012.
Texas v. EEOC (N.D. Texas 11/4/13)
Nine state attorneys general (WV, AL, KS, MT,
CO, GA, NB, SC, UT) wrote to the EEOC calling
the background check suits “misguided and a
quintessential example of gross federal
overreach.” (7/24/13)
25
Other EEOC Woes

EEOC v. CRST Van Expedited (N.D. Iowa 8/1/13)
(awarding employer $4.7 million in fees against EEOC
in long-running sexual harassment lawsuit; “the EEOC’s
actions in pursuing this lawsuit were unreasonable”).

Case New Holland v. EEOC: Suing EEOC for sending
over 1,000 emails to its employees & managers without
prior notice to company and without finding of
reasonable cause.
26
Other EEOC Woes

EEOC v. HomeNurse (N.D. Ga. 2013) (refusing to
enforce EEOC subpoena due to EEOC’s “highly
inappropriate” misuse of authority)

EEOC v. Womble Carlyle Sandridge & Rice, LLP, 13CV-46 (M.D.N.C. 1/6/14) (EEOC failed to ensure that
relevant job search records were preserved by
individual on whose behalf the agency brought suit;
finding “negligence, if not gross negligence” on EEOC’s
part; awarding fees and costs to employer but delaying
resolution of adverse inference issue)
27
EEOC Bright Spot: Freedom To Refuse
Conciliation (At Least in the 7th Circuit)


Seventh Circuit Ruling: EEOC’s failure to conciliate
is not an affirmative defense to discrimination suit.
 Rejects views of 5 other circuits (2,4,5,6 & 11); “no
workable legal standard”
 Contrary to intent of Title VII to excuse unlawful
discrimination based on agency’s failure to conciliate;
would encourage employers to focus on building “failure
to conciliate” defense rather than conciliating in good
faith
EEOC v. Mach Mining, 2013 U.S. App. LEXIS 25454
(12/20/13)
28
Emerging EEO Issues:
Should “Bronies” Be
a New Protected Class?





Since 2010, Hasbro’s “My Little Pony” cartoon
TV show about candy-colored ponies, targeted
at 6-year-old girls, has attracted a large
following of adult heterosexual males, who call
themselves “Bronies”.
Recently, a Brony was terminated from his job
because of his Brony status. He displayed
“Applejack the Pony” as his screen saver, and
talked with his colleagues about his love for
the show.
His boss told him it was weird that he had a TV
show for little girls as a background, and that
his Brony status made others uncomfortable.
His posting about the termination spawned
debate over whether firing a Brony should be
unlawful.
Was the termination a case of unlawful gender
stereotyping?
29
Developments in EEO Case
Law (yes, there were some!)



EEOC v. Boh Bros. Constr. Co. (5th Cir. 9/13)
(recognizing same-sex gender stereotyping claim under
Title VII; jury had awarded $450,000 in compensatory &
punitive damages).
Elauf v. Abercrombie & Fitch (10th Cir. 10/1/13)
(dismissing religious discrimination claim where Muslim
applicant wore “hijab” or headscarf to interview but did
not request an accommodation; employer’s “Look
Policy” required “a classic East Coast collegiate style of
clothing” and forbade any head coverings).
EEOC Files Two GINA Lawsuits

One settled for $50,000 (Fabricut)
30
Developments in EEO Case Law


Brush v. Sears (11th Cir. 2013) (upholding dismissal of
retaliation claim where company investigator was
terminated after insisting that company notify police of
rape allegation by employee; investigator’s action
constituted neither opposition to an unlawful practice nor
participation in an agency proceeding).
Bridgeforth v. Jewell, No. 12-5015 (D.C. Cir. 7/2/13)
(failure to nominate employee for possible award
insufficiently adverse to support retaliation claim; mere
nomination had no correlation to actual receipt of a
tangible benefit).
31
Developments in EEO Case Law


Debord v. Mercy Health System 2013 U.S. App. LEXIS
23733 (10th Cir. 11/26/13) (upholding dismissal of
retaliation claim; employee’s Facebook post that her
supervisor “needs to keep his creepy hands to himself”
did not constitute protected activity).
Latowski v. Northwoods Nursing Center, No. 12-2408
(6th Cir. 12/23/13) (rejecting employer’s rule that it would
accommodate only those medical work restrictions
arising from work-related causes; concluding that the
rule, which required termination of employees on work
restrictions if their health issues were not work-related,
32
was a pretext for pregnancy discrimination).
Special Bulletin: There’s No Such Thing
as a Free Lunch

Introducing “It’s Just Lunch!”:




Florida-based international dating service (over 2
million first dates!) from Singapore to Sacramento
Founded in 1991 by a “resourceful” professional
woman when her engagement was “suddenly called
off”; she then started “the tedious search to meet
‘normal’, well-educated professionals.”
She hired “insightful matchmakers” who are
“genuinely interested in understanding you”
Let’s meet the “dating directors” . . . .
33
It’s Just Lunch!
Amy
Sara
Betty
Melissa
Jacquie
Pamela
It’s Just Lunch:
A Simple Twist of Fate




An Unusual “Twist”: HR Director Files Her Own EEOC
Charge
 HR Director Lynda Twist alleged that the company
refused to hire men as “dating directors”
 Twist claimed that she was fired in January 2009 for
opposing this practice
 Company allegedly cited client preference as reason
EEOC filed suit in July 2013
Settled for $900,000 ten days later
EEOC press release cites “unfounded sex stereotypes”
35
Class Actions
36
Supreme Court Requires Commonality
in Damages for Class Certification


Wal-Mart v. Dukes (2011): class action certification rules
(such as commonality) fully apply in employment
discrimination cases
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (March 27,
2013) S. Ct. denied class certification to putative
antitrust class holding certification not proper when
“damage calculation will inevitably overwhelm questions
common to the class”
37
Impact of Comcast v. Behrend


Makes damages a central part of class certification
analysis
Plaintiffs’ damages theory must:



Match the class liability theory, and
Be able to prove damages on classwide basis
Courts may not certify class seeking $$ damages unless
all damages sought resulted form a common mechanism
(like an empt policy) that harmed all class members.
Claims must be able to be resolved by common
evidence.
38
Comcast v. Behrend


Bottom line: Employees should challenge class
certification on basis that type of damages alleged do not
apply to all class members, or conversely, individual
inquires over damages predominate over those held in
common.
As of October 2013, Comcast cited in over 100 lower
court opinions. Courts can no longer fail to look at
underlying merits of case in deciding whether to certify
class.
39
9th Cir: Individual Damage Calculations
Do Not Defeat Class in W&H Case




Leyva v. Medline Industries, Inc., 716 F.3d 510 (9th Cir
2013) Case under California wage/hour laws
Fact that damage calculations are individualized does
not defeat class certification AND damage calculations
will always be individualized in W&H cases
Although Medline cited Comcast case, Court
distinguished and noted damages are calculated the
same and only individualized factor was amount owed
each person
“In this circuit, however, damage calculations alone
cannot defeat certification”
40
41
Class Action Waivers in
Arbitration Agreements




D.R. Horton v. NLRB, 2013 WL 6231617 (5th Cir. Dec. 3,
2013)
Good News for ERs: 5th Circuit rejected NLRB’s ruling that
class action waiver in mandatory AA violated §7 of NLRA.
In finding the class action waiver enforceable, stated that
NLRA rights do not “contain a congressional command
overriding the application of the FAA.”
Nevertheless, DR Horton’s AA violated §8 of NLRA b/c
language led ees to believe they could not file ULP charges
42
Class Action Waivers




Where does this leave employers?
5th Circuit (in DR Horton) joins 2nd, 8th and 9th Circuits in
rejecting NLRB’s view that class action waivers in AA are
unenforceable. See Sutherland v. Ernst & Young LLP
(2nd Cir. 2013) (waiver of collective W&H action clearly
permissible in arbitration agreement)
California courts still refusing to enforce class waivers in
AAs. Franco v. Arakelian Enterprises, Inc., 149 Cal.
Rptr. 3d 530, 533 (Cal Ct. app. 2012), review granted,
294 P.3d 74 (Cal. 2013).
Board’s position is still that class action waivers in
43
mandatory AAs violate NLRA.
Class Action Waivers

Bottom Line:



Until Supreme Court decides this issue, ERs may still have
to defend ULP charges challenging such waivers
Certain states may hold class action waiver unenforceable
Make sure existing AA clear state that EEs may still bring
certain agency charges.
44
Americans With Disabilities Act
45
ADA Development




EEOC released 4 publications on how ADA applies to job
applicants and employees with cancer, diabetes,
epilepsy and intellectual disabilities.
FAQs are found on the EEOC website under “Disability
Discrimination, The Question and Answer Series”.
These fact sheets do not change the law but show EEOC
enforcement position.
EEOC received over 13,000 charges in 2012 for failure to
accommodate under ADA.
46
Working From Home:
Reasonable Accommodation?





EEOC states on its website that telecommuting/working
from home may be reasonable accommodation
But see EEOC v. Ford Motor Co., 2012 U.S. Dist. LXIS
128200 (E.D. Mich 2012) which held that telecommuting is
rarely a reasonable accommodation
Challenge is in determining whether presence in office is
essential job function
If an employer already offers telework for certain positions,
it must allow employees with disabilities opportunity to
participate in program
Only have to allow disabled employee to work from home to
extent it will enable ee to complete essential job functions 47
Retaliation &
Whistleblower Issues
48
Dodd-Frank Developments


FY2012: 3,001 tips, complaints & referrals
received by SEC’s Office of the
Whistleblower Program (OWP)
Voluntary reports of original information can
earn the reporter 10% to 30% of the
amount collected if the U.S. government
recovers over $1M.


Three reported awards
Largest was $14M
49
Dodd-Frank Developments

Fifth Circuit: Internal Complaints Not Covered by DoddFrank’s Private Cause of Action





Only reports to SEC trigger right to sue (internal complainants
must go to OSHA under SOX 806)
Court rejected SEC regulations as inconsistent with the
statutory definition of “whistleblower”
Result conflicts with 5 district court decisions relying on the
SEC’s regulations, including Murray v. UBS Securities (SDNY)
Asadi v. GE Energy (5th Cir.)
Decision, if followed, may discourage employees from
reporting internally
50
Courts Adopting ARB’s Relaxed
SOX Pleading Requirements



Wiest v. Lynch (3d Cir. 3/19/13) (adopting ARB’s relaxed pleading
standards for claims under SOX §806; plaintiff must simply allege
that he or she informed management of a reasonable belief that the
employer was engaging in fraud in violation of the securities laws
enumerated in§806; declining to follow previous test that
disclosures must “definitively and specifically” relate to a statutory
violation).
Lockheed Martin v. Brown (10th Cir. 6/4/13) (affirming ARB
decision; SOX §806 protected employee’s disclosure of
supervisor’s improper use of taxpayer dollars for expense
reimbursement; no link to shareholder fraud required).
But see Sharkey v. JP Morgan Chase, No. 10-cv-3824 (12/12/13)
(plaintiff’s concerns about a client’s potential money laundering did
not definitively and specifically relate to SOX §806, and thus did
51
not constitute protected activity under SOX).
Other SOX Developments

Lawson v. FMR, 670 F.3d 61 (1st Cir. 2012)


ARB held that SOX §806 protects employees of
private contractors doing work for a public
company covered by SOX.
First Circuit reversed; Supreme Court granted
certiorari (oral argument 11/12/13)
52
Retaliation Round-Up





Employee filed discrimination charge with
EEOC
At mediation, employee responded to
employer’s offer by barging into the employer’s
separate room and saying “you can take your
proposal and shove it up your a** and fire me
and I’ll see you in court!”
Employer accepted the counter-offer, and fired
the employee.
Retaliation claim dismissed; “we cannot see
why misconduct during mediation should be
consequence-free.”
Benes v. A.B. Data, Ltd., No. 13-1166 (7th Cir.
7/26/13)
53
National Labor Relations Board
(“NRLB”)
54
NLRB
At least one organization in Washington had
a worse year than the Redskins
55
Noel Canning


D.C. Circuit Court Invalidates Recess Appointments
 Invalidated President Obama’s January 2012 invocation of his
presidential recess-appointments power to name three members
to NLRB
 Recess appointment power available to presidents limited to
“intersession” recesses and particular vacancy must arise during
intersession recess in question
 Calls into question over 200 decisions issued by the NLRB
without clear quorum
Supreme Court heard oral arguments on January 13, 2014
 Oral arguments suggests Supreme Court unlikely to reverse D.C.
Circuit
56
Quickie Elections


Proposed Rule (originally proposed in 2011, but District Court for
District of Columbia held rule invalid due to absence of three Board
member votes)
 NLRB dropped its appeal – No reason to celebrate
Board likely to reissue the proposed rule now that Board has five
members
 Limited scope of pre-election hearing
 Eliminates regulation that prohibits election from occurring
sooner than 25 days of the Decision and Direction of Election;
Elections could be held within 10 days of Decision
 Hearing officers given broad discretion to reject post hearing
briefs
57
Banner Health –
Internal Investigations

NLRB Advice Memorandum (January 29,
2013)


“Employer may prohibit employees’ discussions
during investigation only if it demonstrates that it
has a legitimate and substantial business
justification that outweighs the Section 7 right”
Must demonstrate a particularized need for
confidentiality in any given investigation
58
Banner Health –
Internal Investigations

NLRB continues to issue decisions
regarding internal investigations

Piedmont Gardens


overturned 35-year old rule addressing whether
an employer must provide a copy of witness
statements obtained during internal investigation
to a labor union as it processes an employee’s
grievance
Rejected bright line rule allowing employers to
withhold witness statements
59
Banner Health –
Internal Investigations

NLRB continues to issue decisions
regarding internal investigations

Boeing Company


Company policy recommending that witnesses not
discuss investigation with anyone other than
company investigators and union reps “clearly
unlawful under Banner”
Policy could not be reasonably interpreted as
giving employees the right to disregard the policy
60
Social Media

NLRB OGC May 8, 2013 Advice Memorandum
 Employee made negative remarks about employer (Skinsmark
Dermatology) during Facebook discussion with current and
former employees
 Employer “full of sh**”; “FIRE ME”
 NLRB
 Employer did not violate the NLRA because remarks were
expressions of her personal dislike of her supervisors and
amounted to nothing more than her own personal gripes
 Nothing in discussion indicated other employees’
participation regarding working conditions
61
Social Media

NLRB OGC 2012 Advice Memorandum (released in
2013)
 Giant Food, LLC policy prohibiting employees from
using company’s proprietary logo and trademark and
taking videos and photos of the Company’s premise
and requiring employees to protect confidential nonpublic information violated NLRA
 Policy could lead employees to believe they could not
use company name, logo or worksite pictures/videos
even if they related to protected activity

Absence of examples of “confidential” and “non-public
62
information” problematic
No Gossip Please

Laurus Technical Institute
 Company policy prohibited employees from participating
in or initiating “gossip about the company, an employee,
or customer”
 NLRB ALJ:
 “Policy on its face chills the exercise of Section 7
activity”
 Policy overly broad and ambiguous
 Severely restricts employees from
discussing/complaining about terms and conditions of
employment
63
NLRB in 2014

Expect 2014 to be different for the NLRB
(and the Redskins)




First time in a decade with 5 Senate confirmed
Board members
Re-issuance of quickie elections rule
Continue to chip away at legitimate workplace
policies
Roundy’s decision

Union access to employer’s property, including
email systems
64
FLSA, FMLA, OSHA & State Laws
65
FLSA Timekeeping Policies


Another area where consistently followed policies save
the day
Supreme Court recently denied cert in an FLSA case in
the 6th Circuit, White v. Baptist Memorial Health Care
(employee bears some responsibility for the proper
implementation of the FLSA’s overtime provisions; an
employee cannot undermine his employer’s efforts to
comply by consciously omitting overtime hours for which
he knew he could be paid.)
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FLSA Settlements
Is DOL or court approval required?
Maybe not:
 Martin v. Spring Break ’83 Productions,
L.L.C. (5th Cir. 2012) (private settlement of FLSA

claims may be enforceable without court or DOL approval when
there exists a “bona fide dispute to liability” and the plaintiffemployees are represented by legal counsel)

Picerni v. Bilingual SEIT & Preschool
Inc., (E.D.N.Y., Feb. 22, 2013) (parties can
voluntarily dismiss an FLSA case without judicial approval —if the
defendant is willing to undertake the risk of doing so)
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FLSA Settlements
Is DOL or court approval required?


But maybe yes:
Boaz v. FedEx Customer Information
Services, Inc. (6th Cir. Aug. 6, 2013)
(reversing trial court, holding that employee who agreed to a sixmonth limitations period to bring suits against the company as part
of her employment agreement did not waive the three-year statute
of limitations under the Fair Labor Standards Act)

Practice considerations: if not seeking judicial
approval, you must balance the need for a confidential settlement
against the risk of having an unenforceable settlement
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It’s Time to Play
“Celebrity FLSA Disputes”!


Our 2013 update featured Lady Gaga’s obscenity-laced
deposition tirades in her former assistant’s FLSA
overtime pay lawsuit
This year’s celebrity winner is being sued by her “night
shift” nanny, who worked 12-hour shifts with no breaks




Prohibited from leaving baby’s room during shift (no meal or rest
breaks)
When inquired about OT pay, told “we don’t do that.”
When it comes to her legal obligations as an employer,
perhaps this celebrity singer should be told “You Oughta
Know” (or would that be too “Ironic”?)
69
Can you guess this year’s celebrity?
Misclassification



Misclassification of workers as independent contractors
rather than employees may have serious financial and
operational repercussions for businesses
In 2013, DOL had heightened and continued
commitment to prosecuting misclassification actions
Scantland v. Jeffry Knight Inc. (11th Cir. Jul. 16,
2013) (reversing district court decision granting
summary judgment to Knight; holding that a group of
cable installers who brought a collective FLSA action
were statutory employees, not independent contractors)
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FMLA Interference Claims

Srouder v. Dana Light Axle Mfg. (6th Cir.
August 7, 2013) (employer may enforce its customary
notice and attendance procedures against an employee claiming
FMLA-protected leave, unless unusual circumstances justify the
employee’s failure to comply with the requirements)
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Worst FMLA Claims of 2013

Polka Pickle


Woman on disability leave for painful back injury
posted Facebook photos of herself dancing the
polka, doing a back flip off a boat, and running a
5K race. Her FMLA claims for unlawful
termination were rejected.
Siesta No, Cerveza Si!

Employee on disability leave for back & leg
injuries posted Facebook photos of herself on
vacation in Mexico, riding in a motorboat and
drinking beer. She complained on her return
that no one had sent her a get well card. Her
FMLA claims for unlawful termination were
rejected.
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State Law Issues

Maryland Pregnancy Accommodation Law






Effective 10/1/13
Requires accommodation of pregnancy-related disabilities to
same extent provided for other temporary disabilities, including
light duty assignments
Prescribes specific accommodations to be explored with
employee
Requires employers to post notice of law to employees, and
include accommodation information in employee handbooks
Follows 7 other states (AK, CA, CT, HI, IL, LA, TX)
Paid Sick Leave


NYC new “Earned Sick Time Act” in effect 4/14 requiring
employers of >20 people in NYC to accrue 5 days of sick leave a
year
Follows similar laws in Seattle, Portland, Jersey City, SF and DC
State Action re:
Workplace Privacy

Ever-shifting balance between employer
prerogative and employee privacy likely will
continue to move in a direction that favors
employee privacy
74
“Ban-the-Box” Legislation



Laws in 8 states prohibit employers from
requesting criminal history information in the
employment application.
Similar bills are pending in 26 states
Varying rules on the point in the hiring process
at which an employer can request criminal
history information and different procedural
requirements surrounding such requests.
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OSHA Developments





HazCom: Training deadline 12/1/13; effective date 2016
Electronic Reporting Proposal: quarterly for employers
of 250+; annually for employers of 20+ in designated
industries; public database (comments due by 2/14)
Respirable Silica NPRM (8/23/13): Employers required
to reduce daily PEL from 100 to 50 micrograms &
implement control program; hearings start 3/4/14.
Voluntary PELs: Lower thresholds, no rulemaking
Enterprise-Wide Abatement Struck Down

Delta Elevator (OSHRC No. 12-1446)
76
Predictions?
Questions?
77