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Legal Update: Current Employment and Labor Issues

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America's Color Adjustment-2000 Census Facts. 58% growth in Latino population since 1990 ... Extreme Cut In Pay, Transfer That Leads To Unbearable Working Conditions) ... – PowerPoint PPT presentation

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Title: Legal Update: Current Employment and Labor Issues


1
Legal Update Current Employment and Labor
Issues
  • James M. Patterson, Jr.

2
Free Speech?
  • Employee called supervisor a REDNECK SOB and
  • a BASTARD
  • Winston Salem Journal v. NLRB (2005)
  • After examining the words…there was no tenable
    excuse for his behavior

3
Why Are You Vulnerable? Americas Color Adjustment
4
Americas Color Adjustment-2000 Census Facts
  • 58 growth in Latino population since 1990
  • 12.9 identify as African-American 12.2
    identify as Latino
  • 6.8 million identify as multi-racial

5
Americas Color Adjustment-2000 Census Facts
  • 54 million Americans with disabilities
  • More than 30 million are between 16-64
  • 40 are online and spend twice the time logged on
    as non-disabled people

6
Americas Color Adjustment-2000 Census Facts
  • Median income for Asian Americans is 10,000 more
    than whites
  • Ethnic media reaches diverse consumers better
    than general-market media
  • Asian-American consumer purchasing power will
    quadruple between 1990 and 2007

7
Americas Color Adjustment-Challenges in the 21st
Century
  • Managing the transition to a more diverse society
  • Inter-ethnic and inter-racial tension and
    conflicts
  • Everyone belongs to a minority group
  • White men lt50 of labor force
  • 1 in 4 employees is a minority
  • Latinos will lead African-Americans as the
    largest minority group

8
Prohibited Discrimination-Title VII
  • Desert Palace v. Costa (2003) proving employment
    discrimination under Title VII just got easier
  • Mixed-motive case legitimate and discriminatory
    reasons motivated adverse action burden of
    proof can shift
  • Plaintiff doesnt need direct evidence of
    discrimination to reach a jury, but what evidence
    will do?

9
U.S. Supreme Court Review
  • Faragher/Ellerth Rulings
  • Tangible Employment Action Strict Liability
  • No Tangible Employment Action Affirmative
    Defense May Be Available

10
U.S. Supreme Court Review
  • Affirmative Defense
  • Employer exercised reasonable care to prevent and
    correct promptly any sexually harassing behavior
    and
  • Employee unreasonably failed to take advantage of
    preventive or corrective opportunities provided
    by the employer or to avoid harm otherwise.

11
U.S. Supreme Court Review
  • Pennsylvania State Police v. Suders
  • Is Constructive Discharge A Tangible
    Employment Action?

12
U.S. Supreme Court Review
  • Only If Official Acts
  • (Such As Humiliating Demotion, Extreme Cut In
    Pay, Transfer That Leads To Unbearable Working
    Conditions)

13
Prohibited Discrimination-Title VII
  • Protected Bias
  • Skin color
  • Punitive Damages
  • Bryant v. Aiken Regl Med. Ctrs (4th Cir. 2003)
  • Employers good-faith efforts to comply with
    Title VII may save it
  • Review policies to ensure effectiveness
  • Provide and document employee training
  • Consider internal audit of employment practices

14
Prohibited Discrimination-Title VII
  • Fair and Accurate Credit Transactions Act of
    2003 removes 3rd party investigations from
    notice and disclosure requirements
  • Increase in harassment class actions
  • E-harassment

15
Prohibited Discrimination-ADEA
  • General Dynamics Land Sys. v. Cline (2004) ADEA
    doesnt protect younger workers from decisions
    that favor older workers
  • Implication retiree health coverage, severance

16
National Labor Relations Board
  • IBM Corporation, 341 NLRB No. 148 (2004)
  • Employees in Non-Union Settings Lose Right to
    Have Representative Present in Meetings That
    Might Result in Discipline

17
Court of Appeals Review
  • Smith v. City of Salem, 378 F. 3d 566 (6th Circ.
    2004)
  • Court upholds a Transsexuals sex Stereotyping
    Claim
  • Failure to conform to stereotypical gender norms.

18
  • Smith v. City of Jackson, Miss. (oral argument
    Fall 2004) are disparate impact claims viable
    under the ADEA?
  • EEOC v. Warfield-Rohr Casket Co. (4th Cir. 2004)
    age-based remarks precluded summary judgment

19
Prohibited Discrimination-ADA
  • Record of Disability Raytheon v. Hernandez
    (2003)
  • No rehire policy for misconduct can trump ADA
    claimants claim of disparate treatment, unless
    can show pretext
  • Both disparate treatment and disparate impact
    claims are viable under ADA

20
Administrative Enforcement-EEOC
  • Fiscal Year 2003
  • Resolved 87,000 charges of discrimination
  • 236M in monetary benefits and other relief for
    victims from resolved charges
  • 149 in monetary benefits, as well as injunctive
    relief, from lawsuits
  • Most common charges race, sex/gender,
    retaliation, age

21
Administrative Enforcement-EEOC
  • Mediation programs
  • Universal Agreements to Mediate (UAMs)
  • Referral Back Pilot Program
  • April 22 Issued final rule exempting retiree
    health plans from ADEA coverage

22
Sarbanes-Oxley Act
  • Broad requirements for reporting, disclosure, and
    auditing of financial practices
  • Protects employee whistleblowers
  • Employer can be liable even if employee is wrong
    about violation, as long as employees belief is
    reasonably held
  • US DOL has enforcement authority
  • Impact on executive compensation and retirement
    plans

23
Sarbanes-Oxley Act
  • Specifically applies only to public companies,
    but private employers and non-profits should also
    take heed
  • Anti-retaliation provision protects any person
    for providing truthful information about a
    federal offense
  • Falsification/destruction of any record intended
    to influence investigation of US agency carries
    20-year prison sentence
  • Martha Stewart
  • EEOC investigation
  • OSHA investigation

24
Fair Pay Overtime Regulations Whats New?
  • New rule clarifies exemptions for executive,
    administrative, professional, outside sales,
    computer employee, and highly compensated
    employees
  • Minimum salary level for exempt employees 455
    week/23,660 year
  • Deductions and safe harbor rule
  • Effective August 21, 2004
  • DOL Enforcement Task Force

25
Fair Pay Overtime Regulations Whats New?
  • Effective August 21, 2004
  • DOL Enforcement Task Force
  • DOL online outreach program is available at
    www.dol.gov/fairplay, including components of the
    final rules, fact sheets, an online training
    seminar (video), and other DOL guidance.

26
Fair Pay Overtime Regulations Employer Action
  • Assess current to see if anyone will lose exempt
    status
  • Assess employees job duties
  • Review pay practices
  • Implement policy explaining salary deductions for
    exempt employees and incorporating complaint
    mechanism
  • Ensure non-exempt employees record hours worked

27
Other Pay Issues
  • FLSA and overtime watch for
  • Employees working two non-exempt jobs at same
    location
  • Out-of-town travel
  • Inadequate records of hours worked
  • Liability 2 or 3 years of unpaid overtime
  • Equal Pay Act

28
E-Mail
  • No reasonable expectation of privacy in
    employer-supplied e-mail accounts and computers
  • E-mail is recoverable and discoverable
  • POLICIES Monitoring, Document Retention

29
Legal Update Current Employment and Labor
Issues
  • James M. Patterson, Jr.
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