robert d. kilgore direct: (210) 819-2904 rkilgore @laborlawyers

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©Copyright 2013All rights Reserved

Robert D. KilgoreDirect: (210) 819-2904

[email protected]

www.laborlawyers.com

Presented by:

Listening to the Supremes:2013 Employment Law Update

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Where Are We Now?

• U.S. Supreme Court was busy• Gridlock did not prevent more regulation• Enforcement strategies became paramount• Regulators breathed new life into existing laws• Agencies reinvented themselves to stay viable • Rulemaking predominated over legislation

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(210) 227-5434

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The EEOC’s New Agenda


(210) 227-5434

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EEOC Litigation

• 99,412 charges in FY 2012 - largest number ever• Pursued 580 systemic investigations• 122 lawsuits filed in FY 2012• $365 million in damages

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What We Are Seeing

• More investigators with less experience• More aggressive tactics• Closer scrutiny of position statements and documentation• Investigators shifting burden of proof to employer• Increased demand for on-sites


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2013-14 Strategic Enforcement Plan

• Eliminate systemic barriers in recruitment and hiring• Protect immigrant, migrant, and other vulnerable workers• Coverage of gay, lesbian, bisexual and transgender

(“emerging and developing issues”)• Equal pay laws• Preserving access to the legal system• Systemic investigations to address workplace

harassment


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Systemic Investigations

Targeted areas for systemic investigations:• Leave/termination policies• “English only”/proficiency rules• Employment tests• Criminal background/credit checks


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How Do You Know You’re On Their Systemic Radar?

Investigator asks questions about: • Policies or selection criteria to locations beyond the one

referenced in Charge• Data involving individuals or positions beyond those

specified in Charge• Pre-employment test “validation studies” • How selection criterion is relevant to job performance• HR database information


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More Aggressive Even When Non-Systemic

• Demanding proof of notice to employees of job expectations and any performance problems

• Demanding evidence as to why one employee was selected over another


(210) 227-5434 (210) 227-5434

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Arrest and Conviction Records

• EEOC investigative strategy targeting pre-hire selection criteria impacting minorities

• Pepsi reached a $3 million settlement with the EEOC for using criminal background checks to screen applicants

• Data suggests criminal background checks have disproportionate impact on African-Americans & Hispanics

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• On April 25, 2012 EEOC issued “Enforcement Guidance”• Part of EEOC strategy targeting pre-hire selection criteria• Criminal background checks are under particular scrutiny


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New Guidance

• Must make an individualized assessment• Consider many factors:

– Nature and gravity of offense– Time passed since conviction/sentence completion– Age at time of offense; age now– Rehabilitation efforts– Facts surrounding the offense– Number of convictions and offenses


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New Guidance

• Consider many factors (cont’d):– Has person performed same type of work, post-

conviction, with no criminal conduct– Employment history before and after the offense– Additional training/education– Character references– Relevance of conviction to job duties

• Need background check policy and procedure that allows individualized assessment


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Some push back on EEOC? Attorneys General from nine states send letter to EEOC

July 24, 2013 objecting to its enforcement efforts in

connection with criminal background checks in hiring.

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DOL Update

• New Secretary of Labor Thomas Perez• “Labor Department will be a tough labor law enforcer and

pursue the kind of litigation that yielded a record $280 million in back wages for workers in 2012.”

• “Direct relationship" between the economic security of middle-class workers and organized labor.

• Endorses immigration reform and increased minimum wage.


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2012-13 Supreme Court Term

• Six significant employment cases decided this past term• The good news: employers go 6-for-6• The not-so-good news: some of the decisions were

razor thin• Decisions in the next few years, before Justice Kennedy

retires, will be key


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• Title VII– University of Texas Southwestern Medical Center v.

Nassar• Makes it more difficult for employees to win

retaliation claims• Employees must show that their protected activity

was “but for” cause of adverse action• No “motivating factor” standard applied as in

discrimination cases


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• Title VII– Vance v. Ball State Univ.

• Follow up to Farragher/Ellerth• Who is a supervisor for purposes of determining

whether affirmative defense applies?• Court: only those with authority to make significant

changes in employee’s status (like hiring, firing, demotion, reassignment)

• EEOC more expansive definition rejected


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• Class Actions– Genesis Health Care Corp. v. Symczyk

• Addressed collective action “pick-off” tactic• Prior to others joining claim as “opt-ins,” employer

in Genesis offered to pay sole named plaintiff the full amount claimed

• Employer: this makes the claim moot. So no need for collective action.

• Court: the employer is correct. No one left with person interest in outcome.


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• Class Actions– Comcast Corp. v. Behrend

• Court: plaintiffs who want to bring class actions must prove at certification stage that damages are measurable on a class-wide basis

• Must show that there is reliable and admissible evidence of common injury and damages on a class-wide basis before class can be certified

• Should limit number of class actions filed


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• Arbitration– American Express v. Italian Colors Restaurant

• Not an employment case, but one with big impact on them

• Arbitration agreements with class waivers are permitted.

• Court requires agreement be enforced as written• Result: each aggrieved employee would have to

bring own arbitration claim


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• Arbitration– Oxford Health Plans LLC v. Sutter

• Arbitrator in proceeding below permitted class-wide arbitration pursuant to clear language of agreement

• Why is this a win for employers? – Focus on actual language of the agreement

strengthens agreements– Warning to lowers courts not to interfere with

arbitration agreements


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• DOMA– U.S. v. Windsor

• Portion of Defense of Marriage Act establishing federal definition of marriage held to be unconstitutional

• Does not force states to legalize gay marriage• Wait-and-see: May impact the way employers

treat same-sex couples under federal statutes governing family leave, employee benefits, taxes, etc.


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Final Questions?


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Thank you!

Robert D. KilgoreDirect: (210) 819-2904

[email protected]


robert d. kilgore direct: (210) 819-2904 rkilgore @laborlawyers

Documents

rights reserved arrest

new life

systemic radar

eeocs new agenda

selection criterion

criminal background

prehire selection criteria

burden of proof