The Year in Review:2010Nicole M. Sandoz, Esq.

Today’s Presentation

Trends and Highlights

New Laws Key Court Decisions Your “To Do List” “Red Flag” Issues

Wage and Hour Lawsuits

Class Actions Misclassified as Exempt Missed Meals and Breaks Donning and Doffing Off-the-Clock Work Wage Order-based claims Pay Stubs

Expanding Discrimination Claims

Class Actions

New TheoriesEEOC Accuses

Wal-Mart of

Religious Bias

EEOC Hits US

Steel with ADA

Suit over

Random

Alcohol

Testing

EEOC Sues Towing Company over Medical Leave Policy

EEOC Accuses

Piggly Wiggly of

Anti-Male Bias

EEOC Sues Care

Provider over

Failure to Stop

Client’s Sexual

Harassment

EEOC Sues DHL

Alleging Job

Assignments

Based on Race

EEOC Sues

Washington

Apple Grower

for Sexual

Harassment

EEOC Nails Rite

Aid Using

Broader ADA

Availability of and Right to Use Information vs. Privacy Rights

“Desk Rage” Among U.S. Workers

“ Rudeness, impatience, people being angry –

we used to do that kind of stuff at home but

at work, we were professional. Now it’s

almost becoming trendy to do it at work.”

Anti-bullying legislation has been introduced in 17

states

Health Care Reform:What You Need to Know

Short-term Policy Changes Coverage for children through age 26 No denial for children with pre-existing

conditions

Long-term Developments Key Date: 2014

New whistleblower rule

Other changes apply in the next

plan year for plans that are

not grandfathered

DWT Employee Benefits attorneys can assist you

with your policies

Your To Do List

Discuss health care reform compliance

with carriers upon renewal

Develop and implement policy for

nursing mothers (existing CA

requirement)

GINA Regulations

GINA: federal discrimination protection for

“genetic information” (effective November 2009)

Regulations finalized November 2010: Harassment is included

Set boundaries for the real and virtual worlds

Provide “safe harbor” language

Your To Do List

Revise EEO and anti-harassment policies to include genetic information; develop/revise social media policy

Revise FMLA policy and forms to include GINA “safe harbor” language

Educate supervisors about the boundaries under GINA

Federal Law: HIRE Act

Tax benefits to hire previously unemployed workers Exemption from employer’s share of social

security tax Tax credit for each qualified employee

retained for 52 weeks

Your To Do List

Discuss HIRE Act with your

CFO/business manager if conducted

any hiring since 03/19/2010.

Key California Legislation

Meal break exemption for employees in

certain industries (AB 569) Organ and bone marrow donation leave

(SB 1304) New background check

disclosures for January

2012 (SB 909)

Your To Do List

Evaluate whether new meal break

exemptions may apply.

Update leave policies to include organ and

bone marrow donation leave.

Check in with background check vendors

towards end of year to confirm compliance.

Agency Updates: EEOC

93,277 Charges (2nd highest ever)

Most common:

10% increase in ________ claims

Staffing trends

Coming Soon!

Revised ADA Regulations and Guidance

disability

race and retaliation

Proposed EEOC Regulations: Age Discrimination Disparate Impact Cases

An employment practice is okay if a “reasonable factor other than age” justified it.

What makes a practice reasonable? Relevant factors: Common business practice? Related to business goal? Steps to define accurately, apply fairly? Steps to assess adverse impact? Severity of harm? Other options available

“Red Flag” Reminder

If concerned that one of your policies

may have a more significant impact on

older employees, use the standards

outlined in the proposed regulations to

closely evaluate the policy.

California Case Review

Produce brokers were not farm workers’ “employer” in wage and hour suit (Martinez v. Combs)

Three-year limitations period for waiting time penalties (Pineda v. Bank of America)

California rules on “stray remarks” doctrine (Reid v. Google)

California Case Review

Unlimited sick leave policy did not create unlimited right to kin care leave (McCarther v. Pacific Telesis)

Invalidated arbitration agreement (Trivedi v. Curexo)

A New Direction

Bright v. 99¢ Only Stores

Labor Code 1198: Wage Orders set the “standard conditions of labor”; employment under conditions “prohibited by the order is unlawful.”

The plaintiff, a retail cashier, was able to use section 1198 to sue under the Private Attorneys’ General Act (“PAGA”) for not being able to sit while working, a Wage Order requirement.

California Case Review

Can a subsequent employer be liable if

it upholds the prior employer’s

noncompete? ____________

(Silguero v. Creteguard)

Still waiting for a ruling on Brinker

You Betcha!

US Supreme Court Review

A Few Key Supreme Court Decisions

Disparate impact claim can arise on use of

the alleged discriminatory practice, not just

the adoption of the practice. (Lewis v.

Chicago)

Search of public employee’s text messages

was a reasonable, not unconstitutional,

search. (Ontario v. Quon)

Upcoming Supreme Court Cases

Does a public employer’s inquiries into applicant’s counseling history, drug use violate constitutional right to privacy? (NASA v. Nelson)

Is an oral complaint protected under the FLSA’s anti-retaliation provisions? (Kasten v. Saint-Gobain Performance Plastics)

Interpreting the statute, which protects one who “has filed any

complaint”

Upcoming Supreme Court Cases

Can an employer be liable based on intent of officials who did not make the employment decision? (Staub v. Proctor Hospital)

Does Title VII permit a retaliation claim for one who did not engage in protective activity but is closely associated with one who did? (Thompson v. N. American Stainless) Update: _______________

Evaluating the “cat’s paw” theory

Thompson’s fiancée had filed an EEOC charge.

Cat’s paw?

But of course!

Upcoming Supreme Court Cases

What is the proper standard for class-wide discrimination claims? (Wal-Mart v. Dukes)

Can Arizona impose sanctions on employers who hire unauthorized aliens – or is it solely a federal issue? (Chamber of Commerce v. Whiting)

1.5 million members of the class!

Department of Labor

Unpaid Interns: hard to meet the test in

for-profit employers

Therefore, must be paid at least

minimum wage

Your To Do ListAudit your pay practices

unpaid interns, indep. contractorsexempt classificationsmeal periods and rest breakshours worked (inc. pre- and post-shift)calculation of “regular rate of pay”pay stubswage order conditions

Consider having the audit conducted under attorney-client privilege to protect

the confidentiality of the results

FMLA Update

DOL issues guidance about “in loco

parentis.” Extends to one who intends to

assume parental responsibility and

provide day-to-day care or financial

support for a child.

USERRA

Freyer v. ASAP Fire & Safety

Remember: returning service members entitled to same

or equivalent position

after return, can only be terminated for

cause within specified period.

$505,000!

Looking Ahead

Employee Free Choice Act?

Anti-bullying laws?

Paid sick leave?

Paycheck Fairness Act?

Continued pressure on wages and benefits?

The re-hire wave?

Thank You!