2019 Employment Law Update Reisdorff... · 2019-04-11 · 2019 Employment Law Update April 9, 2019...

2019 Employment Law Update

April 9, 2019

KERRI S. REISDORFF

OGLETREE DEAKINS

FOR

MISSOURI ELECTRIC COOPERATIVES

HUMAN RESOURCES ASSOCIATION

How is #Metoo Impacting Employee (and

Juror) Expectations

What Constitutes “Notice” Expanding

81% of men and 90% of women strongly agree or agree that

employees do not report workplace harassment because of a

reasonable fear of retaliation

70% believe #Metoo has put companies on notice that they have a

bigger harassment problem then they think

53% believe company is on notice if they become aware of a #metoo

social media post by employee

What Potential Jurors/Employees Believe

41% have a more negative opinion of how companies handle

harassment complaints since #metoo

94% believe companies should be focused on improving the quality of

employee training

97% believe companies should be focused on the depth of HR

investigations into complaints

84% believe companies should be focused on increasing level of

punishment (*but not unfairly)

*”What Jurors Think of #MeToo: A Snapshot” by Dan Gallipeau, October 15, 2018

The “CSI” Legal Effect of #Metoo

Employees (potential jurors) will expect (demand):

– leadership to have heightened awareness

– Companies to be proactive not simply reactive

– Companies to have sufficient resources devoted to

more and better training

– “faster” and “better” investigations

– Increased scrutiny of punishment

Reminders & Take-Aways

Update employee communications and complaint procedures

Ensure investigators are trained and can begin investigation

immediately

Reexamine tools to encourage professional culture and

discourage unprofessional behavior

Make sure you have updated separation agreements and non-

disclosure language

Consider “legacy” of harasser, including pay equity concerns

Pay Equity: A Strategic Focus

“The EEOC remains committed to strong enforcement of our federal

equal pay laws, a position I have long advocated… I do hope that this

decision [to stay the revised EEO-1 reporting requirements] will prompt a

discussion of other more effective solutions to encourage employers to

review their compensation practices to ensure equal pay and close the

wage gap. I stand ready to work with Congress, federal agencies, and

all stakeholders to achieve that goal.”

- Victoria Lipnic,

Acting Chair of the EEOC

EEOC FY2018 Sexual Harassment Data

EEOC filed 66 harassment lawsuits, including 41 that included

allegations of sexual harassment (50% increase from 2017)

Charges alleging sexual harassment increased more than 12%

from 2017

EEOC recovered $70 million for victims of sexual harassment (up

from $47 million in 2017)

Retaliation – Why Do We Care?

Dramatic increase in retaliation charges filed

Nearly half of all charges filed

Highest category 8 years in a row by far

EEOC Enforcement Guidance on Retaliation and Related Issues

(2016)

More likely to succeed and greater damage potential

Juries reluctant to conclude racism/sexism etc., but not reluctant

to conclude retaliation

Legal Standard For Retaliation

“Anything that would deter a reasonable

person from complaining or participating in an investigation.”

What Jurors Expect

They expect employees to be told in writing what the employer’s expectation is before an issue arises

They expect employees to be warned:

that they are not meeting the employer’s expectation;

how they must correct their behavior; and

Of the consequence for not correcting their behavior before termination

They expect employers to follow their own policies

Risks Associated With Political Discussions

At Work

The Legal Do’s & Don’ts Regarding

Diversity Initiatives

A voluntary diversity plan is justified only if necessitated by

past discrimination or a showing of disproportionate

representation.

A plan should represent a moderate, flexible, case-by-

case approach to effecting a gradual improvement in the

representation of minorities and women.

Employers may not have or follow an explicit policy or

preference for minority candidates.

The Legal Do’s & Don’ts Regarding

Diversity Initiatives

Employers may not set forth specific quotas or set asides

for diverse candidates (should be structured as goals).

The least risky diversity initiative is to expand pool of

diverse candidates.

The “Rooney Rule” of requiring at least one diverse

candidate to be interviewed has not been challenged in

court – but it is likely defensible assuming that there is no

undue pressure to hire the diverse candidate same.

U.S. DOL Update

Proposed Rule Announced for Minimum

Salary for Exemptions

Announced March 22, 2019

$679 per week or $35,308 annually for administrative,

executive, professional, and computer employee

exemptions

$147,414 per year for highly compensated exemption

($679 must be paid weekly)

Only 60 day comment period – May 21, 2019

Final rule expected to have January 2020 effective date

Additional DOL Updates

Proposed Joint Employer Rule announced on April 1 for joint liability for FLSA

violations

4 part test:

Hires or fires the employees

Supervises and controls the employees work schedule or employment

conditions

Determines rate/method of payment

Maintains employment records

Proposed regular rate requirements for calculating overtime pay

DOL Opinion Letters are back!

Ban The Box – Where Are We Today

32 states and over 150 localities have passed legislation covering

public employers

12 states and 17 localities have extended coverage to private

employers

What about Missouri?

Kansas City, Missouri Ban the Box

Ordinance

Effective June 9, 2018

Private employers with 6 or more employees in Kansas City, Missouri

must comply

Employers are prohibited from making inquiries into an applicant’s

criminal history prior to determining whether the applicant is qualified

for the position and until after the applicant has been interviewed for

the position.

Employers must conduct “totality of the circumstances” review

Unless required to do so by state, federal, or local law, an employer

cannot maintain a rule which automatically rejects anyone with a

prior criminal conviction.

Missouri’s Medical Marijuana Law

FMLA & ADA 2019 Refresher

XYZ’s Attendance Policy

XYZ has a No Fault Attendance Policy. The Policy states that an

employee will be issued a final written warning upon accruing 9 points in

a 12 month period. At 8 a.m. you sit in on a meeting with employee

Eddie who is issued a final warning. Eddie claims that we counted FMLA

protected absences in his point total. Eddie has an approved FMLA

certification for anxiety and 6 months ago he was off on a 8-week FMLA

block leave for a back surgery. XYZ’s FMLA policy requires Eddie to timely

report all FMLA absences to both his supervisor and XYZ’s FMLA

administrator.

XYZ’s Attendance Policy Continued….

Eddie claims the following:

2 points should have fallen off because they

accrued 13 months ago.

He told his supervisor that his absence last Friday was

for “FMLA” and therefore, he should not have been

assessed a point.

DOL Says it is Okay to “Freeze” Absences

While Employee on FMLA

August 28, 2018 DOL Opinion Letter

Where an employer evaluates points on a 12-month basis and anemployee takes 2 months of FMLA leave, the employee’s attendance

could be evaluated over a 14-month period.

“Freezing” practice did not violate FMLA so long as employer took the

same approach with non-FMLA extended leave (personal leave, ADA

leave, military leave, workers’ comp leave etc…)

** Potentially inconsistent with several federal court decisions holding that

extending time period for attendance performance improvement plandue to FMLA absences discouraged employees from taking FMLA leave

and therefore, interfered with leave.

Did Eddie Provide Proper Notification of

His FMLA Absence Last Friday?

A. No. Eddie failed to timely notify XYZ’s FMLA

Administrator.

B. Yes. Employers cannot require a more burdensome

absence reporting policy for FMLA leave.

C. No – unless unusual circumstances prevented him

from doing so.

What if Eddie Said “No Thank You” to

FMLA?

Katie Wells v. XYZ Corp

At 2 p.m. a process server drops off a lawsuit filed against XYZ by

Katie Wells. Katie was a former HR Generalist who only worked for

you for less than 7 months. The lawsuit alleges FMLA retaliation and

interference claims and an ADA failure to accommodate claim.

You email XYZ’s General Counsel:

So….the bad news is that Katie Wells is apparently suing us. But

….the good news is that both FMLA claims are frivolous because she only worked for XYZ for 7 months.

Here’s the Facts

During Katie’s interview she disclosed that she was 7 months pregnant.

Katie worked at a XYZ facility that did not have 50 employees in a 75

mile radius and therefore, the facility was not a covered facility under

the FMLA. To be fair, XYZ gave all new parents up to 12 weeks of

unpaid leave regardless of whether they worked at a facility that was

covered by the FMLA (or had worked at least 12 months). And to

keep things simple, XYZ utilized the FMLA notice/designation forms for

parental leave. XYZ also granted Katie additional time off after her 12-

week parental leave for conditions relating to her pregnancy and HR

continued to utilize the FMLA forms for that additional time off.

Will Court Dismiss Katie’s FMLA Claims?

A. Court will dismiss FMLA interference claim because

Katie received her full 12-weeks of leave. I have no

idea what the Court will do with FMLA retaliation

claim.

B. Yes. Katie did not work at a covered facility and

was not an eligible employee. As such, she is not

entitled to the benefits of the FMLA.

C. No.

Hostettler v. College of Wooster (6th Cir.

July 2018)

College hired Human Resource Generalist who was 4 months pregnant.

Upon the birth of her child she took 12 weeks of unpaid leave. Shortly before she was set to return, HR Generalist experienced postpartum depression. She

took 4 additional weeks of leave and then was released to return to work half

days. After 6 weeks of PT work, she submitted a doctor’s note stating that she

needed to work a PT schedule for 6 more weeks (but could extend her hours

to 6 hours a day). The next day the College sent her a letter stating that

“because she was unable to return to her assigned position of HR Generalist

in a full time capacity” she was terminated.

HR Generalist sued under the FMLA, ADA, and Title VII (pregnancy

discrimination)

The Analysis

Plaintiff exhausted “FMLA” – but retaliation claim allowed to

proceed

ADA Analysis:

Is she disabled?

Can she perform the essential functions of her position?

Is there a reasonable accommodation available?

What about Pregnancy Discrimination Act?

EEOC Guidance – Pregnancy as a Disability

If a woman is temporarily unable to perform her job due to pregnancy or apregnancy-related condition, her employer must treat her the same as any othertemporarily disabled employee.

Pregnancy-related impairments may also be disabilities under the ADA and mayrequire reasonable accommodation.

Employer may not compel leave because of pregnancy.

Employer must allow leave for women with limitations resulting from pregnancyon the same terms as to others similarly situated.

Employer must provide light duty for pregnant employee if it does so foremployees “similar in their ability or inability to work.”

Employer may not deny light duty to a pregnant employee on the basis that thelight duty policy is limited to on-the-job injuries (Young v. UPS).

Hostettler v. College of Wooster (6th Cir.

July 2018)

District Court dismissed ADA claim on summary judgment finding that

working full-time was an essential function of a HR Generalist position.

6th Circuit reversed finding that while full-time work may be essential function

of “some jobs”, it is a fact-specific inquiry and depends on the job.

Pointed to other non-pregnant employees who received longer medical

LOAs.

Affidavit from co-worker stating that there were no problems in HR due to

reduced schedule.

College unable to point to any actual problems

** College did not meet with employee to discuss request

Lessons Learned (or Relearned)

Do not use FMLA forms or language for non-FMLA leave

Never leave an employee out of interactive process – always meet with

an employee to discuss a request

Ensure accommodations correlate with job expectation

Sometimes may need to give an accommodation a try before rejecting

Communicate decision verbally

Being able to work full-time is not automatically an essential function of

any job

Avoid using words/terms that suggest someone must be fully released

Questions?