ELS INSIDE EDITION WHAT EVERY LAWYER NEEDS TO KNOW ABOUT EMPLOYMENT - - PDF document

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ELS INSIDE EDITION

WHAT EVERY LAWYER NEEDS TO KNOW ABOUT EMPLOYMENT LAW

The Employment Law Solution McFadden Davis, LLC

1100 Peachtree Street, NE | Ste. 200 | Atlanta, GA 30309 www.theemploymentlawsolution.com

PRESENTERS: ELS ATTORNEYS

ELS ATTORNEYS

T ennille C. Hoover  University of Minnesota Law School  Spelman College, B.A.  Atlanta Public Schools, Office of Employee Relations  Licensed in Georgia

ELS PRESENTERS

Chandra C. Davis  University of Michigan Law, 2002; Michigan Law Review, Editor  Emory University, B.A; University of Georgia, M.Ed  Law clerk to federal district and appellate court judges  McGuireWoods  EEOC Trial Attorney

ELS ATTORNEYS

Jamala S. McFadden  University of Michigan Law, 2001; Michigan Law Review, Executive Editor  University of Illinois, B.A.  Law clerk to federal district court judge  Sutherland,Asbill & Brennan  Licensed in Georgia, Michigan, Illinois

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ELS ATTORNEYS

Raquel H. Crump  Florida A&M University College of Law  University of North Carolina, B.A.  Licensed in Georgia, Florida, and D.C.

ELS ATTORNEYS

Halima H.White  Vanderbilt University Law School; Vanderbilt Law Review  University of Alabama at Birmingham, B.A.  McGuireWoods, Jackson Lewis  Licensed in Georgia and Tennessee (inactive)

SOCIAL MEDIA IN THE WORKPLACE

T

• day’s T
• pics

 Defining Social Media Activities  Hiring  The NLRA  Social Media Policy  Misconduct

DEFINITION OF SOCIAL MEDIA ACTIVITIES

 Facebook, T

witter, Instagram, Snapchat, Pinterest, Tumblr, Blogs, You Tube, LinkedIn

 Social media activities: posting, viewing,

using any internet based program that can be shared with others

 Activities can be conducted on any

electronic device that accesses the internet

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SOCIAL MEDIA & HIRING

SOCIAL MEDIA & HIRING

 Considerations:  Mitigate risk of discrimination claims  Privacy protections  Ask potential employee to provide social media login?—NO!!!!!!  Healthy Skepticism  No Social Media ≠ Bad Thing  NLRB Developments

SOCIAL MEDIA & NLRA

 National Labor Relations Board (NLRB)  Federal agency vested with power to protect employees’ rights to join together to improve their wages and working conditions (National Labor Relations Act (NLRA) Section 7 Rights)  NLRA Section 7: Concerted activities—conduct is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself

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SOCIAL MEDIA & NLRA SOCIAL MEDIA POLICY: EMPLOYER RESTRICTIONS ON SOCIAL MEDIA ACTIVITIES

 Can prohibit accessing social media using company issued equipment  Computers, iPads, smartphones  Grey area: phone owned by employee but monthly fees paid for by employer  Can limit social media activities during non- work time if conduct would violate company policies  No overbroad social media policies

SOCIAL MEDIA POLICY: EMPLOYER RESTRICTIONS ON SOCIAL MEDIA ACTIVITIES

 Focus on prohibiting activities during work time or using company equipment  Use specific definitions or examples of prohibited conduct

 What is not considered confidential or trade secrets  What would be considered“offensive”

 Refer to other company policies

 Harassment, confidentiality, conflicts of interest

 Avoid general threats of discipline for engaging in unauthorized social media activities  Advise employees of monitoring

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SOCIAL MEDIA & MISCONDUCT: DISCIPLINARY ACTION

 Cannot discipline for protected concerted activities on social media sites  Can discipline for violation of company policies (i.e. harassment)

 General harassment vs. unlawful harassment that violates policy

 Can discipline if social media activities reveal employee was dishonest  Cannot discipline for

• ff

duty conduct that is chronicled on social media that is unrelated to work

SOCIAL MEDIA & MISCONDUCT: MONITORING

 Can monitor employee activities while

• nline using company issued equipment

 With proper policy notifying employee no expectation of privacy  Can monitor activities in public postings  Can monitor if employee voluntarily “friends” a supervisor or manager

PAY WHAT???: WAGE & HOUR ISSUES

 The Department of Labor and

the Fair Labor Standards Act

 Exempt v. Non-Exempt  1099 Independent

Contractors v. W2 Employees

 Unpaid workers  Why it Matters

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FAIR LABOR STANDARDS ACT (FLSA): WHAT YOU SHOULD KNOW

 Department of Labor  Presume coverage  Individual liability  Basic requirements:

• Minimum wage
• Overtime

pay after 40 hours worked in a workweek

• Recordkeeping (Fact Sheet 21)

 Exempt v. Non-

exempt

 Salary test  Duties test  Non-exempt = OT

pay

 Trump changes

NEW OVERTIME REGULATIONS Final Rule effective December 1, 2016 Previous Regulations  $23,660/year  $455/week New Regulations  $47,476/year  $913/week  Automatic updates

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INDEPENDENT CONTRACTORS

 Is a worker a 1099

Independent Contractor or W2

• r employee?

INDEPENDENT CONTRACTOR?

 No withholdings for federal or state

income tax, Social Security or Medicare

 No payroll taxes  Anti-discrimination laws cover only

“employees”

 No agency liability for acts of “ICs”  No benefits

INDEPENDENT CONTRACTOR TESTS  Independent v. Employee tests:

 IRS: Publication 15-A  DOL: Fact Sheet 13

 General rule of thumb: a worker is an employee if the

payer has the right to control or direct what will be done and how it will be done

 Donald Cove v. IRS, No. 2717-08, U.S. Tax Court (2011)

(law firm owner, associates and law clerks were employees, not independent contractors)

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PRO TIPS! PROTECTING INDEPENDENT CONTRACTOR STATUS

1. Shorter-term engagement, project based 2. Worker controls where, when, and how she works 3. Provides her own tools (i.e., computer) 4. Does not hold herself out as an employee 5. Works for other businesses 6. No benefits 7. Invoices the business 8. IC agreement

UNPAID WORKERS  Interns  Volunteers  Trainees

UNPAID WORKER TESTS

 DOL: Field Operations Handbook Ch.10b11 (Oct. 20, 1993)  Schumann v. Collier Anesthesia, 803 F.3d 1199 (11th Cir. 2015)

(adopting factors for determining when a worker can be unpaid as a trainee)

 General rules of thumb: the worker is probably an employee if  the “primary beneficiary” of the work performed is not the unpaid worker;  the unpaid worker is doing work that someone could get paid to do

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PRO TIPS! UNPAID WORKERS

 Pay them!  College credit Youth minimum wage rate?  Make the terms precise

and clear

WHY IT MATTERS

 Statutory attorneys fees  IRS and DOL involvement, back taxes, penalties  Potentially catastrophic for smaller businesses

LEAVE & ACCOMMODATION ISSUES

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BASIC LEAVE AND ACCOMMODATION LAWS

 The Americans with Disabilities Act (“ADA”)

 42 U.S.C. §§ 12101, et seq.

 Family and Medical Leave Act (“FMLA”)

 29 U.S.C. §§ 2601, et seq.

 Title VII of the Civil Rights Act of 1964 (“Title VII”)

 42 U.S.C. §§ 2000(e), et seq.

 State laws requiring paid medical leave

 For example, Connecticut’s paid sick leave law

 Workers’ compensation

THE ADA

 The ADA applies to private employers with 15 or more employees and to government contractors or subcontractors.  The ADA protects qualified applicants and employees with disabilities.  A disability:  A physical or mental impairment that substantially limits a major life activity  A record of being disabled  Regarded as disabled  Qualified:  Someone who is able to perform the essential functions of the job with or without a reasonable accommodation.

REASONABLE ACCOMMODATION UNDER THE ADA

 One that allows the employee to perform the essential functions of the job.  Leave (but not indefinite leave)  Modified schedule  A modified keyboard or chair  Voice recognition keyboard  Removing non-essential job duties

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INTERACTIVE PROCESS UNDER THE ADA

 Discussion(s) between the employer and employee to see whether there is a reasonable accommodation that would allow the employee to perform the essential functions of the job.  Employer’s burden. No “magic words.”  May involve some back and forth and brainstorming.  Document.  May seek limited medical information under certain circumstances.  Not necessarily required to give the employee his/her choice of accommodations.  Not required to ignore doctors’ orders or retain an employee who rejects multiple reasonable accommodations but still cannot perform the essential functions of the job.

FMLA

 To be covered under the FMLA, the employer must:  Employ 50 or more employees within a 75-mile radius of the worksite.  To be eligible for FMLA leave, an employee must:  Work for a covered employer and  Worked 1,250 hours during the 12 months prior to the start of the leave (special hours for flight crews)  Time spent working with the company via a temporary agency counts toward the 1250 hours.

FMLA

 “Serious health condition”  illness, injury, impairment or physical or mental condition that involves:  Inpatient care (defined as an overnight stay in a hospital, hospice or residential medical care facility; any overnight stay in a hospital, hospice or residential medical care facility; any overnight admission to such facilities is an automatic trigger for FMLA eligibility)  A period of incapacity and continued treatment by a healthcare provider  Chronic conditions  Incapacity for pregnancy or prenatal care (even morning sickness)  Permanent or long-term conditions, such as Alzheimer’s, severe stroke, or terminal disease  Conditions requiring multiple treatments and recovery from treatments, such as cancer, severe arthritis and kidney disease  Treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider  No magic words

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INTERSECTION OF THE ADA AND FMLA

 Leave (including intermittent leave) may be a form of a reasonable accommodation.  No “inflexible leave policies.” May be required to give more than 12 weeks of leave under the circumstances.  Designating leave.

INSIDE THE BLACK BOX

 What is the EEOC and What does it do?  Who can file a Charge?  How is a Charge filed and When must it be filed?  How should the Company respond?  When should you get legal representation?  What is the EEOC handling process and what can be expected?

What You Need to Know About the EEOC and How It Handles Charges

WHAT IS THE EEOC?

 created in 1965, by the Civil Rights Act of 1964.  enforces the nation’s laws that prohibit discrimination in the workplace.  is an independent, law enforcement agency.  mission is to eradicate illegal discrimination in the workplace.  has 53 field offices located all over the country and covers all of the U.S. states and territories.

EEOC = Equal Employment Opportunity Commission

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FEDERAL EEO LAWS:

Federal laws prohibit discrimination based on:

Covered Employers  Private Employers  Government Agencies (Generally)  Labor Organizations  Employment Agencies Protected Individuals  Employees  Job applicants  T emporary workers  Former employees  Undocumented workers

EEO Laws cont’d. DISCRIMINATORY PRACTICES INCLUDE:

 Harassing individual(s) because of their race, color, religion, sex, national origin, disability, or age  Subject employees to discrimination:  Making employment decisions based on stereotypes or assumptions about a person

• r group of people; and

 Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.

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RETALIATION

Retaliating against individual(s) for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices

 Boston, MA: City of Boston Employee Awarded $10.9 Million: race discrimination and retaliation

For example, depending on the facts, it could be retaliation if an employer acts because of the employee's EEO activity to:

 reprimand the employee or give a performance evaluation that is lower than it should be;  transfer the employee to a less desirable position;  engage in verbal or physical abuse;  threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);  increase scrutiny;  spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or  make the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

DISCRIMINATION IS PROHIBITED IN EVERY ASPECT OF EMPLOYMENT, INCLUDING:

 Recruitment and Hiring  Job Advertisements  Compensation  Assignments  Promotions  Training  Fringe Benefits  Layoffs/Recalls  Discipline  Discharge

WHO CAN FILE A CHARGE & WHEN CAN ONE FILE CHARGES?

 Current and former employees; and applicants can file a Charge  The EEOC can issue a Charge on its own  Commissioner’s Charge

• r

 Director’s Charge  Any person who believes his or her employment rights have been violated can file a Charge of Discrimination with the EEOC.  Within 180 days of the alleged discrimination, or…  Within 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination.

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THE PROCESS

Insider Knowledge Helps!

HOW TO HANDLE AN EEOC CHARGE OF DISCRIMINATION

1. If a charge of discrimination is brought against your company, get the facts straight before responding.

 Consider retaining an employment lawyer

2. Interview relevant witnesses.  Seriously consider retaining an employment lawyer 3. Include relevant documents with the response,

 Have an employment lawyer review before submission

4. Do not ignore the EEOC! 5. Consider mediation. 6. Guard against retaliation or the appearance of retaliation. 7. Anticipate future litigation.  We employment lawyers are always thinking about that!

HOW DO YOU AVOID THE EEOC?

 Be familiar with the employment civil rights laws  Train management to ask questions of HR professionals and in-house counsel.  Make sure all employment decisions are based on job-related criteria (qualifications, performance, skills, abilities, etc.)  If you are not sure . .. . consult an employment law attorney! It is much cheaper in the long run  Difficult employment decision  Complaint of discrimination

WHEN DO YOU CALL ELS?

 Threat of filing an EEOC Charge  Receipt of an Attorney Demand Letter  Charge filed  Onsite investigation demanded by EEOC  The EEOC may issue a subpoena to

• btain access, documents, or testimony,

if necessary.  Position Statement required  Negative EEOC determination  Lawsuit filed in federal or state court

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WHO YOU GON’ CALL? ELS!

 Department of Labor inquiries  EEOC inquiries  NLRB inquiries  FLSA litigation  Policy Creation & Review: Social Media,

Leave & Attendance

 Audit of worker classifications  Independent contractor agreements  Training

McFadden Davis, LLC 1100 Peachtree Street, NE | Ste. 200 | Atlanta, GA 30309 www.theemploymentlawsolution.com