1. NEW ISSUES FOR EMPLOYERS
AND FAMILY RESPONSIBILITIES
DISCRIMINATION
Presented by:
Nancy L. Pirkey
Daniel G. Vliet
20855 Watertown Road • Suite 200 • Waukesha, WI 53186 • Phone: (262) 364‐0300 • Fax: (262) 364‐0320
www.buelowvetter.com
Recent Employment Law Changes
• New regulations on child labor
• Restrictions on use of mandatory arbitration
provisions for defense contractors
• Federal contractors and subcontractors required
to inform employees of their right to unionize
• Employers must provide breaks and facilities for
breastfeeding employees
• Wisconsin employers can’t discriminate against
employees who refuse to attend meetings
regarding religious or political matters
2. Federal Child Labor Regulations
• New regulations take effect July 19, 2010.
• Access the new regulations at:
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www.dol.gov/federalregister/HtmlDisplay.aspx?DocId=
23891&AgencyId=14&DocumentType=2
• Expands the types of jobs younger workers can
perform.
• Increases the opportunities for work study programs
for students.
for students
• Expands the list of occupations where younger
workers cannot be employed.
• New civil penalties for violating child labor laws.
Child Labor Regulations
• For example, 15 year olds can now work as lifeguards
and 14‐15 year olds can work as computer
programmers and write software.
• However, they cannot work in manufacturing or power
driven equipment such as lawn mowers or golf carts.
• A comparison of the major differences between the
old and new regulations for 14‐15 year old workers can
be found at:
www.dol.gov/whd/cl/SidebySideReg3FinalRule.htm
• For 16‐17 year old workers at
www.dol.gov/whd/cl/SidebySideHOsFinalRule.htm.
3. Restrictions On Mandatory
Arbitration Provisions
• Effective May 19, 2010 employers who have a defense
contract in excess of $1 million cannot enforce
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mandatory arbitration clauses against employees or
independent contractors making federal discrimination,
sexual assault and/or harassment claims.
• As of June 17, 2010 contractors are also required to
certify that their subcontractors also comply with this
restriction.
• Contractors subject to this rule should not enter into
mandatory arbitration agreements with new employees
or contractors.
NLRA Notice Requirements
• Effective June 21, 2010 employers with federal contracts
in excess $100,000 and subcontractors with contracts of
at least $10,000 are required to inform employees of
at least $10 000 are required to inform employees of
their rights under the National Labor Relations Act.
• The poster can be obtained at
www.dol.gov/olms/regs/compliance/EO13496.htm. The
poster must be posted in conspicuous places in all plants
and offices.
• If th
If the employer posts notices to employees
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electronically, then this notice must be “prominently
displayed” on the employer’s website. A link to the DOL
website is sufficient.
4. NLRA Notice Requirements
• The notice specifies employee rights under the NLRA,
including the right to organize a union and to discuss
employment terms with coworkers.
• The notice also specifies seven examples of illegal
employer conduct.
• The notice also specifies five examples of illegal
employer conduct.
Breaks And Facilities
For Breastfeeding
5. Breaks And Facilities
For Breastfeeding
Effective immediately, under Section 4207 of the
FLSA, employers must provide employees currently
nursing a child the opportunity to express breast milk
as needed.
Covered Employers
• Employers with 50 or more employees are covered
by Section 4207.
• Employers with less than 50 employees are not
required to provide breaks if providing breaks
would cause “undue hardship.”
• How does an employer show of undue hardship?
▫ Compliance would cause significant difficulty or
expense considering the employer’s size,
financial resources, nature or business structure.
6. Reasonable Break For
Nursing Mothers
• Employers required to provide “reasonable”
breaks for at least one year after the child’s birth.
• Employers must allow a nursing mother a break
each time she needs to express milk.
• Employers are not required to compensate
employees for these breaks, regardless of whether
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the position is exempt or nonexempt.
Private Break Area Required
• A nursing mother must be provided a private area
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for nursing.
• The area must be “shielded from view and free
from intrusion from coworkers and the public.”
• An employer is required to find a location other
than a bathroom for a nursing mother to use.
7. What About State Law?
Wisconsin law requires employees be paid for breaks
of less than 30 minutes.
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Wisconsin law does not allow deductions for breaks
for exempt employees.
The Wisconsin Labor Standards Bureau has not taken
Th Wi i L b S d d B h k
a position on how the new federal law relates to
state law.
What Do Employers Need To Do?
• Update policies and employee handbooks to
reflect change.
• Locate appropriate locations to serve as private
break rooms.
• Train front line managers so they are prepared to
deal with a request for a break from a nursing
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mother.
8. A New Protected Category
Effective May 27, 2010, Wisconsin employers can no
Eff i M Wi i l
longer require employees to attend an employer
sponsored meeting where the primary purpose of
the meeting is to communicate opinions regarding
religious or political matters.
10. What Is A Political Matter?
• Political party affiliation
• A political campaign
• An attempt to influence legislation
• The decision to join or not join, support or not
support any lawful political group, constituent
group or related activity.
group or related activity
What Is A Constituent Group?
• C c ssoc at o
Civic Association
• Community Group
• Social Club
• Fraternal Society
• Mutual Benefit Alliance
• Labor Organization
11. NLRA Preemption of State Law
• Mandatory employee meetings during union
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organizing campaigns are common.
• Employers use mandatory meetings to convey the
employer’s view on union representation.
• These types of meetings appear to be prohibited
under the new Wisconsin law.
• But the NLRA may preempt state law and allow for
mandatory employee meetings.
What Is The Impact of New
Discrimination Protections?
• Employers need to be recognize employees can refuse to
attend employer sponsored religious or political
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meetings.
• This applies to any communications from the employer
as well regarding religious or political issues.
• Employers involved in a union campaign need weigh
importance of employee meetings versus the risk.
• Wait for the court challenge regarding federal
preemption.
• Revise employee handbooks and policies.
• Train managers.
12. Families Responsibilities
Discrimination
INTRODUCTION
In May, 2009, the EEOC issued a document
entitled “Employer Best Practices for
Workers with Caregiving Responsibilities.”
While the federal government has not
created any new discrimination laws, the
EEOC i t ki g
is taking a very expansive view of
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existing discrimination laws and the
protections available to employees.
13. What is Family Responsibilities
Discrimination?
Family responsibilities discrimination is a
relatively new form of discrimination which
reflects a change in our culture and
demographics. According to the EEOC, with
the advent of more women in the workforce,
the potential for discrimination against women
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who have caregiving responsibilities over
children or aging parents has increased.
What is Family Responsibilities
Discrimination?
This form of discrimination is not solely tied to
Thi f f di i i ti i t l l ti d t
gender. It can also be a form of race
discrimination, disability discrimination, or
discrimination based on an employee’s
association with a person with a disability.
14. Is There Reason for Employers
To Be Concerned?
According to the Society for Human Resource
A di t th S i t f H R
Management (SHRM), there has been a 400%
increase in litigation over family responsibilities
discrimination in the past decade. Unlike other
types of discrimination, employees are winning
about 50% of these cases, with an average
about 50% of these cases with an average
verdict of over $500,000.
Is There Reason for Employers
To Be Concerned? (cont’d)
o 67% of cases are related to pregnancy or maternity
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leave;
o 9.6% of cases are related to care of an elderly
parent;
o 7% of cases are related to sick children;
o 4% of cases are related to sick spouses;
o 3% of cases are related to care of newborn or
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adopted children by father; and
o 2.4% of cases are related to care for a family
member with a disability.
15. Legal Bases For Discrimination
There is no Wisconsin or federal law that expressly
prohibits discrimination based solely on an
employee’s parental or family status. Instead, this
form of discrimination relies on existing state and
federal laws which prohibit discrimination based on
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gender, race or disability or state and federal FMLA
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laws. However, the EEOC is taking a very broad
reading and interpretation of these federal laws.
Legal Bases For Discrimination
The EEOC has identified the following laws which may
be used to raise claims of family responsibilities
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discrimination:
oTitle VII of the Civil Rights Act of 1964
oPregnancy Discrimination Act
oAmericans with Disabilities Act
oEqual Pay Act
oFederal Family & Medical Leave Act
16. Legal Bases For Discrimination
(cont’d.)
In Wisconsin, the following laws could also be
used to file a claim of family responsibilities
discrimination:
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oWisconsin Fair Employment Act
oWisconsin Family & Medical Leave Act
Legal Bases For Discrimination
(cont’d.)
Only two states have enacted laws prohibiting
discrimination based on parental status or caregiving
responsibilities:
•Alaska
•District of Columbia
18. Areas of Discrimination (cont’d)
8. Unlawful stereotyping of an employee who is
related to a family member with a disability
• Comments/jokes/stereotyping
9. Creation of a hostile work environment because of
an employee’s gender, race, disability, or
association with an individual with a disability
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• Comments/jokes/stereotyping
10.Retaliation against an employee for opposing
unlawful discrimination
• Caregivers viewed as particularly vulnerable
EMPLOYER BEST PRACTICES FOR
PROTECTING WORKERS WITH
CAREGIVING RESPONSIBILITIES
19. Best Practices of a General
Nature
1. Be aware of, and train managers about the legal
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obligations that may impact decisions about treatment of
workers with caregiving responsibilities.
2. Develop, disseminate, and enforce a strong EEO policy.
3. Ensure that managers at all levels are aware of, and
comply with, the employer’s work‐life policies.
4.
4 Respond to complaints of caregiver discrimination
efficiently and effectively.
5. Protect against retaliation.
Best Practices on Recruitment,
Hiring and Promotion
1. Focus on the applicant’s qualifications.
2. Review employment policies and practices,
2 Review employment policies and practices
particularly those related to hiring, promotion, pay,
benefits, attendance and leaves of absence to ensure
they do not “disadvantage” employees with
caregiving responsibilities.
3. Develop specific, job‐related qualification standards
for each position that reflect the job duties, functions
and competencies of the position.
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4. Ensure that job openings, acting positions, and
promotions are communicated to all eligible
employees regardless of caregiving responsibilities.
20. Best Practices on Recruitment,
Hiring and Promotion (cont’d)
5. I l
Implement recruitment practices that target
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individuals with caregiving responsibilities.
6. Identify and remove barriers to re‐entry to
individuals after a leave of absence from the
workforce due to caregiving responsibilities or
other personal reasons.
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7. Ensure that employment decisions are well‐
documented and transparent.
Best Practices on Terms, Conditions and
Privileges of Employment
1. Monitor compensation practices and
performance appraisal systems for patterns of
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potential discrimination against caregivers.
2. Review workplace policies that limit employee
flexibility, such as fixed hours of work and
mandatory overtime, to ensure that they are
necessary to business operations.
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3. Encourage employees to request flexible work
arrangements that allow them to balance work
and personal responsibilities.
21. Best Practices on Terms, Conditions and
Privileges of Employment (cont’d.)
4. If overtime is required, make it as family‐friendly
as possible.
5. Reassign job duties that employees are unable to
perform due to pregnancy or other caregiving
responsibilities.
6.
6 Provide reasonable amounts of personal or sick
leave to allow employees to engage in caregiving,
even if the employer is not required to do so
under state or federal FMLA laws.
Best Practices on Terms, Conditions and
Privileges of Employment (cont’d.)
7. Post employee schedules as early as possible for
positions that have changing work schedules so
that employees may make child care or other
family arrangements.
8. Promote an all inclusive workplace culture.
9. Develop the potential of employees, supervisors
and managers without regard to caregiving or
other personal responsibilities.
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10. Provide support, resources, and/or referral
services that offer caregiver‐related information
to employees.
22. Case Study #1
The City of Sunrise posts for a position as Finance Director. Joanne and Tim
apply. Both have approximately three years of finance and accounting
experience; however, Joanne’s experience is spread over a five year period
due to two maternity leaves, while Tim’s experience is uninterrupted by
medical leave. The City selects Tim, reasoning that his continuous service
demonstrates more recent experience and Tim’s commitment to his career.
Has the City of Sunrise discriminated against Joanne if it fails to award her
the job?
Case Study #2
Suzanne has recently graduated with a criminal justice degree and applies for a
position at Disney County as a deputy sheriff. At the interview, Sheriff Jack
Sparrow asks Suzanne “How many kids do you have?’ Suzanne explains that
she and her husband do not have children yet, but plan to start a family once
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both of their careers are established. Sheriff Sparrow explains that the duties
of a deputy sheriff are very demanding and require working nights, weekends
and holidays. Sheriff Sparrow asks Suzanne how she intends to balance work
and childcare responsibilities once she starts a family. Sheriff Sparrow later
tells his secretary that he is concerned about hiring a young married woman –
he thinks she might have kids, will need light duty while she is pregnant, will
need FMLA leave after the baby is born, and will call in sick often. Ultimately,
Sheriff Sparrow tells his secretary that being a mother is “not compatible with
the demanding job of a deputy sheriff.” A week after the interview, Suzanne is
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notified that she is not hired. The County re‐posts the job and continues to
seek qualified applicants.
Has Disney County engaged in discrimination? When and what type?
23. Case Study #3
Same facts as above, except that the County does not re‐post the job.
Same facts as above except that the County does not re post the job
Instead, the County hires Tom from the same pool of candidates as Suzanne.
The record shows that Tom has a degree in criminal justice, but has different
experience than Suzanne, having worked as a corrections officer in another
county for 1 year while he looks for a deputy sheriff position. The County has
consistently used relevant experience as a tie‐breaking factor in making hiring
decisions.
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Has Disney County engaged in discrimination? When and what type?
Case Study #4
Carla returns to work as a social worker after having been on maternity leave.
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Almost immediately, she begins missing work frequently because of her
difficulty in finding child care and was unable to meet several important
deadlines. As a result, the department received a complaint from the district
attorney’s office about Carla not being prepared for court appearances. Carla
receives a written warning about her attendance and her work performance.
Carla’s child care difficulties continue, and she misses several more court
deadlines. Two months after Carla was given the written warning, she is re‐
assigned to the aging & disability resource center, where she will not need to
make court appearances and will have less pressure. Carla files a charge of
gender discrimination.
Has the County engaged in discrimination? What other information do you
need to make this determination?
25. Case Study #7
Tyler works as a parks employee for the City of Sunset. He asks to change his
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hours to part‐time so he can help care for his 2 year old daughter and
newborn baby now that his wife has returned to work. Tyler’s supervisor
denies the request, stating that there is only one vacant part‐time position in
the parks department and he needs to save that position in the event an
employee needs light duty due to pregnancy or worker’s compensation injury.
Tyler’s supervisor tells him that he can have the next part‐time position that
opens up. Tyler waits two months, and then files a discrimination complaint.
Has the City discriminated against Tyler?
Case Study #8
Jim is the supervisor of operations in the highway department. Jim has
become frustrated because one of his employees has developed a problem
with his attendance. Jim has met with the employee, Dave, several times to
no avail. After receiving a written reprimand for his attendance, Dave finally
comes clean and says his life is a mess. He has a son who has psychological
problems and has stopped taking his medication. Recently, the son was
arrested for a fight and is sitting in jail. Dave has been calling in sick to visit his
son, to meet with a lawyer, and to be at his son’s court appearances.
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Can the employer discipline this employee for his absences? What other
information would you need to know to make a decision here?
26. Case Study #9
The City of Sunrise offers maternity and paternity leave to employees upon
the birth or adoption of a child. Marsha requests maternity leave to have a
baby. Bob requests paternity leave after he and his wife adopt a baby. The
City approves both employees’ requests, but only for the 12 weeks of leave
mandated by the Federal FMLA. Bob speaks to his supervisor and indicates
he wants a total of 6 months of paternity leave. The supervisor
acknowledges that City policies provide for paternity leave, but notes that,
as the “family breadwinner,” Bob has a responsibility to his family. The
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supervisor also states that he cannot find any examples of when the City has
approved 6 months of paternity leave to any employee.
Has the City discriminated against Bob? What other information do you
need to make this determination?
Case Study #10
Betty is a police detective and has received glowing performance reviews during
her first 4 years with the police department. Other detectives assume she is on
the fast track for promotion. Betty then takes 3 months of leave to care for her
father after he has had a stroke. Upon returning to work, the detective
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lieutenant talks to Betty about her work schedule and her need to take time off
of work to continue to care for her father. Betty insists her family
responsibilities will not interfere with her ability to do her job. However, the
detective lieutenant recognizes the level of stress that Betty faces and re‐assigns
her from the robbery/homicide unit to the white collar crime unit. This change in
assignment provides Betty with more normal work hours, and very little
overtime. Initially, Betty appreciates the standardized work hours and the extra
time she can spend with her father. However, over time, Betty realizes she will
be denied promotions and other career opportunities because of this work
assignment.
Has the City discriminated against Betty? When and what type of
discrimination? Is there a statute of limitations issue here?
