Grateful 7 speech thanking everyone that has helped.pdf
Employment Law Update
1. Employment
Law
Update
–
Being
Proac,ve
in
2013
Alexis
C.
Knapp,
SPHR,
MS-‐HRM,
JD
LITTLER
MENDELSON,
PC
aknapp@liGler.com
713.652.4706
2. Plans
for
Today
• Goals
for
this
training
• Agenda
• Magnitude
of
these
issues
to
your
business
and
increased
enforcement
for
2013
• Top
5
areas
where
management
and
HR
can
make
a
difference
• Miscellaneous
reminders
• What
else
is
ahead
in
2013
• Disclaimers
3. Undeniable
Truths
About
the
Employment
Rela9onship
• Governmental
agency
ac[vity
is
at
an
all-‐[me
high
• Lots
and
lots
of
new
inves[gators
• Inter-‐agency
coopera[on
• Outreach
efforts
(iPhone
apps?!?)
• New
legisla[on,
rules
and
guidance
• Increased
enforcement
budgets
and
agendas
• EEOC’s
budget
for
2013
increased
by
$14M!
• In
2012,
the
EEOC
recovered
more
than
$365.4
million
in
monetary
damages
from
employers
–
a
new
record!
4. More
Undeniable
Truths
About
the
Employment
Rela9onship
• Employee
charges
and
li[ga[on
are
at
an
all-‐[me
high
• Even
the
frivolous
charges
and
lawsuits
must
be
answered
• How
the
process
looks
(administra[ve,
lawsuit,
discovery,
etc.)
• The
impact
of
the
economy
and
the
poli[cal
climate
is
significant
• There
is
a
growing,
niche
market
for
plain[ff’s-‐side
employment
lawyers
11. #1
Interviewing
and
Selec9on
Dos
and
Don’ts
It
Is
Never
Too
Early
to
Manage
Your
Risk
12. It’s
Never
Too
Early
Interviewing
and
Selec9on
Challenges
• You
must,
must,
must
know
why
you
made
that
decision—but
document
cau[ously
• What
are
you
doing
with
those
documents
once
the
job
is
filled?
• The
impact
of
the
internet
on
this
process
• Discrimina[on
against
the
unemployed?
13. More
Interviewing
and
Selec9on
Challenges
• Interview
ques[ons—BEWARE!
• Disparate
impact
and
the
EEOC’s
view
• Personal
(own
a
home,
own
a
car,
birthdate,
marital
status,
all
associa[ons)
• Disability-‐related
inquiries
• Arrests
and
convic[ons
• Consistency
within
a
posi[on
• Importance
of
the
job
descrip[on—
show
it
to
them!
• Fair
Credit
Repor[ng
Act
issues
• Semng
compensa[on
14. #2
Wage
and
Hour
Issues
Managing
the
Hours
Worked
and
Pay
of
Your
Employees
15. Common
Wage
and
Hour
Challenges:
Managing
Hours
Worked
• Time
clock
issues
• Rules
about
breaks
• Managing
hours
worked—
and
the
sanc[ty
of
them
once
they
are
worked
• Beware
of
pre-‐
and
post-‐
shin
ac[vi[es
• Travel
[me
“gotchas”
16. More
Wage
and
Hour
Challenges
• Misclassifica[on
(the
DOL’s
favorite
“new”
topic)
• Independent
contractor/employee
• Exempt/non-‐exempt
piqalls
• Recordkeeping
challenges
• Why
these
cases
are
so
expensive
• 2-‐3
year
SOL
• Every
person
in
the
posi[on?
• Liquidated
damages
• AGorney’s
fees
• Civil/criminal
and
employer/individual
17. #3
The
Trouble
with
Termina9ons
Common
Piaalls
for
Employers
in
Ending
the
Employment
Rela9onship
18. The
Trouble
with
Termina9ons
• Over-‐reliance
on
the
“employment-‐at-‐
will”
doctrine
• Semng
or
devia[ng
from
precedent—can
you
explain
the
difference?
• Most
common
frustra[on
=
what
was
your
final
incident?
• Employees
in
“the
bubble”
• If
it
looks
like
a
duck,
and
quacks
like
a
duck,
it’s
a
duck—call
termina[ons
what
they
are
• You
have
ONE
chance
to
tell
the
true
story
• What
are
your
plans
re:
replacing
the
employee?
19. The
Trouble
with
Termina9ons:
What
Happens
Next
• Consider
release/severance
issues,
protec[ng
your
business
informa[on,
gemng
property
back,
logis[cs,
etc.
• Special
challenges
with
the
40+
por[on
of
the
workforce
• Texas
Payday
Law
• Unemployment
claims
• Sworn
tes[mony
• Free
discovery
• Ul[mately,
not
an
employer’s
decision
• Coordinate
with
HR
and
consider
who
will
respond
to
the
TWC
21. The
Government
is
Paying
LOTS
of
Acen9on
• Changes
to
the
FMLA
and
ADA
• State
law
mini-‐FMLAs
and
ADAs
• Recent
ac[vity
by
Congress,
the
DOL
and
the
EEOC
• EEOC
FY
2012
Sta[s[cs
• 26,379
Charges
alleging
disability
claims—nearly
1/3
of
all
charges
filed
• 150%
increase
in
monetary
recovery
by
the
EEOC
between
1997
and
2012
• Most
popular
impairments
22. FMLA
101:
A
30,000
Foot
View
of
Employer
Obliga9ons
• Qualifying
reasons
• Unpaid,
job-‐protected
leave
• 12
workweeks
(block
or
intermiGent)
• Your
responsibility
to
start
the
process?
• No
interference,
no
retalia[on
• It
doesn’t
maGer
how
inconvenient
this
is
23. ADA
101:
A
30,000
Foot
View
of
Employer
Obliga9ons
• Don’t
let
the
picture
on
the
len
fool
you—physical
or
mental,
seen
or
unseen
• No
discrimina[on
because
of
a
disability—applicants
or
employees
• Reasonable
accommoda[on
• What
“accommoda[on”
looks
like
• The
interac[ve
dialogue—and
documen[ng
it
• An
individualized
analysis
• Showing
undue
hardship
• Confiden[ality
and
recordkeeping
24. Employee
Medical
Condi9ons:
Some
Common
and
Costly
Mistakes
• Wai[ng
for
the
employee
to
use
magic
words
• “we
don’t
do
that
here”
• “that’s
our
policy”
• “only
with
a
full
release”
• “you
can’t
do
this
job”
• Prescrip[on
drug
issues
• Not
talking
to
the
employee
• Confiden[ality
issues/need-‐to-‐know
25. ...and
what
about
9me
off?
The
EEOC
has
long
maintained—and
is
now
aggressively
enforcing—that
you
may
have
leave
obliga[ons
to
your
employees
regardless
of
whether
you
or
any
of
your
employees
is
covered
by/eligible
for
FMLA,
and
regardless
of
what
your
policies
say
or
what
you
prac[ces
are.
26. What
We’ve
Learned
About
Leave
Obliga9ons
under
the
ADA
• Medical
leave—a
liGle,
or
a
lot—may
be
a
reasonable
accommoda[on
• Inflexible
leave
policies—neutral
absence
control,
no-‐fault
type
policies
à
ILLEGAL
under
the
ADA
• Restric[ve
light
duty
policies
could
also
create
problems
• AGendance
policies
are
on
the
EEOC’s
radar
Employee
Handbook
28. Some
“Union
Law”
Basics
for
a
Non-‐Union
Workplace
• The
Na[onal
Labor
Rela[ons
Act
and
“protected,
concerted
ac[vity”
• Who
is
the
NLRB?
• Issues
to
watch
in
your
workplace
• Employee
complaints
about
pay,
supervisors,
working
condi[ons
• Pay
secrecy
policies
for
non-‐supervisory
employees
• Non-‐solicita[on
policies
(official
or
unofficial)
• Confiden[ality
rules
• Or
anything
you
fire
or
discipline
employees
for!
• Pay
vigilant
aGen[on
for
any
restric[ons
on
“Sec[on
7”
ac[vity
• The
hot
buGon
of
social
media
ac[vity
29. Other
Employment
Piaalls:
Miscellaneous
Reminders
• Retalia[on—and
oldie
but
a
goodie
• Inves[ga[ons—what
do
you
do
when
someone
complains?
• What
harassment
can
look
like
• Duty
to
report
• What
will
you
be
able
to
prove—and
why
it
maGers
• Did
you
follow
up?
• Tort
law
claims
• Document
reten[on/destruc[on
issues
• Watch
those
e-‐mails—privilege
and
discoverability
issues
31. What
Else
to
Expect:
2013
and
Beyond
• Addi[onal
whistleblower
protec[ons
• “Bring
Your
Own
Device”
Issues
• DOL’s
“Right
to
Know”
Ini[a[ve
• LGBT
Employees
and
Same
Sex
Partnership
Issues
• EEOC
Focus
on
Use
of
Arrest
and
Convic[on
Records
• State
Law
and
Credit
Check
Protec[ons
• Immigra[on
Enforcement
