During this presentation to the Mining Association of South Carolina, Matthew Korn provided an employment and labor law update for the mining industry, including recent initiatives from the Equal Employment Opportunity Commission and National Labor Relations Board.
Labor Law Update for the Mining Industry (Mining Association of South Carolina - Apr 2013)
1. Labor Law Update
for the Mining Industry
Mining Association of South Carolina
Mining Workshop – Building Partnerships for the Future
April 16, 2013
Presented by:
Matthew Korn
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
www.laborlawyers.com
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2. The Highlights
New areas of emphasis for the EEOC
NLRB’s new agenda
What employers can do
www.laborlawyers.com
4. 2013 Strategic Enforcement Plan
Eliminate systemic barriers in recruitment and
hiring
Protect immigrant, migrant, and other
vulnerable workers
Coverage of gay, lesbian, bisexual and
transgender
Pregnancy discrimination, harassment, and
retaliation
Age discrimination
Disability discrimination
www.laborlawyers.com
5. EEOC Litigation
122 lawsuits filed in FY 2012
20% of charges and 8% of lawsuits were
systemic
EEOC obtained record-high $365 million
$36 million obtained from systemic
investigations (4 times that obtained
in 2011)
www.laborlawyers.com
6. Systemic Investigations
EEOC pursued 580 systemic investigations in
FY 2012
Can begin as a single charge
Requires significant resources to reply
Can result in a large monetary settlement and
changes in policies
www.laborlawyers.com
7. Systemic Investigations
Targeted areas for systemic investigations:
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Fitness for duty/medical examination policies
Leave/termination policies
Proficiency rules
Employment tests
Criminal background/credit checks
www.laborlawyers.com
8. Arrest and Conviction Records
EEOC investigative strategy targeting prehire selection criteria impacting minorities
Criminal background checks under particular
scrutiny
– Disproportionate impact on African-Americans
and Hispanics due to higher conviction rates
Pepsi reached a $3 million settlement with
the EEOC for using criminal background
checks to screen applicants
www.laborlawyers.com
9. New Guidance
Must make an individualized assessment
Consider many factors:
– Nature and gravity of offense
– Time passed since conviction/sentence
completion
– Age at time of offense; age now
– Rehabilitation efforts
– Facts surrounding the offense
– Number of convictions and offenses
www.laborlawyers.com
10. New Guidance
– Has person performed same type of work, postconviction, with no criminal conduct
– Employment history before and after the offense
– Additional training/education
– Character references
– Relevance of conviction to job duties
Need background check policy and procedure
that allows individualized assessment
www.laborlawyers.com
12. Meet The New NLRB
Adjudicative decisions, guidance memos and
rule-making drive the NLRB’s agenda
Facilitating organizing and expedite elections
Reversing decades of precedent
Increased focus on non-union employers
Reinventing itself on heels of union decline
www.laborlawyers.com
14. Practical Impact
Easier for unions to obtain certification
Less time to identify issues/train supervisors
Employees basing futures on one side of
story
Room for peer pressure/intimidation
Process to allow unions to “cherry pick” units
All of this will fuel organizing activity
www.laborlawyers.com
15. Focus on Non-Union Workplaces
Confidentiality
– wages/discipline/investigations
Class Action Waivers
Dress Codes
Access Rules
Social Media Restrictions
At-will Disclaimers
www.laborlawyers.com
16. Policy Language to Avoid
Restricting wage/discipline discussions
Outright prohibition on use of company
name/logo
Mandatory advance “approval” language
Prohibiting general discussions with media
Using generic terms like “unprofessional,”
“inappropriate,” or “harassing” behavior
Requiring concerns to first be raised with
management
www.laborlawyers.com
17. What Can Employers Do
Focus on prevention of
issues
Pay your employees
correctly
Conduct annual
supervisory training
Be wary of all agency
investigator inquiries
Document policies and
discipline
Stay alert to new legal
developments
Monitor “hot spots” for
enforcement activity
Update your employee
handbook
Make a “Top Ten” list
of proactive actions
www.laborlawyers.com
18. Final Questions
Presented by:
Matthew Korn
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
www.laborlawyers.com
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