An overview of new developments in employment law. It's important that employers stay up to date on employment law changes. This presentation will break down several important new laws and legal decisions.

1. Employment
Law
2014
The
Fast
and
the
Furious

2. Were
you
paying
a-en.on?
• If
you
blinked
for
very
long
in
2013-­‐2014
you
missed
out
on
a
lot
of
new
employment
law
developments.
•
I
am
going
to
give
you
a
quiz
to
see
how
well
you
were
paying
a-en.on
to
what
was
going
on
in
the
world
of
employment
law
in
the
last
year!!

3. I.
Minimum
Wage
Issues
• New
Minimum
Wage
Laws
in
Many
States
and
Ci.es
• Status
of
A-empts
to
Raise
Federal
Minimum
Wage

4. The
World
of
Wage
and
Hour
Law
•
What
is
the
new
highest
minimum
wage
in
the
country?
*
Sea-le
*
New
York
*
California
*
Colorado

5. New
Minimum
Wages
Set
in
Many
Loca.ons
• The
Sea-le
minimum
wage
is
ini.ally
$11.00
per
hour,
effec.ve
April
1,
2015,
followed
by
incremental
increases
according
to
the
.melines
from
either
2-­‐1/2
years
to
4-­‐1/2
years
depending
on
the
size
of
the
employer
to
reach
$15.00
per
hour.
Those
that
can
claim
a
sufficient
credit
for
.ps
and/or
qualifying
employer-­‐paid
medical
benefits
have
an
addi.onal
two
years,
and
also
benefit
from
a
lower
ini.al
effec.ve
minimum
wage
rate
of
$10.00
per
hour.
• Washington
$9.32
• Oregon
$9.10
• California
$9.00
• Vermont
$8.73
• Connec.cut
$8.70
• New
Jersey,
Illinois,
District
of
Columbia
$8.25
• Rhode
Island
,
New
York,
Colorado
$8.00
• 26
states
are
above
$7.25/hr.
now—including
Michigan,
Minnesota,
Delaware,
West
Virginia,
Hawaii,
Maryland

6. ATTEMPT
TO
RAISE
FEDERAL
MINIMUM
WAGE—
FAIR
MINIMUM
WAGE
ACT
OF
2013
(Bill
was
introduced
in
2013
by
Senator
Tom
Harkin
(D-­‐IA))
WHAT
WOULD
THIS
BILL
DO?
• Bill
would
raise
the
federal
minimum
wage
to
$10.10
per
hour
over
2-­‐1/2
years
in
three
steps
of
95
cents
each.
• Would
adjust
the
minimum
wage
annually
therealer
to
keep
pace
with
rising
cost
of
living-­‐-­‐-­‐indexing”.
• Would
also
raise
minimum
wage
for
.pped
workers
to
70%
of
full
minimum
wage
instead
of
$2.13/hour.

7. WHY
RAISE
THE
MINIMUM
WAGE?
Arguments
in
support:
•
Current
minimum
wage
of
$7.25/hr.
yields
just
$15,080/yr.
for
full-­‐.me
worker—near
poverty
level.
•
Federal
minimum
wage
has
lost
more
than
30%
of
its
value
&
would
be
more
than
$10.70
per
hour
if
it
had
kept
pace
with
cost
of
living
over
past
40
years;
$10.86
would
be
current
wage
if
it
kept
up
with
pace
of
COL.

8. WHY
RAISE
THE
MINIMUM
WAGE?
(Page
Two)
• Of
Those
Earning
Minimum
Wage:
88%
are
adults
over
the
age
of
twenty,
55%
are
women,
and
nearly
50%
are
workers
of
color.
• More
that
14
million
children
have
a
parent
who
would
get
a
raise.
• More
that
27.8
million
workers
would
receive
a
raise
if
minimum
wage
raised
to
$10.10/hr.
• 71%
of
.pped
workers
gesng
raises
would
be
women.

9. WHAT
IS
STATUS
OF
FEDERAL
MINIMUM
WAGE
RAISE?
CONGRESS
IS
NOT
BUYING
THE
ARGUMENTS
FOR
RAISING
MINIMUM
WAGE
• The
Fair
Minimum
Wage
Act
of
2013
has
been
rejected
by
Congress
to
date
• Businesses
have
fiercely
opposed
hike—especially
those
in
the
fast
food
and
restaurant
industries
who
say
the
raise
would
require
them
to
sharply
increase
prices
and
would
result
in
laying
off
employees.

10. WHO
OPPOSES
FEDERAL
MINIMUM
WAGE
RAISE
BILL?
– The
Na.onal
Retail
Federa.on
spent
$1
million
in
1st
3
mos.
of
2014
lobbying
Congress
in
opposi.on
to
raise
of
minimum
wage
– The
Na.onal
Federa.on
of
Independent
Business
sent
senators
le-er
asking
them
to
vote
against
bill
as
“job
killing”

11. WHAT
IS
PUBLIC
OPINION
ON
RAISING
MINIMUM
WAGE?
Surprisingly,
very
recent
CNN
Money’s
American
Dream
Poll
found
that
71%
of
people
surveyed
favor
a
hike
in
federal
minimum
wage.
• 90%
were
iden.fied
as
Democrats
BUT
• 54%
OF
Republicans
also
agreed
that
minimum
wage
should
be
raised—how
much
is
the
issue
To
What
Rate
do
Most
Think
Minimum
Wage
Should
be
Raised?
•
36%
to
$10.10
•
19%
something
lower
that
$10.10
•
16%
to
higher
that
$10.10

12. SO
IS
HIGHER
FEDERAL
MINIMUM
WAGE
DEAD?
• Not
if
you
are
a
federal
contractor
or
subcontractor—
Obama
adopted
Execu.ve
Order
for
wage
to
go
to
$10.10/hr.
effec.ve
Jan.
1,
2015
for
employees
of
federal
contractors,
with
annual
COL
adjustments
aler
2015
• DOL
just
published
rule
implemen.ng
this
Execu.ve
Order

13. WHO
DOES
THIS
EXECUTIVE
ORDER
APPLY
TO?
• “Federal
contractors
and
subcontractors”
• The
obliga.on
to
pay
the
new
minimum
wage
will
be
imposed
by
requiring
all
federal
contracts
to
contain
a
clause
that
requires
a
cer.fica.on
as
a
condi.on
of
payment
that
workers
have
been
paid
the
new
minimum
wage.

14. EXECUTIVE
ORDER
WILL
APPLY
TO
THE
FOLLOWING
TYPE
OF
FEDERAL
SERVICE
CONTRACTS:
• Procurement
contracts
for
services
and
construc.on
• Contracts
or
contract-­‐like
instruments
for
concessions
to
furnish
food,
lodging,
souvenirs,
etc.,
on
federal
property;
and
• Contracts
to
provide
services,
such
as
child
care
or
dry
cleaning,
in
federal
buildings
for
federal
employees
or
the
general
public

15. II.
Con.nued
Prevalence
of
FLSA
Lawsuits
and
Enforcement
Ac.ons
• Sta.s.cs
on
cases
filed
• Prime
issues
in
Recent
Cases
and
Trouble
Areas
for
Employers

16. STATISTICS
ON
CASES
FILED
HOW
MANY
CASES
WERE
FILED
IN
LAST
YEAR?
FEDERAL
JUDICIAL
CENTER
(WHICH
MAINTAINS
STATISTICS
ON
FILING
OF
FEDERAL
LAWSUITS)
RELEASED
FIGURES
ON
FLSA
LAWSUITS
FILED
IN
2013
shows:
•
Total
of
7,700
FLSA
lawsuits
filed
in
2013-­‐-­‐Up
10%
na.onwide
from
2012;
8,216
filed
from
March
2013—March
2014
•
This
is
4X
number
of
FLSA
lawsuits
filed
in
2000
•
Almost
1/3
were
filed
in
the
Eleventh
Circuit
(Florida,
Georgia
and
Alabama)
•
And
this
is
only
federal
lawsuits—no
#’s
are
available
on
suits
filed
under
state
laws
such
as
California’s
private
a-orney
general
ac.ons
(of
which
there
are
many)
•
Many
employment
a-orneys
think
we
are
s.ll
seeing
only
the
.p
of
the
iceberg!!

17. WHAT
ARE
THE
BIG
$
CASE
WINNERS
FOR
THE
LAST
YEAR?
• Walgreen’s
Collec.ve
ac.on
for
California-­‐-­‐$29
million
(including
$6
million
a-orney’s
fees,
costs)—For
not
paying
for
.me
in
mandatory
security
checks
and
not
paying
for
breaks
which
were
not
free
from
work
properly,
among
other
things
• Tyson
Foods—Almost
$19
million—”Donning
&
doffing
.me”
not
paid

18. WHAT
ARE
THE
TOTAL
$
BEING
PAID
OUT
ON
FLSA
CLAIMS?
Seyfarth
Shaw’s
Annual
Workplace
Class
Ac.on
Li.ga.on
Report
examined
51
cases
se-led
in
the
first
three
quarters
of
2013-­‐-­‐
for
total
of
approximately
$215
million
(and
497
cases
that
se-led
for
$2.95
billion
total
since
January
2007)
•
On
average,
employers
paid
$4.5
million
to
resolve
a
case
in
2013;
slightly
below
the
2012
average
and
well
below
the
average
for
2007
–
2012
($7.5
million)

19. HOW
MUCH
IS
AVERAGE
RECOVERY
PER
EMPLOYEE?
HOW
LARGE
ARE
CLASSES?
• Despite
lower
overall
average
se-lements,
the
per-­‐claimant
average
se-lement
value
was
up
to
about
$7,000
in
2013
(compared
to
$5,800
for
2007-­‐2012).
• The
propor.on
of
cases
involving
large
classes
declined
for
2013
–
a
trend
that
has
held
steady
each
year
since
2007;
in
2013
more
that
half
of
the
cases
had
fewer
than
1,000
plain.ffs.

20. WHERE
ARE
THE
MOST
SUITS
FILED
AND
ON
WHAT
GROUNDS?
• California
is
s.ll
fer.le
ground
for
wage
and
hour
li.ga.on
(accoun.ng
for
48.5%
of
se-lement
dollars;
up
from
38.4%
in
2012).
New
York
is
the
next
contender,
even
with
a
sharp
decline
(17.2%
in
2013,
versus
40.6%
in
2012).
• Unpaid
over.me
remains
the
most
common
allega.on
(45%
of
cases).

21. WHICH
INDUSTRIES
DREW
MOST
FLSA
CLAIMS?
• The
financial
services
and
retail
industries
remain
at
the
top
(accoun.ng
for
19%
and
29%
of
cases,
respec.vely).
• The
propor.on
of
healthcare
and
healthcare
services
defendants
is
on
the
rise
with
12%
of
the
se-led
cases
in
2013
versus
only
6%
in
2012.
• Restaurants
are
being
looked
at
closely
for
minimum
wage/
.pping
issues.

22. Breaking
News—Big
Texan
Restaurant
DOL
Inves.ga.on
Shows
Focus
on
Restaurant
Tipping
&
Minimum
Wage
Issues
• Big
Texan
agreed
to
pay
$650,000
in
back
minimum
wages
and
$150,000
liquidated
damages
for
illegal
.p
pooling
arrangements
• Restaurant
withheld
from
.ps
for
business
costs
such
as
menus,
glassware,
trays,
and
contest
prizes,
and
uniform
and
disciplinary
deduc.ons
brought
total
pay
below
minimum
wage
• Tips
plus
$2.13
.p
credit
must
equal
minimum
wage
of
$7.25/hr.
for
.me
worked
or
employer
has
to
make
up
the
difference
• Recordkeeping
issues
too

23. WHAT
ARE
THE
PRIME
ISSUES
IN
FLSA
SUITS
AND
TROUBLE
AREAS
FOR
EMPLOYERS?
• Not
paying
for
.me
employees
spent
checking
into
work,
changing
clothes,
or
on
breaks
during
which
they
are
s.ll
doing
work
• 24/7
nature
of
work
where
employees
respond
to
e-­‐mails,
texts,
social
media,
etc.—”Off
the
clock”
work
• Misclassifica.on
as
exempt—s.ll!!
(employers
need
to
be
con.nuously
audi.ng
exemp.ons)
• Healthcare
ins.tu.ons
not
including
shil
incen.ve
pay
in
over.me
rate
($4
million
DOL
se-lement
with
Harris
Health
System
in
Houston)

24. Efforts
in
Congress
to
Revise
FLSA
Regula.ons
on
Exemp.ons

25. WHAT
IS
GOING
ON
HERE?
• First
Proposed
Revision-­‐-­‐Salary
Basis
Test
One
issue
raised
is
that
the
$455/wk.
salary
is
too
low
to
jus.fy
exemp.ng
many
workers
from
receiving
over.me
for
many
so-­‐called
“white
collar”
workers.
This
wage
amounts
to
$23,600.00
per
year.
This
baseline
figure
has
not
been
updated
since
2004.
President
Obama
issued
a
direc.ve
to
the
Secretary
of
Labor
to
modernize
and
simplify
over.me
regula.ons.
This
legisla.on
goes
hand-­‐in-­‐hand
with
the
Obama
administra.on’s
efforts
to
raise
the
basic
pay
for
many
Americans
by
raising
the
minimum
wage.
DOL
says
it
hopes
to
have
new
proposed
rules
by
November,
2014.

26. WHAT
ARE
NEW
SALARY
BASIS
TEST
LEVELS
BEING
PROPOSED?
Numerous
state’s
wage
and
hour
laws
already
have
in
place
a
higher
minimum
salary
requirement.
• For
example,
California’s
minimum
salary
requirement
is
currently
$640/wk.
and
will
increase
to
$800/wk.
in
2016.
New
York’s
minimum
salary
requirement
is
currently
$600/wk.
and
will
increase
to
$675/wk.
in
2016.
• DOL
would
likely
use
these
states’
minimum
salary
requirements
as
a
star.ng
point
in
any
revisions
it
makes
to
the
current
salary
basis
requirement.

27. WHAT
IS
THE
JUSTIFICATION
FOR
REVISED
SALARY
BASIS
TEST?
President
Obama
stated
his
administra.on’s
view
that
the
exemp.ons’
$455/wk.
salary
threshold
means
that
“millions
of
Americans
aren’t
gesng
the
extra
pay
they
deserve“
because
“an
excep.on
that
was
originally
meant
for
high-­‐paid,
white-­‐collar
employees
now
covers
workers
earning
as
li-le
as
$23,660
a
year.”

28. WHAT
IS
THE
AIM
OF
DOL
IN
NEW
SALARY
BASIS?
• DOL’s
aim
is
that
the
salary
be
sufficiently
large
to
ensure
that
the
employee’s
salary
provides
at
least
minimum
wage
(or
some
other
minimum
regular
rate
of
pay)
for
all
hours
worked
in
a
workweek.
• President
Obama
remarked
that
the
current
salary
basis
rule
“actually
makes
it
possible
for
salaried
workers
to
be
paid
less
than
the
minimum
wage”
because
“if
you’re
working
50
or
60
or
70
hours
–
your
employer
doesn’t
have
to
pay
you
a
single
extra
dime.”

29. WHAT
OTHER
REVISIONS
TO
THE
EXEMPTIONS
ARE
BEING
PROPOSED?
• Another
an.cipated
change
is
likely
to
include
more
of
a
bright-­‐line
test
for
the
du.es
por.on
of
the
white
collar
exemp.ons,
especially
the
execu.ve
exemp.on
that
applies
to
managers
and
supervisors.
The
current
“primary
duty”
test
may
be
re-­‐defined.
• The
Secretary
of
Labor
has
said
that
under
the
current
primary
duty
test,
“somebody
can
work
1
percent
of
their
.me
on
management
issues,
99
percent
stacking
the
shelves
and
doing
other
work
that
has
nothing
to
do
with
management,
and
you’re
considered
a
manager,
and
you
are
no
longer
en.tled
to
over.me.”

30. IS
GOING
BACK
TO
OLD
%
OF
TIME
STANDARDS
FOR
PRIMARY
DUTY
THE
SOLUTION?
• DOL
likely
will
a-empt
to
make
the
“primary
duty”
test
for
each
of
the
exemp.ons
more
black
and
white
and
will
likely
require
that
employees
spend
certain
percentages
of
their
weekly
.me
engaged
in
certain
exempt
du.es
in
order
to
be
exempt.
• This
is
the
%
of
.me
spent
in
ac.vi.es
approach
the
DOL
took
prior
to
the
2004
revisions!

31. WHAT
IS
THE
LIKELY
IMPACT
OF
THESE
CHANGES?
• All
of
these
an.cipated
changes
are
likely
to
have
a
significant
impact
on
employers
across
all
industries,
par.cularly
those
employers
with
a
lot
of
front-­‐line
managers
and
assistant
managers
classified
as
exempt
and
those
employers
that
use
the
professional
and
administra.ve
exemp.on
for
many
of
their
entry-­‐level
posi.ons.
• The
an.cipated
increase
in
the
minimum
salary
requirement
for
exemp.on
could
mean
that
employees
making
as
much
as
$40,000
to
$45,000
may
fall
below
the
new
minimum
salary
requirement.

32. III.
Con.nued
Intrusion
by
NLRB
into
Non-­‐
Unionized
Employer’s
Workplace
and
Policies

33. NOW
WHAT
IS
THE
NLRB
PURSUING?
The
NLRB
con.nues
to
come
down
on
anything
an
employer
does
that
it
construes
as
interfering
with
exercise
of
Sec.on
7
of
the
NLRA’s
“Protected
Ac.vi.es”.
No
end
is
in
sight.
Test
Ques.on
One:
•
Can
employer
fire
employee
for
outburst
in
which
employee
used
profanity
and
personally
a-acked
the
owner
of
the
business?
(I’ll
read
you
the
specifics—too
graphic
to
print,
but
you
need
to
hear
them
to
get
the
full
flavor.)
(Hint—the
outburst
was
preceded
by
employee’s
complaint
about
pay
prac.ces,
aler
which
he
was
called
into
mee.ng
with
owner.)

34. ANSWER:
BIZARRE
RULING
• The
NLRB
sued
the
employer
saying
it
violated
the
NLRA.
The
test
for
such
conduct
is
whether
it
was
so
“egregious”
to
lose
protec.on
under
Sec.
7.
• The
NLRB
in
Plaza
Auto
Center,
Inc.,
recently
held
employer
violated
the
NLRA
by
firing
the
employee.
It
found
the
outburst
was
protected
because,
in
part,
the
subject
ma-er
concerned
the
employee’s
protected
conduct;
and
the
employee’s
conduct
was
provoked
by
the
employer’s
unfair
labor
prac.ce
of
invi.ng
the
employee
to
quit
if
he
did
not
like
the
employer’s
policies.

35. Test
Ques.on
No.
2:
Can
having
an
at-­‐will
employment
policy
violate
the
NLRA?
This
is
the
language:
(1)
“
I
acknowledge
that
no
oral
or
wri8en
statements
or
representa<ons
regarding
my
employment
can
alter
my
at-­‐will
employment
status,
except
for
a
wri8en
statement
signed
by
me
and
either
Hya8’s
Execu<ve
VP/Chief
Opera<on
Officer
or
Hya8’s
President.”
(2)
“The
at-­‐will
employment
rela<onship
cannot
be
changed
without
the
signature
of
both
the
employee
and
either
the
execu<ve
VP/president
or
chief
opera<ng
officer
of
the
Red
Cross.”
• Answer:
• The
NLRB
said
language
in
the
at-­‐will
policy
of
two
different
employers
violated
Sec.on
7
because
it
“could
dampen
converted
ac.vi.es
if
employees
believe
that
union
representa.on
could
not
alter
their
at-­‐will
status.”

36. BUT,
WHAT
ABOUT
THIS
LANGUAGE?
•
“No
representa<ve
of
the
company
has
authority
to
enter
into
any
agreement
contrary
to
the
foregoing
‘employment
at
will’
rela<onship”.
This
“At
Will”
Policy
Was
Approved
By
the
NLRB

37. IV.
EEOC’S
Most
Recent
Areas
of
Focus
and
Hot
Topics
• What
is
the
EEOC
Looking
at
Now?

38. Test
Ques.on
One:
Is
Allowing
Employee
to
Telecommute
a
Reasonable
Accommoda.on
Under
the
ADA?
The
facts:
The
employee,
Jane
Harris,
began
missing
work
frequently
because
of
irritable
bowel
syndrome.
This,
in
turn,
affected
her
job
performance.
Ford
Motor
Co.,
her
employer,
said
this
was
not
reasonable
because
her
job
required
group
mee.ngs
and
problem-­‐solving,
at
which
she
needed
to
be
physically
present
for
face-­‐to-­‐face
mee.ngs.
Ford
offered
to
move
her
cubicle
closer
to
the
bathroom
or
to
let
her
apply
for
another
job
that
might
be
suitable
for
telecommu.ng.
Harris
rejected
these
offered
accommoda.ons.
Ford
fired
her.
Did
Ford
need
to
allow
her
to
telecommute?

39. Answer
to
Ques.on
No.
One
• Recent
case
seems
to
say
“Yes”
under
the
facts
in
that
case.
• The
6th
Circuit
sided
with
Harris
that
Ford
Motor
Co.
should
have
been
required
to
seriously
consider
whether
her
physical
presence
was
essen.al
to
the
job
and
that
telecommu.ng
may
have
been
a
reasonable
accommoda.on
given
today’s
technology.
• Bo-om
line—Physical
presence
at
job
loca.on
may
not
be
a
necessary
job
requirement.

40. So,
How
Do
You
Decide
If
Telecommu.ng
a
Reasonable
Accommoda.on?
●
Conduct
a
serious,
non-­‐biased
analysis
of
whether
the
employee’s
actual
physical
presence
truly
is
an
essen.al
requirement
of
the
job.
If
the
employee
can
perform
the
essen.al
func.ons
of
the
job
from
somewhere
else,
refusal
of
telecommu.ng
will
probably
be
improper.
•
With
Skype
or
Face-­‐.me,
and
all
the
other
technology
available
today,
actual
physical
presence
at
the
job
loca.on
may
be
less
and
less
important,
even
in
work
“groups”
where
face-­‐to-­‐
face
exchange
is
a
job
component.
Telecommu.ng
may
have
to
be
considered
as
a
means
of
accommoda.ng
many
disabled
employees.

41. Test
Ques.on
Two:
Is
A
Six-­‐month
Addi.onal
Leave
Of
Absence
A
Reasonable
Accommoda.on?
The
Facts:
During
her
employment,
the
plain.ff
was
a
well-­‐
regarded
professor.
When
she
fell
ill
prior
to
beginning
the
school’s
fall
term,
she
sought
and
received
a
six-­‐month
paid
leave
of
absence.
At
the
end
of
that
period,
her
doctor
advised
her
to
seek
more
.me
off.
The
school
denied
her
second
request
and
terminated
her
employment,
based
on
a
policy
allowing
no
more
than
six
months’
sick
leave
under
any
circumstances.
The
plain.ff
then
filed
suit
contending
that
this
effec.vely
terminated
her
employment
in
viola.on
of
the
Rehabilita.on
Act.
The
district
court
dismissed
her
complaint,
and
the
plain.ff
appealed.
Was
employer
required
to
grant
addi.onal
six-­‐month
leave?

42. Answer
to
Ques.on
Two:
No
Tenth
Circuit
in
Hwang
v.
Kansas
State
Univ.,
No.
12-­‐3070,
2014
WL
2212071,*1
(10th
Cir.
May
29,
2014)
• This
court
reasoned
that
in
nearly
all
cases,
an
employee
who
cannot
return
to
work
within
six
months
(and
poten.ally
sooner)
is
not
capable
of
performing
the
essen.al
func.ons
with
a
reasonable
accommoda.on
and,
therefore,
cannot
sustain
a
claim
for
discrimina.on.
• Opinion
includes
strong
pro-­‐employer
language,
“[R]easonable
accommoda.ons…are
all
about
enabling
employees
to
work,
not
to
not
work.”

43. So
When
Must
Employer
Grant
Extended
Leave
As
an
Accommoda.on?
Employers
should
con.nue
to
take
the
following
steps
when
an
employee
seeks
leave
under
a
policy:
• Review
the
essen.al
func.ons
of
the
employee’s
posi.on;
• Assess
whether
a
temporary
leave
of
absence
will
allow
the
employee
to
return
to
work
and
also
to
perform
the
essen.al
func.ons
of
the
posi.on,
with
or
without
a
reasonable
accommoda.on;
• Assess
whether
other
accommoda.ons
might
shorten
the
dura.on
of
the
requested
leave

44.
Extended
Leave?
• Assess
whether
the
proposed
dura.on
of
the
leave
is
reasonable
in
the
light
of
the
employee’s
specific
posi.on
(i.e.,
conduct
an
individualized
assessment
under
the
ADA
as
to
the
reasonableness
of
the
length
of
the
leave);
and
• Document
with
department
management,
the
impact
that
the
employee’s
leave
of
absence
will
have
on
the
department,
if
granted,
(e.g.,
who
will
take
over
certain
essen.al
func.ons,
are
temporary
employees
needed,
etc.)
in
order
to
have
this
informa.on
should
the
employee
request
addi.onal
leave.

45. Test
Ques.on
Three:
Can
Fast
Food
Franchise
Pay
Lower
Wages
To
Female
Workers?
The
facts:
Checkers
fast
food
restaurant
franchise
paid
female
workers
a
lower
hourly
wage
that
male
workers
who
held
the
same
jobs.
In
addi.on,
the
employer
reportedly
gave
women
unfavorable
job
assignments
and
fewer
hours
than
men.
Answer:
A
“No-­‐Brainer”
•
EEOC
gender
discrimina.on
claim
was
se-led
for
$1,000,000
paid
to
current
and
former
female
workers
as
part
of
se-lement,
and
the
franchise
agreed
to
increase
the
wages
of
the
female
employees
and
to
provide
an.discrimina.on
training.

46. Follow
Up
On
Unequal
Wages
for
Employers
• Because
the
NLRB
clearly
prohibits
employers
from
preven.ng
employees
from
discussing
wages,
employees
may
becoming
more
aware
of
gender-­‐
based
pay
inequity.
• Employers
should
review
their
pay
structures
to
assure
there
is
not
gender-­‐based
pay
discrimina.on.

47. Test
Ques.on
Four:
Can
An
Employee
Who
Is
Denied
Lacta.on
Breaks
And
Space
Pursue
Sex
Or
Pregnancy
Discrimina.on
Claims?
The
facts:
Houston
employer
rejected
an
employee’s
request
for
lacta.on
space
and
suggest
the
employee
stay
at
home.
When
the
employee
complied,
the
company
terminated
her
for
job
abandonment.
The
Answer:
• Prior
cases
have
held
that
the
employee
would
have
no
claim
under
Title
VII
because
lacta.on
was
not
a
medical
condi.on
related
to
pregnancy
and
that
pregnancy-­‐related
medical
condi.ons
ended
the
day
the
employee
gave
birth.

48. The
Filh
Circuit
Says
“Lacta.on”
Issues
Clearly
Related
to
Sex
and
Pregnancy
Discrimina.on
• The
Filh
Circuit
Court
of
Appeals
(which
covers
Texas),
in
EEOC
v.
Houston
Funding
II,
Ltd.,
ruled
that
the
employee’s
request
was
clearly
related
to
her
physiological
needs
as
a
lacta.ng
employee,
not
to
a
paren.ng
decision,
and
thus
was
hormonally
related
to
pregnancy
and
child
birth
and
she
was
en.tled
to
Title
VII
protec.on.
• Even
in
states
without
clear
laws
requiring
lacta.on
breaks
and
private
lacta.on
space,
Title
VII
may
require
that
they
be
offered.
The
cost
is
likely
to
be
minimal
in
rela.on
to
poten.al
risk
of
an
adverse
discrimina.on
claim.

49.
V.
Expansion
of
Defini.on
of
“Spouse”
for
Employment
Law
Compliance—What’s
Employer
to
Do?
• The
U.
S.
Supreme
Court
ruled
in
2013
in
United
States
v.
Windsor
that
the
por.on
of
the
Defense
of
Marriage
Act
(DOMA)
which
denied
recogni.on
of
marital
status
to
couples
of
the
same
sex
under
federal
law
was
uncons.tu.onal.
• This
ruling
expands
poten.al
FMLA
coverage
as
a
result
to
same
sex
spouses.
Employers
will
have
to
fine
tune
administra.on
of
FMLA
leave
to
determine
whether
leave
related
to
a
same
sex
spouse
issue
should
be
granted.
The
employer
will
have
to
grant
FMLA
leave
to
an
employee
for
legi.mate,
covered
requests
for
a
same
sex
spouse,
if
the
affected
employee
resides
in
a
state
that
recognizes
same
sex
marriage.
• For
Texas
employers,
it
may
not
be
an
issue
unless
you
have
employees
who
reside
in
a
state
that
allows
same
sex
marriages,
but
an
Execu.ve
Order
may
change
this
too.

50. Supreme
Court
Ruling
Also
Will
Widely
Affect
Tax
Issues
and
Benefits
for
Same-­‐Sex
Spouses
• Aler
this
ruling,
employees
can
claim
a
income
tax
status
as
a
married
couple
and
this
may
affect
how
benefits
such
as
employer
sponsored
health
care
insurance
are
reported
by
employers
and
how
taxes
are
paid
on
them
• Qualified
re.rement
plans
must
treat
same-­‐sex
spouse
as
spouse
for
all
purposes
under
the
plan
if
married
in
a
state
that
authorizes
legal
same-­‐sex
marriage,
even
if
the
marriage
is
not
recognized
in
the
state
where
employee
resides.

51. STAY
ON
YOUR
TOES!!