In this webinar, presenter Alexis C. Knapp, Attorney at Law, will present timely employment law updates that business owners and HR professionals need to know for 2013 and beyond. After the presentation, Alexis will host a live Q&A session with webinar attendees.
The Coffee Bean & Tea Leaf(CBTL), Business strategy case study
G&A Employment Law Update webinar May 2013
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