What’s trending in the world of human resources compliance? Get the inside scoop on the hottest topics in labor and employment law from a board-certified expert in this fast-paced webinar program.

1. What’s Going on in Labor and
Employment Law: 2016 and Beyond
Alexis C. Knapp
SHRM-SCP, MS-HRM, JD
Shareholder, Littler

2. Plans for Today
• Involvement of the federal government
• What the EEOC is up to
• Weapons in the workplace
• Wage and hour developments
• Medical issues in the workplace
• Welcoming the NLRB into your non-union
workplace (and related social media issues)
• Where to go from here

3. Federal Government Involvement
• At all time high
• Politics matter – it’s an election year
• President Obama’s numerous executive
orders (minimum wage, retaliation,
immigration, LGBT, paid sick leave)
• Efforts in Congress to pass additional
employment legislation (e.g., ENDA)
• The federal agencies have bigger budgets
and more investigators than ever before, and
their tactics are more aggressive

4. Of Course, There’s an App for That
Occupational Health and Safety Administration Department of Labor

5. EEOC Update
Equal Employment Opportunity Commission

6. 2015 in Review & What to Watch for in 2016
• Continued focus on systemic investigation and
related litigation
• Continued scrutiny of hiring policies and
practices
• Ongoing scrutiny of ADA claims (37% of lawsuits
filed by the EEOC involved ADA issues)
• Expansion of pregnancy discrimination claims
• Protection against discrimination based on
sexual orientation and gender identity despite
absence of express provisions under Title VII
• Attacking severance/release agreements
• Criminal background check issues (and don’t
forget FCRA!)

7. Increasing Focus: Pregnancy in the Workplace
• FMLA, ADA, PDA
• EEOC’s new enforcement guidance
06/25/2016
• The Supreme Court’s view
• Involvement of the states
• What it all means

8. More Details from EEOC’s New
Enforcement Guidance
• No assumptions about pregnant workers’
ability or inability to do the job
• Don’t forget pregnancy-based harassment
(“You’re HUGE!!”)
• Lactation accommodation reminders
• Equal parental leave to men and women
• Discrimination based on caregiving
responsibilities may violate Title VII if based
on sex

9. Weapons in the Workplace
• Open Carry in Texas 01/01/2016
• What it changed
• What it did not change
• Employees versus outsiders
• The “Parking Lot” rule
• Much ado about posters
• Texas Penal code 30.06 (concealed) and
30.07 (open)

10. Developments in Wage and Hour Law

11. Shaping Wage and Hour Law
• A Directive from the White House
• “Americans have spent too long working more
and getting less in return...”
• Ordered the DOL to revise the FLSA regulations to
make millions more workers eligible for overtime
(i.e., nonexempt)
Huffington Post

12. The DOL Listened
• White Collar Regulations proposed
• Issued June 30, 2015
• Comment period ended September 4, 2015
• 194,735 comments received
• Expected to be finalized this summer and take effect before
the election
• Minimum Salary Test Change
• Was $455 per week (23,660 annualized) for 2016
• Proposed $970 per week ($50,440 annualized) for
2016
• Estimated to convert 4.6 million workers from
exempt to nonexempt

13. With Automatic, Annual Increases
• The DOL proposed to establish a mechanism
for automatically increasing the salary levels
annually

14. So What Should You Do?
• Pull compensation data
• For all exempts with an annual salary below $50,440
• Your pull should also include data on bonuses and
commissions
• Calculate the cost of increasing salary to
$50,440
• Consider lowering incentive pay to offset salary
increase
• Calculate the cost of reclassification
• How many hours are exempt employees working?
• What is the “cost neutral” hourly rate?

15. New Joint Employer Guidance
• DOL’s Administration Interpretation 2015 - 1 (January 20, 2016)
• Available at: http://www.dol.gov/whd/flsa/Joint
_Employment_AI.htm
• Expansive definition of joint employment (and therefore shared
liabilities)
• Old test: Actual control of wages, hours, working conditions
and terms of employment was required
• New test: Potential or reserved control is enough for a joint
employer finding
• Consider related business entities and intermediate entities
• DOL did not follow administrative procedures – subject to attack?
• Attack on the franchise industry

16. More Wage and Hour Updates
• Areas of Continued Enforcement and Litigation
• Misuse of the independent contractor classification
• Overuse of the administrative exemption
• Not appropriately counting “work time” (work-related
activities)
• Failure to include bonuses in the regular rate for overtime
purposes
• “Creative” pay models
• Reminders
• Time worked is sacred – PAY IT (federal and state law
issue)
• 25+ states require more than the FLSA
• Do not rely competitors’ practices

17. Medical Issues in the Workplace

18. The DOL Issues New FLMA Forms
• May 2015 (with little pomp and
circumstance)
• Available at http://www.dol.gov/whd/fmla/
• GINA – finally (we think?)

19. Who is a “Spouse” Under FMLA?
• FMLA: leave to care for a spouse with a serious
health condition
• The original rule: place of residence
• The modified rule: place of celebration
• What the United States Supreme Court held in
2015
• States must now license
• States must now recognize
• Result for FMLA?
• Why can’t we just call it all FMLA?

20. A Quick ADA Recap
• The ADA prohibits discrimination because of a
disability (applicants and employees)
• Disability: a physical or mental impairment that
substantially limits a major life activity (lower
threshold than before)
• Employers must reasonably accommodate
qualified individuals with disabilities unless it
poses an undue hardship
• Requires an interactive process with the
employee and possibly his/her healthcare
provider (highly individualized – no blanket
rules)

21. Leave as an Accommodation
• Is this on your radar?
• Leave from work – block, intermittent,
reduced schedule – may be a reasonable
accommodation under the ADA, whether or
not an employee is eligible for FMLA and
regardless of what your policies say or what
your practices are

22. Leave as an Accommodation
• Leave under the ADA when FMLA does not
apply
• What we have learned: there is no set period
of time that will always be “enough”
• Document your communication efforts
• Don’t be afraid to ask (properly)
• The standard for undue hardship
• What are your replacement plans?
• The EEOC is being aggressive on this issue

23. Attendance-Based Discipline and
Terminations
• 2011: A record-breaking $20M EEOC settlement
involving a major cellular provider for rigid
application of an attendance points policy
(largest ADA settlement in EEOC history)
• Started a trend of EEOC enforcement in this arena
that continues today
• In November 2015, a major food service company
settled with the EEOC for $1.7M for the same issue
• Dozens of class action lawsuits against employers for
rigid application of neutral absence control policies
• What this means for employers

24. Confidentiality Issues
• The FMLA, ADA, and GINA all require that
employee medical information be kept
confidential
• Under lock and key – whether virtual or physical
• Separate files
• Share on a need-to-know basis only
• But what medical information are we entitled
to?
• FMLA: what is on the DOL forms
• ADA: job-related and consistent with business
necessity (i.e., individualized analysis)

25. Caution: You May Be Asking Too Much
• The EEOC’s position: a glance into the Agency’s
perspective
• Informal Discussion Letter evaluating a sample ADA
policy/forms (February 2014)
• http://www.eeoc.gov/eeoc/foia/letters/2014/ada_re
asonable_accommodation_02_25.html
• Increasing enforcement regarding overbroad
requests for medical information
• The courts are agreeing
• Punitive damages?
• Don’t blame your third-party administrator

26. The FMLA and ADA: More Enforcement
and Litigation Trends
• “Full release” requirements
• “We never allow ______” policies (light duty,
telecommuting, modified schedules, and
more)
• Lessons from recent cases
• For employers, the technicalities matter
• For employees, they matter far less
• Inflexible policies are fatal for employers
• Engaging in the process is much of the battle –
even if the answer is “no”

27. What About Mandatory Paid Sick Leave?
• Be aware of every jurisdiction in which you
have employees
• There is no such thing as a “one-size-fits-all”
policy
• But do not throw in the towel just yet – you
may offer a sufficient benefit (if your policy
explains it correctly)
• Federal changes coming?

28. UNION LAW IN THE UNION AND EVEN NON-UNION WORKPLACE
The National Labor Relations Board (NLRB)
WikiMedia

29. My Business is Non-Union
• So, why should I care about the NLRB?
National Labor Relations Board

30. Paying Attention to Signs of an Election
• New rules took effect April 14, 2015
• Traditional labor attorneys saying this is the
most significant development in decades
• Higher risk: non-union workplaces
• Dramatically speeds up the time for an election
to take place (within a couple of weeks!)
• Speeds up your required response time
• Requires that you provide the Union with more
detailed contact information on your employees
• Congress working to block, but for now these
rules are in effect

31. The National Labor Relations Act (1935)
• What was going on in U.S. history
• The Great Depression
• Industrial Revolution
• Strikes and labor unrest (often resulting in violence)
• Substandard working conditions
• The basic premise of the NLRA was to permit
employees to organize and try to secure better
working conditions for themselves
• Established the framework for unionization,
bargaining and the concept of “unfair labor practices”
by both unions and management alike
• Note: the NLRA deems that there are two types of
people in the world – “employees” and ”supervisors”

32. The NLRB Finds New Relevance
• Policing the modern-day water cooler
• The rate of unionization has been declining in
the U.S. for decades
• The NLRB has an old hook: even non-union
employees are protected under the National
Labor Relations Act (NLRA) from discipline when
they are engaging in “protected, concerted
activity”
• Net result: employees have union-esque rights,
sometimes even when they behave badly

33. Section 7 of the NLRA
• “Employees shall have the right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and
to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, and shall also have
the right to refrain from any or all of such
activities...”

34. What is “Protected Activity” Under the NLRA?
• Employees have a statutory right to:
• Discuss wage rates, bonuses and benefits with one
another
• Openly discuss thoughts on discipline
• Complain about unsafe working conditions/refuse to work
in unsafe conditions
• Complain about mismanagement by a supervisor or
manager
• Complain about a policy or practice or decision they do
not like
• Criticize management’s actions
• Enlist outside support
• What does this do to good, old-fashioned
insubordination?

35. Employer Handbooks/Policies Under Attack
for “Chilling” Section 7 Activity
• Social media
• Confidentiality (including pay secrecy)
• Employee (mis)conduct
• Contact with outsiders
• At-will employment disclaimers that cannot be
modified
• Complaint/dispute resolution policies
• Photos/recordings
• Loitering/visitors/solicitation/bulletin boards
• Confidentiality of investigations?
• Purple Communications: whose e-mail system is it
anyway?

36. So What Should You Look For?
• Do your policies (or practices) restrict
employees’ ability to discuss or complain
about working conditions, wages, benefits,
favoritism or management actions, or
prevent enlistment of outside help?

37. Generations Collide
• Social media meets the NLRA
Free Social Icons

38. Mouthing Off on Facebook?
• Triple Play Sports Bar, 34-CA-12915 (Jan. 3, 2012)
• Facts
• Employee becomes frustrated with her manager’s method of
withholding taxes from her paycheck
• She logs onto Facebook and posts “my manager is an a**hole”
• Another employee ”liked the post”
• They are both terminated for “performance reasons”
• NLRB judge orders reinstatement of the employees, because
they were engaged in protected, concerted activity discussing
issues related to work
• The co-worker’s “like” of the Facebook status constituted
“participation in the discussion that was sufficiently meaningful
as to rise to the level of concerted activity” under the NLRA
(?!)
• On August 22, 2014, the NLRB adopted the agency judge’s
finding and said Facebook “likes” can be protected, concerted
activity

39. Nothing is Sacred
• The NLRB has found protected, concerted
activity in cases where employees
• Used ”swearing and/or sarcasm”
• Used a “short-hand expletive”
• Called managers “scumbags” “a******”
• Called boss ”nasty mother ******” saying “****
his mother” and “vote yes for the union!” (yes,
really)
• Take away: we are in a parallel universe

40. Key Questions for 2016
• Will the NLRB’s approach hold up?
• What will an election bring?
• Meanwhile, before taking disciplinary action
ask:
• Does the employee conduct involve or concern
wages, hours or other terms and conditions?
• Is co-worker action or support solicited or
elicited, beyond mere emotional help?

41. Miscellaneous Reminders
• Privilege issues: emails are forever
• “Confidential”: what it is, and what it is not
• Frivolous charges and lawsuits must still be
answered

42. Where to Go From Here
• It is time to really look at your handbooks,
forms and policies
• Figure out how you’ll handle the new salary
threshold under the FLSA
• Pause before discipline or terminations based
on attendance or conduct (including social
media activity)
• Train and sensitize managers to all the issues
discussed today
• Stay plugged in and utilize your resources: G&A,
your employment counsel, HR associations and
more

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QUESTIONS?
G&A Partners
info@gnapartners.com
(800) 253-8562
*This webinar has been recorded and will be posted on the G&A website by Friday.
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44. Get in Touch
• Alexis C. Knapp
• aknapp@littler.com
• (713) 652-4706