Labor and Employment Update: Hot Topics Affecting Your Industry Breanna H. Young STARNES DAVIS FLORIE LLP 100 Brookwood Place, Seventh Floor Birmingham, Alabama 35203 byoung@starneslaw.com (205) 868-6020

Intersection of FMLA and ADA EEOC targeting Charges related to the interplay between FMLA and ADA. Must think in terms of both ADA and FMLA. ADA can extend FMLA leave. Indefinite leave is not a reasonable accommodation. Review all medical certifications closely and request release-to-duty documentation. Review FMLA policy language.

Intersection of FMLA and ADA When an employee is qualified for and requests FMLA leave, do you still have to give it if you can offer reasonable accommodation instead? Answer: YES. If employee meets FMLA requirements, employee is entitled to up to 12 weeks, even if you could otherwise accommodate under ADA. You can still offer accommodation as alternative leave (e.g. assistive device, temporary position, or reduced hours). Employee agreement to alternative leave should be “voluntary and uncoerced.”

Intersection of FMLA and ADA FMLA “Serious Health Condition” vs. ADA “Disability” – Are they the same? Answer: NO. An FMLA “serious health condition” is not necessarily an ADA “disability.” EEOC Examples: Routine Pregnancy (not an “impairment” under ADA). Hernia or “routine” broken leg (where not “substantially limiting” under ADA).

Pregnancy Accommodation Must be treated like a disability. Light Duty Policies.

Fair Labor Standards Act Exemptions 2016 Rule increasing salary threshold is dead. DOL is starting over. Salary increase likely Not imminent

Title VII Protections – LGBT Discrimination EEOC Guidance Prohibits discrimination based on gender identity or sexual orientation as type of sex discrimination. Fact Sheets Federal Courts Split Decisions 11th Circuit says sexual orientation not protected Likely heading to Supreme Court

Title VII Protections – Religious Accommodations Religious Garb and Grooming Beards Headscarves Workplace Safety, Security, or Health Concerns Undue Hardship

NLRB and Union Activity Change in Administration Unfair Labor Practices Charges Handbooks Social Media

NLRB and Union Activity RWDSU in Alabama Change in Election Procedures Why do employees want a union? Failure to solve employee problems Poor communication Perceptions of unfair treatment Broken promises Lack of courtesy, respect, and recognition Feelings of job insecurity Not keeping pay and benefits competitive

NLRB and Union Activity Good management practices Make employees feel appreciated Good communication Open Door Policy Be firm, but fair Be prepared for union activity Know early warning signs Know how to communicate position against unions Train supervisors

Conducting Investigations Commit complaints to writing. Report to Human Resources. Decide who will investigate. Review complaint, all applicable documentation, and your relevant policies. Interview witnesses. DO NOT FORGET TO INTERVIEW THE ACCUSED. DOCUMENT! DOCUMENT! DOCUMENT! Report findings in written report. MAKE A CONCLUSION. Take appropriate action in response. No retaliation.

Starnes davis florie llp Questions?? Breanna young Starnes davis florie llp 205-868-6020 byoung@starneslaw.com