kaufCAN.com Keeping Up with the Times: Changes in Employment Practices Every Employer Needs to Know Randy C. Sparks, Jr. Kaufman & Canoles, PC March 25, 2014

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Dangers of Social Media Federal Trade Commission Regulation Loss of Confidential Information/Trade Secrets Unfair Labor Practices “Digital” Discrimination, Harassment, and/or Retaliation Defamation Employee Privacy Issues –Federal Laws –State Laws

kaufCAN.com Protecting Yourself in the Digital Age Non-Discrimination and Anti-Harassment Policy Computer Usage Policy Confidentiality/Proprietary Information Policy and Agreements Conflict of Interest Policy References Policy Social Media Policy

kaufCAN.com Implementation Determine company culture and philosophy Adopt policies Orientation and training for all employees on policies Use computer/log-in reminders Adopt procedures for monitoring Consistently apply policies Discipline violators

kaufCAN.com NLRB and Social Media NLRA prohibitions apply to all employers, regardless of whether you’re unionized. Employers cannot inhibit collective action regarding workplace issues – which is broadly construed by the NLRB. Individual gripes not protected, but … Complaints about working conditions are protected!

kaufCAN.com NLRB and Social Media Individualized tweets not protected. Complaints about supervisors are protected. NLRB has focused on perceived deterrent effect of the policy, and not on any actual effect demonstrated to exist. Even a savings clause will not save you, but include one anyway!

kaufCAN.com Tension between employer’s desire to protect self from negligent hiring and potential for discrimination Fair Credit Reporting Act BACKGROUND CHECKS

kaufCAN.com Employer hired an unfit employee considering nature of employment and potential risk; Employer knew or should have known of employee’s unfitness; Unfit employee caused injury; and Hiring of employee contributed to employee’s ability to cause injury. NEGLIGENT HIRING

kaufCAN.com Background check can be part of employer’s reasonable investigation of employee’s background and qualifications –Knew v. Should Have Known Background checks are not mandatory Virginia State Police cannot disseminate criminal history information for employment purposes except: –To state and local agencies in accordance with ordinance –To applicant –With applicant’s written and sworn consent BACKGROUND CHECKS AS PROTECTION

kaufCAN.com FCRA applies specifically to “consumer reports” which includes information gathered to verify a person’s fitness for employment FAIR CREDIT REPORTING ACT

kaufCAN.com FCRA: Key Provisions Must have written, signed authorization from applicant before procuring report Must be separate from application Must advise applicant if take adverse action based on information in report, provide copy of report, and provide contact information for agency providing report –Must also provide summary of FCRA rights

kaufCAN.com EEOC has issued recent Guidance on the use of arrest and criminal history information. –Disparate Treatment or Disparate Impact Arrests v. Convictions Criteria: Job Related + Consistent with Business Necessity –No automatic, across the board exclusions –Targeted exclusion –Individualized Assessment Nature and Gravity of Offense Length of Time since Offense Nature of Job Background Checks as Discrimination

kaufCAN.com SOBERING STATISTICS  In FY 2013, the EEOC received a total of 93,727 complaints of discrimination.  35% were complaints of race discrimination.  30% were complaints about some form of sex discrimination.  41% alleged some form of retaliation.  Every protected category, except sex, saw an increase in complaints!  3.3% of EEOC complaints were filed in Virginia!

kaufCAN.com SOBERING STATISTICS (cont’d) SOBERING STATISTICS (cont’d)  In FY 2013, the EEOC reached some type of resolution on 97,252 complaints.  The EEOC found reasonable cause to believe that some type of discrimination occurred in only 3.6% of those cases, while it found no reasonable cause in 66% of the cases.  Despite the relatively small number of cases in which reasonable cause was found, the EEOC obtained monetary benefits of $372.1 million for claimants in 2013.

kaufCAN.com TIMES ARE CHANGING…

kaufCAN.com Workplace Trends and Statistics  Almost equal balance of men (53%) and women (47%) in workforce as whole.  Approximately 36% of the workforce is composed of traditional minority categories.  OFCCP has announced new regulations aimed at increasing the hiring of veterans and persons with disabilities by government contractors.

kaufCAN.com Protected Categories The “Big Five”: –Race –Color –Religion –Sex –National Origin Age Disability

kaufCAN.com Lesser Known Protected Categories Genetic Information Nondiscrimination Act of 2008 (Title VII remedies for discrimination based on genetic characteristics) –“Genetic information” largely defined as genetic test results; can include “the manifestation of a disease or disorder in family members” of an employee – which could possibly lead to much broader coverage (i.e. family medical history) Mothers of children less than one year old, who need to have a private sanitary area to express breast milk. State employees who have made a charge or complaint of fraud in procurement. Employees who attempt to engage in “collective action” regarding working conditions.

kaufCAN.com Employee or Independent Contractor?

kaufCAN.com How Do I Know? DOL Test –6 factor test –Looks at factors like importance to business, degree of control, permanency of relationship, and potential for profit or loss IRS Test –Traditional 20 factor test –Newer 3 category, 13 factor test Common Law Agency Test –12 factor test –Looks at factors like right to control manner of work, type of occupation and skill required, length of relationship, provision of benefits, and method of payment

kaufCAN.com Who CONTROLS the working relationship – the employer or the worker? TESTS IN A NUTSHELL

kaufCAN.com Workers’ Compensation Benefits Taxes Wages and Overtime Liability Does It Really Matter?

kaufCAN.com DOL Budget for Fiscal Year 2013 added $10 million in grants to states to help the Wage Hour Division identify employees misclassified as independent contractors and an additional $4 million for WHD efforts specifically targeted to independent contractor misclassification. DOL has Memoranda of Understanding with IRS and 14 states (not Virginia) under its Misclassification Initiative. May 2013: DOL obtained a consent judgment of $1.075 million against employer for wages and liquidated damages owed for misclassification of employees as independent contractors. Department of Labor

kaufCAN.com At-Will Employment At-will employment is alive, well, and living in Virginia. When is at-will employment not at-will? –Statutory protected categories –Public policy torts –USERRA –Contracts

kaufCAN.com A Word of Caution about At- Will Policies … NLRB issued two Advice Memoranda in response to charges that at-will policies violated the NLRA Found at-will policies lawful because no prohibition on employees seeking to change at-will status and, in one case, because President of company could enter into agreement.

kaufCAN.com Wrongful Termination Statutory Protections: –Title VII –ADEA –ADA –GINA –Workers’ Comp filing Usually, No individual liability under federal employment statutes!

kaufCAN.com Wrongful Termination Wrongful Discharge in Violation of Public Policy –Very limited tort claim –Can be brought for termination based on: Exercise of Statutorily Created Right; General Public Policy Expressed in Statute; or Refusal to Engage in Criminal Act

kaufCAN.com Wrongful Termination VanBuren v. Grubb Decided by Virginia Supreme Court in November Held that an individual may be held liable for tort of wrongful discharge where he/she acted in violation of public policy and participated in the wrongful termination.

kaufCAN.com QUESTIONS?

Thank You! Randy Sparks (804)