Presented By: Holly L. Cini, Esq. James F. Shea, Esq. Presentation for: HRACC PROPRIETARY AND CONFIDENTIAL

88,778 charges filed with EEOC in FY 2014 (270 by CT employees) 1.Retaliation: 37,995/42.8% 2.Race: 31,073 charges/35% 3.Sex, including pregnancy and sexual harassment: 26,027/29.3% 4.Disability: 25,369/28.6% 5.Age: 20,588/23.2% 6.National origin: 9,579/10.8% 7.Religion: 3,549/4% 8.Color: 2,756/3.1% 9.Equal Pay Act: 938/1.1% 10.Genetic Information Nondiscrimination Act: 333/0.4% 2

Senate Bill 914 – Mandating Penalties for Wage and Hour Violations: Mandates double damages imposed where an employer fails to pay an employee the proper minimum wage or overtime pay; does not apply to employers who establish a good faith belief that their underpayments were legal. Public Act Employee Online Privacy: Prohibits employers from requesting or requiring an employee or applicant to: (1) provide the employer with a user name, password, or other way to access the employee’s or applicant’s personal online account; (2) authenticate or access such an account in front of the employer; or (3) invite, or accept an invitation from, the employer to join a group affiliated with such an account Senate Bill “AN ACT CONCERNING THE DEFINITION OF THE TERM “DOMESTIC WORKER”... Procedural changes at CHRO 3

Senate Bill 949 – Company Obligations in the face of a Data Breach This bill amends existing security breach notification requirements that are currently applicable to anyone who conducts business in Connecticut to require: (1) notification to any impacted state residents of a data breach within 90 days after discovering it; and (2) that the company offer at least one year of free identity theft prevention and mitigation services. Senate Bill 428 – Providing Interns Employee Rights: Prohibits discrimination in hiring, firing, and advertising based on any protected class; also prohibits sexual harassment and retaliation 4

Glatt v. Fox Searchlight Picture, Second Circuit July 2, 2015 decision in case brought by the “Black Swan” movie interns. Court rejected the DOL “six factor” test and held a “primary beneficiary” test applies, creating new law in our Circuit. New CT law tracks the DOL test and is therefore at odds with this decision – interns now may be properly classified under federal law or state law, but not both. 5

CT DOL published an amended PSL law guidance reflecting the 2014 revisions to the law: The CT DOL has fielded approximately 40 claims on the law - many relating to one company. In all cases, the DOL was able to resolve the issue without going to a hearing CT’s PSL law has one of the narrowest scopes of the 20 other PSL laws now in place around the country 6

Oakland, CAMontclair, NJ San Francisco, CANewark, NJ Washington, DCPassaic, NJ New York CityTrenton, NJ East Orange, NJPortland, OR Irvington, NJPhiladelphia, PA Jersey City, NJSeattle, WA Workers of federal contractors as of September 7,

From “Economic Realities” to “ABC” test... Standard Oil of CT v. Administrator, Unemployment Compensation Act – to be decided mid-2016 Employers to pay more in federal unemployment taxes for second year in a row due to CT DOL’s failure to seek waiver 8

Proposed change to FLSA White Collar Exemption Would increase the current minimum salary level of $455 per week ($23,660 per year) to $921 a week ($47,892 per year), subject to annual increases thereafter. DOL indicates that it intends to update the salary figure based on new economic data when it publishes the Final Rule, stating an expectation that the final number is likely to be $970 a week ($50,440 per year). DOL’s rationale is that the new salary level reflects the 40th percentile of earnings for full-time salaried employees. 9

1.If you haven’t already done so, identify all employees currently classified as salaried exempt who earn less than $50,440 a year. 2.If you use the highly-compensated exemption, identify all employees earning between $100,000 and $122,148 a year. 3.Begin to develop a strategy for responding in the event that the minimum salary threshold for exemption increases to $50,440. o Increase employees to that level if their pay is close? o Set an hourly rate that assumes the same number of working hours after the conversion as before, and for the same total pay? o Manage the workload by reducing schedules to avoid overtime and increasing headcount or shifting exempt duties to other employees? 10

Tomick v. UPS – CT Appellate Court decision issued May 19, 2015 Tomick, a UPS driver, suffered a back injury at work. UPS allowed him leave for treatment and returned him to work even though his medical restrictions prevented him from performing the essential job functions – e.g., loading and unloading packages – by offering to assign him a helper to assist with the packages On his second day back to work, there did not appear to be a helper ready to assist Tomick. After a series of ensuing interactions, Tomick had an altercation with his supervisor and was ultimately terminated as a result of that situation - in On appeal was the issue of whether the “qualified to perform the essential functions of the job” prong a plaintiff must demonstrate to sustain a disability discrimination claim was met here because Tomick was not able to do so on the date he was terminated The CT Appellate Court held that the requirement of “qualification” is necessary only when it is “germane” to the issues involved, which it found was not the case here The Court also decided the issue of whether punitive damages are available to plaintiffs in state law employment discrimination cases – and held they are not 11

12

Young v. UPS (May 2015): Part time pregnant driver cannot lift over 20 pounds during first 20 weeks of pregnancy and no more than 10 after that; UPS required drivers to lift parcels up to 70 pounds and up to 150 pounds with assistance. Young stayed home without pay for most of her pregnancy and eventually lost medical coverage; filed ADA claim, alleging UPS accommodated non-pregnant drivers. UPS argued others were: (1) drivers who became disabled on the job; (2) drivers who had lost their DOT certifications; and (3) those who suffered from a disability covered by the ADA. Court held further accommodation analysis was required. 13PRIVILEGED AND CONFIDENTIAL

14

EEOC v. Abercrombie & Fitch Stores (June 2015) Failure to hire/religious discrimination claim brought on behalf of a Muslim applicant who was not hired because her head scarf did not comport with Abercrombie’s “Look Policy.” Abercrombie argued plaintiff did not request an accommodation. Court held the employer need only be shown to have been motivated by the issue 15

EEOC issued notice of proposed rulemaking on how Title I of the ADA applies to employer wellness programs. EEOC identifies areas of focus: recruitment and hiring; treatment of pregnant employees EEOC and OSHA get involved in workplace concerns relating to transgender employees 16

Employer had policy of automatically denying workers any additional medical leave beyond 26 weeks EEOC brought suit claiming the policy was unlawful $1.3 million award 17PRIVILEGED AND CONFIDENTIAL

EEOC Litigation Claiming Employer Disproportionately Denies Jobs to Applicants Over 40 on the basis that hiring managers said: “You are too experienced” “We are looking for people with less experience” “We are not looking for old white guys” “We are looking for ‘fresh’ employees” “We want a 'youthful' image" PRIVILEGED AND CONFIDENTIAL18

NLRB GC issued detailed memorandum setting forth examples of personnel policies he believes violate the NLRA and vows to continue to scrutinize policies that come to the Board’s attention OFCCP passes rule making sexual orientation and gender identity protected classes for federal contractors OFCCP issues proposed regulations for implementing President Obama’s “Fair Pay and Safe Workplaces” EO – require certain disclosures and harsh penalties 19

20