1 ©Copyright 2013 All rights Reserved Robert D. Kilgore Direct: (210) Presented by: Listening to the Supremes: 2013 Employment Law Update Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Houston Irvine · Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC

2 ©Copyright 2013 All rights Reserved Where Are We Now? U.S. Supreme Court was busy Gridlock did not prevent more regulation Enforcement strategies became paramount Regulators breathed new life into existing laws Agencies reinvented themselves to stay viable Rulemaking predominated over legislation ● Phone (210) (210)

3 ©Copyright 2013 All rights Reserved The EEOC’s New Agenda ● Phone (210) (210)

4 ©Copyright 2013 All rights Reserved EEOC Litigation 99,412 charges in FY largest number ever Pursued 580 systemic investigations 122 lawsuits filed in FY 2012 $365 million in damages ● Phon (210) e

5 ©Copyright 2013 All rights Reserved What We Are Seeing More investigators with less experience More aggressive tactics Closer scrutiny of position statements and documentation Investigators shifting burden of proof to employer Increased demand for on-sites ● Phone (210)

6 ©Copyright 2013 All rights Reserved Strategic Enforcement Plan Eliminate systemic barriers in recruitment and hiring Protect immigrant, migrant, and other vulnerable workers Coverage of gay, lesbian, bisexual and transgender (“emerging and developing issues”) Equal pay laws Preserving access to the legal system Systemic investigations to address workplace harassment ● Phone (210)

7 ©Copyright 2013 All rights Reserved Systemic Investigations Targeted areas for systemic investigations: Leave/termination policies “English only”/proficiency rules Employment tests Criminal background/credit checks ● Phone (210)

8 ©Copyright 2013 All rights Reserved How Do You Know You’re On Their Systemic Radar? Investigator asks questions about: Policies or selection criteria to locations beyond the one referenced in Charge Data involving individuals or positions beyond those specified in Charge Pre-employment test “validation studies” How selection criterion is relevant to job performance HR database information ● Phone (210)

9 ©Copyright 2013 All rights Reserved More Aggressive Even When Non-Systemic Demanding proof of notice to employees of job expectations and any performance problems Demanding evidence as to why one employee was selected over another ● Phone (210) (210)

10 ©Copyright 2013 All rights Reserved Arrest and Conviction Records EEOC investigative strategy targeting pre-hire selection criteria impacting minorities Pepsi reached a $3 million settlement with the EEOC for using criminal background checks to screen applicants Data suggests criminal background checks have disproportionate impact on African-Americans & Hispanics ● Phone (210)

11 ©Copyright 2013 All rights Reserved Arrest and Conviction Records On April 25, 2012 EEOC issued “Enforcement Guidance” Part of EEOC strategy targeting pre-hire selection criteria Criminal background checks are under particular scrutiny ● Phone (210)

12 ©Copyright 2013 All rights Reserved New Guidance Must make an individualized assessment Consider many factors: –Nature and gravity of offense –Time passed since conviction/sentence completion –Age at time of offense; age now –Rehabilitation efforts –Facts surrounding the offense –Number of convictions and offenses ● Phone (210)

13 ©Copyright 2013 All rights Reserved New Guidance Consider many factors (cont’d) : –Has person performed same type of work, post- conviction, with no criminal conduct –Employment history before and after the offense –Additional training/education –Character references –Relevance of conviction to job duties Need background check policy and procedure that allows individualized assessment ● Phone (210)

14 ©Copyright 2013 All rights Reserved Arrest and Conviction Records ● Phone (210) Some push back on EEOC? Attorneys General from nine states send letter to EEOC July 24, 2013 objecting to its enforcement efforts in connection with criminal background checks in hiring.

15 ©Copyright 2013 All rights Reserved DOL Update New Secretary of Labor Thomas Perez “Labor Department will be a tough labor law enforcer and pursue the kind of litigation that yielded a record $280 million in back wages for workers in 2012.” “Direct relationship" between the economic security of middle-class workers and organized labor. Endorses immigration reform and increased minimum wage. ● Phone (404)

16 ©Copyright 2013 All rights Reserved Supreme Court Term Six significant employment cases decided this past term The good news: employers go 6-for-6 The not-so-good news: some of the decisions were razor thin Decisions in the next few years, before Justice Kennedy retires, will be key ● Phone (210)

17 ©Copyright 2013 All rights Reserved Supreme Court Term Title VII –University of Texas Southwestern Medical Center v. Nassar Makes it more difficult for employees to win retaliation claims Employees must show that their protected activity was “but for” cause of adverse action No “motivating factor” standard applied as in discrimination cases ● Phone (210)

18 ©Copyright 2013 All rights Reserved Supreme Court Term Title VII –Vance v. Ball State Univ. Follow up to Farragher/Ellerth Who is a supervisor for purposes of determining whether affirmative defense applies? Court: only those with authority to make significant changes in employee’s status (like hiring, firing, demotion, reassignment) EEOC more expansive definition rejected ● Phone (210)

19 ©Copyright 2013 All rights Reserved Supreme Court Term Class Actions –Genesis Health Care Corp. v. Symczyk Addressed collective action “pick-off” tactic Prior to others joining claim as “opt-ins,” employer in Genesis offered to pay sole named plaintiff the full amount claimed Employer: this makes the claim moot. So no need for collective action. Court: the employer is correct. No one left with person interest in outcome. ● Phone (210)

20 ©Copyright 2013 All rights Reserved Supreme Court Term Class Actions –Comcast Corp. v. Behrend Court: plaintiffs who want to bring class actions must prove at certification stage that damages are measurable on a class-wide basis Must show that there is reliable and admissible evidence of common injury and damages on a class-wide basis before class can be certified Should limit number of class actions filed ● Phone (210)

21 ©Copyright 2013 All rights Reserved Supreme Court Term Arbitration –American Express v. Italian Colors Restaurant Not an employment case, but one with big impact on them Arbitration agreements with class waivers are permitted. Court requires agreement be enforced as written Result: each aggrieved employee would have to bring own arbitration claim ● Phone (210)

22 ©Copyright 2013 All rights Reserved Supreme Court Term Arbitration –Oxford Health Plans LLC v. Sutter Arbitrator in proceeding below permitted class- wide arbitration pursuant to clear language of agreement Why is this a win for employers? –Focus on actual language of the agreement strengthens agreements –Warning to lowers courts not to interfere with arbitration agreements ● Phone (210)

23 ©Copyright 2013 All rights Reserved Supreme Court Term DOMA –U.S. v. Windsor Portion of Defense of Marriage Act establishing federal definition of marriage held to be unconstitutional Does not force states to legalize gay marriage Wait-and-see: May impact the way employers treat same-sex couples under federal statutes governing family leave, employee benefits, taxes, etc. ● Phone (210)

24 ©Copyright 2013 All rights Reserved Final Questions? ● Phone (210)

25 ©Copyright 2013 All rights Reserved Thank you! Robert D. Kilgore Direct: (210) ● Phone (210)