TEXAS BUSINESS CONFERENCE€¦ · TEXAS BUSINESS CONFERENCE ... per week; Primary duty must ......
Transcript of TEXAS BUSINESS CONFERENCE€¦ · TEXAS BUSINESS CONFERENCE ... per week; Primary duty must ......
TEXAS BUSINESS CONFERENCE
Update on Recent Trends in Employment Law
Michael Holland Holland & Holland, LLC
1250 N. E. Loop 410, Suite 808 San Antonio, Texas 78209
(210) 824-8282 (210) 824-8585 facsimile
e-mail address: [email protected]
www.hollandfirm.com
WHAT’S HAPPENING OUT THERE?
• No new federal or state legislation
• Federal agencies very active - aggressive
MISCLASSIFICATION OF EMPLOYEES
● Exempt from overtime? (Fair Labor
Standards Act)
● Independent Contractor – is your independent contractor really an employee?
THE BIG QUESTION
Is the employee exempt from the FLSA
requirements concerning minimum wage and overtime compensation?
Overtime Misconceptions
● Belief: Employees are entitled to overtime after working a certain number of hours in a particular day.
● Belief: Overtime is required for work on weekends or holidays.
● Belief: Only low paid, hourly wage employees are non-exempt.
● Belief: Salaried employees are exempt
● Belief: All college-degreed
workers are exempt
Overtime
● All work after 40 hours during a particular
workweek must be paid at 1.5 times the regular rate of pay
Exempt Employees
● Many exemptions – industry specific
● Most common exemptions – “white collar”
Executive
Administrative
Professional – Learned
Professional – Creative
Outside Sales
Executive Exemption
● Salary basis (as defined in the regulations) at a rate not less than $455 per week;
● Primary duty: Managing the enterprise, or
managing a customarily recognized department or subdivision of the enterprise;
● The employee must customarily and regularly
direct the work of at least two or more other full-time employees or their equivalent; and
● The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Morgan, et al v. Family Dollar Store
(11th Cir 2008)
• 1400 store managers – working 60-70
hours/wk
• Employer classifies all top store managers as exempt Executives
Family Dollar Store Case
Executive Store Managers?
80-90 % of time doing tasks like • stocking shelves
• running cash registers
• unloading trucks
• cleaning the stores
Closely supervised by district managers
No authority to hire or fire store personnel and recommendations as to hiring and firing not given any particular weight
Pay not significantly higher compared to non-exempt workers
Administrative Exemption
●Salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
●Primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
●Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Rieve v. Coventry Healthcare, Inc.
● Coventry provides “solutions to help its clients, including workers’ compensation insureds and employers, reduce the cost associated with workers’ compensation injuries, ensure quality care.”
● Julia Rieve was a registered nurse and case manager for Coventry. She had many years experience as a case manager.
● Rieve was responsible for assessing and analyzing an injured employee to evaluate the medical needs required to facilitate the patient’s appropriate and timely return to work.
Rieve v. Coventry Healthcare, Inc. - 2
● Job duties included: providing ongoing, day to day case management services for Defendant’s customers with documenting the cost of care, preparing reports regarding a plan of care, and identifying and implementing medical services to meet the needs of Coventry’s customers.
• Rieve admitted in deposition that she spends more than 50% of her time communicating with doctors, patients, and claims adjusters in order to understand the patient’s conditions, determine what medical care was being provided, and evaluate whether it was appropriate.
Rieve v. Coventry Healthcare, Inc. - 3
• Rieve received a guaranteed weekly salary of $1,096.00 and received little to no supervision from Coventry.
• The court held: employer fails to meet administrative exemption
The professional exemption – learned
professional
• Salary or fee basis (as defined in the regulations) at a rate not less than $455.00 per week;
• Primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
The professional exemption – creative
professional:
• Salary or fee basis (as defined in the
regulations) at a rate not less than $455.00 per week;
• Primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
Outside Sales Exemption
● The employees primary duty of making
sales (as defined by the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
● The employee must be customarily
and regularly engaged away from
the employer’s place or
places of business.
ALWAYS REMEMBER
● FLSA is arguably the most violated civil law in our country
● Burden of proof is on employer to prove
exemption
● U. S. DOL is aggressively enforcing this law right now
● When in doubt – err on the side of caution
ALWAYS REMEMBER (CON’T)
● There are many additional restrictions contained within this law, such as restrictions on child labor, home workers, and equal pay between men and women
● DOL has an excellent website – www.dol.gov (Note: will need to dig down by clicking on “wages” on right side of web page and then click on “overtime pay” and then look for “Fair Pay Fact Sheet by Exemption”)
MISCLASSIFICATION: Is your
independent contractor really an
independent contractor?
● Second most violated employment law in our country
● Issues are decided on a case by case basis
● Several different tests are used by different agencies all with subparts
MOST COMMON ELEMENTS USED IN
THE TESTS TO DETERMINE
INDEPENDENT CONTRACTOR STATUS:
● opportunity for profit or loss for employee
● Skill and initiative required in performing job
● Permanency of the relationship
● Tools, equipment, uniforms
● Insurance/benefits
MOST COMMON ELEMENTS USED IN
THE TESTS TO DETERMINE
INDEPENDENT CONTRACTOR STATUS:
● Economic realities
● At-will discharge without liability
● Advertising by worker
● Training by employer
MORE COMMON ELEMENTS USED IN
THE TESTS TO DETERMINE
INDEPENDENT CONTRACTOR STATUS:
● Schedule established by employer
● Contractor has own employees
● Who controls manner and details of work
● Regular business of employer
● Use of written contract
NOTE: Holland & Holland, LLC has a form Independent
Contractor contract available for review
EEOC’s Guidance on Use of Arrest and
Conviction Records
● On April 25, 2012, EEOC issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”
● In January 2012 the EEOC announced a $3.13 million settlement with Pepsi Beverages over its use of criminal background checks that adversely affected African-American job applicants
● On March 10, 2014, EEOC and FTC Offer Joint Tips on Use of Employment Background Checks
March 2014
EEOC to Employees
“Even if the employer treated you the same as everyone else, using background information still can be illegal discrimination. For example, employers shouldn't use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and doesn't accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job-related and consistent with business necessity." (It doesn't matter whether or not the information was in a background report.)”
What’s the Theory?
● EEOC’s Guidance focuses on the use of criminal records under a disparate impact theory
• Disparate impact. The EEOC suggest that nationally, and in most areas, use of criminal records to screen out applicants will have a disparate impact on minorities
• Job-related and Consistent With Business Necessity Defense
▪ EEOC claims that using arrest records is almost never a business necessity
▪ To satisfy this defense, the employer must prove an effective link exists between the specific criminal conduct and its dangers with the risks inherent in the job position
How do You Satisfy the “Effective Link”
Requirement?
● An employer may deploy a “targeted screen” that considers the three Green factors:
1. The nature and gravity of the offense;
2. The time that has passed since the offense and/or completion of the sentence; and
3. The nature of the job held or sought.
● Derived from Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975), and has been the basis of the EEOC’s guidance for many years.
What is an “Individualized Assessment”?
● Per the EEOC, it should be made by an employer in virtually all instances before the employer disqualifies an individual for employment based on past criminal conduct, using the following specific factors:
1. the facts or circumstances surrounding the offense or conduct;
2. the number of offenses for which the individual was convicted;
3. older age at the time of conviction or release from prison;
4. evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents or criminal conduct.
What is an “Individualized Assessment”? (con’t)
● the length and consistency of employment history before
and after the offense or conduct;
● rehabilitation efforts, e.g., education and training;
● employment or character references and any other information regarding fitness for the particular position; and
● whether the individual is bonded under a federal, state, or local bonding program.
NOTE: Military installations, schools
Suggestions
● Always hire the most qualified applicant
• Policies which automatically exclude applicants from hiring process due to criminal history may be illegal
• Policies which negatively impact an employee’s opportunities for advancement within the company due to past criminal activity may be illegal
EEOC TARGETING LEAVE OF ABSENCE
POLICIES
● LOA policy with cap or maximum amount of time off before automatic termination may be a violation of the Americans With Disabilities Act
● May violate employer’s duty to accommodate (interactive process)
NATIONAL LABOR RELATIONS BOARD -
- VERY ACTIVE
● This law applies to non-unionized employers
● NLRB has issued several controversial decisions involving employees’ use of social media
● Bottom line: Employer cannot have a very broad/blanket policy prohibiting employees from engaging in any form of criticism of the employer, its product, service, or management
Social Media
March 12, 2014 - EOOC Press Release
Social Media May Raise Employment Discrimination Concerns • Use third party or a designated person who does not make
hiring decisions to do the check
• Use only publicly available information, not requesting passwords for social media accounts
• EEOC found a claim of racial harassment due to a co-worker’s Facebook postings could go forward
OSHA – Injury Reporting
Temporary Workers
March 13, 2014 –Educational bulletin
Responsibility Determined by Supervision
Day-to-day supervision - Employer who controls conditions presenting potential hazards and directs the worker’s activities around and exposure to them
In most cases, the host employer is the one responsible for recording the injuries/illness of temporary workers.
Religious Garb and Grooming
March 6, 2014 EEOC Publication
Discrimination
• Discriminatory customer preference is no defense
Accommodation
• Adjusting policies may be required
Common Mistakes Made By Supervisors
Negative attitude regarding injured employee
Terminating employee within one month of on-the-job injury
No evaluation
Good evaluation when employee not performing
Promises made but not kept
Promises made that employee has guaranteed job
Common Mistakes Made By Supervisors - 2
Lack of communication
Yell, cuss, threat, intimidate
Off-color jokes/slurs (if you don’t want it told in a courtroom, don’t say it)
Progressive discipline not followed
No documentation regarding poor performance
Common Mistakes Made By Supervisors - 3
No written/oral warnings
Don’t get employee to sign warning
Saying the wrong thing in a written warning (it’s all discoverable)
No clear reason for termination
More than one reason for termination
Spreading rumors
Common Mistakes Made By Supervisors - 4
Failing to investigate problems
Giving false/bad references on ex-employees
No witnesses in a termination or discipline session
Allowing employees to work off the clock
Allowing employees to work during lunch or docking pay of exempt employees
Common Mistakes Made By Supervisors - 5
Terminating/retaliating against employees who group together to voice concerns
Treating someone as disabled when they are not
Not applying employment policies uniformly
Not counting leave as FMLA-qualifying
Failing to go over employee handbook with new hires