Labor Employment HR Law Recapping 2011

Labor, Employment, & HR Law: Recapping 2011 & Preparing for the Year (2012) Ahead Aaron L. Zandy, SPHR, Esquire 407 -418 -2300 azandy@fordharrison. com

What Happened & What’s Next • 2011 - A Year In Review • 2012 - An Election Year • Employment Regulations to Watch in 2012 • Employment Cases to Watch in 2012 • Active & Aggressive Administrative Agencies

2011 - A Year in Review

What Happened Last Year (2011)? January • EEOC reported most charges ever in 2010 (retaliation surpassed race for first time) • DOL issued guidance on “lactation accommodations” in Patient Protection & Affordable Care Act (“Obamacare”) • Genetic Information Nondiscrimination Act GINA) took effect • Supreme Court - Title VII anti-retaliation provisions extend to fiancés & other significant others who engage in protected activity (Thompson v. North American Stainless )

What Happened Last Year (2011)? March • EEOC issued Final Rule interpreting Americans with Disabilities Act Amendments Act (ADAAA) • Supreme Court - employer could be liable under a “cat’s paw theory” for decisions influenced by supervisor with unlawful motive (Staub v. Proctor Hospital ) April • Supreme Court - arbitration of class claims was consistent with Federal Arbitration Act (AT&T v. Concepcion )

What Happened Last Year (2011)? • OFCCP issued a Proposed Rule regarding obligations of federal contractors to recruit & hire veterans • NLRB filed complaint against Boeing for opening production line in South Carolina, alleging unlawful attempt to avoid union due to prior strike May • DOL launched “wage &hour recordkeeping app”

What Happened Last Year (2011)? • NLRB sued Arizona & South Dakota over constitutional amendments that protect rights of employees to have secret ballots in union elections • OFCCP proposed changing scheduling letter it sends to federal contractors being audited (require detailed individualized information employee compensation, etc. )

What Happened Last Year (2011)? June • NLRB issued a Proposed Rule providing for “quickie elections” & union’s immediate access to employee contact information • Supreme Court - sex discrimination case could not proceed as a class action unless members of class have so much in common they could be treated as “one” (Walmart v. Dukes )

What Happened Last Year (2011)? • Supreme Court - upheld Arizona statute that sanctioned employers for knowingly or intentionally employing aliens (not preempted by IRCA) (US Chamber of Commerce v. Whiting ) July • DOL issued Proposed Rule on “persuader” reporting rules for attorneys & consultants who advise companies in union elections

What Happened Last Year (2011)? August • NLRB Chair Wilma Liebman’s term expires - issues requirement that employers governed by NLRB post notices informing employees of “right to join union” • NLRB - approved a job-based bargaining unit to make it easier for employees to organize in health care industry (Specialty Healthcare & Rehabilitation Mobile )

What Happened Last Year (2011)? September • IRS announced “independent contractor amnesty” program - provides tax breaks to employers who selfreport & convert from IC to employee • EEOC files 21 ADA lawsuits in 6 weeks • ALJ rules NLRA not violated by employer who terminated salesman who posted photos & snarky comments on Facebook about kid who test drove a vehicle into a pond (Karl Knauz Motors )

What Happened Last Year (2011)? October • NLRB delayed effective date of notice posting requirement until January 31, 2012 November • NLRB Craig Becker recess appointment due to expire on December 31, 2011, leaving NLRB with only 2 members & unable to act (Board delegated authority to litigate & seek injunctions & authority to certify election results to GC of NLRB)

What Happened Last Year (2011)? • NLRB approved a resolution to go forward with its “quickie election” proposal • President Obama signs VOW to Hire Heroes Act of 2011 which amends & expands USERRA, amends IRS Code to provide tax credits to tax-exempt companies & creates new & expanded education, training & transition programs for veterans within the DOL & VA December • OFCCP issued a proposed rule which would require contractors to establish goals of 7% disabled workforce • NLRB withdrew complaint against Boeing

What Happened Last Year (2011)? • One day before NLRB issued final rule on “quickie elections”, Chamber of Commerce sued to block the rule • President Obama announced he would make recess appointments to NLRB of Sharon Block (DOL’s Deputy Assistant Secretary) & Richard Griffith (GC of Operating Engineers Union) to restore quorum • NLRB postpones notice posting rule until April 30, 2012

EEOC - Total Charges 99, 947 99, 922 95, 402 93, 277 79, 896 80, 840 84, 442 81, 293 79, 432 75, 428 75, 768 82, 792

Federal Court Employment Litigation 22, 138 2008 24, 190 2009 26, 549 26, 700* 2010 2011 * estimate

Federal Court FLSA Litigation 6, 120 6, 785 6, 900* 5, 210 23. 5% 2008 25. 2% 25. 5% 23. 7% 2009 2010 2011 * Estimated

2011 Florida FLSA Lawsuits per District* Middle District - 530 Northern District - 43 Southern District - 1, 071 * As of October 24, 2011

2012 - An Election Year

What Happens During An Election Year • Partisan atmosphere & election year make meaningful legislative changes unlikely • We will, however, hear a lot of grand ideas, read about “fancy titled” bills & legislation aimed at voters, & we will probably hear hotly debated issues pertaining to labor, employment, & HR law

What Happens During An Election Year • Maybe Congressional hearings on Workplace Democracy & Fairness Act, which aims to block the NLRB’s push to streamline union elections (passed House on November 30 th) • Variety of regulatory measures in 2012 could impact the HR World • Supreme Court rulings in 2012 could also have a major impact on the HR World

Employment Regulations to Watch in 2012

Employment Regulations to Watch in 2012 • NLRB Notice Posting Rule (Pending) • NLRB Union Election Rule • EEOC Rule on “Reasonable Factors Other Than Age” under the ADEA • US DOL Persuader Activity Rule • OSHA’s I 2 P 2 Rule

NLRB Notice Posting Rule (Pending) • December 2010 - NLRB issued a Notice of Proposed Rulemaking that requires employers to notify employees of NLRA rights by posting a notice (approximately 6 million employers) • Notice includes selective information about employee rights that favor or promote unionization (“right to join”) • Lawsuits filed in Washington, D. C. & South Carolina federal courts • Rule initially slated to take effect on November 14, 2011, was delayed twice, & set for an effective date is April 30, 2012 (due to legal challenges) and has now been POSTPONED pending a ruling on an appeal

NLRB Notice Posting Rule (Pending) • NLRB revised proposed rule: - Not required to distribute notice by email, voice mail, text messaging or related electronic communications - May post notices in black & white or color - Clarified requirement for posting in foreign languages • Final rule issued by 3 -1 vote on August 25, 2011 1, 944 pages

NLRB Notice Posting Rule (Pending) - Must be 11 x 17 (can be downloaded in a 11 x 17 PDF or two 8½ x 11 pdfs & tape together) • www. nlrb. gov/poster - Must post in conspicuous place - Must translate if 20% of workforce not proficient in English (some translation versions available) - Must post the notice on an intranet or internet site if personnel rules & policies are customarily posted there - Employer may post own notice (in addition)

NLRB Quickie Election Rule • June 21, 2011 - NLRB proposed rule containing wide range of amendments to streamline union elections • Rule drew 65, 000 public comments, & sole Republican board member, Hayes, considered resigning to block it • November 30, 2011 - knowing it would likely lose quorum when Becker’s term expired, NLRB voted to draw up a final rule that implements a narrower version of rule • December 21, 2011 - NLRB adopted final rule, & made it effective April 30, 2012 for all representation cases filed after April 30 th (NOW IN EFFECT!!!!!)

NLRB Quickie Election Rule • New time frames for conducing hearings are nor explicitly established • Compressed time frame for election (“quickie election”) • Puts off employer challenges to the scope of a proposed bargaining unit until after election • Heightened standard for challenging narrow bargaining units (Specialty Healthcare ruling) • Challenges over whether employees are supervisors - & are not eligible to vote in union elections - are also deferred until after election, leaving open prospect of ineligible voters casting ballots

NLRB Quickie Election Rule • Uncertainty over supervisory status puts employers in bind because they can only communicate message about opposing unionization through supervisors (a violation could overturn election results) • Gives hearing officer authority to limit pre-election hearings to issue of whether a question of representation exists that should be resolved by election. • Issues such as eligibility of voters will be determined after election. • Post-hearing briefs, which are currently permitted, will be allowed only at discretion of hearing officer.

NLRB Quickie Election Rule • Eliminate pre-election appeals by consolidating pre- & postelection appeals into a single post-election procedure • Narrows circumstances for request for special permission to appeal to Board prior to election being granted • Permission will be granted only in extraordinary circumstances when it appears issue addressed in appeal would otherwise evade review • Board review will remain available following election on all issues for which permission to appeal was denied or not sought • The NLRB’s FAQs can be found at: http: //www. nlrb. gov/news/nlrb-representation-caseamendments-take-effect-today

EEOC Rule on “Reasonable Factors Other Than Age” under the ADEA • November 16, 2011, the EEOC issued a draft final rule clarifying the “reasonable factors other than age” (RFOA) defense standard under the Age Discrimination in Employment Act • Rule aims to bring EEOC regulations in line with Supreme Court rulings that said plaintiffs in ADEA cases could rely on disparate impact theory & the business necessity test (BNT) used to justify employment practices in Title VII suits didn’t apply when determining RFOA in age cases • Final rule expected in first quarter of 2012

EEOC Rule on “Reasonable Factors Other Than Age” under the ADEA • BNT is an onerous burden for employers to meet & it appears EEOC is trying to bring the RFOA test as close to the BNT as possible while staying within the Supreme Court precedent • EEOC is making it harder for employers to use the RFOA defense • 2005 - Supreme Court rules that ADEA permitted older workers to bring disparate impact claims over employer policies (did not expand RFOA standard) • 2008 - Supreme Court clarified that BNT had no application when determining RFOA

DOL Persuader Activity Rule (Pending) • Proposed in June 2011 to “combat significant underreporting” • DOL proposes to broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the Labor-Management Reporting & Disclosure Act (LMRDA) • Rule would broaden disclosure requirements to cover lawyers for 1 st time • Adopts the plain meaning of the term “advice” as “an oral or written recommendation regarding a decision or course of conduct”

DOL Persuader Activity Rule (Pending) • Reportable persuader activities would include where a consultant engages in actions, conduct or communications on behalf of employer that directly or indirectly persuades workers concerning their rights to organize & bargain collectively, regardless of whether or not consultant has direct contact with workers • An agreement would be reportable if consultant engages in specific persuader actions, conduct or communications regardless of whether advice is given, such as when a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort

DOL Persuader Activity Rule (Pending) • Under LMRDA, employers & labor relations consultants or law firms representing employers must file disclosure reports when the consultant is retained to persuade employees with respect to union organizing or collective bargaining • One of the forms consultant has to file is a LM-21 • Objectionable by lawyers (attorney-client, financials, etc. ) & small businesses (no in-house consultants) • Rule goes well beyond just persuader activities (training managers, reviewing a speech or written materials, etc. )

OSHA’s I 2 P 2 Rule • “Injury & Illness Prevention Programs” (I 2 P 2) • Not yet proposed - expected to be pushed out prior to 2012 presidential election • Rule would require companies to locate & address workplace health & safety hazards - OSHA has not updated “permissible exposure limits” (chemicals, noise) & implementing I 2 P 2 rule could absolve OSHA from the need to do that & place burden on employers to identify hazards

OSHA’s I 2 P 2 Rule • Could be very expensive - research & implementation of safe guards • Impact to small & mid-size companies more so than larger companies

Employment Cases to Watch in 2012

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC • Decided January 11, 2012 • Addresses “ministerial” exception to the application of employment discrimination laws • First time Supreme Court acknowledged existence of “ministerial exception” • Reversed 6 th Circuit decision ruling that teacher could not be treated as a “minister” because her duties were not primarily involved in teaching of the faith & that she had no role in spreading faith or in church government

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC • Court refused to establish a bright-line test for deciding who qualifies as a minister • Decision only bars discrimination suits by ministers against religious employers & not lawsuits by lay employees against religious employers • Court noted that it didn’t express an opinion on whether this exception would bar “other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employer. ”

Patient Protection & Affordable Care Act (“Obamacare”) • U. S. Supreme Court Cases: - Nat’l Fed. Of Independent Business v. Sebelius , Case No. 11 -393 - U. S. Dept. of Health & Human Servs. v. Florida , Case No. 11 -398 - Florida v. U. S. Dept. of Health & Human Servs. , Case No. 11 -400

Patient Protection & Affordable Care Act (“Obamacare”) • Reviewing constitutionality of PPAC • Court will consider whether law’s mandate that individuals buy health insurance or pay a penalty is constitutional or not • PPAC will have huge impact on employer’s bottom line - cost of health care & insurance for employees • 5 ½ hours for oral argument (very unusual)

Michael Shane Christopher v. Smithkline Beecham Corp. , Case No. 11 -204 • Supreme Court will consider whether FLSA outside sales exemption applies to pharmaceutical sale representatives (PSR) • PSRs are legally prohibited from closing sales (so are they selling? ) • Review of 9 th Circuit ruling affirming an Arizona court’s finding that exemption applies to a class of drug sales representatives

Michael Shane Christopher v. Smithkline Beecham Corp. Case No. 11 -204 , • Court’s ruling would have greatest impact on pharmaceutical industry but could have far reaching consequences for employers • Will be first time the Court has ruled on scope of any “white collar” exemptions to FLSA • Language will likely be used & relied upon in all other industries

D. R. Horton, Inc. v. Michael Cuda (NLRB) • NLRB could be at odds with Supreme Court when it rules on whether an employee arbitration agreement that includes a class action waiver constitutes a ULP under NLRA • Supreme Court came out in favor of waivers in April (AT&T Mobility LLC v. Concepcion ) ruling that Federal Arbitration Act preempts state laws that invalidate class action arbitration waivers

D. R. Horton, Inc. v. Michael Cuda (NLRB) • Cuda tried to submit class action accusing Horton of misclassifying superintendents as exempt under the FLSA • Horton objected citing employee agreements barring arbitration of collective claims • ALJ ruled in favor of Horton but General Counsel to the NLRB took exception to the decision • Awaiting decision … will likely end up at Supreme Court

Active & Aggressive Administrative Agencies

Federal Agencies • DOL requested $12. 8 billion discretionary budget authority in FY 2012 & 17, 848 full-time equivalent employees • W&H requested $240, 937 million in FY 2012 & total of 1, 677 FTEs - Budget includes new multi-agency Misclassification Initiative that will “strengthen & coordinate Federal & State efforts to enforce labor violations that result from the misclassification of employees as ‘independent contractors’ & to deter such violations in the future. ”

Federal Agencies • Request of $15, 223, 000 & 107 FTEs will support field investigator training activities & an additional 3, 250 investigations to industries with higher rates of violations: - Construction Child care Home health care Grocery stores - Janitorial Business services Landscaping Poultry/meat processing

Questions & Answers

Labor, Employment, & HR Law: Recapping 2011 & Preparing for the Year (2012) Ahead Aaron L. Zandy, SPHR, Esquire 407 -418 -2300 azandy@fordharrison. com