2016 Employment Law - PowerPoint Presentation

2016 Employment Law Update HRLAOctober 6, 2016 Holly L. Cini, Esq. & Sarah R. Skubas, Esq.Jackson Lewis P.C. www.jacksonlewis.com ©2016 Jackson Lewis P.C.

AgendaNew legislation: CT & federal lawsRecent case lawTrending topics: “Ban the Box”Medical marijuanaAgreements with employees Pay equity New DOL rule Disability/leave management Volunteers©2016 Jackson Lewis P.C.2

New LAWS & legislationRecent developments in Connecticut and federal law©2016 Jackson Lewis P.C.3

New CT LawsPayroll PracticesSB 220 No approval required for bi-weekly payroll periodsWritten approval still required for bi-monthly paySB 211 Authorizes employers to use payroll cards – instead of checks or direct deposit to pay employees Electronic paystubs and requests for direct depositCTFMLA SB 262 Expands Connecticut FMLA to cover military qualifying exigenciesCoverage for any “qualifying exigency” arising out of the fact that the spouse, child, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces. ©2016 Jackson Lewis P.C.4

New CT Laws Ban The Box HB 5237 (Effective 1/11/17) No more inquiries about prior arrests, criminal charges or convictions….BUT! Limited to inquiries on employment applications Exceptions for employers who are required to make such inquiries by law, or if a security or fidelity bond is required for the positionRemember the EEOC’s guidance and existing requirementsHuman Trafficking HB 5621 New requirements for hotel (and similar lodging) operators to train and educate their employeesTraining at the time of hire:Recognition of potential victims of human traffickingActivities commonly associated with human traffickingCertification of trainingAwareness campaigns©2016 Jackson Lewis P.C. 5

New DOL RuleChanges effective December 1, 2016Standard salary level increase: $47,476$47,476 annually (up from $23,660)$913 per week (up from $455)“Highly compensated” salary level increase: $134,004$134,004 annually (up from $100,000)$2,577 per week (up from $1,923.07)©2016 Jackson Lewis P.C. 6

New DOL RuleEmployers permitted to use incentive compensation to partially meet salary level requirementAutomatic increases to salary level every three yearsNext increase: January 1, 2020DOL will announce increases 150 days prior Anticipated increase in 2020: $51,168No changes to the duties tests ©2016 Jackson Lewis P.C.7

HOT TOPICSTrending issues in workplace law©2016 Jackson Lewis P.C.8

Bathroom Access RightsEEOC Guidance: Discrimination based on transgender status is sex discrimination in violation of Title VIIDenying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination Contrary state law is not a defenseCT Law: Prohibits discrimination on the basis of gender identity ©2016 Jackson Lewis P.C. 9

Medical Marijuana In Connecticut:No employer may “refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 1 to 15, inclusive, of this act.”However, “nothing in the law shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”HB 5450 Permits access to minor patients 10©2016 Jackson Lewis P.C.

Medical Marijuana Marijuana indicatives confirmed to appear on the November election ballot:AZ , AK, CA, FL, ME, MA, MT, NE, ND Despite rumors that the DEA would reclassify marijuana, it remains a Schedule I Controlled Substance under federal law Coats v. Dish Network, LLC, 2015 CO 44 (Colo. 2015): In 2015, the court concluded that an employer can terminate an employee for failing to pass a random drug test because of medical marijuana use, even if such use is off-duty and consistent with state medical marijuana laws.11©2016 Jackson Lewis P.C.

Pay EquityIf pay equity has not yet arrived… Awareness of pay equity hasEEOC proposal to collect pay dataOFCCP aggressive pay investigations Equal Pay Act State lawsCalifornia Fair Pay ActNew York Equal Pay ActMassachusetts Pay Equity Law ©2016 Jackson Lewis P.C.12

Issues in Disability & Leave Management TelecommutingEEOC v. Ford Motor Co. 782 F.3d 753 (6th Cir. 2015) (en banc): “Most jobs would be fundamentally altered if regular and predictable on-site attendance is removed”EEOC still looking at leave under the ADA as a broad rightMay 9, 2016: EEOC issued a “resource document” on leave and the ADAStops short of addressing the answer employers have been looking for: How much additional leave does an employer need to provide? Maximum leave policies are taboo©2016 Jackson Lewis P.C.13

NLRA UpdateNew Representation Case ProceduresEmployer must post and distribute electronically an initial NLRB Notice regarding existence of the Petition and information about NLRB processAlmost all disputes about voter eligibility to be resolved after electionVoter eligibility lists now include full contact informationElection 21 – 25 days after petition filedColumbia University, 364 NLRB No. 90 (Aug. 23, 2016): Overturning longstanding precedent, holding that graduate and undergraduate students who qualify as statutory employees under the NLRA have a right to unionize and engage in collective bargaining.The NLRB is scrutinizing your handbooks and policies for review (social media, confidentiality, chain of command, standards of conduct, etc.)©2016 Jackson Lewis P.C.14

Agreements BlueLinx Holdings Inc. SEC issued a cease-and-desist order over the use of severance agreements that the SEC found improperly interfered with the rights of potential whistleblowers to obtain monetary awards for reporting suspected illegal activityIf you are a publicly traded company or affiliated with a publicly-traded company, review your agreements carefully New CT Law: An Act Concerning Matters Affecting Physicians, Health Care Facilities and Medical Foundations (SB 351) If you employ physicians in Connecticut and have non-compete agreements, revise your agreements New non-compete restrictions for physicians:1 year15 milesAdditional restriction for hospitals, health systems and medical schools, or their medical foundations:Can only restrict physician’s right to practice with like entities©2016 Jackson Lewis P.C.15

Agreements Cont. DTSA creates a new federal civil cause of action for the misappropriation of trade secretsDOES NOT preempt pre-existing state law remediesPermits successful plaintiffs to recover attorney’s fees and exemplary damages, with one catch…Attorney’s fees and exemplary damages are only available if the agreement governing trade secrets and confidentiality provides appropriate noticeAll new agreements should contain this new notice language to preserve these potential remedies©2016 Jackson Lewis P.C.16

Recent Case lawDecisions in the state and federal court systems©2016 Jackson Lewis P.C.17

Independent ContractorsStandard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act (2016): Connecticut Supreme Court concludes that workers were independent contractors, not employeesWho is an independent contractor?“ABC” TestStandard Oil holding as to Part B: Customers’ homes are not “places of business”©2016 Jackson Lewis P.C. 18

VolunteersCHRO v. Echo House Ambulance (July 26, 2016): Connecticut Supreme Court concludes that unpaid volunteers were not “employees” for purposes of the CT Fair Employment Practices ActWho is a volunteer?Remuneration testDOL guidance ©2016 Jackson Lewis P.C. 19

Sexual Harassment, Gender BiasCarlson v. Ailes (2016): $20 million settlement reached in Gretchen Carlson’s lawsuit against Roger AilesJaffa-Bodden v. Choudhury et al. (2016): $7 million award to plaintiff in sexual harassment lawsuit against Bikram yoga founderMcPadden v. Wal-Mart Stores East LP et al. (2016): $31 million award to plaintiff in gender bias, retaliation case after jury finds employer guilty of disciplining female plaintiff more harshly than her male coworkers and firing her when she complained that her medical data had been improperly disclosed ©2016 Jackson Lewis P.C.20

Questions?cinih@jacksonlewis.comSarah.Skubas@jacksonlewis.com ©2016 Jackson Lewis P.C.21

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