Posts Tagged ‘Constangy Brooks & Smith’

5 Important Topics You Might Have Missed from the 2014 Triad Employment Law Update

Tuesday, November 25th, 2014

2014 TELU Flash ImageMore than 170 people attended CAI’s annual Triad Employment Law Update on Friday, November 14. Held at the beautiful Grandover Resort in Greensboro, the conference informed participants on the most recent updates in state and federal employment law. Knowledgeable attorneys from Constangy, Brooks and Smith, LLP, as well as compliance experts from CAI, shared information on several employment law topics, such as DOMA, health care reform, I-9 and E-verify compliance and FLSA.

Below are five important topics that speakers highlighted at this year’s conference:

I-9s Made Easy

  • I-9s must be completed by employees no later than the first day of work and completed by the employer no later than the third day of the new hire’s employment.
  • Retain I-9s for the longer of three years or one year after an employee’s termination.
  • Office of Special Counsel of the US Justice Department investigates I-9 complaints of over-documenting an I-9, asking for a particular document, not accepting a valid document and requiring a document when one is not needed.

Practical Tips for Complying with Health Care Reform

  • Determination of “full-time” – employees must be treated as full-time in the following “stability period” if the employee averages 30 hours during the measurement period.
    • Stability period must last for at least six months and be the same for new employees and on-going employees.
  • Carefully consider the best measurement and stability periods to minimize costs.
  • Track hours to confirm that individuals are properly classified.

Correcting FLSA Mistakes

  • Meal breaks must be continuous and uninterrupted. If not, you must pay employees for that time.
    • Tips – Don’t let employees take lunch at their work stations, train supervisors to respect lunch, and if you use automatic meal break deductions, have a procedure in place for exceptions.
  • You must pay employees for preliminary and postliminary work that is indispensible to their principal work activities. For example, time spent logging into the computer system and shutting it down at the end of the day is likely compensable.
    • Tips – allow employees to clock in when they arrive at their work stations. If your clock in system is run through a computer system, either leave the computer on or add a set number of minutes to the time each day, and have a procedure for exceptions.

Avoid Discrimination with Unique Employees

  • Public image policies should not be based upon discriminatory preferences of clients. Be sure to avoid improper stereotypes, and if you have a questionable policy, ask yourself if you’re willing to defend it in court.

Defense of Marriage Act (DOMA) and Same-Sex Marriage

  • In 2012 North Carolina passed a constitutional amendment saying marriage is between one man and one woman. In 2013 the Supreme Court of the United States declared that amendment unconstitutional under Section 2 of DOMA.
  • Same-sex spouses will be entitled to all spousal benefits if they married in NC after October 10, 2014.
  • Same-sex spouses will be entitled to all spousal benefits if they were validly married in another state before moving to NC.
  • Same-sex spouses will not be entitled to spousal benefits if they were “married” in a state that doesn’t recognize it, but they can always remarry in NC.

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Stereotyping and Discriminating Based on Sex and Sexual Orientation, and the Related Federal Laws

Thursday, October 9th, 2014
Robin Shea, Partner at Constangy, Brooks & Smith

Robin Shea, Partner at Constangy, Brooks & Smith

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2014 Triad Employment Law Update. This post originally appeared on her blog Employment and Labor Insider.

The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)

 

Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn’t listen.

Under federal law, is there a problem?
pollcode.com free polls

 

Scenario 2. Bill interviews Lester for a job. Lester is huge, hairy, and masculine looking. When Bill offers him a job, Lester says he is thrilled but will have to discuss it that evening with his “better half,” Jim. Bill immediately withdraws the offer and hires a less-qualified heterosexual man.

Has Bill violated federal law?
pollcode.com free polls

 

Scenario 3. Bill interviews Charlie for a job. Charlie is married (to a woman) and has four kids. However, he’s “thin and neat,” and he speaks with a sibilant “s.” Bill thinks Charlie will catch too much grief from Bill’s “rough” work crew, so he hires a less qualified guy who he thinks is more “manly.”

Has Bill violated federal law?
pollcode.com free polls

 

Scenario 4. Mary has short hair, doesn’t wear makeup or nail polish, and she wears “men’s” pants and flat shoes. The women she works with gossip about her behind her back and play mean jokes on her. The female supervisor sees all of this and thinks it’s funny and harmless.

Might the company be liable under federal law?
pollcode.com free polls

 

Scenario 5. Anne has long, lustrous, beautiful hair, and is perfectly dressed and made up every day, right down to her shell-pink ruffledy chiffon dress and her seven-inch stiletto heels. One day, Anne tells her boss that she and her partner are planning to adopt a baby. While the boss is ecstatically planning Anne’s baby shower, Anne mentions that her partner’s name is Marie. The boss starts writing Anne up for performance issues (all bogus), and eventually fires her.

Might the company be liable under federal law?
pollcode.com free polls

 

Scenario 6. Marsha (formerly Marshall) is a biological male who is going through the gender-reassignment process. Marsha has not had surgery yet, but she’s started hormone treatments and, on the advice of her physician, has begun dressing and living as a woman. Marsha’s supervisor, Staci, fires Marsha for coming to work five minutes late — once — when there was a horrendous accident on the interstate that made everyone else late, too. (No one else is even written up.)

Has Staci put her company in jeopardy under federal law?
pollcode.com free polls

 The answers, with no ENDA, and assuming none of these employers are federal contractors, are 1-D, 2-A, 3-D, 4-C, 5-B, and 6-C.

Huh? Seriously?

Crazy Extremely complex and rapidly transitioning, I know! Title VII prohibits discrimination based on sex but not sexual orientation. However, Title VII does prohibit discrimination based on sex stereotyping. (Why? Because the Supreme Court said so, that’s why.) So if the discrimination or harassment has something to do with stereotyping — in other words, the individual is being picked on because he doesn’t fit the picture of what a “man” should be, or she doesn’t fit the picture of what a “woman” should be, the individual could have a valid federal claim. As in this case.) On the other hand, if the individual is picked on “only” because he or she is perceived as being gay, then there is no valid federal claim.

Of course, many states and local governments have their own laws prohibiting discrimination and harassment based on sexual orientation. In addition, in any state, a person who is harassed because of sexual orientation may (depending on the circumstances) have common-law tort claims for intentional or negligent infliction of emotional distress, assault and battery, or false imprisonment, and one who is fired or “forced” to quit could have a claim for wrongful discharge.  So employers should not think that the lack of a federal law means they can act with impunity.

Robin Shea is presenting at the 2014 Triad Employment Law Update on November14th at the Grandover Resort in Greensboro. In addition to sharing information on gender identify and new protected classes,  attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

 

 

 

What You Need to Know from the 2013 Triad Employment Law Update

Tuesday, November 12th, 2013

TELU-HeaderCAI hosted its annual Triad Employment Law Update on November 5. The event was held at the beautiful Grandover Resort in Greensboro and more than 160 HR professionals and company executives attended the conference to obtain the latest updates in state and federal employment law.

The knowledgeable attorneys from Constangy, Brooks & Smith, LLP gave several presentations related to the most recent changes in regulations. Topics the attorneys discussed included termination procedures, off-duty conduct, new decisions from the NLRB, health care reform and immigration issues.

Below are several important takeaways from this year’s conference:

The NLRB and Social Media Policies

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under the NLRA
  • Policies cannot inhibit “protected concerted activity,” such as posting complaints
  • Board continues to issue policy guidance on a variety of social media cases
  • Recent rulings by NLRB’s administrative law judges have invalidated employer social media policies

Health Care Reform and Employee Benefits

  • The one-year penalty delay will allow employers to plan coverage issues more carefully, determine full-time employees, and project additional costs.
  • Do not put health care issues aside until next year – use this time to analyze, discuss, and plan to prevent surprises.
  • Suggested actions to take
    • Identify all common law employees (temps, interns, contractors, etc.)
    • Identify any possible variable hour or seasonal employees
    • Determine if plan provides “minimum value” and is “affordable”

Background Check Compliance

  • Employer can conduct own background check
  • If a consumer reporting agency is used to obtain consumer report, Fair Credit Reporting Act (FCRA), as amended by Fair and Accurate Credit Transactions Act applies (FACTA).
  • Steps an employer must take:
    • Notify employee in stand-alone written notice that it is obtaining a consumer report and get employee’s written consent
    • Give employee notice of proposed adverse action (along with copy of report and FTC summary or rights form)
    • Wait a reasonable period of time before taking adverse action and give notice of same to employee

Perfecting Termination Procedures

  • Some tips to consider:
    • It’s recommended to have someone of the same gender as the person being terminated included in the procedures for several reasons, such as safety and empathy
    • Terminating on Friday afternoon is not recommended because the terminated employee has many more opportunities to be in contact with family and friends after the work week, which might cause them embarrassment and frustration.
    • Don’t come off too apologetic and have policies and performance evaluations ready
    • Always cover how they will be able to collect their belongings if they are given the opportunity

Interviewing in the Hiring Process

  • Review the job description and make sure your questions match up to the duties and responsibilities
  • Avoid questions that might appear discriminatory or offensive
  • Avoid questions that could be construed as having illegal motivation
  • Structure interview questions and develop a scoring criteria
    • Consider using a licensed psychologist to help develop
    • Avoid telling applicants that they are hired during an interview
    • Don’t speculate about the possibility of employment, length of employment or otherwise
    • Remain consistent among applicants

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Woman is Fired for Being Old and Ugly – A Win for the EEOC

Tuesday, October 8th, 2013

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2013 Triad Employment Law Update.

Robin Shea

Robin Shea, Partner at Constangy, Brooks & Smith

Let’s say your CEO fires a 53-year-old woman and says he’s doing it because she’s “old and ugly.”

If she finds out about it, can she sue for age discrimination?

My guess is 100 percent of you would say, “What are you, stupid? Of course she can!”

The following is a true story: A property management company in Oklahoma hired a new CEO. After his first month on the job, he terminated seven employees, as new CEOs tend to do. The next day, he fired an eighth — a 53-year-old property manager named Ms. Strength.  According to three people, the CEO privately told them that he terminated Ms. Strength because she was “old and ugly” and that he wanted someone “younger and prettier” in her position, and that he didn’t think she could meet potential tenants and entertain existing tenants after work because she was “older.” (The CEO denies having made any of these comments.)

Oh, and the company gave Ms. Strength a letter saying her job had been eliminated, when it actually hadn’t.

As you can imagine, the lawyers at the Equal Employment Opportunity Commission, having taken a few hits recently, found the case somewhat attractive from a litigation standpoint. In fact, they were like a wild dog smelling red meat.

So the EEOC sued the company on behalf of Ms. Strength for age discrimination, and the company filed a motion for summary judgment. You have to admit, that took nerve. Actually, it probably wasn’t nerve so much as desperation. Juries are notorious for sympathizing with older workers, and the company did not want this case to get to a jury.

I don’t know if there is anything called a “Hail Mary” motion for summary judgment, but there should be, and I believe this was one.

What in the world did the company argue? OK, I’m not saying these are good arguments, but here is what they said:

1. The Age Discrimination in Employment Act requires the plaintiff to show that “but for” a discriminatory motive, she would not have been fired or otherwise subjected to adverse employment action. Assuming that the CEO really made these comments (as the company was required to do at the summary judgment stage), he said that Ms. Strength was fired not only because she was old, but also because she was ugly. Therefore, age discrimination was not his only motivation — “looksism” was the other. And since he had two motives, the company should get summary judgment on the age discrimination claim.

Of course, the court shot this down. First, the court said, just because age has to be the “but for” cause, that doesn’t mean that it has to be the only cause. It’s more like the straw that broke the camel’s back. You can have other causes, but if the discriminatory cause is the one that puts the camel in traction, then the discriminatory cause is still the “but for” cause. My esteemed colleague Donna Ballman pointed this out not too long ago, after the Supreme Court’s decision requiring “but for” causation in retaliation cases.

Second, the court said, the CEO may have thought Ms. Strength was “ugly” only because she was “old.” You know the type, amIrightoramIright?

Strike one!

2. Then the company’s lawyers got even more creative. They were like, Oh, well, even if we have to go to trial on the age discrimination claim, the EEOC shouldn’t be allowed to get more than $100,000 because Ms. Strength admitted in her deposition that she would take $100,000.

(Under the ADEA, a prevailing plaintiff can recover back pay and benefits, front pay and benefits, plus that much again as liquidated damages, and — assuming she had her own attorney — attorneys’ fees, expert witness fees, and costs. In all likelihood, for a 53-year-old with a responsible position, significantly more than $100,000.)

Here’s what happened in the deposition. The company’s lawyer asked her, “If I could write a check to you, what amount would make you happy?” After some objections and argument between the lawyers, Ms. Strength said, “To be treated fairly . . ..” The lawyer said, “I’m asking for a figure. I want to know the amount. . . . You walk out of here today and have a Merry Christmas, what amount would that be?” Ms. Strength said, “100,000.”

Settlement negotiations are normally inadmissible. The EEOC (correctly, in my opinion) said that this was an inadmissible “settlement negotiation,” and also that the EEOC wasn’t limited to seeking what Ms. Strength might have accepted. The court agreed.

Strike two!

3. Finally, both the EEOC and the company moved for summary judgment on Ms. Strength’s alleged failure to mitigate her damages. The court granted the EEOC’s motion and denied the company’s.

(Does that make four strikes? And have I mixed enough metaphors in this post?)

I think the moral of this story if you’re an employer, and especially if you’re in HR or in-house counsel, is to do your best to make sure your executives don’t do stupid things, like firing people because they’re over the age of 50. (Or, for that matter, because they’re ugly — appearance discrimination is against the law in many jurisdictions, plus it’s mean to pick on people just because they’re homely.) Once somebody at the CEO level (allegedly) pulls a stunt like this, there is very little that you can do as a company except to give the plaintiff that check for $100 grand fast, before she changes her mind.

Robin Shea is presenting at the 2013 Triad Employment Law Update on November 5th at the Grandover Resort in Greensboro. In addition to receiving best practices for hiring and firing employees, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

Employers, Use Caution When Dealing with Unpredictable FMLA Leave

Thursday, February 21st, 2013

FMLA leaveThe Family and Medical Leave Act (FMLA) is a topic on which many HR professionals are knowledgeable. Preparing for a situation that requires an employee to take FMLA leave isn’t a major problem if the time off was scheduled in advanced.

Robin Shea, attorney for Constangy, Brooks & Smith and writer of the Employment and Labor Insider blog, suggests that problems occur when an employee who’s in a critical-but-inflexible position (like a customer service representative) needs intermittent leave under the FMLA unexpectedly.

In her article, Employer’s Bane: Unpredictable FMLA leave. Is there a solution?, Robin empathizes with employers on the implications that unexpected leave can have on their business. She writes:

Where the absences are unpredictable, it’s impossible for the employer to plan, and because the employee’s position is critical, there is no way to “let things slide” until the employee is able to come back.

She acknowledges that dealing with intermittent FMLA leave is no walk in the park. However, Robin cautions employers from executing solutions that yield bad results like a lawsuit. She uses the example below to inform employers of the consequence of mishandling FMLA leave:

One seemingly logical solution to this problem is to say to the employee, “Look, we recognize your need for FMLA leave, but we really can’t handle frequent unpredictable absences in your position. So here’s what we’ll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We’ll leave your pay and benefits unchanged. Then, when you’re able to come back to your old job and attend on a regular, predictable basis, we’ll put you back in that position.”

 “Sounds great — thank you! What’s the new job?” (employee)

 “Uh, men’s room attendant. It’s a non-essential position, so it will be immaterial to us whether you ever show up for work or not.”

 This rubs employee the wrong way, especially since she’s a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the “temporary reassignment” option applies only if the leave is foreseeable.

After revealing another failed attempt to deal with this HR headache, Robin points out that there isn’t much employers can do to protect themselves.

When Robin has a client that is in desperate need for a solution, she suggests “requiring the employee to take “block” leave but counting only the “necessary” time against the employee’s 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers’ comp, or just regular pay, and it cannot be counted against the employee for FMLA or attendance purposes.”

She also says that employees have the option to “tough it out” and grant the employee time off on the terms in which he or she suggests. Robin acknowledges that these aren’t good options and ends her article by saying, An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I’m not going to hold my breath.”

What are your thoughts on this tricky HR issue?

Photo Source: Muffet

7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

POLITICS AT WORK: Employer Dos, Don’ts, and Be Very, Very Carefuls

Tuesday, October 23rd, 2012

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2012 Triad Employment Law Update.

With early voting already under way and only a short time until the real election day (November 6 – don’t forget!), this is a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE’S THE NOVEMBER 7 RULE: If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO’s

DO encourage employees to “talk politics” with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates’ “EEO” characteristics, such as the President’s race or Governor Romney’s religion.

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO consult with applicable state law about voting leave, and comply with it. Please note that in some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee’s vote. (The voting-leave chart linked in the prior “DO” includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees’ political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON’Ts

DON’T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate “terms and conditions of employment.”

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company’s political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee’s, and the employee’s alone. Then present the company view as “We wanted to share the Company’s position on [CANDIDATE OR ISSUE].” Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company’s view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as “pressure,” and take that into account in making the decision whether to share the company’s views at all.

CAI’s 2012 Triad Employment Law Update, scheduled for November 7 at the Koury Center in Greensboro, will provide additional information on staying compliant with state and federal laws. The conference will also provide material on several legal topics affecting employers, including ADAAA, FLSA Exemption, Immigration and Healthcare Reform. Register today at www.capital.org/triadlaw.