Jeffery L. Thompson
Constangy, Brooks & Smith, LLP
Telephone: 478-621-2423
E-mail: jthompson@constangy.com

What Happened & What ’ s Next

2012 - The Year In Review

“ Hot Button ” Issues for 2013

EEOC Touts Monetary Recoveries

Record year for EEOC

$365 million from mediations & conciliations

$36 million from investigations of systemic charges

$44.2 million from litigation

99,412 charges in 2012 fiscal year

1.
2.
3.
4.
Which type of EEOC Charge is the fastest growing?
Race
Age
Gender
Retaliation

1.
2.
Yes
No
Does Title VII protect transgendered employees?

Title VII Protects Transgendered
Employees

Macy v. Holder (2012)

Historically, EEOC had ruled that discrimination on basis of sexual identity was not sex discrimination

Reversal: gender identity discrimination is a form of sex stereotyping

Criticism of Employer Investigation is
Not Protected Activity



Brush v. Sears Holding Corp (2012)
Employee criticized harassment investigation and decision not to call police
Ct: only protected if object to acts unlawful under Title VII

Sloppy Handling of Sex Harassment
Complaint Precludes S.J.

Kurtts v. Chiropractic Strategies Group
(2012)

Employee made internal complaint and expressed discomfort working with accused “harasser”

Company made no effort

Failure to Accommodate Pregnant
Employee May Violate Title VII



Chapter 7 Trustee v. Gate Gourmet, Inc.
(2012)
Pregnant employee’s doctor imposed restrictions; supervisor says no light duty; fires her
Ct: have to at least consider whether light duty work available

1.
2.
3.
Can you require an employee to get a flu shot?
Yes
No
Maybe

Refusal to Receive Flu Shot

Chenzira v. Cincinnati Children’s Hospital
(2012)

Employee is a vegan; refuses mandatory flu shot based on religious belief

Ct: duty to accommodate employee’s religious beliefs

EEOC Issues ADA Guidance for
Veterans With Disabilities

Preventing disability discrimination

Accommodation of veterans with disabilities

Wellness Program Fits ADA Safe
Harbor

Seff v. Broward County

Employees who declined to participate in wellness program charged $20/pay period

Ct: No violation of ADA; safe harbor for insurance plans

1.
2.
Does the ADA require a transfer to a vacant position?
Yes
No

ADA Requires Transfer to Vacant
Position




EEOC v. United Airlines 7 th Cir. 2012
Employee can not perform own job
Ct: Not sufficient to let employee compete for vacant job; duty of accommodation requires transfer
But don’t have to ignore union contract

New FMLA Rules




Final regulations issued February 5,
2013,implementing National Defense
Authorization Act of 2010
Relating to military leaves
Other changes to 2009 Regulations include intermittent leave
Effective March 8, 2013

1,226 Days
Excluded!

 Use smallest increments of time as used for other types of leave

New FMLA Regulations – Next Steps






Employers covered by the FMLA should do the following by March 8, or as soon as possible afterward:
Update their FMLA policies in accordance with the new rule.
Replace the current FMLA poster with this one.
Make sure all FMLA Fact Sheets are up to date.
Use the new DOL notification and certification forms, or adapt their own forms to be consistent with the new ones.
Ensure that leave administrators are familiar with the changes that will take effect March 8.

Request To Take FMLA Before Eligible is Protected

Pereda v. Brookdale Senior Living
Communities

8 months after being hired Pereda advised she would need to take birth/FMLA leave in five months

Court found Pereda’s termination for poor performance 9 months after being hired was unlawful

Court Disqualifies Morgan & Morgan
For Unethical Behavior

Bedoya v. Aventura Limousine (2012)

Morgan & Morgan thrown off case
 threatening emails to opposing counsel
 set deposition in a Dunkin Donuts
 ex parte communications to company attacking company’s attorney

Pharmaceutical Sales Reps Are
Exempt

Christopher v. SmithKline Beecham U.S.
(2012)

Pharmaceutical reps are making sales; exempt under outside sales exemption

Overturns DOL interpretation of outside sales


On premises or geographical limits

Pager/cell phone/smart phone

Personal use of time


Not compensable if:

Attendance is outside the employee’s regular working hours

Attendance is voluntary

Not directly related to job and

No productive work performed

First Amendment

Walden v. CDC

Court: Personal beliefs and values are no excuse to refusing to perform job duties

Refusal To Accept Transfer is Not
Resignation Under USERRA



U.S. v. Ala. Dept. of Mental Health (2012)
Employee declined transfer to another city at end of military leave
Ct: not a resignation; employee entitled to reinstatement

Affordable Care Act Upheld

Supreme Court June, 2012

ACA is constitutional, except for mandate for states to expand Medicaid

Several pieces already in effect

Patient Protection and
Affordable Care Act

What Now?


After the election, it’s full steam ahead for implementation.
By January 2014, unless delayed:

Millions of Americans will have to obtain insurance or pay penalties, and

Insurers will be banned from denying coverage based on pre-existing conditions for all individuals.

Implementation Schedule

2013 Changes

Plans must provide a participant notice regarding the upcoming exchanges (after
Department of Labor issues guidance regarding the notice).

Health flexible spending account limit will be
$2,500.

2014 and Beyond

Some of the additional changes scheduled for implementation are:

Establishment of state insurance exchanges.

Imposition of a penalty on large employers not offering health insurance ($2,000 per fulltime employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).

2014 and Beyond

Automatic enrollment for employers with more than 200 full time employees will be required for new full time employees, with an opt-out notice (applies to insured and selffunded plans, including grandfathered plans).

2014 and Beyond

Employers are required to provide a qualifying group health plan that meets the ACA requirements.

Provides minimum essential benefits (for fully insured small group plans, also provides all required “essential health benefits”),

Limits cost-sharing for such coverage, and

Provides either a bronze, silver, gold, or platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).

2014 and Beyond
“Essential health benefits” include (at this point):
Ambulatory Patient Services
Emergency Services
Hospitalization
Maternity and Newborn Care
Mental Health and Substance
Abuse Services
Behavioral Health Treatment
Laboratory Services
Preventive and Wellness
Services
Chronic Disease
Management
Prescription Drugs
Pediatric Services, including oral and vision care

2014 and Beyond

Requirement for individuals to have health insurance or pay a tax penalty.

Individuals without “minimum essential coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income

2014 and Beyond

The penalty would be phased in accordingly:

$95 in 2014, or 1.0% of taxable income

$325 in 2015, or 2.0% of taxable income

$695 in 2016, or 2.5% of taxable income

Beginning after 2016, the penalty will be increased annually according to cost-ofliving adjustment

2014 and Beyond

Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days.

Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a preexisting condition, and they will be prohibited from excluding coverage for a pre-existing condition.

2014 and Beyond

Establishment of health care choice compacts
(2016) under which two or more states form arrangements to allow individuals to purchase qualified health plans across state lines

Issues - Viability


If enrolling in a health care plan is viewed as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest.
Much of the law’s success depends on having young, healthy people sign up for insurance.

They have much lower health care expenses.

Their insurance premiums help offset the higher medical expenses of older, sick people in a health plan.

Issues - Conflict

State Exchanges

Few states have proceeded with their implementation activities.

Many states have not taken any action toward the establishment of a state health insurance exchange.

Issues - Enforcement

IRS Enforcement

Since the decision labeled the penalty a tax, it will be collected by the IRS.

The IRS may have few options for collection because:

Congress restricted the agency’s collection authority,

The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and

The IRS can only collect the money by withholding it from tax refunds or Social Security checks.

Supervisor Status Under Title VII

Vance v. Ball Statue University

U.S. Supreme Court will decide whether someone who directs employees’ work, but lacks other authority, is a supervisor

Implications for harassment cases

Offer of Judgment in FLSA Case

Genesis Health Care Corp. v. Symczyk

U.S. Supreme Ct. will decide whether offer of full relief to named plaintiff moots an FLSA collective action

EEOC Strategic Action Plan (SAP)
 Targeted Approach
 Integrated Approach
 Accountability

 Eliminating Systemic Barriers in Recruitment and
Hiring
 Exclusionary Policies and Practices
 Channeling/Steering of Individuals Into Specific
Jobs Due to Their Status in a Particular Group
 Restrictive Application Processes (i.e., preemployment tests, background screens, date of birth screens and on-line applications).

 Protecting Immigrant, Migrant and Other Vulnerable
Workers
 Disparate pay
 Job Segregation
 Harassment

 ADAAA – Proper Application of Defenses such as
Undue Hardship, Direct Threat and Business
Necessity
 LGBT (Lesbian, Gay, Bisexual and Transgender
Individuals) – Coverage Under Title VII Sex
Discrimination Provisions
 Accommodating Pregnancy – Woman Who Are
Forced Into Unpaid Leave After Being Denied
Accommodations Routinely Provided to Similarly
Situated Employees

Preserving Access To The Legal
System
 Overly Broad Waivers
 Settlement Provisions That Prohibit Filing
Charges with EEOC
 Failure To Retain Records Required By EEOC
Regulations
 Retaliation

 Combating Harassment
 Reevaluation of Strategies to Prevent
Harassment such as Education/Outreach

 Review hiring/recruitment policies concerning requirements such as high school diplomas, criminal background checks, credit histories, applicant testing.
 Review EEO statements (is it broad enough?)
 Training and practices concerning ADA accommodation, pregnancy accommodation, leave practices in conjunction with FMLA.
 Review training methods and policies concerning discrimination and harassment in the workplace.
 Revisit whether you are currently complying with
OFCCP/affirmative action requirements and have current written affirmative action plans.


Save Lives

Save Families

Save Finances

Build Hope


Recalibrate

Start Day Off Right

Health = Happiness

Love/Respect For Family/Friends

Be A Friend To Yourself


Set Positive Goals

Have Something To Look Forward To

Hide Sometimes

Let Work Glorify God

Final Thoughts

It Starts At Home