2013-14 Employment Law Hot
Topics
Presented by
Todd A. Hanchett
Stoel Rives LLP
2013-14 Legislative Updates
• Employers and Social Media
– ORS 659A.330
– Cal. Labor Code § 980
– RCW 49.44.200
– 9 other states have similar statutes
– Basic rule: no access to logon credentials
2013-14 Legislative Updates
• Employers and Social Media
– Exception for business-related media
– Exception for workplace investigations
2013-14 Legislative Updates
• Paid Sick Leave Ordinances
– Portland, OR
– Seattle, WA
– San Francisco, CA
– New York City
– Newark, NJ
– Connecticut (statewide)
– PSL coming in Massachusetts?
2013-14 Legislative Updates
• General features:
– Paid sick time for employees working within city
or state
– Minimum requirements for accrual, use, and
carryover
– May depend on size of employer
2013-14 Legislative Updates
• General features:
– Requires employer notification and tracking of sick
time
– Basic job protections for employees who use sick
time
2013-14 Legislative Updates
• Reasons for taking sick leave:
– Mental or physical illness, injury or health
condition
– Domestic violence, harassment, sexual assault or
stalking
– Public health reasons
2013-14 Legislative Updates
• Bereavement Leave
– Oregon becomes 1st state to require
– Employees entitled to two weeks’ leave for
qualifying reasons
2013-14 Legislative Updates
• Employment Non-Discrimination Act (ENDA)
– Amend Title VII to prohibit discrimination based
on sexual orientation/gender identity
– Passed Senate; referred to House…
2013-14 Case Law Update
• University of Texas Southwestern Medical
Center v. Nassar (U.S. S.Ct.)
– “But for” test in Title VII retaliation cases
– Termination would not have occurred but for the
employer’s retaliatory animus
– Makes summary judgment easier
2013-14 Case Law Update
• Vance v. Ball State University (U.S. S.Ct.)
– Prior Supreme Court cases did not define
“supervisor”
– Supervisors must have power to take “tangible
employment actions”
– Court rejected EEOC’s broader definition
2013-14 Case Law Update
• United States v. Windsor/Hollingsworth v.
Perry (U.S. S.Ct.)
– DOMA definition of “spouse” unconstitutional
– Prop 8 struck down
– Effect on FMLA coverage
2013-14 Case Law Update
• Westendorf v. West Coast Contractors (9th
Cir.)
– Sexual harassment: Would reasonable victim
would think harassment had become a permanent
feature of employment?
– Harris v. Forklift Systems still applies
2013-14 Case Law Update
• EEOC v. Kaplan Higher Educ. Corp. (6th Cir.)
– Affirming SJ for employer in case challenging use
of credit checks
– Expert’s “homemade methodology” on racial
effects of credit checks was inadmissible
2013-14 Case Law Update
• EEOC v. Ford Motor Co. (6th Cir.)
– Telecommuting = reasonable accommodation
under ADA
– Individualized assessments key
2013-14 Case Law Update
• D.R. Horton, Inc. v. NLRB (5th Cir.)
– Employers may include class action waivers in
arbitration agreements
– Rejecting NLRB decision to the contrary
Hot Topic: EEOC Strategic Enforcement
Plan
• Enforcement priorities:
– Recruitment and hiring practices
– Immigrant, migrant, and “other vulnerable
workers”
– “Emerging and developing issues”
• ADA
• Pregnancy-related limitations
• Sexual orientation and gender issues
Hot Topic: EEOC Strategic Enforcement
Plan
• Enforcement priorities:
– Equal pay laws
– Retaliation claims
– Workplace harassment
• “Systemic enforcement”
• “Targeted outreach”
Hot Topic: EEOC Enforcement Guidance
on Background Checks
• Arrests v. convictions
– Reliance on convictions isn’t always warranted
• Avoiding disparate impact claims:
– “[T]argeted screen” considering
• nature of the crime
• the time elapsed
• nature of the job
Hot Topic: EEOC Enforcement Guidance
on Background Checks
• Employer best practices:
– Identify essential job requirements
– Determine the specific offenses that may
demonstrate unfitness
– Determine the duration of exclusions for criminal
conduct
– Record research and justification for the policy
and procedures.
Hot Topic: BYOD
• Bring Your Own Device
• By 2020:
– 85% of companies will allow it
– More than half will require it
Source: David Willis, “Bring Your Own Device: The Facts and the Future” (Gartner, April 11, 2013)
Hot Topic: BYOD
• Pros
– Cost
– Morale
– Flexibility
• Cons
– Security
– Support
– Privacy
– Liability
Hot Topic: BYOD
• Practical concerns:
– Password protection
– Registration
– Encryption
– Lost/Stolen Devices
Hot Topic: BYOD
• Practical concerns:
– Cloud
– Malware and
“Jailbreaking”
– Segregation of personal
and business
information
Hot Topic: BYOD
• Addressing practical concerns:
– Policy/contract
– IT functions
Hot Topic: Marijuana
• Medical marijuana
– Laws exempt medical use of marijuana from
criminal prosecution
– 20 states plus D.C. have legalized medical
marijuana
• “Recreational use”
– Legalized in Colorado and Washington
– Next?
Hot Topic: Marijuana
• No duty to accommodate under ADA
• Marijuana still a federally controlled substance
• ADA does not require accommodation of
“illegal drug use”
• Can discipline employees who test positive for
marijuana
Hot Topic: Marijuana
• CA, MT, OR, WA and 6th Circuit (MI law) have upheld
discharge for violation of drug policies due to
medical marijuana use
• Several states (incl. CT, IL, ME, and RI) have granted
medical marijuana users protected status
• Arizona and Delaware prohibits discrimination
against medical marijuana users based on positive
drug test
– On-the-job impairment, use, or possession not protected
• Nevada requires “attempt” to accommodate
Hot Topic: “Quickie” Elections
• “Normal” NLRB election process
– Authorization cards
– Campaigns
– Secret ballot election
Hot Topic: “Quickie” Elections
• Current
– 69% success rate
– Average 38-42 days after petition
– 95% held with 56 days
• Proposed
– Elections within 8-10 days
– __% success rate?
Hot Topic: NLRB/Social Media
• The worst-kept secret of the NLRA:
Non-union employees have the right
to engage in “Protected Concerted
Activity” (PCA) for mutual aid or
protection
Hot Topic: NLRB/Social Media
• What is PCA?
– Sharing wage information
– Discussing (griping about) work rules or
working conditions
– Soliciting on behalf of a union
– Distributing literature
– Includes possibility of concerted activity
Hot Topic: NLRB/Social Media
• Lakewood, Washington
Construction contractor
19-CA-31580
A construction contractor fired five employees after several of them
appeared in a YouTube video complaining of hazardous working
conditions. Following an investigation, the NLRB regional office
issued complaint. As a hearing opened, the case settled, with the
workers receiving full backpay and declining reinstatement.
Hot Topic: NLRB/Social Media
• AGC’s 3rd Report on Social Media
• Lines still not clearly drawn
– Mere griping/venting v. PCA
– Would the policy “chill” PCA?
• “Wal-Mart” policy approved
• First “Facebook Firing” – PCA, but...
Hot Topic: NLRB/Social Media
• Kroger Co. of Michigan (Apr. 22, 2014)
– Employer rule required disclaimer in
employee internet postings
– ALJ invalidated the rule as burdening section
7 communications
– Ignored AGC guidance memo
THANK YOU
Todd Hanchett
Stoel Rives LLP
tahanchett@stoel.com
(503) 294-9454