International Society of Primerus
Law Firms
Primerus: Trusted Legal Advisors
Primerus is an international alliance of top-rated, independent, small and mid-sized law firms that
have earned the right to display the Primerus seal of quality. As one of the most respected alliances
of law firms, Primerus currently has 136 small and medium-sized member firms in nearly 100 cities in
the United States, Canada and the United Kingdom.
Since its formation in 1992, the International Society of Primerus Law Firms has worked to restore honor and
dignity to the legal profession and to help rebuild the public’s trust in lawyers and the judicial system. Pursuing
this goal was important then, and it’s even more vital today. Given the economic changes of recent years, it
has never been more important for corporations around the world to develop trusted relationships with law
firms that offer significant value through high quality legal services at reasonable fees. Primerus offers the
trusted advisors every company wants and needs.
Primerus has grown more since late 2008 than ever before, despite the struggling economy. With over 1,700
lawyers, Primerus is the size of some of the world’s largest law firms. Every year, more and more law firms
are attracted to the brand we offer – high quality legal services at reasonable fees. With two firms in Canada
and one in England (Leeds-based Ford & Warren), Primerus is poised to expand into Europe, Asia and
throughout the world in 2010 and beyond.
For more information about Primerus, please visit www.primerus.com.
Employee Free Choice Act
The Most Dramatic Change in
Labor Law Since 1935
Peter Bennett, Esq.
The Bennett Law Firm, P.A.
121 Middle St., Suite 300
P.O. Box 7799
Portland, ME 04112
(207) 773-4775 Phone
Peter Bennett
Partner, The Bennett Law Firm, P.A.
Experience
•
1988 to Present, The Bennett Law Firm, P.A., Portland,
Maine
Firm President and Member
Practice of Labor and Employment Relations Law and
Litigation
•
1985 to 1988, Fulbright & Jaworski, Houston, Texas
Associate Attorney
Practice of Labor and Employment Relations Law and
Litigation
Professional Honors
•
College of Labor and Employment Law, Fellow
•
Best Lawyers in America
•
Chambers USA
•
Boston University School of Law Silver Shingle Award
for Service to the Profession
•
ABA TIPS Public Service Honor Roll
•
A-V Peer Review Rated, Martindale-Hubbell
•
Bar Register of Preeminent Lawyers
•
New England Super Lawyers
•
Who’s Who (Various Publications)
Professional Memberships
Maine, Massachusetts and New Hampshire Bar Associations
American Bar Association
Tort Trial and Insurance Practice Section, Chair 2007-2008
Member, ABA Standing Committee on Judicial Independence
Member, ABA Special Standing Committee on Federal Agency
Preemption of State Tort Law
Dean, ABA-TIPS Leadership Academy
ABOTA Roundtable Delegate
The International Society of Primerus Law Firms
Boston University School of Law, Board of Visitors,
Alumni Association Past President
Executive Committee: Lifetime Member
Million Dollar Advocates Forum
"Change is having a President who... lets unions do what they do
best and organize our workers... and who will finally make the
Employee Free Choice Act the law of the land.”
-Barack Obama
Union Certification Today
• Union must file petition supported by at least
30% of eligible employees
• NLRB hearing to determine scope of
bargaining unit
• Unions are not permitted to organize
supervisors and supervisors may not help
employees organize
Union Certification Today
• Five to seven week campaign
• Secret ballot election overseen by federal
government
• Even employees who supported petition can
change their mind and vote against the union
Union Certification Under EFCA
• Union only needs to obtain signatures from a
majority of employees designating the union
as their representative
• No campaign and no secret ballot election
Under EFCA, if a majority of your employees sign this card it will
unionize your workforce . . .
Campaign Today
• Five to seven week campaign
• Persuader activity
• Supervisors are required to have undivided
loyalty to management
• Employee letters
• Small group employee meetings
• One on one discussions
Campaign Under EFCA
• No formal campaign
• Persuader activity must now occur before
card signing starts even though employers
often are not aware of initial card signing
activity
Re-Empowerment of Skilled and Professional
Employees and Construction Trade
Workers “Respect Act”
• Respect Act would amend labor law
converting many and possibly most current
supervisors to non-supervisory status
Definition of Supervisor Today
Employee who exercises independent judgment while
performing at least one of the following functions (or
effectively makes recommendations regarding one of
the functions):
1.
2.
3.
4.
5.
6.
hire
transfer
suspend
lay off
recall
promote
7.
8.
9.
10.
11.
discharge
reward
discipline
assign work
responsibly
direct work
Definition of Supervisor Today
Many supervisors are classified as supervisors
because they assign work and responsibly direct
work
Definition of Supervisor Under
Respect Act
•
Remove from definition:
10. Assign work
11. Responsibly direct work
•
Add requirement:
Supervisors must spend a majority of work
day performing one or more of the
remaining nine functions – many
supervisors may not be able to satisfy this
“time” requirement
Impact of Respect Act
•
In a union environment supervisors converted by law to nonsupervisory status would be required to be part of a
bargaining unit
•
Employees converted to non-supervisory status can help
unions organize employees
•
Unions would now have considerable influence over low
level supervisors not considered supervisors under the
Respect Act
•
Increased revenue for unions. Law would enable unions to
collect tens of millions of dollars in dues from supervisors
Contract Negotiations Today
• Employer must bargain in good faith with union
over wages, benefits and all working conditions
• Employer may not make unilateral changes in terms
and conditions of employment
• Neither employer nor union is required to agree to
any proposal
• No deadline for completing negotiations.
Sometimes no agreement is reached
Contract Negotiations Under EFCA
• Parties have 10 days to commence
negotiations unless waived by both parties
• Parties have 90 days to complete
negotiations of a first contract
• If parties fail to meet 90 day deadline, then
either party may require mediation
Contract Negotiations Under EFCA
If mediation does not result in a contract in
30 days, a federal arbitration panel, who may
have no understanding of the employer’s
business, will determine the terms of the first
two year contract
RISKS?
Employer Penalties Today
• Violations of the NLRA such as an employer
making an unlawful statement often just
triggers a requirement that employer post an
official NLRB notice promising that the
employer will not engage in such conduct in
the future
• No fines
• No penalties
Employer Penalties Under EFCA
• Any lost wage award is tripled as a penalty
• NLRB can assess civil penalties up to $20,000
per violation even if violation does not result
in lost wages
What Employers Can Do Now
• Labor Relations Vulnerability Assessment
• Assess operations to determine whether
adjustments can expand bargaining unit
• Assess status of supervisors and working
foremen to determine who is permitted to be
part of a union and who is not
• Supervisor training on EFCA and Best
Practices Union Avoidance Strategies
• Strategic implementation of lawful persuader
activity
Peter Bennett
Partner, The Bennett Law Firm, P.A.
Experience
•
1988 to Present, The Bennett Law Firm, P.A., Portland,
Maine
Firm President and Member
Practice of Labor and Employment Relations Law and
Litigation
•
1985 to 1988, Fulbright & Jaworski, Houston, Texas
Associate Attorney
Practice of Labor and Employment Relations Law and
Litigation
Professional Honors
•
College of Labor and Employment Law, Fellow
•
Best Lawyers in America
•
Chambers USA
•
Boston University School of Law Silver Shingle Award
for Service to the Profession
•
ABA TIPS Public Service Honor Roll
•
A-V Peer Review Rated, Martindale-Hubbell
•
Bar Register of Preeminent Lawyers
•
New England Super Lawyers
•
Who’s Who (Various Publications)
Professional Memberships
Maine, Massachusetts and New Hampshire Bar Associations
American Bar Association
Tort Trial and Insurance Practice Section, Chair 2007-2008
Member, ABA Standing Committee on Judicial Independence
Member, ABA Special Standing Committee on Federal Agency
Preemption of State Tort Law
Dean, ABA-TIPS Leadership Academy
ABOTA Roundtable Delegate
The International Society of Primerus Law Firms
Boston University School of Law, Board of Visitors,
Alumni Association Past President
Executive Committee: Lifetime Member
Million Dollar Advocates Forum
Lilly Ledbetter
Fair Pay Act of 2009
Charles L. Appleby, IV, Esq.
Collins & Lacy, P.C.
1330 Lady Street, Suite 600
Columbia, SC 29201
803.255.0409 Phone
803.771.4484 Fax
Charles L. Appleby, IV
Associate, Collins & Lacy, P.C.
Practice Focus
Employment Law, representing employers and employees from all types of industries in litigation and alternative dispute resolution Also
working with employers on the preparation of documents to address ways to minimize employment risk and litigation, including, but not
limited to, policy manuals, handbooks, and contracts
Construction, defending developers, general contractors, and subcontractors in areas of construction defect litigation
Professional, Civic, and Community Involvement
Defense Research Institute, South Carolina Bar (Employment and Labor Law Section), South Carolina Lawyer Magazine (Editorial Board),
Columbia Chamber of Commerce, USC Alumni Association Board of Governors (Member), USC Council of Alumni Societies (School of Law
Alumni Representative since 2008, Vice Chair, 2009-2011), Central South Carolina Alliance (Committee of 100 - Firm Representative), Susan
V. "Gina" Johnston Award, Phi Delta Phi Legal Fraternity, University of Florida Alumni Association, International Society of Primerus Law
Firms, The Contemporaries of the Columbia Museum of Art
Papers, Presentations and Publications
What to Consider When Firing an Employee, South Carolina Association of Convenience Stores Newsletter, Third Quarter 2009
Lilly Ledbetter Fair Pay Act of 2009, South Carolina Bar Employment & Labor Law Newsletter, Summer 2009
Employees Are Protected Even If They Don't Initiate Complaints, South Carolina Association of Convenience Stores Newsletter, Second Quarter,
2009
ADA Amendments Act of 2008: Congress vs. U.S. Supreme Court, DRI In-House Defense Quarterly, April 2009
New ADA Amendments Increase Chance of Lawsuits, South Carolina Association of Convenience Stores Newsletter, First Quarter 2009
The Future of Electronic Monitoring in the Workplace: Innovative Assistance or Potential Infringement of Rights?, South Carolina Bar
Employment & Labor Law Newsletter, Summer 2008
The Past and Future of Electronic Monitoring: Common Methods Utilized in the Workplace, South Carolina Bar Employment & Labor Law
Newsletter, Fall 2008
Follow Up With Employees Is Crucial In Avoiding ADA Claims, South Carolina Association of Convenience Stores Newsletter, Fourth Quarter 2008
Law School of Non-Lawyers: Employment Law, Midlands Technical College, October 9, 2008, Columbia, SC.
New Immigration Act for S.C. Employers: What Are The Requirements and Is The Act Constitutional?, South Carolina Lawyer, November 2008
Background: Facts
• Lilly Ledbetter worked for Goodyear Tire from 1979 to 1998.
• Salaried employees of Goodyear were given raises based on
evaluations by supervisors.
– Ledbetter claimed she received poor evaluations because
of her sex, resulting in lower pay increases than her male
colleagues.
• An anonymous note informed Ledbetter of the disparity
between her pay and the pay of her male colleagues.
Background: Facts
• In March of 1998, Ledbetter submitted a questionnaire to the
EEOC alleging acts of sex discrimination, and in July of that
year she filed a formal EEOC charge.
• Goodyear argued that Ledbetter’s claim was time barred, as
Federal discrimination laws require employees to file charges
of discrimination within 180 or 300 days after the alleged
discrimination.
– 180 days in states which do not have a state or local fair employment
practice agency (FEP)
– 300 days in states which do have a FEP (S.C. has the South Carolina
Human Affairs Commission)
Background: Facts
District Court:
• Found in Ledbetter’s favor and awarded back pay and
punitive damages.
US Court of Appeals:
• Reversed the District Court decision.
Background:
U.S. Supreme Court:
• The majority found that Ledbetter should have filed an EEOC
charge within 180 days after each allegedly discriminatory pay
decision was made and communicated to her.
• Justice Ruth Bader Ginsberg wrote a strongly worded dissent,
emphasizing pay discrepancies are often “hidden from sight”.
She urged Congress to address the issue by amending Title
VII.
Legislative Action
• One month after the Supreme Court’s ruling in Ledbetter, US
Representative George Miller introduced the Lilly Ledbetter
Fair Pay Act of 2007.
– The act quickly passed in the House but fell short in the
Senate.
• In the first week of the 111th Congress, the Act was
reintroduced and passed.
Legislative Action
• President Obama signed the Act, his first bill into law, on
January 29, 2009
The Ledbetter Act
• Expressly overturns the Supreme Court’s decision in
Ledbetter.
• Adopts the “paycheck rule” which restarts the 180 or 300
days to file a discriminatory pay claim with each pay-setting
decision, payroll or pension check, even if the alleged
discriminatory action occurred years earlier.
The Ledbetter Act: Retroactivity
• The Ledbetter Act applies retroactively.
• Effective date is May 28, 2007 (day before Ledbetter decision
issued by Supreme Court).
• Law cannot authorize reopening of final judgments.
• BUT, any case where final judgment is not entered including
those on appeal, which would have been untimely because of
the Supreme Court’s decision, now have new life.
The Ledbetter Act:
Unlawful Practice
• Unlawful Employment Practice occurs when:
– A discriminatory compensation decision or other practice
is adopted;
– An individual becomes subject to a discriminatory
compensation decision or other practice; or
– An individual is affected by the application of a
discriminatory compensation decision or other practice*,
including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from
such a decision or other practice.
The Ledbetter Act:
Unlawful Practice
Discriminatory
Since the Act applies to discrimination under Title VII, ADEA,
ADA, and the Rehabilitation Act, an employee could claim a
compensation decision was discriminatory because it was
based on:
• Sex
• Age
• Race
• Color
• Religion
• National Origin, and
• Disability
The Ledbetter Act:
Unlawful Practice
Compensation Decision or “Other Practice”
• Act extends beyond simply pay decisions to include any
decision or “other practice” that affects compensation
• Since “other practice” is not defined by the Act, it could
encompass nearly every adverse employment action that
potentially affects pay, including, but not limited to:
–
–
–
–
–
–
Starting pay and initial job placement decisions,
Failure to provide mentoring or training opportunities,
Employee transfers,
Failure to answer a request for a raise,
Performance reviews,
Promotions, etc.
The Ledbetter Act:
Back Pay
• The Act does not change the limit on recovery of back pay.
• Sex, Race, Color, Religion, National Origin, and Disability
Discrimination
– Employees can reach back to their first day of employment
for evidence of a discriminatory decision, but can only
recover back-pay for up to 2 years prior to the filing of
their EEOC charge.
• Age Discrimination
– ADEA does not expressly cap back-pay
Recommendations for Employers
• The Ledbetter Act makes it easier for employees to bring
claims alleging pay discrimination.
– It is also more likely that such claims will be pursued
because of the publicity the Act received and the current
tough economic climate.
– Detailed documentation is needed to deny a claim that a
discriminatory compensation decision made at any point
during an employee’s tenure was not discriminatory.
Recommendations for Employers
The following are some, but certainly not all, of the precautions an
employer should take to minimize liability:
• Develop specific criteria for compensation decisions;
• Train managers, supervisors, and employees;
• Review decisions;
• Institute a system of document creation and retention; and
• Conduct self-audits now and periodically in the future.
Recommendations for Employers
Specific Criteria for Compensation Decisions
– Develop objective, measurable guidelines for
compensation decisions to ensure decisions are made in a
consistent and uniform manner within a job classification,
work group, or department.
Recommendations for Employers
Train managers, supervisors, and employees
Managers and Supervisors
– Train them on how to conduct a performance evaluation.
– Explain that claims can be made on almost any personnel action and
documentation as to the objective reasons for why decisions are
made one way or another is necessary for the company to defend
against these claims.
Employees
– Highlight to all employees during training that an internal complaint
system exists and is available to address any concerns about
inconsistencies in pay.
Recommendations for Employers
Review decisions
• Adopt a system to ensure compensation decisions as well as
terminations, promotions, discipline, or other personnel
actions are reviewed by a committee or higher level
management.
• Require supervisors and managers to sign a document which
states their reasoning for any pay adjustments.
• Provide limits on promotional and merit pay increases.
• Review policies to ensure there are limits on a manager’s
discretion on setting starting pay .
Recommendations for Employers
System of document creation and retention
• Document reasons for all pay decisions.
• Retain complete personnel files at least until the employee is
deceased.
• Maintain contact information for former managers and
supervisors, even if retired, who made decisions which might
have affected compensation. Periodically confirm contact
information is still correct.
Recommendations for Employers
Conduct Self-Audits Now and Periodically in the Future
• Conduct a self-audit of all company positions to determine if
there are any current pay differences, and if so, determine
the rationale for such differences.
• Protect audit as much as possible under attorney/client
privilege:
– Have general counsel send letter to HR Director requesting
audit to assess compliance with Lilly Ledbetter.
– Mark all documents reviewed during the process
“attorney/client” privilege.
Charles L. Appleby, IV
Associate, Collins & Lacy, P.C.
Practice Focus
Employment Law, representing employers and employees from all types of industries in litigation and alternative dispute resolution Also
working with employers on the preparation of documents to address ways to minimize employment risk and litigation, including, but not
limited to, policy manuals, handbooks, and contracts
Construction, defending developers, general contractors, and subcontractors in areas of construction defect litigation
Professional, Civic, and Community Involvement
Defense Research Institute, South Carolina Bar (Employment and Labor Law Section), South Carolina Lawyer Magazine (Editorial Board),
Columbia Chamber of Commerce, USC Alumni Association Board of Governors (Member), USC Council of Alumni Societies (School of Law
Alumni Representative since 2008, Vice Chair, 2009-2011), Central South Carolina Alliance (Committee of 100 - Firm Representative), Susan
V. "Gina" Johnston Award, Phi Delta Phi Legal Fraternity, University of Florida Alumni Association, International Society of Primerus Law
Firms, The Contemporaries of the Columbia Museum of Art
Papers, Presentations and Publications
What to Consider When Firing an Employee, South Carolina Association of Convenience Stores Newsletter, Third Quarter 2009
Lilly Ledbetter Fair Pay Act of 2009, South Carolina Bar Employment & Labor Law Newsletter, Summer 2009
Employees Are Protected Even If They Don't Initiate Complaints, South Carolina Association of Convenience Stores Newsletter, Second Quarter,
2009
ADA Amendments Act of 2008: Congress vs. U.S. Supreme Court, DRI In-House Defense Quarterly, April 2009
New ADA Amendments Increase Chance of Lawsuits, South Carolina Association of Convenience Stores Newsletter, First Quarter 2009
The Future of Electronic Monitoring in the Workplace: Innovative Assistance or Potential Infringement of Rights?, South Carolina Bar
Employment & Labor Law Newsletter, Summer 2008
The Past and Future of Electronic Monitoring: Common Methods Utilized in the Workplace, South Carolina Bar Employment & Labor Law
Newsletter, Fall 2008
Follow Up With Employees Is Crucial In Avoiding ADA Claims, South Carolina Association of Convenience Stores Newsletter, Fourth Quarter 2008
Law School of Non-Lawyers: Employment Law, Midlands Technical College, October 9, 2008, Columbia, SC.
New Immigration Act for S.C. Employers: What Are The Requirements and Is The Act Constitutional?, South Carolina Lawyer, November 2008
Genetic Information
Non-Discrimination Act
Sharon P. Stiller, Esq.
Boylan, Brown, Code, Vigdor & Wilson, LLP
2400 Chase Square
Rochester, New York 14604
232-5300 ext 226
sstiller@boylanbrown.com
Sharon P. Stiller
Partner, Litigation Department
Chair, Employment Law Practice Group
•
•
•
•
Sharon is the chair of the Employment Law Group at Boylan, Brown, Code, Vigdor and Wilson, LLP and the
author of Employment Law in New York, the definitive guide to employment law in New York State. She
and partner, James E. Metzler have published a national treatise, “Expert Witnesses: Employment Cases.”
Formerly a Special Assistant District Attorney in Monroe County, Sharon represents employers before the
State and Federal Courts and various administrative agencies. Her work routinely includes discrimination,
defamation, contract and labor law cases. She has taught employment law for the Cornell University
School of Industrial and Labor Relations and the Rochester Business Alliance. Sharon also conducts
training programs for local and national employers about sexual harassment and other areas of
employment law. Sharon is a fellow of the prestigious American College of Labor and Employment
Lawyers and has been appointed to the employment arbitration and mediation panels of the American
Arbitration Association.
In addition to her outstanding work in the employment law field, Sharon has been an active participant in
a variety of community organizations. She serves on the boards of the Little Theatre Film Society, Inc.,
the National Women’s Hall of Fame, the United Way and the Rochester Red Wings. She teaches Business
Law at Monroe Community College.
A magna cum laude graduate of SUNY Albany and notes editor at Albany Law School, Sharon has been
advising businesses and conducting business-related litigation for over 25 years. Sharon has been named
a New York Super Lawyer for 2007 and 2008, and one of the top 25 female lawyers in Western New York.
Genetic Information
Non-Discrimination Act
• GINA (federal law) signed into law
5/21/08
• Title II is effective on 11/21/09
• 3/2/09 proposed regulations (Title II)
• Does not preempt any state or local law
that provides equal or greater protections
Background
•
•
•
•
2001 American Management Association Study -- medical
examinations of new hires required by nearly 2/3 of all
major US companies
14% of employers conduct tests for susceptibility to
workplace hazards
3% test for breast and colon cancer, and 1% for sickle cell
anemia
10% collect information about family medical history.
Other Legislation
• 2/8/2000- Executive Order by President
Clinton prohibiting federal departments and
agencies from using genetic information in
any hiring or promotion action.
• States also have similar laws
– See collection of State laws at
www.genome.gov/PolicyEthics/LegDatabase/Pu
bSearchResult.cfm
Pre-GINA Case
• 2001 EEOC filed suit against Burlington
Northern Santa Fe Railroad
– Secretly tested employees for a rare genetic
condition that causes carpal tunnel syndrome as
one of its many symptoms.
– Employees not told that they were being
genetically tested.
– One employee who refused genetic testing was
threatened with possible termination.
Policy Statement
“GINA was enacted, in large part, in
recognition of developments in the field of
genetics , the decoding of the human
genome and advances in the filed of genomic
medicine. Genetic tests now exist that can
inform individuals whether they may be at
risk of developing a specific disease or
disorder.”
GINA Basics
•
•
TITLE I
– amends portions of ERISA , the Public Health Service Act and
the Internal Revenue Code ,
– addresses the use of genetic information in health insurance;
TITLE II
– prohibits the use of genetic information in employment,
– prohibits the intentional acquisition of genetic information
about applicants and employees,
– and imposes strict confidentiality requirements.
Definitions
• Family Member extends to fourth degree
relatives.
• Genetic information includes information
from genetic tests, genetic tests of family
members, family medical history and genetic
information of a fetus carried by an individual
or family member receiving assistive
reproductive services.
Genetic Information
Does Not Include
• Information about the sex or age of an
individual or the individual’s family members
• Information that an individual currently has a
disease or a disorder.
• Tests for alcohol
What is Prohibited
• Prohibited conduct:
– Title II prohibits use of genetic information in
making decisions related to any terms
conditions or privileges of employment
– Prohibits covered entities from intentionally
acquiring genetic information
– Requires confidentiality with respect to
genetic information
– Prohibits retaliation (EEOC believes same
standard as under Title VII)
Exclusions
•
•
•
•
•
•
Water cooler exception (Inadvertent acquisition of genetic
information)
When is it inadvertent?
– Exception applies when a supervisor or colleague asks a casual
question, “How are you?” or “How is your son feeling today?”
– But GINA prohibits inquiries about family history of heart
disease, for example, even of employees performing physically
demanding jobs. This is not an inadvertent inquiry.
– When an employer seeks information relating to a reasonable
accommodation (but the interactive process would not normally
require disclosure of genetic information).
Commercially and Publicly Available Information
Genetic Monitoring of Toxic Substances at the Workplace
DNA testing for Law Enforcement or Human Remains Identification
Purposes
Genetic information may be collected when an employer offers
health or genetic services as part of a voluntary wellness program.
Traps For The Unwary
•
•
Confidentiality – if information is in writing, must keep it
separate from other personnel information in separate
medical files
Harassment claims:
–
–
•
Not mentioned
Most believe allowed
So far, disparate impact claims are not allowed
–
But commission to be formed to report within 6 years about
whether there should be disparate impact claims
Examples
• ADA vs. GINA
– ADA permits a covered entity to obtain genetic
information after making a job offer, so long as
this is done for all entering employees in the
same job category
– This conduct prohibited upon the effective date
of GINA
• HIPPA vs. GINA
– GINA not intended to apply to situations
governed by HIPAA.
Examples
• FMLA v. GINA
– Disclosing family medical history to qualify for
FMLA does not violate GINA.
– However, under GINA, this information must be
kept confidential so it must be placed in a
separate medical file.
Best Practice
• Employer that asks to have health professional
provide documentation about disability or
reasonable accommodation should indicated on
questionnaire provided for that purposes that
“family medical history or other genetic information
about the employee should not be provided.”
• Avoid inappropriate inquiries by not permitting any
attempts to obtain genetic information, including
family medical history, even from post-offer
applicants
Remedies
•
•
•
•
Same as those for Title VII.
Aggrieved individual may seek reinstatement,
hiring, promotion, back pay, injunctive relief,
pecuniary and non-pecuniary damages (including
compensatory and punitive damages) and
attorneys’ fees and costs.
Title VII’s caps on combined compensatory and
punitive damages also applies to actions under Title
II of GINA.
Punitive damages are not available against federal,
state or local government employers.
Resources
– WWW.EEOC.GOV
– “Employment Law in New York” by
Sharon P. Stiller, Esq.
Sharon P. Stiller
Partner, Litigation Department
Chair, Employment Law Practice Group
•
•
•
•
Sharon is the chair of the Employment Law Group at Boylan, Brown, Code, Vigdor and Wilson, LLP and the
author of Employment Law in New York, the definitive guide to employment law in New York State. She
and partner, James E. Metzler have published a national treatise, “Expert Witnesses: Employment Cases.”
Formerly a Special Assistant District Attorney in Monroe County, Sharon represents employers before the
State and Federal Courts and various administrative agencies. Her work routinely includes discrimination,
defamation, contract and labor law cases. She has taught employment law for the Cornell University
School of Industrial and Labor Relations and the Rochester Business Alliance. Sharon also conducts
training programs for local and national employers about sexual harassment and other areas of
employment law. Sharon is a fellow of the prestigious American College of Labor and Employment
Lawyers and has been appointed to the employment arbitration and mediation panels of the American
Arbitration Association.
In addition to her outstanding work in the employment law field, Sharon has been an active participant in
a variety of community organizations. She serves on the boards of the Little Theatre Film Society, Inc.,
the National Women’s Hall of Fame, the United Way and the Rochester Red Wings. She teaches Business
Law at Monroe Community College.
A magna cum laude graduate of SUNY Albany and notes editor at Albany Law School, Sharon has been
advising businesses and conducting business-related litigation for over 25 years. Sharon has been named
a New York Super Lawyer for 2007 and 2008, and one of the top 25 female lawyers in Western New York.
Current Issues Involving
Employment Law Litigation
Thomas Paschos, Esq.
Thomas Paschos & Associates P.C.
30 North Haddon Ave.
Suite 200
Haddonfield, NJ 08033
(856) 354-1900
Thomas Paschos
Partner, Thomas Paschos & Associates P.C.
Thomas Paschos practices in the fields of professional liability, employment litigation, products liability, and insurance
coverage. He has represented, amongst others, corporate officers, defendants in RICO actions, physicians, dentists,
nursing homes, lawyers, accountants, product manufacturers, leasing companies, insurance agents and brokers, real
estate agents, home inspectors, contractors, and insurance companies. In insurance coverage matters he has provided
coverage opinion for several insurance companies, and continues to do so. He has also been retained to represent
insurance companies in the filing of declaratory judgment actions regarding insurance coverage matters. He has been
awarded an AV rating by Martindale - Hubbell, which identifies a lawyer with a very high to preeminent legal ability. In
2004, he was voted by his peers as one of Pennsylvania's Super Lawyers. He is also an ARIAS-U.S. Certified Arbitrator.
Professional Admissions
Supreme Court of Commonwealth of Pennsylvania (1985), Supreme Court of the State of New Jersey (1986), U.S. Court
of Appeals - Third Circuit (1986), U.S. District Court of the Eastern District of Pennsylvania (1986), U.S. District Court for
the District of New Jersey (1986), U.S. Supreme Court (1989), U.S. District Court of the Middle District of Pennsylvania
(2001)
Professional Distinctions
AV Rated by Martindale-Hubbel, which identifies a lawyer with very high to preeminent legal ability; ARIAS-U.S.
Certified Arbitrator; Named as a Pennsylvania “Super Lawyer” by Philadelphia Magazine (2004); Who’s Who in
American Law (1989); Outstanding Young Man of America (1988)
Education
Temple University School of Law: Juris Doctorate in 1985 L.L.M. in Trial Advocacy in 1998. Drexel University: Bachelor
of Science in Business Administration 1982.
Ricci v. De Stefano,
129 S.Ct. 2658 (2009)
• FACTS: White and Hispanic firefighters brought action against city of New
Haven, Connecticut, alleging violation of their civil rights when the city
refused to certify the results of a promotion exam after no AfricanAmericans had passed it.
• “Disparate treatment” vs. “disparate impact”
• Court considered whether the purpose to avoid disparate-impact liability
excuses what otherwise would be prohibited disparate-treatment
discrimination.
• Adopted “strong basis in evidence” standard.
• HELD: Under Title VII, before employer can engage in intentional
discrimination for asserted purpose of avoiding or remedying an
unintentional disparate impact, employer must have a strong basis in
evidence to believe it will be subject to disparate-impact liability if it fails
to take the race-conscious, discriminatory action.
Major Legislation Governing
Employment Law
• TITLE VII
• Americans with Disabilities Act (ADA)
– ADA Amendments Act of 2008
• Age Discrimination in Employment Act (ADEA)
• Family and Medical Leave Act (FMLA)
• Lilly Ledbetter Fair Pay Act of 2009
TITLE VII
• Sexual Harassment:
• Quid Pro Quo
• Hostile Work Environment
• Protected factors:
»
»
»
»
»
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Race/color
Ethnicity/national origin
Religion/creed
Disability/handicap
Age
in some states or jurisdictions, sexual orientation
Americans with Disabilities Act (ADA)
• Private employers, state and local governments, employment
agencies, and labor unions
• 15 or more employees
• Job application procedures, hiring, firing, advancement,
compensation, training, and other terms and conditions of
employment
• Reasonable accommodation is required where it causes no undue
hardship to employer
ADA Amendments Act of 2008
• Explicitly overrules Supreme Court cases that narrowed
definition of disability.
• “Disability” is to be construed broadly
• Directs the EEOC to draft new regulations requiring a less
demanding standard for establishing an impairment.
ADA Amendments Act of 2008
“Major life activities”
Explicitly defined as including, but not limited to:
• Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, and working.
• An impairment that substantially limits one “major life
activity” need not limit other “major life activities” to be
considered a disability.
• An impairment that is “episodic or in remission” is a disability
if it would substantially limit a “major life activity” when
active.
ADA Amendments Act of 2008
Implications
• More individuals likely to be covered under the ADA.
• Obligation to provide reasonable accommodations will increase.
Age Discrimination in Employment Act
(ADEA)
• Employers with 20 or more employees, including federal, state and local
governments, employment agencies, and labor organizations
• Age 40 or older
• Both employees and job applicants
• As to any terms, condition or privilege
of employment, including hiring, firing,
promotion, layoff, compensation, benefits,
assignments and training
• Also prohibits retaliation based upon opposition to employment practices
that discriminate based upon the filing of a discrimination charge, or
participation in the investigation, proceeding or litigation surrounding
such charge.
FAMILY AND MEDICAL LEAVE ACT (FMLA)
• Employers with 50 or more employees within 75 mile radius
• Employees who have worked for employer for at least 12 months, for at
least 1250 hours over previous 12 months
• Unpaid leave, however, employer may require that accrued paid leave
(sick/vacation) be used
• Up to 12 weeks leave in a 12 month period (may be calendar, fiscal, or
rolling 12 month period)
• To care for an immediate family member (spouse, minor child or parent)
with a serious health condition
• When employee is unable to work due to employee’s own serious health
condition
FMLA
Regulations revised – Effective January 16, 2009
• Employers’ Notice Requirements Expanded
– Employers must post FMLA notice even if they do not have any FMLA
eligible employees
– Posting requirements may be satisfied through electronic posting
• Employee Notice Requirements
– Calling in sick does not trigger FMLA obligations
– Must explain reason for leave to allow employer to determine
whether leave qualifies under the Act
• Leave may be denied if employee fails to adequately explain
• Fitness for Duty Certifications
– Employers may demand more than a simple statement of ability to return to
work
• Military Service Leave
– 26 weeks of leave within a single 12 month period
How is discrimination defined in the courts?
• McDonnell Douglas Framework: McDonnell Douglas
Corp. v Green, 411 U.S. 792 (1973).
McDonnell Douglas Framework
• McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973)
• (1) Plaintiff Employee must make out a prima facie case of
discrimination by showing:
– (a) he is a member of a protected class;
– (b) he sought and was qualified for the job;
– (c) despite his qualification, he was rejected for the position; and
– (d) a non-member of plaintiff’s class was treated more favorably.
• (2) Burden the shifts to Defendant employer to demonstrate a
legitimate, non-discriminatory reason for its employment decision.
• (3) Burden shifts back to Plaintiff Employee to establish that the
reason articulated by Defendant Employer is not true reason for
decision, but is merely a pretext for discrimination
McDonnell Douglas Framework
The Burlington Northern Decision
• Burlington Northern & Santa Fe Railway Company v. White
US Supreme Court (2006)
• Supreme Court redefined adverse action.
– The anti-retaliation provision protects an individual not from all
retaliation, but from the retaliation that produces an injury or harm.
– We speak of material adversity because we believe it is important to
separate significant from trivial harms.
Retaliation – Pro-employee Position
• CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951 (2008) & GomezPerez v. Potter, 128 S.Ct. 1931 (2008).
– HELD: § 1981 encompasses retaliation claims.
• Crawford v. Metropolitan Government of Nashville and Davidson
County, Tennessee, 129 S.Ct. 846 (2009)
– HELD: Protection from retaliation provided by Title VII extends to employee
who speaks out about discrimination during employer's internal investigation.
Age Discrimination in Employment Act
(ADEA)
• Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009)
– HELD: Plaintiff bringing an ADEA disparate-treatment claim must prove, by a
preponderance of the evidence, that age was the “but-for” cause of the
challenged adverse employment action.
– Court’s decision eliminates the ability of plaintiffs to bring a “mixed-motives”
claim under the ADEA.
–
Meacham v. Knolls Atomatic Power, 128 S.Ct. 2395 (2008)
– HELD: employer defending a disparate impact claim under ADEA bears both
the burden of production and the burden of persuasion when asserting the
affirmative defense that the employer’s actions were based on reasonable
factors other than age.
Thomas Paschos
Partner, Thomas Paschos & Associates P.C.
Thomas Paschos practices in the fields of professional liability, employment litigation, products liability, and insurance
coverage. He has represented, amongst others, corporate officers, defendants in RICO actions, physicians, dentists,
nursing homes, lawyers, accountants, product manufacturers, leasing companies, insurance agents and brokers, real
estate agents, home inspectors, contractors, and insurance companies. In insurance coverage matters he has provided
coverage opinion for several insurance companies, and continues to do so. He has also been retained to represent
insurance companies in the filing of declaratory judgment actions regarding insurance coverage matters. He has been
awarded an AV rating by Martindale - Hubbell, which identifies a lawyer with a very high to preeminent legal ability. In
2004, he was voted by his peers as one of Pennsylvania's Super Lawyers. He is also an ARIAS-U.S. Certified Arbitrator.
Professional Admissions
Supreme Court of Commonwealth of Pennsylvania (1985), Supreme Court of the State of New Jersey (1986), U.S. Court
of Appeals - Third Circuit (1986), U.S. District Court of the Eastern District of Pennsylvania (1986), U.S. District Court for
the District of New Jersey (1986), U.S. Supreme Court (1989), U.S. District Court of the Middle District of Pennsylvania
(2001)
Professional Distinctions
AV Rated by Martindale-Hubbel, which identifies a lawyer with very high to preeminent legal ability; ARIAS-U.S.
Certified Arbitrator; Named as a Pennsylvania “Super Lawyer” by Philadelphia Magazine (2004); Who’s Who in
American Law (1989); Outstanding Young Man of America (1988)
Education
Temple University School of Law: Juris Doctorate in 1985 L.L.M. in Trial Advocacy in 1998. Drexel University: Bachelor
of Science in Business Administration 1982.
Many Thanks To …
– Peter Bennett
– Charles Appleby
– Sharon Stiller
– Thomas Paschos
– The Staff at Primerus