Employment Law Update 2013
ACC Michigan Chapter
Marlo Johnson Roebuck
Roderick D. Gillum
Jackson Lewis, LLP
roebuckm@jacksonlewis.com
gillumr@jacksonlewis.com
About the Firm
– Represents management exclusively in every aspect of
employment, benefits, labor, and immigration law and related
litigation
– Over 750 attorneys in 52 locations nationwide
» Including Detroit and Grand Rapids, Michigan
– Current caseload of over 5,000 litigations and approximately 300
class actions
– Complimentary email subscriptions and information on webinars,
seminars and special reports can be found at
www.jacksonlewis.com
– Founding member of L&E Global
About the Firm
– Ranked in the First Tier nationally in the category of Labor
and Employment Litigation, as well as in both Employment Law and Labor
Law on behalf of Management, in the U.S. News - Best Lawyers® “Best
Law Firms”
– Recommended in U.S. Legal 500 for Labor and Employment Litigation,
Labor-Management Relations and Workplace and Employment
Counseling
– Recognized as a firm that “corporate counsel would most like to have by
their side in head-to-head competition” in the BTI Litigation Outlook
Report 2013
– 58 attorneys were named Leaders in Their Field by Chambers USA (2012);
88 attorneys were named Best Lawyers in America® (2013); numerous
attorneys listed in SuperLawyers.
© 2013 Jackson Lewis LLP
How Can Michigan Pass Its Own Labor Law –
Right to Work?
National Labor Relations Act, as amended by Taft Hartley Act,
permits states to decide right to work issue.
Michigan can determine whether collective bargaining
agreements can include a union security clause.
Clauses require employees – as a condition of employment – to
join or financially support the union.
In “right to work” states union security clauses are prohibited.
Michigan is the 24th state.
© 2013 Jackson Lewis LLP
How Can Michigan Pass Its Own Labor Law –
Right to Work?
RTW laws mostly in southern and western United States, but
more recently in central states
Alabama
Nebraska
Arizona
Nevada
Arkansas
North Carolina
Florida
North Dakota
Georgia
Oklahoma(2001)
Idaho
South Carolina
Indiana(2012)
South Dakota
Iowa
Tennessee
Kansas
Texas
Louisiana
Utah
Michigan(2012)
Virginia
Mississippi
Wyoming
© 2013 Jackson Lewis LLP
What is the Current Situation in Michigan?
The final version of the "Workplace Fairness and Equity Act“ – in two
public acts - was signed by Governor Snyder on December 11,
2012. The two acts amend long standing statutes.

First public act covers virtually all private employers.

Second public act covers state employees, but exempts police
and firefighters.
As amended, the Act prohibits union security clauses and applies to "
an agreement, contract, understanding, or practice that takes
effect or is extended or renewed" after March 27, 2013. Thus
employees will be free to leave the union and avoid dues and fees.
Existing contracts will remain in force, including union security
clauses, until renewed or extended after the effective date of the
Act.
The Act also prohibits intimidation of employees and creates a cause
of action for violations, including fines and actual attorney fees.
© 2013 Jackson Lewis LLP
What is the Current Situation in Michigan? (cont.)
Legal Challenges
Two lawsuits filed in Ingham County Circuit Court (one filed
by a union and ACLU).
Challenges based on alleged violations of Michigan Open
Meetings Act and the First Amendment of the federal
and Michigan Constitutions.
Law provides that the Michigan Court of Appeals has
exclusive jurisdiction
Question whether the new law supersedes the rights of the
Michigan Civil Service Commission to make rules and
regulations covering non-exempt state workers.
On January 28, 2013, Governor Snyder asked Michigan
Supreme Court to review bill and determine
constitutionally.
© 2013 Jackson Lewis LLP
How Should Michigan Employers React?
Non Union Companies
Unaffected unless you’re currently negotiating a first union
contract.
•
Can freely advise employees of new statute.
Union organizing strategies may be revised.
Unionized Companies
Michigan statute will only affect union security clauses
-
All other federal rights remain in effect, including the right
to join or decline to join a union.
-
Union’s obligation to represent all bargaining unit
employees remains unchanged
Even after effective date, dues "check off" will continue for union
members.
© 2013 Jackson Lewis LLP
Important Court Decisions For Employers
The US Supreme Court: Who is a “Supervisor”
•Vance v. Ball State University et al., Case No. 11556
•Employee
alleged subjected to racially hostile work
environment at the hands of colleagues.
•One
of the alleged bad actors had authority to tell
employee what to do and did not have to clock in
•On appeal from 7th Circuit
Who is a supervisor?
The US Supreme Court: Who is a “Supervisor”
• Narrow Definition: Supervisors that make tangible or
“consequential employment decisions” (e.g., hire, fire,
demote, promote, transfer, discipline).
v.
• Broad Definition: Personnel overseeing the victim’s daily
work assignments and performance, not just power over
formal employment status.
© 2013 Jackson Lewis LLP
The US Supreme Court: Who is a “Supervisor”
Narrow Definition:
Broad Definition
• Third Circuit
• Second Circuit
• Sixth Circuit *
• Fourth Circuit
• Seventh Circuit
• Ninth Circuit
• Eighth Circuit
• Tenth Circuit
• District courts in Fifth
and Eleventh Circuits
• EEOC
The US Supreme Court: Who is a “Supervisor”
• Oral argument held on November 26,
2012
• Awaiting decision
© 2013 Jackson Lewis LLP
The US Supreme Court: Mixed Motive Theory
•Nassar v. University of Texas Southwestern
Medical Center, Case No. 11-10338
•Employee
alleged employer constructively
discharged him due to harassment and
discrimination on the basis of national origin and
blocked his hire at new employer in retaliation for
complaining
•Conflicting
evidence presented regarding the
timing and motivation of new employer’s decision
not to hire
•On appeal from 5th Circuit
•© 2013 Jackson Lewis LLP
The US Supreme Court: Mixed Motive Theory
•Nassar v. University of Texas Southwestern
Medical Center, Case No. 11-10338
•Certiorari granted 1/18/2013 to consider scope
and availability of mixed motive theory in Title VII
employment discrimination cases
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Direct Evidence
•
Martinez v. Cracker Barrel, No. 11-2189 (6th Cir.
Jan. 10, 2013)
•
Manager discharged after investigation
substantiated she made inappropriate racial
comments
•
During discovery, company witness asked: “So
you mean, you would agree [based on] the
information you have, race was an issue in the
discharge?” Witness answered: “Yes.”
•
Counsel objected to form as vague. Submitted
an affidavit to clarify meaning of answer.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Direct Evidence (cont)
• Also, witness supposedly stated, “We’ll go to bat for
you, but you have to remember that this is Flint and
you know the history of this store.”
• 6th Circuit: “Direct evidence explains itself.”
• 1st comment—poorly phrased question requires
inferential speculation as to the proper subject
of the phrase “race was an issue in the
discharge.”
• 2nd comment—history of the store requires
listener to infer referring to prior incident in
which Caucasian manager fired after African
American guests complained.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Employee’s Age Claim Not Judicially Estopped
•
Auday v. Wet Seal Retail, No. 12-5057 (6th Cir. Oct.
25, 2012)
•
Employee’s failure to amend schedule to identify claim
in bankruptcy proceedings did not prevent her from
bringing age claim. Matter remanded to amend
complaint to substitute bankruptcy trustee as plaintiff.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Discharge Did Not Violate Medical Marihuana Act
•
Casias v. Wal-Mart Stores, Inc., No. 11-1227 (6th Cir.
Apr. 18, 2012)

Employee’s discharge for testing positive for medical
marijuana upheld because MMMA does not regulate
private employment actions.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Lighter Commute Does Not Constitute Reasonable
Accommodation
•
Reagan v. Faurecia Automotive Seating, 679 F3d
475 (6th Cir. 2012)
•
ADA does not require employer to accommodate
employee’s request to commute during more
convenient hours.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• Public Policy Requires Employment Relationship
•
Berrington v. Wal-Mart Stores, Inc., 696 F.3d 604 (6th
Cir. 2012)

Employee’s claim that employer violated Michigan
public policy for failing to rehire him because he
applied for unemployment benefits fails because no
right to be hired or rehired.
© 2013 Jackson Lewis LLP
6th Circuit Case Update
• 6 ½ Year Age Difference = Substantially Younger
•
Blizzard v. Marion Tech. Coll., 698 F.3d 275 (6th Cir.
2012)
•
Employee established PFC when replacement
was 6 ½ years younger than employee.
•
Summary judgment appropriate because
employee could not show reasons for discharge
were pretextual
• Affirmed that employer needs only an honest
belief
© 2013 Jackson Lewis LLP
EEOC Update
EEOC— FY2012 Scorecard
• EEOC obtained $365 million in relief, down
$91 million from last year
• 99,412 charges in FY2012, slightly lower than
FY2011
• Of the charges, retaliation was the most
common (2nd consecutive year), followed by
race
• EEOC filed 122 lawsuits
© 2013 Jackson Lewis LLP
EEOC—Strategic Enforcement Plan
• 5 National Priorities:
• 1. Eliminating systemic barriers in recruitment and
hiring
• 2. Protecting immigrant, migrant and other
vulnerable workers
• 3. Addressing emerging issues
• 4. Preserving access to the legal system
• 5. Combating harassment
© 2013 Jackson Lewis LLP
EEOC—Background Checks
• An employer’s neutral policy (e.g., excluding
applicants from employment based on certain
conduct) may disproportionately impact some
individuals protected under Title VII, and may
violate the law if not job related and consistent with
business necessity (disparate impact liability).
• Concern: race and national origin
© 2013 Jackson Lewis LLP
EEOC v. Kaplan Higher Educ. Corp.
• EEOC sued Kaplan challenging its use of applicants’
credit reports in hiring individuals for financial aid jobs
as having a disproportionate adverse impact on African
American applicants
• Kaplan does not collect information on the race of its
applicants, so the EEOC’s experts used state department
of motor vehicle records and/or drivers’ license photos
to determine the race of some rejected job applicants.
Its expert used “race raters” to select the race of
rejected applicants. Four of 5 raters had to agree on an
applicant’s race for that individual’s race to be included
in its expert analysis.
© 2013 Jackson Lewis LLP
EEOC v. Kaplan Higher Educ. Corp. (cont)
• N.D.Ohio granted Kaplan’s motion to exclude expert and
for summary judgment.
• Court reasoned: (1) race rater procedure did not meet
Daubert standard; (2) without being able to establish
rejected applicants’ race, EEOC could not satisfy its Title
VII prima facie burden
• No ruling on Kaplan’s affirmative defense that credit
reports were based on job relatedness and business
necessity,
© 2013 Jackson Lewis LLP
OFCCP Update And Interplay With EEOC’s Initiatives
So Who Has To Worry
About This?
Companies who are subject to Executive Order 11246
Most direct government contractors and sub- contractors
The “50/50” rule:
> 50 or more total employees;
> $50,000 or more in government contract revenue.
© 2013 Jackson Lewis LLP
30
What Affirmative Action Is. . . and Isn’t (cont.)
Federal government expects contractors to shift to a
Proactive EEO approach:
•
Don’t wait until employees raise EEO issues and only then
react to them.
•
Instead, uncover the “hidden barriers” to EEO before
employees raise concerns:

Investigate, address and resolve EEO issues proactively.
© 2013 Jackson Lewis LLP
31
In November, OFCCP mailed 1,762 advance notice
letters to employers slated for audit in the coming
months
This is a departure from the “big announcement”
OFCCP made in August at the ILG National
Conference in Hawaii . . .
© 2013 Jackson Lewis LLP
32
Notice sent even if only one location selected
Sent directly to the establishments
Addressed
Director”
“Human
generically
to
Resources
o
Greater emphasis
employers
on
o
Multiple locations of select larger employers for
“enterprise-wide” reviews
o
Give “fair warning” of upcoming audit
Why???
smaller
to
mid-size
© 2013 Jackson Lewis LLP
33
What Does This Mean For You Today?
•
Ensure all jobs are posted with diversity
recruitment sources
•
3 – 5 sources each
•
Beef up sources, especially for individuals
with disabilities and veterans
•
Consider adding Vocational Rehabilitation and
Veterans Affairs to diversity recruitment
sources
•
Establish relationships
•
Track and monitor effectiveness of sources
© 2013 Jackson Lewis LLP
Moving on to Bigger Audit Preparation Projects
– Adverse Impact
Adverse Impact: OFCCP’s “Bread & Butter”
Applicant to hire adverse impact remains OFCCP’s “sweet
spot”
The methods OFCCP is using to find adverse impact
continue to evolve
Let’s take a look at how . . .
© 2013 Jackson Lewis LLP
OFCCP’s Focus on Hiring
Hiring:
•
FedEx to Pay $3 Million, Amend Practices to Settle
OFCCP Charges of Bias in Hiring (3/12)
•
Motor Maker Baldor Settles for $2 Million for Race
and Sex Bias in Hiring (6/12)
•
Leprino Food Settle Bias Claims for $550,000
Based on Laborer Hiring Test (7/12)
•
Texas Beef Firm Settle for $600,000 Agency’s
Claims of Race, Sex Bias in Hiring (10/12)
36
•
© 2013 Jackson Lewis LLP
And OFCCP Still Focusing on Pre-Employment Testing
Leprino Foods – July 2012 Consent Decree
$550,000 for Asian, Hispanic and Black applicants
WorkKeys pre-employment test:
•
Third party testing vendor
•
Leprino relied on WorkKeys’ validation of test
•
OFCCP found test not job related
•
Need to ensure validated for specific job at issue
37
© 2013 Jackson Lewis LLP
Lessons Learned from Leprino Foods
Pose these or similar questions :
•
Has the test/assessment been validated in accordance with
the Uniform Guidelines on Employee Selection Procedures?
•
What have you done or propose to do to support validation of
the test/assessment on a local facility-by facility basis?
•
What level of support do you provide to your clients in the
event of an OFCCP or EEOC inquiry related to the use of your
product?
•
Has your test/assessment and related validation materials, if
any, been subject to review by OFCCP or EEOC (including
reviews of companies that utilize your test/assessments and
validation materials)? If yes, what was the outcome(s)?
© 2013 Jackson Lewis LLP
What Is A Test?
“Tests” can refer to any selection step that is ranked or
scored, such as:
Pre-employment written tests
Job simulations
Behavioral/personality tests
Scored interviews
Pre-screening questions
Physicals/Drug
Test
Criminal background checks
Credit checks
References
Why does this matter???
© 2013 Jackson Lewis LLP
It’s Not Just the OFCCP . . .
EEOC has finalized its four-year Strategic Enforcement Plan
Do you know what the Agency’s #1 Primary enforcement
objective is?
•
“Eliminate Systemic Barriers in Recruitment and Hiring”

Criminal Background Checks

Pre-Employment Tests

Credit Checks

Drug Screens
•
40
© 2013 Jackson Lewis LLP
Privacy Law And The NLRB
Michigan Bars Employers from Demanding
Private Social Media Information
•Internet
Privacy Protection Act (eff. Dec. 28,
2012)
Applies
to employers and prospective employers
Covered
employer: “a person, including a unit of
state or local government, engaged in a business,
industry, profession, trade, or other enterprise in
this state and includes an agent, representative, or
designee of the employer.”
© 2013 Jackson Lewis LLP
Michigan Bars Employers from Demanding
Private Social Media Information
Prohibits
covered employer from requiring
employees and applicants to grant access to, allow
observation of, or disclose information used to
access private Internet and e-mail accounts,
including social media networks such as Facebook.
Prohibits
covered employer from discharging,
disciplining, failing to hire, or otherwise penalizing
those who refuse to disclose information that
allows access to such accounts.
© 2013 Jackson Lewis LLP
Michigan Bars Employers from Demanding
Private Social Media Information
Does
not apply to:
–Requesting information or access to: (i) an
electronic communications device paid by
employer, or (ii) an account provided by the
employer, obtained by virtue of employment
relationship, or used for employer’s business
purposes.
–Disciplining or discharging employee for
transferring confidential info without approval
–Conducting an investigation or requiring an
employee to cooperate in investigation
© 2013 Jackson Lewis LLP
Michigan Bars Employers from Demanding
Private Social Media Information
Does
not apply to:
–Restricting or prohibiting employee’s access
to certain websites while using company-paid
electronic communications device
–Monitoring, reviewing, or accessing electronic
data stored on company-paid device in
accordance with state and federal law
© 2013 Jackson Lewis LLP
National Labor Relations Board
D.C. Circuit Court of Appeals finds recess
appointments to the NLRB unconstitutional
Questions exist concerning validity of controversial
NLRB decisions without a legitimate quorum
-
Confidentiality of witness statements
-
Employer response to union requests for
information
Justice Ginsburg denies nursing home emergency stay
application of NLRB injunction pending Supreme
Court Review
© 2013 Jackson Lewis LLP
National Labor Relations Board
Expansion of Existing Initiatives
Micro Bargaining Units – Specialty Healthcare
NEW RULE: Must prove “overwhelming
community of interest” to expand bargaining
unit, no matter how small – an employer’s
ability to successfully oppose is very limited.
This rule is being applied in other types of
workplaces – not just healthcare!
Open question whether this undermines acute
care bargaining unit rules.
© 2013 Jackson Lewis LLP
National Labor Relations Board
Expansion of Existing Initiatives
EXPANDED DEFINITION OF PROTECTED
CONCERTED ACTIVITY
NLRA protects concerted activity by employees.
Applies equally to both unionized and union-free
workplaces.
Protected concerted activity: typically 2 or more employees
acting together to attempt to improve their terms and
conditions of employment.
Employees are protected against retaliation for discussing
or complaining about terms and conditions of
employment.
© 2013 Jackson Lewis LLP
National Labor Relations Board
Expansion of Existing Initiatives
SOCIAL MEDIA & CONCERTED ACTIVITY
Employees are talking about companies online –
like it or not:
•
Including, for example, social media sites,
blogs and text messages
For employees, a social media policy outlines
corporate guidelines and principles for online
communications, including limitations on release
of trade secrets, disclosure of competitive
information and derogation of the company
© 2013 Jackson Lewis LLP
National Labor Relations Board
Expansion of Existing Initiatives
Examples of rules prohibiting the following activity found
illegal:
Criticizing management with each other on Facebook NLRB General
Counsel Memorandum OM 12-31 (1/24/2012).
Company arbitration agreements precluding class action claims. D.R.
Horton, 357 NLRB No. 184 (2012).
Discussing sexual harassment complaints with each other. Security
Walls, 356 NLRB No. 87 (2011).
Complaining to customers about management Guardsmark, LLC 344
NLRB 809 (2006).
Sharing wage increases and performance reviews with each other.
Waco, Inc., 273 NLRB 746 (1984).
Bulletin board postings without first being reviewed by human
resources. Liberty House Nursing Home, 236 NLRB 756 (1978).
© 2013 Jackson Lewis LLP
National Labor Relations Board
Expansion of Existing Initiatives
Implications of the NLRB’s protected concerted activity focus:
Social media/electronic
communication rules
Email and computer rules
Confidentiality of information
and investigations
Workplace conduct, rules
(cooperation, loyalty,
harassments, etc.)
Rules about speaking to the
media
“At will” policies
Class action waivers
Arbitration provisions
Chain of command rules
Rules about off-duty
misconduct
Codes of conduct and rules
regulating employee
statements, non-
disparagement and gossip
Solicitation/distribution/
access
© 2013 Jackson Lewis LLP
Recommendations for Employer Consideration
Review handbooks, social media and other
workplace policies to comply with rapidly
changing legal requirements.
Conduct a bargaining unit analysis to determine (for
example) supervisory status.
Develop a philosophy as to union avoidance or
coexistence and understand implications of
strategies (e.g. neutrality, union security clauses)
Provide training for management on pitfalls and
problem avoidance.
© 2013 Jackson Lewis LLP
Thank You!