PA Chamber of Business and Industry Annual HR Conference Legislative and Legal Human Resources Update

1. PA Chamber of Business and IndustryAnnual HR ConferenceLegislative and Legal Human Resources Update

2. Retaliation Nation

3. Retaliation Nation Elements of retaliation claim Protected activity Adverse action Casual connection

4. Retaliation Nation Three Supreme Court decisions on retaliation in 4 years Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006) Supreme Court held that it is not necessary for there to be tangible employment action to support a retaliation claim

5. Retaliation Nation Three Supreme Court decisions on retaliation in 4 years (continued) Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006) (continued) Viable claim may exist if adverse changes to "material" terms and conditions of employment that could "dissuade a reasonable worker from making or supporting a complaint"

6. Retaliation Nation Three Supreme Court decisions on retaliation in 4 years (continued) CBOCS W., Inc. v. Humphries, 128 S. Ct. 1951 (2008) Case involved Section 1981 of the Civil Rights Act of 1866, which prohibits racial discrimination with regard to making and enforcing of contracts Supreme Court held section 1981 covers retaliation claims in the employment context

7. Retaliation Nation Three Supreme Court decisions on retaliation in 4 years(continued) Crawford v. Metro. Gov't of Nashville and Davidson County, 129 S. Ct. 846 (2009) Reversing 6th Circuit, Supreme Court held that an employee may be protected from retaliation if he or she discloses information as part of an employer's internal investigation, even if the employee is not the complainant.

8. Retaliation Nation Three Supreme Court decisions on retaliation (continued) Crawford v. Metro. Gov't of Nashville and Davidson County, 129 S. Ct. 846 (2009) (continued) Decision is not surprising and consistent with existing law in other circuits but reinforces that the Supreme Court's no-nonsense attitude toward retaliation.

9. Retaliation Nation Trap for the Kindhearted Delaying the inevitable adverse action—window of opportunity for preventive strike Where delay is unavoidable, document timing of decision and reason for delay in implementation

10. Lilly Ledbetter Fair Pay Act of 2009

11. Lilly Ledbetter Fair Pay Act of 2009 Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007) that: The statute of limitations for an employee to bring a Title VII claim based on a discriminatory compensation decision begins to run when the discriminatory decision occurs.

12. Lilly Ledbetter Fair Pay Act of 2009 Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007) that: (continued) Employee cannot bring a claim based on a discriminatory compensation decision that occurred outside of the limitations period, even though the discriminatory pay practice has on-going effects in the limitations period.

13. Lilly Ledbetter Fair Pay Act of 2009 Congressional reversal: Applies not only to Title VII but also to the ADEA and the ADA Each pay check based on a prior discriminatory compensation decision violates the law, even if the compensation decision itself was made outside of the limitations period

14. Lilly Ledbetter Fair Pay Act of 2009 Congressional reversal: (continued) What does this mean? Employee can file a charge for any allegedly discriminatory paycheck in the last 180/300 days, regardless of when the discriminatory compensation decision initially was made Employee may be eligible for back pay for up to two year preceding the date on which the charge was filed

15. Lilly Ledbetter Fair Pay Act of 2009 Minimizing compensation risks Document carefully the performance component of compensation decisions Establish ranges and bands for positions to maximize internal consistency Audit periodically compensation progressions to see if any individual employees, or groups of employees, appear to be falling behind their peers

16. Lilly Ledbetter Fair Pay Act of 2009 Minimizing compensation risks (continued) Conduct statistical analysis of wages relative to gender, race, etc. under attorney client privilege and make changes as appropriate. Revisit how long you retain compensation related documentation

17. FLSA – What's Work Got to Do With It?

18. Problem: Good Employees Do a little work before they sign in Come back from lunch before 30 minutes Check e-mails from home

19. Solution—Rigid rules Preclude employees from doing any work before they sign in Preclude employees from working before 30 minute lunch break is over Preclude or compensate for home use of e-mail

20. Labor Pains for Employers

21. Union Process Currently, there are two ways for union to represent employees Voluntary recognition NLRB supervised election

22. Union Process Voluntary recognition Permissible only if good faith belief of majority representation (subject to construction industry exception) Make sure your managers and supervisors know they have no authority to recognize a union

23. Union Process Election process Union can petition NLRB for election if: 30% of eligible employees in Appropriate bargaining unit Sign authorization cards

24. Union Process Election process (continued) Practical considerations Unions usually will not file petition unless at least 50% of eligible voters have signed cards Unions tend to file petitions for smaller units because easier to get cards and higher win rates

25. Employee Free Choice Act (EFCA) History Passed the House on March 1, 2007 Failed by cloture vote in Senate on June 26, 2007 Introduced again on March 10, 2009 Degree of support for the bill varies depending on the provision; negotiations over the specific provisions Support from President Obama

26. Employee Free Choice Act: Major Provisions Streamlined certification Mandatory certification by Card Check Secret ballot elections prohibited, if majority of employees in an appropriate unit for bargaining sign union authorization cards

27. Employee Free Choice Act: Major Provisions Facilitated initial collective bargaining agreements Bargaining to begin in 10 days of certification If no agreement in 90 days, mediation If no agreement in 30 days, arbitration Arbitrator sets terms and conditions of contract with two-year term

28. Employee Free Choice Act: Major Provisions Tougher enforcement Treble damages for back pay Up to $20,000 fine per repeated or willful offense

29. Possible "Compromises" to EFCA Preserve secret ballot election, but election must be held within five or ten days of submission Secret ballot election, but union has access to workplace Mandatory best offer arbitration

30. Two Most Critical Prevention Steps Supervisory training (e.g., what are warning signs and to whom to report them) Rapid Response Plan (e.g., when and how to respond to union activity)

31. ADAAA of 2008

32. ADAAA of 2008 Discrimination prohibition Definition of disability (unchanged): A physical or mental impairment that substantially limits one or more major life activity. Cannot discriminate on the basis of: Current disability Prior (record of) disability Perceived (regarded as) disability

33. ADAAA of 2008 Overriding Principle of ADAAA: The definition of "disability" shall be construed in favor of "broad coverage" of individuals under the ADA, to the maximum extent permitted by the terms of the ADA

34. ADAAA of 2008 Five (5) significant changes with respect to defining "disability" Broadens definition of "substantially limits" Establishes a specific, non-exhaustive list of major life activities Establishes that episodic conditions and conditions in remission may constitute disabilities

35. ADAAA of 2008 Five (5) significant changes with respect to defining "disability" (continued) Most mitigating measures may not be taken into account in determining whether an individual is disabled Broadens definition of being "regarded as having an impairment"

36. Operational Impact More conditions will be disabilities under the ADA, therefore, employers will need to consider more reasonable accommodations Much easier for employees to bring perceived/regarded as claim

37. Guidance to supervisors Focus on performance/behavioral deficiency: Do not speculate as to underlying cause Do not inquire as to underlying cause

38. Guidance to Supervisors Report to HR: Employee discloses physical or mental condition in response to coaching, discipline or evaluation (even if no request for accommodation) Employee requests accommodation or leave of absence (at any time)

39. Pandemic Pandemonium

40. Anti-viral medication and vaccines Prophylaxis Good news: may need only one dose rather two Bad news: quantity of vaccine available may not be as high as anticipated (so not enough to meet need)

41. Anti-viral medication and vaccines Treatment August 21, 2009: WHO issued guidelines for the use of anti-virals in the management of patients infected with the H1N1 pandemic virus. Pandemic virus is currently susceptible to both oseltamivir and zanamivir (known as neuraminidase inhibitors), but resistant to a second class of antivirals (the M2 inhibitors).

42. Anti-viral medication and vaccines Mandatory versus optional use General recommendation: do not mandate unless special circumstances ADA—will need to prove job-related and justified by business necessity Argument that special circumstances apply where employee is treating, taking care of or has close proximity to individuals at high risk

43. Anti-viral medication and vaccines Mandatory versus optional use (continued) Special circumstances may include: Health care professionals (direct patient care) Teachers of young kids Others who have close contact with individuals at high risk (e.g., pregnant)

44. Anti-viral medication and vaccines Mandatory versus optional use (continued) If mandate and someone does not comply, minimize (not eliminate) risk by unpaid leave rather than termination If mandate, need to consider exceptions as reasonable accommodations for: Religious objections (Title VII) Physical impediments (ADA)

45. Anti-viral medication and vaccines Mandatory versus optional use (continued) Whether mandatory or optional: written informed consent (potential benefits versus potential risks of vaccination)

46. FMLA Amendments

47. FMLA Amendments On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010, Public Law 111-84 ("NDAA for 2010"). The NDAA contains several amendments to the family military-leave provisions of the Family and Medical Leave Act ("FMLA").

48. FMLA Amendments Previously, on January 28, 2008, President Bush signed into law the National Defense Authorization Act for Fiscal Year 2008, adding two new qualifying circumstances for which eligible employees may take FMLA leave. These two new qualifying circumstances are: Qualifying exigency leave Military caregiver leave

49. FMLA Amendments Amendments expand law as follows Expands circumstances in which exigency leave may apply Expands definition of covered service member Broadens definition of “serious injury or illness”

50. FMLA Amendments 4. Action Items Modify policy Modify implementing procedures

51. To Arbitrate or Not

52. To Arbitrate or Not In a 5-4 decision, the U.S. Supreme Court held in 14 Penn Plaza LLC et al., v. Pyett et al., 2009 U.S. LEXIS 2497 (U.S. Apr. 1, 2009) that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate claims under the Age Discrimination in Employment Act ("ADEA") is enforceable as a matter of federal law.

53. To Arbitrate or Not The Court distinguished its prior decision in Gardner-Devner, explaining that the actual holding of the case was that an arbitration provision of a CBA will not require the arbitration of statutory claims where the arbitration provision fails to reference clearly and specifically the statutory claims being subject to arbitration.

54. To Arbitrate or Not The Court dismissed the Gardner-Denver concern that a union may subordinate the interests of a discriminatee to the interests of the majority of the bargaining unit; union can be sued for breach of fair duty of representation

55. To Arbitrate or Not Balancing pros and cons of arbitration: Pros Time Money Confidentiality

56. To Arbitrate or Not Balancing pros and cons of arbitration: (continued) Cons Time (lose advantage) Money (lose advantage) Bias of arbitrators (less so if retired judge) Appeals (limited)

57. Mini-COBRA

58. Pennsylvania Mini-COBRA Signed into Law On June 10, 2009, Pennsylvania joined other states that mandate small employers provide medical continuation coverage, when Governor Ed Rendell signed Pennsylvania Mini-COBRA into law.

59. Pennsylvania Mini-COBRA Signed into Law 2. Examples of differences between PA COBRA and federal COBRA: Applies to employers with fewer than twenty employees (federal COBRA applies to employers with twenty or more employees); Provides continuation coverage for a period of nine months (federal COBRA provides a minimum of 18 months);

60. Pennsylvania Mini-COBRA Signed into Law 2. Example of differences between PA COBRA and Federal COBRA: (continued) Applies only to insured group major medical, hospital or surgical policies (federal COBRA applies to all ERISA group health plans); and Permits an employer to charge up to 105% of the group rate of the insurance being continued (federal COBRA provides for a maximum of up to 102%).

61. Where Is My Nurse?

62. General Requirements A health care facility (as broadly defined by the Act) may not require covered employees to work mandatory overtime, which the Act defines as requiring an employee "to work in excess of an agreed to, predetermined, and regularly scheduled daily work shift," except as provided for in the Act.

63. General Requirements The Act does not prohibit covered employees from : Voluntarily working in excess of these limitations, Working an agreed to, predetermined and regularly scheduled shift that is more than 8 hours.

64. Employees Covered by the Act The Act applies to individuals who are involved in direct patient care activities or clinical care services and are either: Paid on hourly basis; or Paid on salaried basis and are non-supervisory

65. Employees Covered by the Act The Act does not apply to the following: Physicians; Physician assistants; Dentists;

66. Employees Covered by the Act The Act does not apply to: (continued) Employees who are not involved in direct patient care or clinical care services, including environmental services, clerical, maintenance and food service employees; and

67. Employees Covered by the Act The Act does not apply to: (continued) Supervisors Non-clinical, non-patient care supervisors — hourly or salaried Clinical or patient care services — only if salaried

68. Employees Covered by the Act Who is a supervisor (relative to patient/clinical care)? Act 102 states for collective bargaining purposes What statute means is as defined by National Labor Relations Act (NLRA)

69. Exceptions to the General Rule Prohibiting Mandatory Overtime Time spent on call

70. Exceptions to the General Rule Prohibiting Mandatory Overtime Where overtime is necessary to complete a patient care procedure already in progress if the employee's absence could have an adverse effect on the patient; and

71. Exceptions to the General Rule Prohibiting Mandatory Overtime Unforeseeable emergent circumstance as defined in the Act, provided certain conditions are met

72. Annie, Get Your Gun

73. PA H.B. 2049 If enacted, would restrict most employers in PA from prohibiting customers and employees from carrying licensed weapons in a locked motor vehicle while parked on private property.

74. PA H.B. 2049 Problems: OSHA — general duty clause Practical reality — 10% of workplace fatalities are homicides. Leave the choice to the employer.

75. Thank you!