Keeping Up with the Times: Changes in Employment Practices Every Employer Needs to Know

1. Keeping Up with the Times: Changes in Employment Practices Every Employer Needs to Know Randy C. Sparks, Jr. Kaufman & Canoles, PC March25, 2014

3. Dangers of Social Media • Federal Trade Commission Regulation • Loss of Confidential Information/Trade Secrets • Unfair Labor Practices • “Digital” Discrimination, Harassment, and/or Retaliation • Defamation • Employee Privacy Issues • Federal Laws • State Laws

4. Protecting Yourself in the Digital Age • Non-Discrimination and Anti-Harassment Policy • Computer Usage Policy • Confidentiality/Proprietary Information Policy and Agreements • Conflict of Interest Policy • References Policy • Social Media Policy

5. Implementation • Determine company culture and philosophy • Adopt policies • Orientation and training for all employees on policies • Use computer/log-in reminders • Adopt procedures for monitoring • Consistently apply policies • Discipline violators

6. NLRB and Social Media • NLRA prohibitions apply to all employers, regardless of whether you’re unionized. • Employers cannot inhibit collective action regarding workplace issues – which is broadly construed by the NLRB. • Individual gripes not protected, but … • Complaints about working conditions are protected!

7. NLRB and Social Media • Individualized tweets not protected. • Complaints about supervisors are protected. • NLRB has focused on perceived deterrent effect of the policy, and not on any actual effect demonstrated to exist. • Even a savings clause will not save you, but include one anyway!

8. BACKGROUND CHECKS • Tension between employer’s desire to protect self from negligent hiring and potential for discrimination • Fair Credit Reporting Act

9. Employer hired an unfit employee considering nature of employment and potential risk; Employer knew or should have known of employee’s unfitness; Unfit employee caused injury; and Hiring of employee contributed to employee’s ability to cause injury. NEGLIGENT HIRING

10. Background check can be part of employer’s reasonable investigation of employee’s background and qualifications Knew v. Should Have Known Background checks are not mandatory Virginia State Police cannot disseminate criminal history information for employment purposes except: To state and local agencies in accordance with ordinance To applicant With applicant’s written and sworn consent BACKGROUND CHECKS AS PROTECTION

11. FCRA applies specifically to “consumer reports” which includes information gathered to verify a person’s fitness for employment FAIR CREDIT REPORTING ACT

12. FCRA: Key Provisions • Must have written, signed authorization from applicant before procuring report • Must be separate from application • Must advise applicant if take adverse action based on information in report, provide copy of report, and provide contact information for agency providing report • Must also provide summary of FCRA rights

13. EEOC has issued recent Guidance on the use of arrest and criminal history information. Disparate Treatment or Disparate Impact Arrests v. Convictions Criteria: Job Related + Consistent with Business Necessity No automatic, across the board exclusions Targeted exclusion Individualized Assessment Nature and Gravity of Offense Length of Time since Offense Nature of Job Background Checks as Discrimination

14. SOBERING STATISTICS • In FY 2013, the EEOC received a total of 93,727 complaints of discrimination. • 35% were complaints of race discrimination. • 30% were complaints about some form of sex discrimination. • 41% alleged some form of retaliation. • Every protected category, except sex, saw an increase in complaints! • 3.3% of EEOC complaints were filed in Virginia!

15. SOBERING STATISTICS (cont’d) • In FY 2013, the EEOC reached some type of resolution on 97,252 complaints. • The EEOC found reasonable cause to believe that some type of discrimination occurred in only 3.6% of those cases, while it found no reasonable cause in 66% of the cases. • Despite the relatively small number of cases in which reasonable cause was found, the EEOC obtained monetary benefits of $372.1 million for claimants in 2013.

16. TIMES ARE CHANGING…

17. Workplace Trends and Statistics • Almost equal balance of men (53%) and women (47%) in workforce as whole. • Approximately 36% of the workforce is composed of traditional minority categories. • OFCCP has announced new regulations aimed at increasing the hiring of veterans and persons with disabilities by government contractors.

18. Protected Categories • The “Big Five”: • Race • Color • Religion • Sex • National Origin • Age • Disability

19. Lesser Known Protected Categories • Genetic Information Nondiscrimination Act of 2008 (Title VII remedies for discrimination based on genetic characteristics) • “Genetic information” largely defined as genetic test results; can include “the manifestation of a disease or disorder in family members” of an employee – which could possibly lead to much broader coverage (i.e. family medical history) • Mothers of children less than one year old, who need to have a private sanitary area to express breast milk. • State employees who have made a charge or complaint of fraud in procurement. • Employees who attempt to engage in “collective action” regarding working conditions.

20. Employee or Independent Contractor?

21. How Do I Know? • DOL Test • 6 factor test • Looks at factors like importance to business, degree of control, permanency of relationship, and potential for profit or loss • IRS Test • Traditional 20 factor test • Newer 3 category, 13 factor test • Common Law Agency Test • 12 factor test • Looks at factors like right to control manner of work, type of occupation and skill required, length of relationship, provision of benefits, and method of payment

22. Who CONTROLS the working relationship – the employer or the worker? TESTS IN A NUTSHELL

23. Workers’ Compensation Benefits Taxes Wages and Overtime Liability Does It Really Matter?

24. DOL Budget for Fiscal Year 2013 added $10 million in grants to states to help the Wage Hour Division identify employees misclassified as independent contractors and an additional $4 million for WHD efforts specifically targeted to independent contractor misclassification. DOL has Memoranda of Understanding with IRS and 14 states (not Virginia) under its Misclassification Initiative. May 2013: DOL obtained a consent judgment of $1.075 million against employer for wages and liquidated damages owed for misclassification of employees as independent contractors. Department of Labor

25. At-Will Employment • At-will employment is alive, well, and living in Virginia. • When is at-will employment not at-will? • Statutory protected categories • Public policy torts • USERRA • Contracts

26. A Word of Caution about At-Will Policies … • NLRB issued two Advice Memoranda in response to charges that at-will policies violated the NLRA • Found at-will policies lawful because no prohibition on employees seeking to change at-will status and, in one case, because President of company could enter into agreement.

27. Wrongful Termination • Statutory Protections: • Title VII • ADEA • ADA • GINA • Workers’ Comp filing • Usually, No individual liability under federal employment statutes!

28. Wrongful Termination • Wrongful Discharge in Violation of Public Policy • Very limited tort claim • Can be brought for termination based on: • Exercise of Statutorily Created Right; • General Public Policy Expressed in Statute; or • Refusal to Engage in Criminal Act

29. Wrongful Termination VanBuren v. Grubb • Decided by Virginia Supreme Court in November 2012. • Held that an individual may be held liable for tort of wrongful discharge where he/she acted in violation of public policy and participated in the wrongful termination.

30. QUESTIONS?

31. Thank You! Randy Sparks rcsparks@kaufcan.com (804) 771-5709