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Year-End Update: A Look Back at 2013 and What to Expect in 2014. Presented by: Karen M. Morinelli Jackson Lewis P.C. 100 South Ashley Drive Suite 2200 Tampa, FL 33602 (813) 512-3210 . Overview. Supreme Court Review

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Year-End Update: A Look Back at 2013 and What to Expect in 2014

Presented by:

Karen M. Morinelli

Jackson Lewis P.C.

100 South Ashley Drive

Suite 2200

Tampa, FL 33602

(813) 512-3210


  • Supreme Court Review

  • Federal Administrative Agencies’ Actions in 2013

  • Union Membership Update

  • Legislation Enacted in 2013

  • State & Local Developments in 2013

  • Other Issues on the Horizon in 2014

2013 -2014

Supreme Court Decisions

Employment Cases on the Docket for 2014

  • Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0


  • Whether an employer may avoid paying overtime to unionized employees for time spent donning and doffing certain protective gear

Employment Cases on the Docket for 2014

  • Sandifer v. United States Steel Corp. U.S., No. 12-417 (1/27/14 ) (Justice Scalia) 9-0

    FLSA (cont’d)

  • 29 U.S.C. § 203(o), allowed U.S. Steel to withhold pay from workers' clothes-changing time, pursuant to a collective bargaining agreement with the United Steelworkers

Who is a “supervisor”?

  • Vance v. Ball State University, No. 11-556 (June 24, 2013) (J. Alito), 5-4

  • “[S]upervisory” authority includes the power to make a significant change in employment status:

    • Hiring

    • Firing

    • Failing to promote

    • Reassignment with significantly different responsibilities

    • Decision causing a significant change in benefits

Who is a “supervisor”?

  • Tangible employment action standard


  • EEOC test of “significant direction over daily work” rejected

Who is a “supervisor”? (Cont’d)

Why Does It Matter?

Faragher/Ellerth Defense

Best Practices

  • Review job descriptions of employees who assume quasi-leadership roles

  • Continue efforts to prevent workplace harassment through training & investigation of complaints

Faragher/Ellerth DefenseBest Practices

  • Remember that even if the alleged harasser is a co-worker (and not a supervisor), liability may be imposed on the Employer if the Employer knew or should have known about the conduct

Proof of “But For” CausationRequired for Retaliation Cases

  • University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4

  • The statute’s plain language and Title VII’s structure demonstrated that retaliation claims were not subject to the “motivating factor” standard of proof

Proof of “But For” CausationRequired for Retaliation Cases

  • University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013)(J. Kennedy), 5-4

  • Retaliation claims must be proven according to traditional principles of but-for causation, not the lessened causation test stated for claims of discrimination

Proof of “But For” Causation

Required for Retaliation Cases (Cont’d)

Why Does It Matter?

Heightened Proof Standard for Plaintiffs!

Best Practices

  • Document all Actions

  • Investigate Complaints

  • Be Reasonable

Effect of United States v. Windsor (DOMA case)

  • United States v. Windsor, No. 12-307 (June 26, 2013)

  • Holding: DOMA’s definition of marriage as being a legal union between a man and a woman was unconstitutional as it denied equal protection under the Fifth Amendment

Effect of United States v. Windsor (DOMA case) (cont’d)

Why Does It Matter?

Change In Interpretation of Federal Law


  • Employers must provide employees time off to care for their same sex spouse under the FMLA

  • Spousal privilege when it comes to confidential communications will now extend to same-sex marriages

  • Benefits, Taxes, Life/Death decisions

Employment Cases on the Docket for 2014

  • Noel Canning v. NLRB– whether the Constitution only authorizes presidential appointments during intersession recess and whether the President can only use his recess appointment powers to fill a vacancy that emerged during the recess

Employment Cases on the Docket for 2014

  • Schuette v. Coalition to Defend Affirmative Action– whether law prohibiting use of racial preferences in public universities, government contracting and public employment violates the Equal Protection Clause

Employment Cases on the Docket for 2014

  • Madigan v. Levin– whether the ADEA provides the exclusive remedy for age bias claims filed by state or local government employees or if such claims can be brought under the Equal Protection Clause of the Constitution



Administrative Agencies





2013 Claims between Oct. 1, 2012 to Sept. 30, 2013

Charges filed:

EEOC received a total of 93,727 private sector discrimination charges

Adecrease of roughly 6,000 charges over the previous three fiscal years



Charges resolved:

A total of 97,252 charges were resolved

Also a decrease over the year before

EEOC attributed to “the decline in staffing and resources…including the impact from furloughs.”

Resolution through conciliation occurred 1,437 times.



Total Charges 7,957

% of all US 8.1%

Charge Categories *


Title VII/Retaliation33.8%



* As a percentage of all state charges


Average time:

In FY 2012, the average time to investigate and bring charges to resolution was 288 days

The enforcement staff reduced that timeline by 21 days in FY 2013, to 267 days

Monetary recovery:

Charging parties recovered $372.1 million, a new record for the agency (up $6.7 million from the year prior)


Lawsuits filed:

The EEOC filed 131 “merits lawsuits,” with 89 individual suits, 21 non-systemic class suits, and 21 systemic suits

Title VII formed the basis of the majority of the cases (78)

Americans with Disabilities Act (51)

Age Discrimination in Employment Act (7)

Equal Pay Act (5)

Genetic Information Nondisclosure Act (3)

EEOC cases in 2013

  • The EEOC took 13 cases to trial in 2013

  • 11 jury trials and 2 bench trials

  • EEOC prevailed in 9 of them, resolved 1 by consent decree during trial, and lost 1

  • EEOC lost one bench trial, and another case is stillpending following a bench trial

What’s happening at the EEOC?

  • The EEOC Strategic Enforcement Plan 2013 - 2016 Commission enforcement focus

    • hiring

    • pay

    • harassment

    • protecting immigrant, migrant and other vulnerable workers

    • addressing emerging and developing issues

    • and preserving access to the legal system

What’s happening at the EEOC?

EEOC continues to aggressively pursue:

  • Pregnancy Discrimination Cases

  • ADA Cases

  • National Origin Cases

What’s happening at the EEOC? (Cont’d.)

  • EEOC sued an employer for failing to hire women for operative positions (such as selector, receiving clerk, driver, yard jockey, driver trainee, forklift operator, and transportation supervisor)

What’s happening at the EEOC? (Cont’d.)

  • The EEOC sued a tire and muffler company for failing to hire women as Managers, Assistant Managers, Mechanics, Tire Installers, and similar jobs because of their sex

What’s happening at the EEOC? (Cont’d.)

  • The EEOC sued a restaurant for failing to hire people age 40 and older for “front of the house positions”

  • The EEOC sued a retailer, claiming that it did not hire people because of their race (African-American or black) or national origin (Hispanic or Latino) and that the employer retaliated against employees who complained about discrimination

EEOC’s Position on Background Checks

The EEOC’s most significant 2012 guidance was the enforcement guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964

EEOC’s Position on Background Checks (Cont’d.)

The EEOC has filed lawsuits alleging that background checks have a discriminatory impact on minorities

  • EEOC v. Freeman, No. 8:09-cv-02573(RWT)

    (D. Md. Aug. 9, 2013)

    • Court found no facts to support theory of disparate impact where EEOC failed to identify the specific policy or policies causing the alleged disparate impact

EEOC’s Position on Background Checks (Cont’d.)

  • EEOC v. BMW– EEOC sued manufacturing facility in South Carolina alleging that its criminal background policy violated Title VII by disproportionately screening out African Americans from jobs (Pending)

EEOC’s Position on Background Checks (Cont’d.)

  • EEOC v. Dollar General– EEOC sued the big box store on behalf of applicant whose conviction records check report was incorrect and alleged that the use of the records check violated Title VII (Pending)



Unionized Workforce GREW!!

Overall most since 2009



Government numbers FELL

By 172,000

To 7.9 Million

Local government most losses!!



Public Sector – 38.7%

Local government 44.1%

  • Teachers

  • Police

  • Firefighters

    State 33.8%

    Federal 31.2%

U.S. Department of Labor


DOL – FMLA Case Update

  • Eleventh Circuit FMLA Case Law Update (2013)

  • Tippins v. Honda Mfg. of Ala., LLC, 523 Fed. App’x 641 (11th Cir. July 15, 2013)

  • Eleventh Circuit affirmed district court’s holding in favor of employer that employee’s three-day absence for a dental condition did not qualify as a serious health condition involving continuing treatment

  • She was not incapacitated for a continuous period of more than three days

DOL – FMLA Case Update

  • Green v. U.S. Steel Corp., 2013 U.S. App. LEXIS 25268 (11th Cir. Dec. 19, 2013)

  • Before employee’s termination, she had entered into a last chance agreement with employer because of prior instances of absenteeism

  • The last chance agreement required her to provide a doctor’s note for any absences immediately upon returning to work

  • Employer terminated her after absences Plaintiff claimed were related to her FMLA serious health condition (influenza)

DOL – FMLA Case Update

  • Penaloza v. Target Corp., 2013 U.S. App. LEXIS 22172

    (11th Cir. Oct. 31, 2013)

  • Employer gave employee over 12 weeks of leave due to her pregnancy, in accordance with the employer’s policy of providing employees who timely completed FMLA forms 16 weeks of unpaid FMLA leave (i.e., 4 weeks longer than the statutory requirement)

  • Employee was terminated two weeks after the 12 week leave period ended

  • Employee’s FMLA interference claim failed because she could not show she was denied any benefit to which she was entitled under the FMLA

DOL – FMLA Case Update

  • Giles v. Daytona State College, Inc., 2013 U.S. App. LEXIS 21711 (11th Cir. Oct. 25, 2013)

  • Employee took FMLA leave to care for ailing parents

  • Shortly after her return to work, her employer informed her that her annual contract would not be renewed for “budgetary reasons”

  • She appealed the nonrenewal of her contract through the employer’s mediation process and ultimately was reinstated

DOL – FMLA Case Update

  • Turner v. Fla. Prepaid College Bd., 522 Fed. App’x 829 (July 2, 2013)

  • Employee requested FMLA leave after she was placed on a performance improvement plan

  • When employee returned to work, she was terminated for her performance

  • Employee claimed FMLA interference and retaliation

  • Eleventh Circuit held that interference and retaliation claims survived summary judgment

DOL – FMLA Case Update

  • Gilliard v. Ga. Dept. of Corrections, 500 Fed. App’x 860 (11th Cir. Dec. 7, 2012)

  • Eleventh Circuit affirmed grant of summary judgment in favor of defendants on employee’s FMLA interference and retaliation claim

  • Any issue of fact was not material because employee did not present more than a scintilla of evidence showing that her 12 week FMLA leave period was reduced by three days

  • Employee did not establish that employer’s non-retaliatory reasons for her proposed five-percent salary reduction and termination were pretexts for retaliation

DOL – FMLA Case Update

  • Davis v. Postmaster General, 2013 U.S. App. LEXIS 25257 (11th Cir. Dec. 19, 2013)

  • A postal worker terminated after he failed to return from a long absence exceeding 12 weeks and failed to respond to multiple disciplinary notices

  • He did not state a prima facie case for FMLA retaliation

  • The former employee argued that he was entitled to FMLA leave for most of the period of absence because he was caring for his sick children

  • Eleventh Circuit affirmed, that he failed to engage in statutorily protected conduct because his absence exceeded the 12 weeks protected by the FMLA

DOL – FMLA Case Update

Badger v. MCG Health, Inc., 2013 U.S. App. LEXIS 21395 (11th Cir. Oct. 22, 2013)

  • While employee was out on FMLA leave, her supervisor discovered that employee failed to: create files for important documents, maintain a required competency manual, appropriately discipline employees, minimize employee overtime, and…. maintain employee FMLA paperwork

Other Agency Updates

  • DOL issued

    • new hiring standards

    • final rule guaranteeing minimum wage and overtime benefits to domestic care workers and

    • remains aggressive vis a visaudits and seeking civil monetary penalties

State Update

State Update

Orange County Classroom Teachers Assn. v. SchoolDist. of Orange Co., 40 FPER I 157 (FL PERC October 8,2013)

The Commission found that the District had committed an unfair labor practice

By refusing to allow a union to utilize its e-mail system during the time that its registration had lapsed

By erroneously informing a newspaper, bargaining unit members, and the Union president that the Union could not serve as bargaining agent while its registration was in a lapsed state

State Update

Hollywood Fire Fighters, Local 1375, IAFF, INC., vs City of Hollywood, No. 4D12-2861 4th DCA Jan. 8, 2014

Issue: Public Employees right to collectively bargain / interrelated constitutional right of a bargaining unit to be free from impairment of contracts

PERC’s interpretation of Fla Stat 447.095(1) – “Financial Urgency” violates these constitutional rights

HELD: Disagrees with PERC in Headley v. City of Miami, 118 So. 3d 885 (Fla. 1st DCA 2013)

Certifies Conflict with the 1st DCA & Directs PERC to apply “Chiles”

Legislation Enacted In 2013

Enacted Legislation

  • Nothing overriding passed on federal level

  • Several proposed bills at each end of political spectrum but few in the middle

  • Significant STATE AND LOCAL LAWS have passed

  • “Ban the Box” Laws & Increases to Minimum Wage

Ban the Box

  • Minnesota passes “ban the box” law changing how employers consider job applicants’ criminal history (effective 1/1/14)

  • Rhode Island passed similar legislation that applies to public and private employers

  • Seattle law does more

  • Currently at least 8 states or localities have broad laws limiting an employer’s right to inquire regarding criminal convictions – most just deal with timing issues

  • California, Colorado, Connecticut, Illinois, Maryland and New Mexico have all adopted statewide regulations to ban the box for public sector employees

  • Other localities like NYC, Chicago and Baltimore have followed suit in whole or in part in public sector and/or for contractors

Minimum Wage

Florida’s minimum wage $7.93 changed January 1, 2014

No Texting!

  • Florida has joined 41 other states by passing a law prohibiting, as a secondary offense, manual texting, e-mailing and instant messaging on a wireless device while driving

Potential Federal Legislation In 2014

Potential Federal Litigation in 2014

  • Employment Non-Discrimination Act (“ENDA”) would prohibit discrimination on the basis of sexual orientation or gender identity

    Legislation most likely to pass

Potential Federal Litigation in 2014

  • Working Families Flexibility Act of 2013 would amend the FLSA to allow private employers to provide compensatory time off to employees in lieu of overtime under certain conditions

Potential Federal Litigation in 2014`

  • Family and Medical Leave Inclusion Act would allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent

  • Family and Medical Leave Enhancement Act wouldexpand the FMLA to cover smaller employers, allow workers to take unpaid FMLA for “parental involvement and family wellness”

Potential Federal Litigation in 2014

  • Paycheck Fairness Act would shrink the pay gap between men and women

And in 2015

  • New rule requires home care employers to pay minimum wage, overtime to their direct care employees

Other Issues on the Horizon in 2014

Other Issues on the Horizon in 2014

  • Potential state or local legislation:

    • Bullying

    • Paid sick leave

    • Ban the box

    • Limiting credit checks

  • Court actions:

    • More wage and hour class actions

    • Pregnancy discrimination

Other Issues on the Horizon in 2014

  • Federal Administrative Agencies:

    • Continued Aggressiveness

    • Continued Rulemaking

  • Affordable Care Act - Impact/Implementation




Presented by:

Karen M. Morinelli

Jackson Lewis P.C.

100 South Ashley Drive

Suite 2200

Tampa, FL 33602

(813) 512-3210

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