Hot Topics In U.S. Employment Law

1. Hot Topics In U.S. Employment Law Sarah K. Goldstein Director of Employment Practices, Los Angeles Office sgoldstein@kdvlaw.com Telephone: 310.775.6522

2. Presentation Roadmap • Harassment/Discrimination • Protected Categories • Wage & Hour • Employment Practices Liability Insurance • Best Practices

3. Title VII – Discrimination & Harassment • Discrimination: It is unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. • Harassment: Harassment is an act committed by a person that makes another feel uncomfortable, offended, intimidated or oppressed. In order for it to be workplace harassment, it should happen in an environment like an office, a store, a school, a factory or any place where people are employed and conduct work. Harassment is a form of discrimination

4. Protected Categories Under Federal Law • Title VII prohibits discrimination on account of: • Race • National Origin • Sex • Religion • Color • An employer can fire an employee for a good reason, a bad reason or no reason at all. As long as it‘s not for an illegal reason.

5. Title VII • What Discriminatory Practices Are Prohibited? • hiring and firing, compensation, assignment, or classification of employees • transfer, promotion, layoff, or recall • job advertisements • recruitment; testing; use of company facilities • training and apprenticeship programs • fringe benefits • pay, retirement plans, and disability leave • other terms and conditions of employment • Case Examples

6. Sexual Harassment • Quid Pro Quo vs. Hostile Work Environment • Case Examples

7. ADEA – Age Discrimination • Age Discrimination in Employment Act • Protects individuals who are 40 years of age or older from employment discrimination based on age • Older Workers Benefit Protection Act

8. ADA – Disability Discrimination • Americans with Disabilities Act • Disability Discrimination • When an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. • Reasonable Accommodation

9. Equal Pay Act • Requires that men and women in the same workplace be given equal pay for equal work • Jobs need not be identical, but they must be substantially equal • Covers all forms of payment

10. GINA • Genetic Information Nondiscrimination Act • Protects employees against discrimination based on their genetic information when it comes to health insurance and employment

11. USERRA • Uniformed Services Employment and Reemployment Rights Act • Returning service-members must be promptly reemployed in the same position that they would have attained had they not been absent for military service • Same seniority, status and pay, as well as other rights and benefits determined by seniority

12. Additional Protected Categories By State • California: • Sexual Orientation • Physical or Mental Disability (including HIV/AIDS) • Marital Status • Refusal of Family Care Leave • Age • Ancestry • Religious Creed – Includes Dress and Grooming Practices • Genetic Information • National Origin (Includes Language Use Restrictions) • Gender (Includes Gender Identity and Gender Expression)

13. Whistleblower / Retaliation • Occupational Safety & Health Administration (OSHA) Whistleblower Protection Program • Protects employees who report violations of various workplace safety, financial reform, food safety, health insurance reform, securities laws, etc. • Retaliation • Blacklisting, demoting, denying overtime or promotion, disciplining, denial of benefits, failure to hire or rehire, reducing pay or hours, intimidation, etc.

14. Wage and Hour • Wage and hour law is regulated by both the federal Fair Labor Standards Act (FLSA) and a variety of divergent state laws. • Overtime, Rest Periods, Meal Periods and Payment of Commissions • Plaintiffs brought 7,764 suits between April 1, 2012, and March 31, 2013, about a 10 percent jump since 2012. Up for a 5th straight year.

15. Wage and Hour • Top three groups of employees most likely to bring a wage claim: • Salaried employees who believe they are owed overtime pay; • Hourly workers who contend they weren’t paid for all hours worked; • Restaurant workers who claim they are owed additional pay under the FLSA’s “tip credit” provision.

16. Insurance Coverage • Coverage decisions made by insurer • Attorney’s duties and obligations run to the insured, NOT the insurance company. • Generally, no indemnity dollars for wage & hour • Intentional acts not covered – i.e., sexual battery • Punitive damages not covered

17. Workplace Investigations • Immediate good faith prompt investigation • Start with complainant, witnesses • Be on the lookout for social media • Independent investigator • Communicate findings to complainant • Discipline if needed • Separation of employees usually a good idea

18. Best Practices • Complete hiring strategy • Beware of Social Media • Employment Agreements • Job Descriptions • Employee Handbook • Complaint Policy

19. Best Practices (Continued) • Dedicated Human Resources or outside assistance • Use progressive discipline when possible • Conduct performance evaluations • Document, document, document! • Be fair/respectful

20. Questions & Answers Sarah K. Goldstein Director of Employment Practices, Los Angeles Office sgoldstein@kdvlaw.com Telephone: 310.775.6522