Hot Topics in Labor & Employment Law 2009

1. Hot Topics in Labor & Employment Law 2009 The material provided herein is for informational purposes only and is not intended as legal advice or counsel.

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3. Lilly Ledbetter Fair Pay Act Karen Thompson

4. Background • Equal Pay Act (EPA) signed into law in 1963 by President John F. Kennedy • EPA prohibited the payment of unequal wages to men and women who performed substantially equal work • At that time, women earned 59 cents compared to every dollar earned by men • In 2008, women earned 78 cents for compared to every dollar earned by men

5. Lilly Ledbetter Fair Pay Act of 2009 • Enacted on January 29, 2009 • First law signed by President Obama • Repudiated U.S. Supreme Court holding in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) • Essentially eliminates statute of limitations defense in disparate pay cases

6. The Ledbetter Decision • Ledbetter worked for Goodyear for 19 years • After she retired she filed an EEOC charge alleging pay discrimination in violation of Title VII and EPA • Salary increases were based on performance ratings; she claimed her ratings were lower due to sex discrimination resulting in lower pay • Jury agreed and awarded her backpay and damages totaling 3.3 million dollars on her Title VII claim

7. The Ledbetter Decision Supreme Court’s Holding (5-4 decision): • The period for filing an EEOC charge begins when the discriminatory decisions were first communicated, not when she received pay reflecting the results of the discrimination • Case dismissed due to her failure to file within 180 days of original act of discrimination

8. Aftermath of the Decision • Congressional response was immediate • House Committee on Labor & Education introduced a bill which was passed on July 31, 2007; insufficient votes in the Senate • Fair Pay Act reintroduced on January 6, 2009 and passed in both House and Senate • Signed into law on January 29, 2009 • Congressional findings in the Act extremely critical of Supreme Court decision

9. Key Provisions of Fair Pay Act • Unlawful employment practice occurs when: • A discriminatory compensation decision or other practice is adopted • An individual becomes subject to such a decision or practice, or • An individual is affected by application of such decision or practice, including each time wages, benefits or other compensation is paid

10. Key Provisions of Fair Pay Act • Extends statute of limitations • 180/300 days from the date of the unlawful employment practice to file a charge • Each payment reflecting a discriminatory decision resets the period to file a charge of disparate pay • Applicable to pension, severance as well as regular paychecks

11. Key Provisions of Fair Pay Act • Amends Several Anti-discrimination Laws - Title VII of Civil Rights Act of 1964 - Age Discrimination in Employment Act - Americans with Disabilities Act of 1967 - Rehabilitation Act of 1973 • As a result, it applies to all discrimination claims resulting in disparate pay

12. Key Provisions of Fair Pay Act • Applies retroactively to all claims pending or filed on or after May 28, 2007, including those on appeal • Aggrieved person may recover back pay/benefits for up to two years preceding filing of the charge if the discrimination during charge period is similar to discrimination that went before

13. Potential Impact • Dramatically lengthens or eliminates statute of limitations defense in discrimination cases • Makes claims more difficult to defend (missing records, absent managers/supervisors) • Expands the class of persons who can file • Anticipate increase in EEOC and state agency filings and lawsuits • Imposes greater responsibility on employers to address effects of past discrimination • Concept may be applied more broadly to “other practices” of discrimination

14. What’s a Prudent Employer to Do? • Conduct compensation audit to identify pay disparities that appear to be the product of discrimination • Research and document explanation for perceived disparities • Make corrections where appropriate • Do so with assistance of counsel • Obtain releases if disparities are addressed • Do so prior to lawsuit or EEOC claim

15. What’s a Prudent Employer to Do? • Update/redesign existing compensation structure as needed • Perform periodic salary equity analyses • Review and revise record retention policies • Train management on new law and impact on salary decisions • Create procedures to identify and address disparities in salary decisions

16. What’s a Prudent Employerto Do? • If a claim is filed: • Advance legitimate reasons for perceived pay disparities such as education, seniority, skill level, experience etc. • Analyze contemporaneous documents to defend pay disparity • Stress company’s commitment to pay equality • Note availability of complaint procedures, and employee’s failure to follow • Equitable defense of laches as result of delay

17. On the Horizon • Paycheck Fairness Act • If enacted, will reduce employer defenses and enhance Equal Pay Act claims • Will require employers to prove wage disparities are job related and consistent with business needs • Will protect employees who discuss salary information from retaliation by employers • Will allow uncapped compensatory and punitive damages

18. Hot Topics in Immigration Michael Ligorano

19. Employer Best Practices For Workers with Caregiving Responsibilities Annmarie Simeone

20. 2007 EEOC Enforcement Guidance: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” and 2009 EEOC Enforcement Guidance: “Employer Best Practices for Workers with Caregiving Responsibilities.”

21. Define “family” and “caregiver” broadly • Broad application of “family” and those with caregiving responsibilities in less traditional or stereotypical sense • Broad definition of “caregiver”

22. The “Benevolent Employer” An employer should not make employment decisions based on what it believes to be employee’s perceived “best interests” or with the belief that it is being “sensitive” to an employee’s needs, without ever speaking with the employee about his or her actual expectations or needs.

23. The Legal Requirements • No federal law currently makes “caregivers” a protected class • Best practices set forth in 2009 guidance are not mandatory. Employers are not required to implement all or any of the recommended best practices. • Federal laws are unchanged. Continue enforcement of equal opportunity policies and follow Title VIII, ADA, etc.

24. The Practical Implications • The EEOC has placed employers on notice that discrimination based on caregiving responsibilities will be taken seriously • Based on Enforcement Guidance in 2007 and 2009, a trend in litigation is signaled and the number of caregiver discrimination suits filed by the EEOC is expected to increase • Employers have not lost their ability to fire, discipline, reprimand, or transfer employees based on legitimate business reasons. Caregivers are not given any EXTRA leeway. They can still be fired for not doing their jobs, just like anyone else.

25. 2009 Best Practices The 2009 Guidance outlines 3 areas in which best practices can be implemented: • General Application • Recruitment, Hiring, and Promotion • Terms, Conditions, and Privileges of Employment

26. General • Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities • Develop, disseminate, and enforce a strong EEO policy

27. General An effective policy addressing caregiver protections should: • Use broad definition of “family” • Describe common stereotypes or biases about caregivers that may result in unlawful conduct • Provide examples of prohibited conduct • Ensure managers comply with work-life policies • Require the employer to respond to and investigate complaints of caregiverdiscrimination promptly • Require the employer to conduct prompt and thorough investigation and take appropriate corrective action

28. Recruitment, Hiring, and Promotion • Focus on the applicant’s qualifications for the job in question • Review employment policies and practices • Develop specific, job-related qualification standards for each position

29. Recruitment, Hiring, and Promotion • Ensure that job openings, acting positions, and promotions are communicated to all eligible employees regardless of caregiving responsibilities • Implement recruitment practices that target individuals with caregiving responsibilities

30. Recruitment, Hiring, and Promotion • Identify and remove barriers to re-entry into the workplace • Ensure that employment decisions are well-documented and transparent (to the extent feasible)

31. Terms, Conditions, and Privileges of Employment • Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers • Review workplace policies that limit employee flexibility. Such as fixed hours or mandatory overtime.

32. Terms, Conditions, and Privileges of Employment • Encourage employees to request flexible work arrangements that allow them to balance work and personal responsibilities Flexible work arrangements may include: • Flextime Programs • Flexible Week Opportunities • Telecommuting, Work-at-Home, or Flexplace Programs • Job sharing

33. Terms, Conditions, and Privileges of Employment • Reassign job duties (if requested) • Provide reasonable personal or sick leave to allow employees to engage in caregiving even if not required to do so by the Family and Medical Leave Act of 1993 (FMLA)

34. Terms, Conditions, and Privileges of Employment • Post employee schedules as early as possible • Ensure that employees are given equal opportunity to participate on complex or high-profile work assignments

35. Conclusion In addition to the specific best practices, there are a few key points to take away today: • This is a hot topic for the EEOC and employers should expect more claims in this area • Employers should review their policies and practices for equal opportunity compliance

36. Conclusion • Employers should not act on stereotypes or assumptions even if the employer believes that it is acting in the employee’s best interests • The Best Practices may benefit employers

37. Protect Your Business From the Dangers Posed by Email, Online Social Networks, and Other Electronic Communication Fernando Pinguelo

38. What are we talking about? • Why are we talking about it? • What are the advantages and pitfalls?

39. What are we talking about? • “Electronic communication” • The growth of existing methods and birth of new vehicles for communication • Email • IM • Blogging • Texting • YouTube • Online Social Networks • Latest phenomenon – micro blogging (e.g., Twitter)

40. What are we talking about? • “Electronic communication” • Common features: • Maintain connections with family, friends, acquaintances, colleagues, customers, and prospects • Display personality traits, interests, abilities, offerings, and views • Find those with common interests and needs • Locate long lost contacts • Programmed to be sent to groups en mass • Casual, abbreviated messaging systems

41. What are we talking about? • “Electronic communication” • Common concerns: • Privacy • Security • Regrettable behavior remains forever • Casual, abbreviated messaging systems breed ultra-casual, abbreviated messages

42. Why are we talking about it? Employee Personal Internet Use During the Work Day • 86% use office email for personal purposes • 51% have admitted to shopping online on their company’s time • 52% use social networking sites while at work • (72% of them think they should be granted unrestricted access to these sites) • 85% of employees think their personal internet use at work is acceptable eLesson: Left unchecked, personal internet use during work hours can reduce productivity.

43. Why are we talking about it? Business Implications • 233 million hours are lost each month globally due to employee time spent on online social networking sites • 63% of system operators worry that employee use of online social networking sites threatens the security of the entire company’s system • 25% of companies have suffered spam attacks from online social networking sites eLesson: Left unregulated, personal internet use can breach your company’s security.

44. Why are we talking about it? • 12% of employers monitor the “blogosphere” to see what is being written about them • 44% of employers use social networking sites to examine job candidates • 39% of employers have looked up profiles of current employees eLesson: While there are benefits, you should consider the pitfalls.

45. What are the advantages and pitfalls? Pros & Cons of Online Communication • Pros • Efficient and effective way to conduct business • Identify employees engaging in conduct harmful to the employer • Business-oriented Online Social Networks (OSNs) (e.g., LinkedIn (10MM members)) reach new audiences and can be used to promote company • Use of company blogs/OSNs to recruit employees and vet applicants

46. What are the advantages and pitfalls? Pros & Cons of Online Communication • Pros • Enables applicants to gain a sense of the company and gauge whether they would be a good fit • Lets applicants “hear” from company employees • Clues to an applicant’s analytical and communication skills and general maturity

47. What are the advantages and pitfalls? Pros & Cons of Online Communication • Cons • Reveal confidential and proprietary company information • Unprofessional behavior that reflects negatively on company • Messages may contain spam, viruses, illegal materials, etc. • Electronic communication not typically hosted by a company (i.e., Twitter) falls outside the purview of IT department • Productivity concerns • Ineffective management of information

48. What are the advantages and pitfalls? Legal Implications of ‘Cyber Snooping’ While searching OSNs may enable employers to complete their due diligence and gain competitive advantages, employers need to be careful not to violate any laws in the process

49. What are the advantages and pitfalls? Legal Implications of ‘Cyber Snooping’ • Discrimination & Harassment Laws • Federal and state discrimination laws affected if adverse employment decision is based on information obtained from OSNs • Harassment laws affected if OSNs are used to harass employees • Some states prohibit employers from making employment decisions based upon activities conducted off-the-job

50. What are the advantages and pitfalls? Legal Implications of ‘Cyber Snooping’ • Retaliation Concerns • Title VII • “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”