Title of Presentation

1. Florida Public HR Association Annual Conference July 25, 2016 Title of Presentation

2. Presenter: William E. Grob Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 N. Tampa St., Suite 3600 Tampa, FL 33602 (813) 221-7228 bill.grob@ogletreedeakins.com

3. Overview Legal update Reasonable accommodation primer

4. The Final Overtime Regulations: What The New Minimum Salary Requirements Mean for Employers

5. Approximately 180 days from issuance of the final regulations EFFECTIVE DATE DECEMBER 1, 2016 5

6. New Minimum Salary Threshold $913 a week $1,826 biweekly $1,978 semi-monthly $3,956 monthly $47,476 annually 6

7. New Minimum Salary Threshold 40th percentile of weekly earnings of full-time salaried workers in the lowest wage census region (South) 7

8. Automatic Adjustment Provision New minimum salary threshold will be automatically adjusted every 3 years based on the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage census region Proposed regulations had considered an annual adjustment of the minimum salary January 1, 2020 is first adjustment effective date Historical wage growth analysis in the South projects that on January 1, 2020, the new salary level will be $984 per week ($51,168 annually) 8

9. Highly Compensated Employee (HCE) Compensation Total annual compensation level equal to 90th percentile of earning of full-time salaried workers nationally $134,004 annually based on the 4th quarter of 2015 Final regulations still allow an annual “catch up” payment at the end of the year or within one month after the end of the year Estimated HCE total annual compensation as of January 1, 2020 is $147,524 9

10. Nondiscretionary Payment to Meet Salary Threshold 10% of minimum salary may be nondiscretionary bonus, incentive, and commission payments Nondiscretionary payments must be paid quarterly or more frequently “Catch up” payment to meet 10% must be by made by next pay period after end of quarter Final regulations do not allow “catch up” on an annual basis 10

11. Primary Duties Test There were no changes to the primary duties test No new specific occupational examples provided 11

12. Actions Employers Can Take Now Evaluate jobs likely to be impacted by new regulations Consider whether positions below $47,476 will receive a salary increase or will be reclassified Consider pay and rate for jobs to be reclassified 12

13. Actions Employers Can Take Now Consider creation of new pay grades/job titles Consider problems/concerns created by compression Consider how change will impact benefit programs Consider other responses to raising the salary level 13

14. Actions Employers Can Take Now Devise communication plan for affected employees Train affected employees (and managers) on timekeeping and other policies 14

15. Congressional and Other Challenges Protecting Workplace Advancement and Opportunity Act (H.R. 4773 and S. 2707) Congressional Review Act Resolution‎ Possible Litigation Administrative Procedure Act Regulatory Impact Analysis 15

16. Updates from NLRB

17. NLRB for non-union shops? NLRB has been active recently, even with non-union employers: Social media policies Personal conduct policies Confidentiality clauses Solicitation/Distribution Use of email/computer

18. Social Media Policies Cannot restrict employees from expressing opinions online Personal views Thoughts about work People at work

19. Social Media Policies Are there limits? Harassing/threatening statements Profane or abusive language Intentional misrepresentation

20. Personal Conduct Prohibitions against behavior that violates common decency Prohibitions against insubordination Prohibitions against disparaging or defamatory comments about company, employees, customers, etc.

22. 22

23. 3.2 million people

24. Federal Protections Title VII of the Civil Rights Act of 1964 Executive Order 11246 Federal contractors only ADA - Gender Dysphoria -- Diagnostic and Statistical Manual of Mental Disorders (“DSM V”) Employment Nondiscrimination Act (Proposed)

25. In the past, courts often rejected claims by LGBT employees, interpreting Title VII to apply strictly to biological sex, and that Congress in 1964 did not intend to protect LGBT. But the U.S. Supreme Court decided cases that recognized: Title VII is not just about biological sex, but also includes gender “stereotyping;” and Title VII covers same-sex harassment, even if Congress did not explicitly contemplate that.

26. State Laws 19 states plus District of Columbia Gender identity/expression = protected class = age, sex, race, religion, etc. Covers 40% of LGBT population 225 cities and counties. 60% of Fortune 500 companies.

27. Employment Discrimination Against Transgender 50% harassed at work 26% fired from their job National Gay and Lesbian Task Force and National Center for Transgender Equality, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey” (2011)

28. Bathrooms “A Guide to Restroom Access for Transgender Workers” - June 1, 2015 “Core principle: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

29. “[N]o employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.” Bathrooms “A Guide to Restroom Access for Transgender Workers” - June 1, 2015

30. U.S. Department of Justice5/4/16 Letter To North Carolina “Access to sex-segregated restrooms and other workplace facilities consistent with gender identity is a term, condition, or privilege of employment. Denying such access to transgender individuals, whose gender identity is different from their gender assigned at birth, while affording it to similarly situated non-transgender employees,violates Title VII.”

31. Department Of Education Guidance (May 13, 2016) “Title IX permits a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” “Transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”

32. “[A]n employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead ….” Fact Sheet: Bathroom Access Rights for Transgender employees Under Title VII of the Civil Rights Act of 1964 Bathrooms -- EEOC

33. EEOC v. LAKELAND EYE CLINIC In 2010, Defendant interviewed and hired “Michael” who presented as male. In 2011, Michael began wearing make-up and women’s clothing. Co-workers snickered, rolled their eyes, and withdrew from social interactions with her in response to her appearance. 33

34. EEOC v. LAKELAND EYE CLINIC Defendant met with Michael, who stated then that she was undergoing a gender transition to female and that she would be changing her name legally to “Brandi.” Brandi’s job is “eliminated” in June – but a replacement is hired in August. 34

35. EEOC v. LAKELAND EYE CLINIC A new gender discrimination policy. Training to all employees regarding transgender/gender stereotype. $150,000.00. Filed September 24, 2014, settled April 9, 2015. 35

36. Best Practices Employer policies updated to reflect protections for LGBT employees. Promptly address complaints and document follow-ups. Open communication between transitioning employees and manager and/or HR. Training for managers and supervisors.

37. The Americans with Disabilities Act in a Nutshell ADA prohibits: Discrimination or retaliation against qualified individuals with a disability ADA requires: Qualified individuals with a disability must be able to perform the essential functions of the job with or without reasonable accommodation Employers to make reasonable accommodations for disabled individuals where no undue hardship or direct threat to the employer results These rules apply even to “unusual” requests for accommodations!

38. Expanding Area of the Law! Recently, both courts and the EEOC have used a rather expansive definition for what constitutes a “reasonable accommodation.”

39. The Interactive Process Both employers and employees must cooperate in this process in good faith. The ADA does not require an employer to provide the “best” accommodation or even the one specifically requested by the employee Accommodation provided must just be effective

40. Role of Managers in Interactive Process Managers are the experts on the job requirements. Managers are NOT tasked with determining whether a particular accommodation is reasonable or effective. Past performance or behavioral issues should not taint the evaluation of requests for accommodations.

41. Accommodations In general, they are modifications to the workplace or company policies that remove barriers created by an employee’s disability.

42. Reasonable An accommodation is “reasonable” if it “seems reasonable on its face.” i.e., if it appears “feasible” or “plausible” The reasonable/average employer

43. The Steps of Analyzing Accommodation Requests Does the employee have a disability? Has a request been made? Is it feasible, cost-prohibitive? Will it allow employee to do job? Alternative accommodations?

44. Undue Hardships: What is Required & What is Not?

45. The ADA does not require an employer to make accommodations if those accommodations would impose an “undue hardship” on the operation of the business.

46. Simply defined in the ADA as “an action requiring significant difficulty or expense.” No dollar cap imposed by Congress (i.e. more certain approach) Instead, Congress opted for a more flexible approach

47. Is There Undue Hardship? Nature and cost of the accommodation Impact on the specific facility involved Overall financial resources Number of employees Impact on budget Impact on the business overall

48. These are highly fact specific inquiries—Individualized Assessment No bright line rules What may be a reasonable accommodation or undue hardship for one employer may not be the same for another employer What may be a reasonable accommodation or undue hardship in one situation may not be the same in another situation No clear cost/benefit threshold

50. William E. Grob Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 N. Tampa St., Suite 3600| Tampa, FL 33602 Telephone: 813-221-7241bill.grob@ogletreedeakins.com