Published on March 6, 2014
Labor Law Update for the Mining Industry Mining Association of South Carolina Mining Workshop – Building Partnerships for the Future April 16, 2013 Presented by: Matthew Korn Phone: (803) 255-0000 Email: email@example.com www.laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC
The Highlights New areas of emphasis for the EEOC NLRB’s new agenda What employers can do www.laborlawyers.com
New Emphasis Areas for the EEOC www.laborlawyers.com
2013 Strategic Enforcement Plan Eliminate systemic barriers in recruitment and hiring Protect immigrant, migrant, and other vulnerable workers Coverage of gay, lesbian, bisexual and transgender Pregnancy discrimination, harassment, and retaliation Age discrimination Disability discrimination www.laborlawyers.com
EEOC Litigation 122 lawsuits filed in FY 2012 20% of charges and 8% of lawsuits were systemic EEOC obtained record-high $365 million $36 million obtained from systemic investigations (4 times that obtained in 2011) www.laborlawyers.com
Systemic Investigations EEOC pursued 580 systemic investigations in FY 2012 Can begin as a single charge Requires significant resources to reply Can result in a large monetary settlement and changes in policies www.laborlawyers.com
Systemic Investigations Targeted areas for systemic investigations: – – – – – Fitness for duty/medical examination policies Leave/termination policies Proficiency rules Employment tests Criminal background/credit checks www.laborlawyers.com
Arrest and Conviction Records EEOC investigative strategy targeting prehire selection criteria impacting minorities Criminal background checks under particular scrutiny – Disproportionate impact on African-Americans and Hispanics due to higher conviction rates Pepsi reached a $3 million settlement with the EEOC for using criminal background checks to screen applicants www.laborlawyers.com
New Guidance Must make an individualized assessment Consider many factors: – Nature and gravity of offense – Time passed since conviction/sentence completion – Age at time of offense; age now – Rehabilitation efforts – Facts surrounding the offense – Number of convictions and offenses www.laborlawyers.com
New Guidance – Has person performed same type of work, postconviction, with no criminal conduct – Employment history before and after the offense – Additional training/education – Character references – Relevance of conviction to job duties Need background check policy and procedure that allows individualized assessment www.laborlawyers.com
The NLRB’s New Agenda www.laborlawyers.com
Meet The New NLRB Adjudicative decisions, guidance memos and rule-making drive the NLRB’s agenda Facilitating organizing and expedite elections Reversing decades of precedent Increased focus on non-union employers Reinventing itself on heels of union decline www.laborlawyers.com
Reshaping the Landscape Proposed Election Rule Notice Posting Requirement Speciality Healthcare – Micro-Units www.laborlawyers.com
Practical Impact Easier for unions to obtain certification Less time to identify issues/train supervisors Employees basing futures on one side of story Room for peer pressure/intimidation Process to allow unions to “cherry pick” units All of this will fuel organizing activity www.laborlawyers.com
Focus on Non-Union Workplaces Confidentiality – wages/discipline/investigations Class Action Waivers Dress Codes Access Rules Social Media Restrictions At-will Disclaimers www.laborlawyers.com
Policy Language to Avoid Restricting wage/discipline discussions Outright prohibition on use of company name/logo Mandatory advance “approval” language Prohibiting general discussions with media Using generic terms like “unprofessional,” “inappropriate,” or “harassing” behavior Requiring concerns to first be raised with management www.laborlawyers.com
What Can Employers Do Focus on prevention of issues Pay your employees correctly Conduct annual supervisory training Be wary of all agency investigator inquiries Document policies and discipline Stay alert to new legal developments Monitor “hot spots” for enforcement activity Update your employee handbook Make a “Top Ten” list of proactive actions www.laborlawyers.com
Final Questions Presented by: Matthew Korn Phone: (803) 255-0000 Email: firstname.lastname@example.org www.laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC
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