LEGAL UPDATE: The Year in Review

1. LEGAL UPDATE:The Year in Review Presented by: Charla B. Stevens, Esq.

2. The Year in Review • EEOC • U.S. job discrimination complaints down. • 93,727 charges in 2013, down 5,685 from 2012 • Complaints based on retaliation are up slightly and the most-commonly filed (38,539)

3. EEOC – Year In Review (contd.) • Collected a record $372 million from employers in 2013 • Statistics now include settlement amounts • Increased focus on more “subtle” types of discrimination

4. EEOC Enforcement Criminal Background Checks – FTC and EEOC working together • Must get applicant’s written permission • Applicant’s right to review report for accuracy • Reason for denying employment must be job-related and consistent with business necessity

5. EEOC Enforcement • New guidance on religious garb and grooming in the workplace • Accommodate religiously-mandated dress and grooming practices unless it would pose an undue hardship • But do not segregate workers to non-customer service positions because of religious attire • Customer preference not a defense to a discrimination claim

6. Unemployment Discrimination • Likely to be EEOC focus in 2014 • New state and local laws banning discrimination on unemployment status (DC, NJ, Oregon, NYC, Madison, Wisc.) • Tips to follow: • Consider adding “unemployment status” to list of protected categories • Train hiring employees and supervisors • Review current job advertising

7. EEOC Strategic Enforcement 2013 and Beyond • Enforcing equal pay laws – gender discrimination in compensation systems • Pregnancy Discrimination • More-expansive accommodations for pregnant employees (Pregnancy Discrimination Act) • Disabilities arising from pregnancy • Coverage of LGBT under Title VII sex discrimination provisions (sexual stereotyping)

8. NLRB • Focus on at will employment and social media provisions in employer handbooks • Expanding employer’s duty to furnish financial information to unions during bargaining

9. United States Department of Labor • President Obama instructs USDOL to overhaul the FLSA Exemptions

10. Other Developments • GINA enforcement increasing (66% increase in filings in 3 years) • Genetic information covers employees/applicants, but also their families • Covers info. about prior or present diseases • Separation Agreements (EEOC v. CVS) • Restrictions on release or waiver of right to file EEOC charge • Cannot limit right to testify or assist in EEOC investigation

11. NH Commission for Human Rights • 234 charges filed in 2013 (222 employment related), down from 284 in 2012 • Backlogs rule the day • Employees quick to remove claims to state or federal court

12. State Legislation and Regulation • Non-Competition Agreements • Paycheck Equity • Minimum Wage • Credit History As a Factor in Employment Decisions

13. State Legislation and Regulation • Discrimination Against the Unemployed • Social Media and Privacy • Protection for Victims of Domestic Violence • Nursing Mothers

14. Federal Legislation • Section 127 – Employee Educational Assistance • Working Families Flexibility Act of 2013

15. Federal and State Case Law • U. of Texas SW Medical Center v. Nassar • Vance v. Ball State • Sandifer v. U.S. Steel • Leeds v. BAE Systems (NH Supreme Ct.)

16. McLane’s Employment Law Practice Group • PERSONNEL PARTNERS®