Tucker Rocky Operations Leadership Labor & Employment Overview

1. Tucker RockyOperations LeadershipLabor & EmploymentOverview John KoepkeJackson Walker L.L.P.901 Main Street, Suite 6000Dallas, Texas 75202214.953.6005jkoepke@jw.com

2. Applicant Evaluation • Use of external blogs/social networks to “mine” applicants • Industry-specific blogs, discussion forums, newsgroups, listservs • Use of external blogs/social networking sites to vet applications • Can give clues to an applicant’s analytical skills, communication skills, tact, and general maturity • Can provide insight as to how others feel about the applicant • Can help potentially avoid negligent hiring claim

3. “Facebook IQ” Some recruiters look at Facebook pages to get an estimate of the individual’s IQ, personality traits and whether they would be a “good fit” • Are they outgoing, as might be needed for a sales job? • Do they use creative phrases and correct grammar? • What books or activities do they reference (if any)? • Number of “friends” – social skills • Look at comments by “friends” for more insight

4. Pre-Employment – Risks • Sites may allow potential employers to discover “protected” information (e.g., age, marital status, familial status, sexual orientation, religious affiliation, political views, etc.) • If you choose to examine external social networks, have non-decision maker conduct search and filter out information related to protected characteristics before passing along to hiring manager • Have searches run by employer and not third party to avoid potential issues under the Fair Credit Reporting Act or state-specific statutes • Carefully consider criteria in determining how and when to use online social networking sites in evaluating applicants

5. What is Unlawful Harassment? • The victim as well as the harasser may be a man or a woman. The victim does not have to be of the opposite sex. • The harasser can be the victim’s supervisor, a supervisor or co-worker in another area, or a non-employee. • The victim does not have to be the person harassed, but anyone affected by the offensive conduct. • The conduct at issue is often “sexual” in nature, but it need not be “sexual” in order to be unlawful, so long as the conduct is, for example, directed at a complainant because of his or her sex.

6. Employer Liability for Harassment Courts recognize two sorts of harassment claims: • The first sort occurs when an employer demands sexual favors from an employee in return for a job benefit or keeping one’s job, the employee refuses, and the job benefit is withheld or the employee is discharged. In such cases, sex-based “discrimination with respect to terms or conditions of employment [is] explicit.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). Such “[c]ases based on threats which are carried out are referred to as quid pro quo cases.” Id. at 751. • Quid pro quo cases are distinct from those that merely involve “bothersome attentions or sexual remarks.” Id. Situations involving that type of conduct are also actionable under Title VII, but such claims must involve sex-based demeaning behavior that is “sufficiently severe or pervasive to create a hostile work environment.” Id. Those cases are thus referred to as “hostile work environment cases.”

7. Employer Liability for Harassment (con’t) • Employer Liability in “Quid Pro Quo” Cases. In harassment cases that involve tangible employment actions resulting from a refusal to submit to a supervisor’s sexual demands, the employer is always vicariously liable for the employment action. Id. at 753 & 761-62 (“[A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.”).

8. Employer Liability for Harassment (con’t) • Employer Liability in Hostile Work Environment Cases Caused by Supervisor Conduct. If the plaintiff proves the initial elements of a harassment claim, the employer is then vicariously liable for the supervisor’s conduct unless the employer can prove both prongs of an affirmative defense set out in Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Under that defense, an employer may escape liability for its supervisor’s unlawful conduct by showing “(1) the employer exercised reasonable care to prevent and correct promptly any such sexual harassment, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. at 807.

9. Employer Liability for Harassment (con’t) • Employer Liability in Hostile Work Environment Cases Caused by Co-Worker Conduct. In harassment cases that do not involve supervisory conduct, the plaintiff must first show that she suffered unwelcome, sex-based harassment that was severe or pervasive enough to alter the terms and conditions of her employment. To establish employer liability, the plaintiff must further show that “the employer knew or should have known of the harassment and failed to take prompt remedial action.” Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001).

10. PROPOSED RULE EXAMPLES OF IMPAIRMENTS THAT “CONSISTENTLY MEET THE DEFINITION OF DISABILITY” • Deafness • Blindness • Partially or completely missing limbs • Cancer • Autism • HIV/AIDS • Diabetes • Mental diseases

11. IMPAIRMENT • Clarifies that episodic impairments and those in remission may be disabilities • Examples: chronic illness, cancer

12. PROPOSED RULE EXAMPLES OF EPISODIC IMPAIRMENTS • Epilepsy • Multiple sclerosis • Hypertension • Asthma • Diabetes • Major depression • Bipolar disorder

13. REASONABLE ACCOMMODATIONS Possible accommodations include: • Modification of equipment • Purchase of devices or equipment • Modified work schedule • Reassignment to vacant position

14. EMPLOYERS NOT REQUIRED TO MODIFY ESSENTIAL FUNCTIONS OF THE JOB OR IMPLEMENT ACCOMMODATIONS WHICH WOULD IMPOSE AN UNDUE HARDSHIP Typically not necessary: • Hiring another employee to perform job • “Bumping” other employees • Creating new position • Allowing indefinite absence

15. “REGARDED AS” DISABLED • Before employees only covered if employer regarded employee as having an impairment and regarded that impairment to substantially limit a major life activity • Now, employee only has to prove employer regarded them as having an impairment • Proposed rule provides that an employer that asks if an employee needs a reasonable accommodation will not be deemed to be regarding that employee as disabled

17. PROCESS • Use previously completed form I-9 plus picture ID. (expired passport no longer useable for E-Verify) • New I-9 form must be completed when • Expired document used • Immigration status changed • Did not contain photo ID • Name change • No social security number provided • Alien number changed

18. PREGNANCY DISCRIMINATION ACT • Amended Title VII of the Civil Rights Act of 1964 • Pregnancy, childbirth and related medical conditions • Must be treated the same for all employment purposes as other persons who are similar in their ability or inability to work • Pregnant employees must be permitted to work as long as they are able to perform their jobs • Cannot single out pregnancy-related conditions for special procedures to determine an employee’s ability to work.

19. WHAT IS THIS PRIVILEGE? • Under Texas law, a qualified privilege extends to communications about an employee if the person who is told has a corresponding interest or duty in the subject matter of the communication. • This is a complete defense to a defamation claim unless the statement is made with actual malice or the privilege is abused.