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NOON-TIME FORUM 2018 HUMAN RESOURCE (HR) FINANCIAL FORUM “What’s Going On?”

NOON-TIME FORUM 2018 HUMAN RESOURCE (HR) FINANCIAL FORUM “What’s Going On?”. Presenter: Ray Stanford

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NOON-TIME FORUM 2018 HUMAN RESOURCE (HR) FINANCIAL FORUM “What’s Going On?”

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  1. NOON-TIME FORUM2018 HUMAN RESOURCE (HR) FINANCIAL FORUM “What’s Going On?” Presenter: Ray Stanford The Noon-Time Forum tackles legal challenges faced by workplace professionals. For this reason, the Forum’s comments and discussion are not intended to be legal advice or counsel. As with all legal matters, participants should look to licensed counsel to deal with a specific matter.

  2. Noon Welcome & Introduction 12:05 State of Obama Workplace Laws (EEO and gender identity, Overtime, Sick Leave, #HimToo and Moral Sex) 12:15 State of Trump's New Workplace Laws (stop, stop, stop, but go, go, go ... Ugh?) 12:30 New Non-Workplace Laws with HR Responsibility (GLB, GDPR, data breach for HR, CFPB agenda,) 12:45 Unexpected Workplace Requirements (e.g. no handheld devices in cars; non-compete change) 1:00 Adjourn “What’s Going On?”

  3. OFFICE OF MINORITY & WOMEN INCLUSION • FDIC 2018-19 Diversity and Inclusion Strategic Plan • All Internal. No reference to diversity plans or reports of regulated entities. • ????? “What’s Going On?” –State of Obama Workplace Laws

  4. Retaliation Tops Discrimination Charges Filed in Fiscal Year 2017 • Retaliation: 41,097 (48.8%) • Race: 28,528 (33.9%) • Disability: 26,838 (31.9%) • Sex: 25,605 (30.4%) • Age: 18,376 (21.8%) • National Origin: 8,299 (9.8%) • Religion: 3,436 (4.1%) • Color: 3,240 (3.8%) • Equal Pay Act: 996 (1.2%) • Genetic Information: 206 (0.2%) “What’s Going On?” –State of Obama Workplace Laws

  5. EEOC Workload • Agency resolved 99,109 charges in FY 2017 and reduced its charge workload by 16.2%, to 61,621 - the agency’s lowest level of inventory in a decade. • New strategies - prioritize charges with merit; improve its digital systems; and resolve investigations more quickly. • Litigation FY 2017, EEOC filed 184 merit lawsuits - increase from FY 2016 (86 merit lawsuits) “What’s Going On?” –State of Obama Workplace Laws

  6. ADA Title III Lawsuits • Title III (public accommodations) lawsuits: • 2017 - 7,663 • 2016 – 6,501 • Highest: California (2,751) and Florida (1,488) • Percentage Increase: New York doubled from 543 to 1023  • Georgia sixth - 187 “What’s Going On?” –State of Obama Workplace Laws

  7. Title VII - Sex • Title VII prohibits discrimination on the basis of sex including its subcategory of sexual harassment. • In 1998, the Supreme Court extended sexual harassment to include sexual stereotype on the basis of gender conformity. For example, decision made because a man acted like a woman. • Until recently, federal courts of appeal refused to extend the literal meaning of sex to include lesbian, gay, bi-sexual, transgender, queer or gender identity. “What’s Going On?” –State of Obama Workplace Laws

  8. Title VII - Sex • Court of Appeals; • 11th Circuit: Title VII’s ban on sex discrimination does not extend to sexual orientation or gender identity (March 10, 2017); • 2nd Circuit: Title VII covers sexual orientation and gender identity (Feb 26, 2018); • 6th Circuit: Title VII prohibits transgender discrimination (March 7, 2018); • 7th Circuit: Title VII prohibits sexual orientation and gender identity discrimination (February 26, 2018). “What’s Going On?” –State of Obama Workplace Laws

  9. Title VII - Sex • 10th Circuit: Jury awarded $1.1 million to transgender professor for sex discrimination. In 2007, employee began transitioning from male to female as the SE Oklahoma State Univ.’s first openly transgender professor. University provided employment subject to rules that she not use the women’s restroom, wear short skirts, or wear makeup harassing to male colleagues. In 2009, Univ. rejected employee’s request for tenure and terminated her in 2011 for failing to meet tenure track. “What’s Going On?” –State of Obama Workplace Laws

  10. Title VII - Sex • Under the Obama Administration, the DOJ declared that Title VII banned transgender discrimination in the workplace. • In October 2017, Attorney General Jeff Sessions rescinded the policy and directed that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” “What’s Going On?” –State of Obama Workplace Laws

  11. Title VII – Sex, Religion & Privacy Masterpiece Cakeshop v. Colorado Civil Rights Commission • S. Ct (June 4, 2018): Commission violated the constitutional right of free exercise of religion of a Christian bakery owner who refused to make a custom-designed wedding cake for a same-sex couple. Reversed Colo Court of Appeals that upheld Commission’s finding that baker violated Colorado law prohibiting public accommodation discrimination based on sexual orientation. “What’s Going On?” –State of Obama Workplace Laws

  12. Title VII – Sex, Religion & Privacy Masterpiece Cakeshop v. Colorado Civil Rights Commission • Majority Opinion: Commission’s decision was tainted with “impermissible hostility” against the religious beliefs of the baker. • Supreme Court avoided major issues; e.g. • Whether custom creation of a cake is “artistic expression” protected as First Amendment free speech? • How to resolve the tension between constitutional protections for LGBT rights and First Amendment free exercise of religious belief and privacy? “What’s Going On?” –State of Obama Workplace Laws

  13. ACA, ERISA & Other Fed Benefit Laws • US v. Windsor (2013). Supreme Court recognized same-sex marriage and struck a portion of the Defense of Marriage Act (“DOMA”) that defined marriage as the legal union between a man and a woman and defined a “spouse” as a husband or wife of the opposite sex. • Obergefell v. Hodges (2015). Supreme Court required states to allow same-sex marriage and to recognize same-sex marriages legally performed in other states. “What’s Going On?” –State of Obama Workplace Laws

  14. ACA, ERISA & Other Fed Benefit Laws • The impact of Windsor or Obergefell on employer-sponsored health and welfare benefits generally depend upon whether 1) the benefits are fully insured or self-insured and 2) whether a plan sponsor is a private employer, a public employer, or another employer not subject to ERISA. • Normally, if an employer offers benefits to opposite-sex spouses, then generally the same benefits must be offered to same-sex spouses. “What’s Going On?” –State of Obama Workplace Laws

  15. ACA, ERISA & Other Fed Benefit Laws • Private employer plans are regulated by ERISA, federal law that preempts most state law except state insurance law. State insurance laws incorporate the state law definition of marriage, which now must recognize same-sex spouses • Self-insured employee benefit plans are not subject to state insurance laws and, therefore, may be able to continue to offer only opposite-sex spousal benefits. “What’s Going On?” –State of Obama Workplace Laws

  16. ACA, ERISA & Other Fed Benefit Laws • Public Sector and Church Plan Exceptions: • Not subject to ERISA but are subject to the Internal Revenue Code and/or the Public Health Service Act; • Subject to state insurance laws incorporating the state law definition of marriage, which now must recognize same-sex spouses; “What’s Going On?” –State of Obama Workplace Laws

  17. Bathrooms • Fourth Circuit may determine extent that Virginia School Board may determine gender-based bathroom policies. “What’s Going On?” –State of Obama Workplace Laws

  18. Atlanta Mayor Keisha Lance Bottoms Opens ‘One Atlanta’ - Office of Equity, Diversity and Inclusion • One Atlanta will review and guide the city’s policies and practices impacting eight critical areas, including affordable housing, criminal justice reform, economic development, health disparities, homelessness, LGBTQ Affairs, workforce development, as well as the city’s efforts to ensure participation in the upcoming 2020 Census—a program the City of Atlanta has called, “ATL Counts.” “What’s Going On?” –State of Obama Workplace Laws

  19. Affirmative Action OFCCP - Effective March 31, 2018, hiring benchmark for health care subcontractors under TRICARE reduced from 6.7 to 6.4 percent.  VEVRAA has required contractors with written affirmative action programs to either establish hiring benchmarks for protected veterans each year or to adopt the OFCCP’s annual national benchmark. Contractors must compare the percentage of their employees who are protected veterans in each of their establishments to whichever hiring benchmark they use. “What’s Going On?” –State of Obama Workplace Laws

  20. #MeToo CULTURE • ”#metoo” search • Bing search returned 15,300,000 • Google search returned 135,000,000 • Top stories • Anita Hill on #MeToo: 'I didn't have a hashtag’ (CNN.com) • Matt Damon's 'Ocean's 8' role, which was protested over ... (NY Daily News) • A petition of over 28,000 signatures had called for Matt Damon to be removed from the “empowering film for women.” • Bill Clinton was opposed to Al Franken's resignation (Slate Magazine) “What’s Going On?” –Trump's New Workplace Laws

  21. #MeToo CULTURE • ”#metoo movement” search • Bing search returned 2,450,000 results • Top of list • Me Too movement – WikipediaThe Me Too movement (or "#MeToo", with local alternatives in other languages) is an international movement against sexual harassment and assault. ... • What is the Time's Up Movement and the #MeToo Movement… (time.com/..) The #MeToo movement has become a worldwide phenomenon, searched for on Google in 196 countries in the past year … “What’s Going On?” –Trump's New Workplace Laws

  22. #MeToo CULTURE • ”#metoo movement” search • Google search returned 127,000,000 results • Top stories • #MeToo goes to church: Southern Baptists face a reckoning over treatment of women NBC News · • Anita Hill on #MeToo: 'I didn't have a hashtag' CNN.com · • Sexual harassment in restaurants: How Philly's food scene is grappling with #MeToo – Philly Philly.com “What’s Going On?” –Trump's New Workplace Laws

  23. #MeToo CULTURE • ”#metoo Atlanta” search • Bing search returned 1,200,000 results • Top of list • The Movement of #MeToo - The Atlantic (https://www.theatlantic.com/...) The Movement of #MeToo. How a hashtag got its power. ... If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet. • Sexual harassment, #MeToo at the Georgia Capitol - ajc.com (https://www.ajc.com/...) The Atlanta Journal-Constitution. Podcast: Sexual harassment, #MeToo at the Georgia Capitol. “What’s Going On?” –Trump's New Workplace Laws

  24. #MeToo CULTURE • ”#metoo Atlanta” search • Bing search returned 1,200,000 results • Top of list (cont.) • #MeToo Founder Hits Back at Wendy Williams’ … (atlantablackstar.com/...) Jan 29, 2018 · #MeToo Founder Hits Back at Wendy Williams’ Derogatory Comments ... The #MeToo founder pledged to continue fighting ... • Trending on Social Networks about #metoo Atlanta “What’s Going On?” –Trump's New Workplace Laws

  25. #MeToo CULTURE • ”#metoo Atlanta” search • Google search returned 13,900,000 • Top stories • Anita Hill on #MeToo: 'I didn't have a hashtag’ (The Atlanta Voice) • #MeToo crisis jolts Southern Baptists ahead of key gathering | Atlanta: News, Weather and Traffic (WSB Radio) “What’s Going On?” –Trump's New Workplace Laws

  26. #MeToo CULTURE – Recent Additions • Morgan Freeman has been accused of harassment by multiple women who have either worked on movie sets with him, worked for his production company, or interviewed him in a professional setting. Eight women allege the 80-year-old actor subjected them to inappropriate behavior, including unwanted touching and comments about their figure. ... Multiple women allege Morgan would stare at them in a way that made them feel uncomfortable. (CNN report, May 29, 2018) “What’s Going On?” –Trump's New Workplace Laws

  27. #MeToo CULTURE – Recent Additions • Nike: A a group of female Nike employees began an informal survey that sought input on sexual harassment and discrimination against women. The survey was presented to CEO Mark Parker on March 5. Ten days later, an executive shake-up began with resignation of President Trevor Edwards. The resulting investigation also lead to the departures of 11 senior managers. Nike continues to overhaul its upper ranks amid widespread allegations of harassment and discrimination against female employees. “What’s Going On?” –Trump's New Workplace Laws

  28. #MeToo CULTURE – Lessons • Studies reveal 25 to 40% of women report having experienced unwanted sexually based behaviors at work. 60% said they encountered hostile behaviors or comments based on gender. • Pew Research study (March 2018) - half of those surveyed believed #MeToo makes it harder for “men to know how to interact with women in the workplace.” • Discrimination claims are about a supervisor’s frame of mind. Proving state of mind includes prior comments and behavior. “What’s Going On?” –Trump's New Workplace Laws

  29. RACISM • ABC cancelled the revival “Roseanne.” On Twitter, the star and creator described former Obama aide Valerie Jarrett as looking like the offspring of the “Muslim Brotherhood & Planet of the Apes.” Jarrett, an African-American, was born in Iran to American parents. “What’s Going On?” –Trump's New Workplace Laws

  30. RACISM • In a Philadelphia Starbucks, an employee called the police who arrested two black patrons waiting for a meeting to begin. • In additional to apologies and payments to charities, Starbucks closed 8,000 locations to conduct racial bias training for 175,000 employees. • “[R]acial bias training for employees is not enough to address the epidemic of discrimination by American companies.” (NYTimes, April 20, 2018) “What’s Going On?” –Trump's New Workplace Laws

  31. RACISM (Starbucks cont.) • “Anti-bias training being provided by Starbucks to its employees in Canada on Monday is really ‘Racism 101’. ... [T]he global coffee giant should have looked at work done by community activists when it drew up its curriculum ...”, says AndrayDomise, a contributing editor at Maclean's Magazine. “[T] he curriculum that Starbucks has published online is oriented toward feelings, not action, and will likely serve to create confusion instead of clarity.” CBC (June 11, 2018) “What’s Going On?” –Trump's New Workplace Laws

  32. FLSA • Minimum wage - $7.25/hour • Overtime – 1.5 x all hours worked over 40 hours in a week. • White Collar Exemptions • Executive • Administrative • Professional • Outside Sales • Computer “What’s Going On?” –Trump's New Workplace Laws

  33. FLSA • Under Obama, • DOL had withdrawn many Bush opinion letters including approval of certain MLOs as exempt administrators; and • Discontinued issuance of opinion letters. • Trump DOL has reissued some opinion letters and reinstated process of issuing opinion letters. “What’s Going On?” –Trump's New Workplace Laws

  34. FLSA • In August, 2017, federal court struck Obama Admin’s change to the minimum salary threshold required for employees to qualify for the FLSA “white collar” exemptions. • Under Obama, DOL increased salary threshold from $455 to $913 per week (annualized from $23,660 to $47,476 per year. • The court had issued a nation-wide injunction in November 2016. The changes were slated to take effect December 1, 2016. • Trump Admin has not disclosed objectives. “What’s Going On?” –Trump's New Workplace Laws

  35. FLSA • On January 8, 2018, DOL reissued 17 opinion letters that covered: • Retail sales exemption; • Regular rate calculation; • Salary basis and full-day deductions; • Year-end bonuses and regular rate; • Salary basis and salary deductions. “What’s Going On?” –Trump's New Workplace Laws

  36. FLSA • Trump’s DOL will issue new overtime regulations but has pushed back the scheduled date to January 2019 (originally October 2018). • DOL also indicated that in September, 2018, proposed amendments to the definition of “regular rate of pay” will be issued. “What’s Going On?” –Trump's New Workplace Laws

  37. ARBITRATION • S Ct (May 2018): Companies can use arbitration clauses in employment contracts to prohibit workers from participating in class litigation. • An employer should consider integrating in employee agreements a clause that requires arbitration for work-related disputes unless an applicable law grants an employee the right to litigate a dispute (e.g. claims of discrimination under Title VII, and the ADA). “What’s Going On?” –Trump's New Workplace Laws

  38. NLRB – Handbook Rules • On June 6, NLRB General Counsel issued “Guidance on Handbook Rules Post-Boeing.” The Handbook and The Guidance • is based on NLRB’s decision, The Boeing Company, (Dec. 14, 2017), that overruled Lutheran Heritage Village-Livonia, a 2004 decision used by Obama Board to implement sweeping changes in determining whether a Handbook rule constituted an unfair labor practice, and • Now directs regional offices in determining where a handbook rule is an unfair labor practice. “What’s Going On?” –Trump's New Workplace Laws

  39. NLRB – Handbook Rules • The NLRB’s new Handbook Guidance breaks handbooks’ rules into three categories: • (1) rules that are generally lawful to maintain; • (2) rules that require case-by-case consideration to determine if they are lawful; and • (3) rules that are unlawful. “What’s Going On?” –Trump's New Workplace Laws

  40. NLRB – Handbook Rules • Category 1: A rule is lawful if (i) “reasonably interpreted” does not prohibit or interfere with the exercise of NLRA rights or (ii) potential adverse impact on protected rights is outweighed by justifications for the rule. • Examples: Rules that pertain to: (1) civility; (2) no-photography/no-recording; (3) insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior; (5) protecting confidential, proprietary, and customer information or documents; (6) prohibiting defamation or misrepresentation; (7) prohibiting use of employer logos and trademarks; (8) requiring authorization to speak for the company; and (9) banning disloyalty, nepotism, or self-enrichment. “What’s Going On?” –Trump's New Workplace Laws

  41. NLRB – Handbook Rules • Category 2: Case-by-case rules. “Possible Examples” include: (1) “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment”; (2) “Confidentiality rules broadly encompassing ‘employer business’ or ‘employee information’ (as opposed to confidentiality rules regarding customer or proprietary information…)”; (3) “Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding the disparagement of employees…)”; (4) “Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark…)”; (5) “Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf…)”; (6) “Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work…”); and (7) “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements…).” “What’s Going On?” –Trump's New Workplace Laws

  42. NLRB – Handbook Rules • Category 3: An unlawful rule that prohibits or limits NLRA-protected conduct and the adverse impact is not outweighed by legitimate business justifications. Examples: (1) rules that impose confidentiality (e.g., no discussion or disclosure) of wages, benefits or other working conditions with another employee; and (2) rules that ban connection with outside organizations or voting on matters concerning employers. “What’s Going On?” –Trump's New Workplace Laws

  43. NLRB – Joint-Employer • The misclassification of a worker as a contractor is a major risk for employers. In Hy-Brand (December 17, 2017), the NLRB issued a pro-employer clarification of the meaning of joint-employer. Unfortunately, the decision was vacated because a participating Board member failed to recuse himself due to conflict. • While the Board looks for another on-point case in which the full Board may re-clarify the meaning of joint-employer, the Board has expressed interest in rulemaking. “What’s Going On?” –Trump's New Workplace Laws

  44. CULTURE • #MeToo vs LGBT • Rose McGowan, a former Weinstein victim, has vigorously participated in the #MeToo movement. In 2015, McGowan wrote a Facebook post criticizing Caitlyn Jenner which read, in part, “You want to be a woman and stand with us- well learn us. We are more than deciding what to wear. We are more than the stereotypes foisted upon us by people like you. You’re a woman now? Well fucking learn that we have had a VERY different experience than your life of male privilege.” • LGBT supporters criticized McGowan’s post for its transphobia. “What’s Going On?” –Trump's New Workplace Laws

  45. CULTURE • #MeToo v LGBT • In July, 2017, McGowan appeared in a RuPaul podcast and observed that trans friends had never asked what it was like to grow breasts or get a period. McGowan said, “They assume, because they felt like a woman on the inside, that’s not developing as a woman, that’s not growing as a woman, that’s not living in this world as a woman.” • According to one reporter, “trans-exclusionary idea of womanhood leads to an impoverished and incomplete feminism.” “What’s Going On?” –Trump's New Workplace Laws

  46. CULTURE • Anti-Mom Bias (Women with Children v Women Without Children) • Claudia Goldin, a professor of economics at Harvard University, studies "temporal flexibility“, a choice that explains much of the gender pay gap.  • Only 13.9 percent of college-educated women work more than 50 hours per week between the ages of 25 to 44, which are considered the key career-building years. On the other hand, 29 percent of fathers who live with their children work more than 50 hours per week. (Joan C. Williams, Harvard Business Review.) “What’s Going On?” –Trump's New Workplace Laws

  47. CULTURE • Anti-Mom Bias (Women with Children v Women Without Children) • "This 'long-hours problem,' is a key reason why the percentage of women in top jobs has stalled at about 14 percent, a number that has barely budged in the past decade. We can't expect progress when the fast track that leads to top jobs requires a time commitment that excludes most mothers -- and by extension, most women.”(Joan C. Williams writing about studies of Robin Ely and Irene Padavic). “What’s Going On?” –Trump's New Workplace Laws

  48. CULTURE • Workplace Police? • Studies show that reporting wrongdoing is “hard.” • The recent NIKE sexual harassment and gender discrimination survey recorded women feeling marginalized, disrespected, and discriminated. Although the survey resulted in the resignations of top executives, bias training and other remedies, the survey also revealed how HR ignored women who voiced their concerns. “What’s Going On?” –Trump's New Workplace Laws

  49. CULTURE • Workplace Police? • The #MeToo movement, the Starbucks training, and countless other publicized victories of protected groups embolden others to come forward and voice concern. “At first, the tweets encouraging women to write “me too” if they’d been sexually harassed or assaulted came mostly from women in Hollywood.  Soon women in the media joined in, then in the art world, comedy, in politics; at its peak, the hashtag was used half a million times in tweets in a single day. When a few women had the courage to speak up, many others were no longer afraid.” “What’s Going On?” –Trump's New Workplace Laws

  50. CULTURE • Workplace Police? • Lessons? Silence is pervasive in organizations due to the widely shared belief that speaking up about sensitive issues is futile or even dangerous. • Should organizations tell employees they will be protected and valued if they share suggestions, opinions, and concerns? “What’s Going On?” –Trump's New Workplace Laws

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