Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478-621-2414

1. Latest Labor & Employment Law Trends Jeffery L. Thompson Constangy, Brooks & Smith, LLP Telephone: 478-621-2414 E-mail: jthompson@constangy.com

2. Patient Protection and Affordable Care Act

3. Implementation Schedule

4. 2013 Changes • Plans must provide a participant notice regarding the upcoming exchanges (after Department of Labor issues guidance regarding the notice). • Health flexible spending account limit will be $2,500.

5. 2014 and Beyond • Some of the additional changes scheduled for implementation are: • Establishment of state insurance exchanges. • Imposition of a penalty on large employers not offering health insurance ($2,000 per full-time employee) ($3,000 for an employee who receives tax-subsidized coverage through an exchange).

6. 2014 and Beyond • Employers are required to provide a qualifying grouphealth plan that meets the ACA requirements. • Provides minimum essential benefits (for fully insured small group plans, also provides all required “essential health benefits”), • Limits cost-sharing for such coverage, and • Provides either a bronze, silver, gold, or platinum level of coverage (meaning benefits that are the equivalent to (respectively) 60%, 70%, 80%, or 90% of the full benefits provided by the plan).

7. 2014 and Beyond “Essential health benefits” include (at this point): • Laboratory Services • Preventive and Wellness Services • Chronic Disease Management • Prescription Drugs • Pediatric Services, including oral and vision care • Ambulatory Patient Services • Emergency Services • Hospitalization • Maternity and Newborn Care • Mental Health and Substance Abuse Services • Behavioral Health Treatment

8. 2014 and Beyond • Requirement for individuals to have health insurance or pay a tax penalty. • Individuals without “minimum essential coverage” would be required to pay a penalty tax of the greater of $695 per year, up to a maximum of three times that amount per family ($2,085), or 2.5% of household income

9. 2014 and Beyond • The penalty would be phased in accordingly: • $95 in 2014, or 1.0% of taxable income • $325 in 2015, or 2.0% of taxable income • $695 in 2016, or 2.5% of taxable income • Beginning after 2016, the penalty will be increased annually according to cost-of-living adjustment

10. 2014 and Beyond • Beginning in 2014, the maximum waiting period an employer can impose upon an employee is 90 days. • Beginning on or after January 1, 2014, plans and insurers will be required to eliminate restrictions on plan entry based on a pre-existing condition, and they will be prohibited from excluding coverage for a pre-existing condition.

11. Also Coming Up in 2014:Patient Protections • Wellness incentive limit raised from 20% to 30% • Allows an incentive such as premium reduction for achieving a health standard • Must be alternative means of qualifying • Up to 50% for wellness programs for tobacco

12. Issues - Viability • If enrolling in a health care plan is viewed as optional for U.S. citizens because of the low penalties, those who consider themselves healthy are less likely to enroll because it is not in their economic best interest. • Much of the law’s success depends on having young, healthy people sign up for insurance. • They have much lower health care expenses. • Their insurance premiums help offset the higher medical expenses of older, sick people in a health plan.

13. Issues - Conflict • State Exchanges • Few states have proceeded with their implementation activities. • Many states have not taken any action toward the establishment of a state health insurance exchange.

14. Issues - Enforcement • IRS Enforcement • Since the decision labeled the penalty a tax, it will be collected by the IRS. • The IRS may have few options for collection because: • Congress restricted the agency’s collection authority, • The IRS cannot file a tax lien against individuals who do not comply with the health insurance mandate, and • The IRS can only collect the money by withholding it from tax refunds or Social Security checks.

15. Hot Button Issues For 2013

16. The Family Medical Leave Act

17. New FMLA Rules • Final regulations issued February 5, 2013,implementing National Defense Authorization Act of 2010 • Relating to military leaves • Other changes to 2009 Regulations include intermittent leave • Effective March 8, 2013

18. New FMLA Regulations (Military)

19. New FMLA Regulations Use smallest increments of time as used for other types of leave

20. New Guidance on CareFor Adult Child Child must: • have an ADA-defined disability • be incapable of self-care due to that disability • be in need of care because of the serious health condition • Age child became disabled does not matter

21. New FMLA Regulations – Next Steps Employers covered by the FMLA should do the following: • Update FMLA policies in accordance with the new rule. • Replace the current FMLA poster with new poster. • Make sure all FMLA Fact Sheets are up to date. • Use the new DOL notification and certification forms. • Insure that leave administrators are familiar with the changes that took effect March 8.

22. Immigration Non-Compliance

23. Immigration Reform • The political climate makes legislation more likely than in prior years • Any “reform” will include greater burdens on employers to verify employment eligibility and increased penalties for hiring undocumented workers

24. Common I-9 Errors - Employees • Did employee sign and date? • Did employee check 1 of the 4 boxes? • If permanent resident, did employee write in his Alien Registration Number? • If employee has temporary work authorization, did he write his immigration number and the expiration date?

25. Common Errors - Employers • Form calls for document name, issuing authority, document number and expiration date (if any). • You must write “SS card/SSA/123-45-6789. • Write in first day worked. • Sign and date. • Write full company name (no abbreviations) Can use a stamp for this. • Write physical address vs. P. O. box number.

26. ICE Penalties I-9 Penalties for Substantive and Uncorrected Technical Violations for each I-9 Form:

27. Immigration To Do List for Employers Enroll in E-Verify at: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES Schedule I-9 training because the E-Verify system is only as good as the information collected on your I-9 forms – must be retained as before; Use new I-9 Form issued March 8, 2013; Conduct I-9 Audit for all past hires - with professional signoff that you are currently in compliance.

28. Refusal to Receive Flu Shot • Chenzira v. Cincinnati Children’s Hospital (2012) • Employee is a vegan; refuses mandatory flu shot based on religious belief • Ct: duty to accommodate employee’s religious beliefs

29. Americans With Disabilities Act

30. EEOC Issues ADA Guidance for Veterans With Disabilities • Preventing disability discrimination • Accommodation of veterans with disabilities eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

31. Wellness Program FitsADA Safe Harbor • Seff v. Broward County(11th Cir. 2012) • Employees who declined to participate in wellness program charged $20/pay period • Ct: No violation of ADA; safe harbor for insurance plans

32. ADA Requires Transfer to Vacant Position • EEOC v. United Airlines 7th Cir. 2012 • Employee can not perform own job • Ct: Not sufficient to let employee compete for vacant job; duty of accommodation requires transfer • But don’t have to ignore union contract

33. A New Day At The Equal Employment Opportunity Commission (EEOC)

34. EEOCIncreased Charges & Lawsuits • 99,412 FY 2012 (Most Ever) • 580 “Systemic” Matters • 122 Lawsuits Filed • $365 Million Obtained

35. Systemic Charges • Employment Tests • Leave and Termination Policies • Criminal Background Checks • Credit Checks

36. What Now? • Less Experienced Investigators – But More Aggressive • Closer Review of Position Statements • Hospitals Quilty Until Proven Otherwise • More On-Sites

37. EEOC’s Strategic Action Plan

38. Nationwide Priorities • Eliminating Systemic Barriers in Recruitment and Hiring • Exclusionary Policies and Practices • Channeling/Steering of Individuals Into Specific Jobs Due to Their Status in a Particular Group • Restrictive Application Processes (i.e., pre-employment tests, background screens, date of birth screens and on-line applications).

39. Emerging Issues • ADAAA – Proper Application of Defenses such as Undue Hardship, Direct Threat and Business Necessity • LGBT (Lesbian, Gay, Bisexual and Transgender Individuals) – Coverage Under Title VII Sex Discrimination Provisions • Accommodating Pregnancy – Women Who Are Forced Into Unpaid Leave After Being Denied Accommodations Routinely Provided to Similarly Situated Employees

40. Question #1

41. Medical Leave • Facially neutral policies that may violate the ADA: • Strict leave of absence policies that do not provide for exceptions or any accommodations • Policies that consider additional leave but limit the amount of additional leave • Policies that result in automatic termination at the exhaustion of FMLA, despite a need for additional treatment or recovery

42. EEO Action Plan • Review hiring/recruitment policies concerning requirements such as high school diplomas, criminal background checks, credit histories, applicant testing. • Review EEO statements (is it broad enough?) • Training and practices concerning ADA accommodation, pregnancy accommodation, leave practices in conjunction with FMLA. • Review training methods and policies concerning discrimination and harassment in the workplace. • Revisit whether you are currently complying with OFCCP/affirmative action requirements and have current written affirmative action plans.

43. Failure to Accommodate Pregnant Employee May Violate Title VII • Chapter 7 Trustee v. Gate Gourmet, Inc. 11th Cir. 2012 • Pregnant employee’s doctor imposed restrictions; supervisor says no light duty; fires her • Ct: have to at least consider whether light duty work available

44. Supervisor Status Under Title VII • Vance v. Ball State University • U.S. Supreme Court will decide whether someone who directs employees’ work, but lacks other authority, is a supervisor • Implications for harassment cases

45. Gay Marriage • 2013 – U.S. Supreme Court will consider two cases on constitutionality of gay marriage • Result could have implications for employers regarding benefits and other employment issues

46. Tracking Employees • Tracking Through Technology • Laws are not keeping up • Reasonable expectation of privacy • Policies define expectations • Notify of expectations re: e-mail, texting, data etc.

47. Video Cameras • Electronic Communications Privacy Act • Video is generally permissible • Size of camera • Reasonable expectation of privacy • Announce monitoring • No audio recordings

48. Social Media • Ignorance is bliss • Knowing personal information • Potential ADA or GINA claim • Stored Communications Act • Invasion of Privacy claims

49. Social Media Policies • NLRB Memos & Opinions • Reasonably chill employees’ Section 7 rights • Right to complain about terms and conditions of employment • wages • hours • disciplinary action

50. The New NLRB5 NLRB Nominations Go To Full Senate • Mark Gaston Pearce (Chairman – D) • Richard Griffin (Recess – D) • Sharon Black (Recess – D) • Harry Johnson III (R) • Phillip Miscimarra (R)