2014 FEDERAL LAW — A YEAR IN REVIEW

For anyone who watches the news, you know that Congress didn’t pass many laws. Nonetheless, things happened in 2014 that merit discussion – and watching as we move into 2015.

LGBT Protection under Title VII

In 2014, the EEOC came on strong in protection of the rights of the LGBT community. In September, it announced the filing of two lawsuits by the agency on behalf of transgendered persons alleging discrimination in violation of Title VII. In our May Employer’s Workshop, OKC Director Holly Waldron Cole spoke about this as one of the Agency’s priority issues. At that time, the Oklahoma EEOC was processing claims on behalf of the LGBT community and considering filing lawsuits on behalf of several individuals claiming discrimination on the basis of transgendered status. In 2015, this will be an area in which we will definitely see activity.

Pregnancy Discrimination

2014 saw much activity with regard to pregnancy discrimination. Court decisions which seemed to chip away at the rights of pregnant women led to the EEOC issuing new guidance in July which we covered in our August ELR.

The Guidance was not without its critics, even from within the Agency.

In the meantime, one of the most watched cases before the United States Supreme Court is Young v. UPS, a case in which Peggy Young was not permitted an accommodation by UPS under a policy because the policy applied only to employees who were injured on the job, with a permanent impairment under the Americans with Disabilities Act, or under certain circumstances covered by the Department of Transportation regulations – none of which covered her situation. For more on her case, you can read our October ELR.

The United States Supreme Court heard oral argument in her case on December 3. Court watchers expect the decision could address both the facts of her case as well as comment on the reach of the EEOC Guidelines put out in July. Stay tuned.

Same-Sex Marriages

Originally, the United States Supreme Court took a pass on hearing any of the many appeals on this issue. However, when the Sixth Circuit ruled contrary to the majority of the circuit late in the year, the issue was raised again. Now, court watchers anxiously wait to see if the Supreme Court will take one (or all) of the cases to determine whether the states can ban same-sex marriages. The Justices are set to determine in January whether they will hear this issue during their current term.

This issue matters to employers as to laws that concern leave issues, family issues, and benefits issues. Many of these laws look to federal and state law to determine definitions. Currently, an employer may have to look to various sources and apply competing definitions depending upon the states in which its employees work, live, or were legally married.

Wage and Hour Law

This area of the law was hopping in 2014 and does not appear to be slowing down for 2015. What constitutes work time remains a hotly debated question. This matters to ensure that nonexempt employees are paid for all time worked, including overtime. Last century (otherwise known as fifteen years ago), “rounding,” anywhere from a couple all the way up to 15 minutes, was the norm. With technology, this seems outdated. Technology may once again have outpaced the law.

In the most recent example of technology and the law, the United States Supreme Court decided the Integrity Staffing Solutions, Inc. v. Busk case on December 9.

Jesse Busk and Laurie Castro worked for Integrity Staffing. They were assigned to work at Amazon’s warehouse, retrieving products from the shelves and packaging them for delivery to Amazon customers. At the end of each workday, they were required to undergo a screening process. They “removed items such as wallets, keys, and belts from their persons and passed through metal detectors.” They were not paid for this time and filed a class action claiming they should have been paid.

The Supreme Court held this time was not compensable. The screening was not a “principal activity” nor was it an activity for which they were hired to perform. The Court took a narrow view, stating:

We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform – and thus compensable under the FLSA – if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.

Surprising to many, this was a unanimous decision.

While this decision was clearly favorable to employers, it does not alleviate the ever present burden on employers to ensure that nonexempt employees are being paid for all time worked. Questions that are prevalent include: Are you capturing and paying for time including responding to emails while the nonexempt employee is off site? If you are recording the time worked to the minute through a computer log on, why are you paying on a 15-minute rounding system from 1987?

Bottom line – Wage and hour issues continue to plague employers. You must be vigilant to ensure that you are capturing and paying for all time worked. Be sure your supervisors understand this. Do not allow nonexempt employees to work without recording their time.

By Kristen L. Brightmire, kbrightmire@dsda.com