Labor and Employment Law Update Presented By Shawn

Labor and Employment Law Update Presented By Shawn R. Lillie, Esq. Allen, Summers, Simpson, Lillie & Gresham, PLLC 80 Monroe Avenue, Suite 650 Memphis, TN 38103 (901) 763 -4200

Overview 1. Morale Factors 2. EEO Overview 3. Unlawful harassment/#metoo 4. Age, Race, ADA and retaliation 5. Arbitration and settlement of employment disputes

The Significance of Employee Morale Good employee morale is critical to getting the job done correctly and serving our customers/members. Low employee morale tends to result in one of four negative outcomes: 1. Poor work performance/attendance, etc. 2. Employment Disputes 3. Labor Union organizing/grievances 4. Turnover

Morale Factors

Three Good Questions • Is it right? • Is it fair? • Is it legal?

EEOC Overview • In 2018, a total of 76, 418 EEOC charges were filed nationwide • Of that number, 26, 699 included allegations of harassment • Of that amount, the charges included the following: • 32% alleged race discrimination • 32% alleged sex discrimination • 32% alleged disability discrimination • 22% alleged age discrimination • 9% alleged national origin discrimination • 4% alleged color discrimination • 3. 7% alleged religion discrimination • 1. 4% alleged equal pay act discrimination • 51. 6% alleged some form of retaliation

Unlawful Harassment/#Metoo • National Attention on the Issue of Sexual Harassment • Political Correctness confuses the problem • Used to be never believe – now always believe • Joe Biden – Anita Hill • Oftentimes sexual harassment happens and it is terrible • Sometimes allegations are simply made up and that is terrible, too • Have to look at the facts of each situation

Employer Responsibilities In the event a claim of harassment is made, an employer has the following obligations: 1. Investigate • • Find the facts (witnesses, statements, etc. ) Ensure no retaliation 2. Correct promptly any harassment • Factors to consider: • The severity of the misconduct. • The strength of evidence received. • The duration of the misconduct. • Any relevant prior discipline.

Employer Responsibilities 1. In certain types of cases, where supervisors/managers are the harasser, the employer must prove that it made efforts to prevent harassment from occurring. 2. How do you prove you have tried to prevent harassment? • Policy – updated • Periodic Training of Supervisors/Managers/Employees

Age Discrimination • We see a large number of age discrimination cases that make it to litigation • These cases often involve long term employees • Hard to argue that someone who has worked for a company for 35 years with little disciplinary history now needs to be fired for “unsatisfactory job performance. ” • (Better have very good documentation). • Reminder – in very few situations can an employer require someone to retire. • No comments – you need to think about retiring…

Race Discrimination We see a large number of race discrimination charges filed. Remember – be consistent; treat everyone the same in terms of policy enforcement. Racial harassment cases can be bad for employers.

ADA – Disability Discrimination ADA requires (1) no discrimination and (2) to provide reasonable accommodation. Employers are generally required to engage in an “interactive process” with disabled employees to discuss the disability and potential accommodations. Good communication can limit legal problems. Stop – slow down – think through these issues. No quick conclusions that you cannot accommodate.

Retaliation In the political world, they never get people for the underlying crime – they get them for the cover up, lying to investigators, etc. - Why people talk with the government investigators is beyond me? – Take the 5 th!!! Same in employment law – employers may not have actually discriminated against an employee, but when the employee files a charge, or a claim, then the employers fire them. Employers often get out of the underlying allegation, but get tagged for retaliation. If a charge/claim is filed, or a complaint of harassment is made, business as usual – NO retaliation!

Arbitration • Arbitration is a private means of resolving disputes. • Epic Systems Corp. v. Lewis (May 21, 2018) - U. S. Supreme Court held that employers may lawfully enter into arbitration agreements that effectively waive employee rights to file class action lawsuits. • In the labor context, most union contracts have an arbitration provision. • Many employers have implemented arbitration agreements to avoid costly litigation. • Instead of going to court over an employment dispute, these agreements require the decision to be made by an arbitrator instead of a court/jury.

Arbitration • Positive Aspects of Arbitration – less costly, less formal, quicker, limiting factors such as no class actions. • Negative Aspects of Arbitration – an arbitrator rather than a judge makes the decision, difficult/impossible to appeal, easy for employees to access.

Settlement of Employment Disputes 1. Consider the use of Separation Agreements when there are potential issues. There are legal requirements. 2. Settlement of Litigation – always consider this up front. • Cost of defense, interference, etc. • Mandatory mediation in many courts • Mediation (private settlement conferences) are typically successful • “A good settlement is when both sides walk away unhappy…” Remember the words of the Lord Jesus Christ – settle with your adversary quickly

Questions? Thank you for allowing me to be here with you. -Shawn R. Lillie