The 2012 election, the Supreme Court's health care ruling and the infamous fiscal cliff certainly provide plenty of implications for employers. But there were a host of other developments that flew under the radar and merited HR's attention.
Sales Reps Exempt From Overtime Law
On June 18, 2012, the Supreme Court ruled that pharmaceutical sales representatives are exempt from the Fair Labor Standards Act's overtime requirements. The 5-4 decision in Christopher v. SmithKlineBeecham Corp., +2012 U.S. Lexis 4657, effectively defeated thousands of claims for overtime pay.
The FLSA has an outside salesperson exemption, and the Court found that the sales reps qualified for that exemption even though they do not make "sales" in the traditional sense of the word. The Department of Labor had supported the plaintiffs, so the ruling represented a rebuke of the agency's position.
EEOC Arrest and Conviction Guidance
The Equal Employment Opportunity Commission (EEOC) sent a strong signal to employers that their use of job applicants' criminal history information might violate Title VII of the Civil Rights Act.
The EEOC noted in its April 25, 2012 enforcement guidance that even where employers apply criminal record exclusions in a uniform fashion, this may still disproportionately exclude individuals of a particular race or national origin. Thus, an employer must be able to show that the exclusion is "job related and consistent with business necessity."
The EEOC also made clear that an arrest record by itself is not grounds for refusing to consider a job applicant. In addition, it encouraged employers to make individualized assessments rather than automatically disqualifying them based on any criminal record.
Don't Sleep on Social Media Trend
Four states passed new social media password protection laws in the last several months, including three which took effect between December 28, 2012 and January 1, 2013. These laws prohibit employers from asking job applicants or employees for their social media passwords or usernames. The states include:
While there are a few exceptions to these password protection laws that can shield employers from liability, HR should proceed with caution in this area as many other states have similar legislation in the works.
This 2012 trend coincided with an uptick of enforcement actions from the National Labor Relations Board (NLRB) in which the agency found employees discussing terms of their employment on social media to be engaged in "protected concerted activity." Highlighting the importance of this issue, the NLRB issued a report with examples of unlawful activity and made clear that nonunion employers also can be held liable.
Revised Age Discrimination Regulations
While there may not have been any groundbreaking age bias rulings this past year, the treatment of older workers remains a closely-watched issue. The EEOC issued a final rule in 2012 addressing the Age Discrimination in Employment Act (ADEA).
Under the new regulation, practices or policies that have a disparate impact on workers who are 40 and over will be considered discriminatory unless based on a "reasonable factor other than age." According to the EEOC, an employment practice will pass muster when it is reasonably designed to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.
The number of age discrimination claims filed with the EEOC has increased by 50% since 2000. The regulation is a response to concerns that older workers were being unfairly targeted as more employers downsized in recent years. The ADEA applies to all private employers with 20 or more employees, state and local government employers, labor organizations and employment agencies.
EEOC, CORI Arrest and Conviction Podcast
Podcast: New Social Media Protection Laws Put Employers on Guard
Employment Compensation > Employee Classification > Outside Salespersons