On May 21, 2013, the Senate Judiciary Committee finalized S. 744, the Senate Bill containing the various provisions of reform of current Immigration laws. After five days of committee revisions, the Committee successfully voted the final bill as amended to the floor of the Senate on a 13-5 vote. The legislation survived the entire markup process with most of its major provisions in place as the four Senators representing the “Gang of Eight” on the committee stuck to their commitment to resist any changes to the core provisions of the bill.

The bill was not just the brainchild of Democrats, but a bipartisan committee of eight drafted the bill, which are unofficially referred to as the “Gang of Eight.” It comprises the leaders of both the parties in the House and the Senate, and the chairs and ranking minority members of the Senate Committee and House Committee for Intelligence. The bill is also called the Border Security, Economic Opportunity, and Immigration Modernization Act; the JOLT Act of 2013. It has passed the Senate Judiciary Committee, and is now headed for a vote in the Senate where 60 votes are required for passage. After this, the bill will go to the Republican dominated House, where the passage would be even more difficult. Even though the Judiciary Committee debated the bill at length, there is already a deep disquiet within the Republican fold over the fact that most of the amendments proposed by the Committee were rejected. Senator Ted Cruz and three other GOP members were miffed enough to write a 5-page open letter to the bill drafters. They charged that the Republican members of the Gang of Eight have effectively colluded with the Democrats to block any meaningful amendment to the bill. Their main objection to the bill is that it would offer a path to citizenship to the nearly 11 million illegal immigrants who came to the U.S. before 2012.

The bill, as currently drafted, is going to make major improvements in the lives of 11 million aliens who will benefit from it. The main provision of the bill, and the one which is generating the most opposition, is that it would offer a path to citizenship to 11 million illegal immigrants who came to the U.S. before 2012. The bill gives one year to undocumented immigrants to apply for Registered Provisional Immigrant Status (RPI). It would grant them legal status and ability to travel outside the U.S., but not eligibility to any public benefits, including participation in Medicare under the Affordable Care Act. The provision will also cover the spouse and children of the applicant. After 10 years, a person with RPI would be eligible for a green card. Three years after that they can apply for citizenship. All this assumes that the applicant has no serious criminal record, has worked regularly, paid his/hers taxes and has learned English.

The following are some of the other keys provisions in the current version of S.744:

• Border and interior enforcement: The new Senate bill has a more comprehensive approach to the border and interior enforcement provisions (including mandatory, enhanced E-Verify).

• Increases number of H-1B Visas: Raises the base cap of 65,000 to 110,000 (increases the exemption for advanced degree graduates in science, technology, engineering and mathematics from U.S. Schools to 25,000). In future years, the cap may go as high as 180,000 based on two factors plugged into one formula known as the “High Skilled Jobs Demand Index” (with each factor weighed at 50%):
  • The percentage by which cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year exceeds/fails to meet the cap (50%)
  • The inverse of the percentage increase/decrease between the previous fiscal year and the current fiscal year in the number of unemployed persons in the “management, professional, and related occupations category” of BLS data (50%).

• New W visa, for lower-skilled workers when the economy is growing: Under the provisions of the bill, a new statistical agency will be created within the Department of Homeland Security (DHS) to regulate the W visa program. This new agency, called the Bureau of Immigration and Labor, will determine the annual cap for W visas, and will determine the list of recruitment methods employers may use. It will also conduct surveys to assess shortages in occupations by job zones, and conduct studies on employment-based visa programs. The Bureau will make annual recommendations to Congress in order to improve such programs.
  • Spouses and minor children of W visa holders will be admitted to the U.S. for the same period as the visa holder and will be given work authorization. This solution is critical to ensuring that dependents have the opportunity to incorporate into the formal economy. By easing family unification, this provision also minimizes the likelihood of undocumented immigration of family members of W visa holders.

• Clear the system backlog: Under track two of the merit-based system, an alien who is a beneficiary of a petition for an employment-based or family-based immigrant visa and who has not been awarded a visa in 5 years after the petition was filed is eligible for a visa under track two of the merit-based system. This will provide applicants with clear expectations in terms of the time they will have to wait in order to enter the country through legal channels.

• Merit based visas (new point system): 125,000 visas will be available per year and will be based upon points awarded for education, employment and length of residency.
  • Half allocated to lower skilled immigrants: After enactment of the bill, between 60,000 and 125,000 visas will be available each fiscal year for immigrants in high-demand tier-2 occupations (1 of the 5 occupations for which the highest numbers of positions were sought to become registered positions by employers during the previous fiscal year) or in an occupation that requires little or no preparation. The initial threshold of 60,000 visas will increase by 5% per year if demand exceeds supply in any year where unemployment is under 8.5%. This will allow workers who currently do not have a real chance to get a green card to access lawful permanent resident (LPR) status in the future. This is important considering that the country needs immigrants at all skill levels.

• Cap for employment-based immigrant visas allocated to “other workers” will be raised: In the current system, only 5,000 visas are available for “other workers”—namely, persons capable of filling permanent positions that require less than two years of training or experience. These visas are part of a larger pool of visas called Employment-Based Category 3 (EB-3), which also includes visas for skilled workers and professionals. S.744 raises the cap for EB-3 from 28.6 percent to 40 percent of the worldwide employment-based level. At the same time, it removes the cap for the EB-3 “other worker” subcategory. Although the way in which visas will be allocated in practice among the different subcategories of EB-3 is yet to be seen, this change creates an opening for a much-needed solution regarding the legal incorporation of less-skilled immigrants.

• Changes in some family quotas:
  • Spouses and minor children of LPRs will have an expedited process: Because the bill reclassifies spouses and minor children of LPRs as immediate relatives, these family categories will not be subject to annual quotas anymore. This will provide relief to people who, under current law, have to wait “in line” for a long period of time in order to legally bring their immediate relatives to the country. Although partial, this is a first step in addressing some family unification issues. Consequently, this proposed change would serve as an additional incentive to avoid illegal immigration based on family separation issues.

The new Senate bill includes mechanisms to assure that future flows of immigrants (a) are absorbed through legal channels; (b) respond to the needs of the economy; (c) embrace (at least to some extent) family unification; and (d) have the flexibility to adapt to different scenarios in the future.

On April 22, Governor Beebe signed into law an Act that could affect employers’ social media policies across the state. Act 1480 prohibits an employer from requiring or requesting current or prospective employees to disclose their social media account usernames or passwords. This law mirrors others being passed this year in state legislatures across the country.

The coverage of the new Arkansas law is expansive. An “employer” is any person or entity engaged in a business, industry, profession, trade or other enterprise in the state (or a unit of state or local government) including, without limitation, an agent, representative or designee of the employer. An “employee” is an individual who provides services or labor for wages or other remuneration for an employer. Act 1480 defines personal social media accounts as any electronic medium “where users may create, share, or view user-generated content.”  This includes common social networking sites like Facebook, Twitter and LinkedIn, but also includes personal blogs or websites.

Act 1480 prohibits an employer from requiring, requesting or suggesting that an employee or prospective employee “friend” (connect with) a supervisor, or even another employee. In other words, an employer cannot suggest that any employees add a supervisor or co-worker to their list of associated social network contacts.

There are some key exceptions to the general prohibitions. The prohibition does not apply to company email accounts or to social media accounts an employer creates for business use. It also allows for employers to request an employee’s username and password when it is “reasonably believed to be relevant to a formal investigation or related proceeding” of possible violations of federal and state laws, or of the employer’s written policies.

Moreover, the employer is not liable for having an employee’s username, password or other login information to his or her social media account if obtained inadvertently through the use of an employer-provided electronic device or a program monitoring an employer’s network. The employer, however, still may not use that information to gain access to the employee’s social media account.

In addition, the new Arkansas law does not prohibit an employer from viewing information about a current or prospective employee publicly available on the Internet, nor does it prevent an employer from complying with the requirements of federal, state or local laws, rules, or regulations (or the rules or regulations of self-regulatory organizations).

A very similar Act, Act 998, has also been signed into law which places almost identical restrictions on institutions of higher education from requesting access to the social media accounts of current and prospective students or employees.

Act 998, the law specific to institutions of higher education, does not provide for any penalties. However, by amending Title 11 of the Arkansas Code, Act 1480 (the law specific to employers) provides for certain penalties to be enforced by the Director of the Arkansas Department of Labor (Director). With respect to penalties, employers should note that not only does the new Arkansas law provide for modest fines common to other laws and proposals, but it also allows for possible imprisonment. An employer is guilty of a misdemeanor for violating, or failing or refusing to comply with, the new Arkansas law, a lawful order of the Director, or a court judgment or decree made in connection with the new Arkansas law for which no penalty has been otherwise provided. Upon conviction, the employer is to be fined for each offense no less than ten dollars ($10.00) but no more than one hundred dollars ($100.00), and/or imprisoned for a period not exceeding six (6) months. Pursuant to the new law, each day the violation, omission, failure or refusal continues is a separate offense. In lieu of these penalties, any penalty except imprisonment may be assessed in a civil action in the name of the State of Arkansas.

Although it is unlikely that punishment for a violation of the new law would rise to imprisonment, it is a warning to employers that they must proceed with great caution when monitoring an applicant’s or employee’s use of social media.

Employers should educate supervisors and company recruiters about Act 1480 and modify employee policies and procedures accordingly.

On April 4, 2013, Governor Mike Beebe signed a law allowing private employers to voluntarily decide whether to use veteran status as a preference in making hiring decisions. By enacting the Voluntary Veterans Preference Bill (H.B. 1575), Arkansas employers now have the choice of whether to lawfully consider Veteran status as a hiring decision. There is no requirement that employers do so, but there is now no question as to whether doing so may violate any other state statutes governing preferences in employers’ hiring choices.

This new law is in line the federal guidance as well. The Equal Employment Opportunity Commission (EEOC) Compliance Manual already contains a partial exemption for Veteran Status when used as a hiring determination if it is a legislatively-enacted preference. This is true even where a disproportionate number of employees is of a certain protected status, e.g. males, so long as the employer does not use veteran status as a means to intentionally discriminate against another group protected-status employees, i.e. females.

The new Arkansas law affords more incentive for employers to hire veterans (an increasing number of the American workforce) in addition to previous laws. For instance, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees’ job positions who are deployed on active duty status. Further, the Family and Medical Leave Act (FMLA) already includes additional coverage for military members and their family members. With this new Arkansas law, employers now have more flexibility in choosing to hire veterans.

Warm weather is here and students are out of school, which means that employers may be considering hiring unpaid interns for the summer. However, if not analyzed carefully, summer internship programs can expose employers to liability under wage and hour laws.

There has been an influx of litigation regarding unpaid internships in recent years, and the number of internship-related lawsuits is expected to continue to increase. For instance, on June 13, 2013, former interns at the New Yorker and W Magazine filed a lawsuit against parent company, Conde Nast Publications. The lawsuit, which seeks class-action certification on behalf of other similar workers, alleges that Conde Nast violated the Fair Labor Standards Act (FLSA) by not paying its interns minimum wage as required under the law. A former intern at Harper’s Bazaar magazine filed a similar case recently against Hearst Corp for wage and hour violations.

The Conde Nast lawsuit comes just days after a federal court in New York found that Fox Searchlight Pictures had violated the FLSA when it used unpaid interns for production tasks on the set of the 2010 film, “Black Swan.”  In 2012, PBS talk show host Charlie Rose settled a class-action lawsuit brought by 190 unpaid interns who worked for his television program. While most of these cases have been limited to media companies, the trend is likely to expand into other industries. Employers should examine all aspects of their unpaid internship programs to confirm that the intern positions properly qualify as unpaid and to ensure compliance with other federal and state wage and hour laws. The U.S. Department of Labor (DOL) is aggressively pursuing enforcement to ensure internships comply with the very specific requirements under the FLSA.

The FLSA defines “employ” very broadly as to “suffer or permit to work.” Generally, non-exempt individuals who are “suffered or permitted” to work must be paid at least minimum wage and overtime pay. The FLSA payment requirements do not apply to interns in the “for-profit” private sector only where the individuals are employed by a program meeting specific criteria. (Note: Unpaid internships in the public sector and for non-profit charitable organizations are generally permissible and not subject to the FLSA.) Specifically, the DOL has established six specific criteria that an internship program must meet to qualify as unpaid under the FLSA. An intern will be considered an employee (and entitled to minimum wage and overtime) unless all of the following factors are satisfied:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If an employer’s internship program meets all of the factors listed above, then the intern is not considered an “employee” under the FLSA and the Act’s minimum wage and overtime obligations do not apply to the intern. Conversely, an internship that does not meet each of these criteria means that the intern will be considered employee and all FLSA provisions will apply, including minimum wage and overtime requirements.

Employers can reduce the risk of wage and hour lawsuits related to internships by carefully evaluating all aspects of their internship programs using the DOL criteria. For instance, internships should be for a fixed duration, determined prior to the start of the internship. Employers should not use internships as a trial period for possible permanent employment at the conclusion of the internship term. Employers may want to consider having interns sign an agreement acknowledging that, for example, the internship is unpaid, for a limited time period, for the educational benefit of the intern, and that participation in the program does not mean the individual will be considered for permanent employment at the end of the internship period. Of course, it is always important to remember that agreeing to work as an unpaid intern will not prevent an individual from bringing a claim for unpaid wages in the future.

As with other employment issues, whether or not an internship program meets the exclusion requirements under the FLSA depends on each employer and the unique facts and circumstances of the internship program. If you would like to discuss specific wage and hour issues related to your internship program, please call one of our attorneys.

As employers fill summer jobs with young workers, certain federal and state laws must be considered when setting the terms and conditions for such employees.

Under the Fair Labor Standards Act, which sets forth the federal laws on youth employment, the primary work restrictions are contingent upon age and occupation. The age of the minor carries with it corresponding limitations on the amount of permissible work hours. For minors ages 14 and 15, they: (1) can work outside school hours, but not more than 3 hours in a school day and not more 18 hours in a school week; (2) can work up to 8 hours on a non-school day; and (3) can work up to 40 hours on a non-school week. The amount of hours worked is further restricted by the time of day a 14 or 15 year-old may work. Minors age 14 and 15 may only work between 7 a.m. and 7 p.m., with the exception that from June 1 through Labor Day work until 9 p.m. is permitted. As for minors age 16 years and older, the FLSA does not limit the number of hours or times of day that work may be performed.

Employers must also be mindful of pertinent State laws in addition to the FLSA. In Arkansas, with limited exception, a minor must be at least age 14 to work.

To employ a minor under the age of 16, an employer must obtain a work permit from the Arkansas Department of Labor. As for the limitation on hours, a minor under the age of 16 may work up to 6 days in any week, up to 8 hours in any day, and only between 6 a.m. and 7 p.m., except on non-school nights when work is permitted until 9 p.m. Arkansas permits a minor under 16 to work up to 48 hours per week, but, a minor age 14 or 15 working for an employer covered by the FLSA may only work a total of 40 hours per week, regardless of the extended Arkansas limitations.
Unlike the FLSA, Arkansas limits the amount of hours worked by minors ages 16 and 17. A 16 or 17 may work: (1) no more than 6 days per week; (2) no more than 54 hours per week; (3) no more than 10 consecutive hours in any day; and (4) no more than 10 hours in a 24-hour period. Minors age 16 and 17 may work between 6 a.m. and 11 p.m., although the limitation is extended to midnight on non-school nights. In certain occupations and circumstances, on non-school nights, work may be permissible between midnight and 6 a.m.

Nature of the Work. Employers should also appreciate that, in addition to the limitations relating to the total hours worked and time of day, there are also both Federal and State restrictions on the type of industries in which a minor may work. The FLSA permits minors ages 16 and 17 to perform any “non-hazardous” jobs and permits minors ages 14 and 15 to perform non-manufacturing, non-mining and non-hazardous jobs. The FLSA regulations provide guidance as to what jobs constitute permissible jobs. For Arkansas, minors under the age of 16 are also prohibited from performing certain types of work. The Arkansas child labor laws and regulations provide further detail on the type of work prohibited.

The content of this article contains general rules and regulations that deal with the employment of minors. Because of the numerous laws and regulations applicable to employment-related matters, and the exceptions and variables within those laws and regulations, assessment as to certain employment matters may require more in-depth analysis into an employer’s particular facts and circumstances. If you have any questions, please contact an attorney with CGWG.

A bill concerning handguns in the workplace has been submitted during this year’s session. It is House Bill 1269, titled: “An Act to Allow a Concealed Handgun Licensee to Keep a Handgun in His or Her Locked Vehicle on His or Her Employer’s Parking Lot.” The title pretty well captures the purpose of the bill. It is to afford a right to possess a legally owned handgun in the parking lot of an employer. A similar bill passed the House during the 2011 session but did not make it out of the Senate Committee.

The debate over guns in the workplace evokes strong feelings from both sides. Advocates cite the Second Amendment, crime deterrence and the fact that restricting guns in the workplace has a greater consequence of restricting the right to possess a gun when traveling to and from work. Those opposed to guns in the workplace cite the encroachment on the employer’s private property rights, safety concerns and potential liability arising from a gun-related incident.

The bill provides that “a public or private employer shall not prohibit any employee who is a licensee from possessing any legally owned handgun when the handgun is lawfully possessed and locked inside a private motor vehicle in a parking lot.” Because the right to such “parking lot” possession requires lawful ownership by a “licensee,” an employer must not condition employment on a person’s licensure status or on the condition that an employee or prospective employee agrees not to keep a handgun in the parking lot. Further, an employer may not take adverse action “against an employee for exercising his or her constitutional right to keep and bear arms or for exercising the right of self-defense so long as a handgun is not exhibited on the employer’s property for any reason other than lawful defensive purposes.”

As for civil liability, the bill insulates an employer from liability except in cases of gross negligence. Along with that, an employer would not have a duty to determine if an employee is actually in compliance with the laws controlling gun ownership and possession.

In the event the bill passes, covered employers should protect against taking adverse action against employees or prospective employees based on licensure status or possession of a lawfully owned gun in a private vehicle in the employer’s parking lot. Employers should also endeavor to amend any policies rendered unlawful by passage of the bill. This adds to the growing exceptions to the concept of “at will” employment.

The Fair Labor Standards Act (FLSA) is the federal statute protecting employees’ for wage and hour rights, such as overtime and minimum wage. An FLSA collective action is unique in that, under the FLSA, a group of employees can certify a “collective action class” of employees (similar to but distinct from a “class action”) that need only be “similarly situated” to one another by being subject to a common policy or practice affecting their pay structure. These types of lawsuits allow employees to recover back wages, overtime premiums, punitive damages and attorneys’ fees. Because of their ability to include a potentially unlimited number of plaintiffs into one lawsuit, plaintiffs’ attorneys have found FLSA collective action lawsuits to be a favorable form of litigation.

The number of FLSA collective action lawsuits filed in the United States during 2011 peaked above 7,000 (up 400% from 2000), and many others remain pending. These lawsuits are popular because the amount of damages recovered can be staggering due to the fact that health care systems with multiple facilities can include dozens, hundreds or even thousands of employees into a single lawsuit. Even if a lawsuit is unlikely to be successful, the cost of defending an FLSA collective action can be extraordinary where multiple facilities are named as defendants and the plaintiffs’ allegations will not be adjudicated by their merits until after months of preliminary pleadings are filed and thousands of records are reviewed.

For instance, on February 15, 2013, a federal judge in southern Missouri approved the settlement of a collective action lawsuit under the FLSA filed by a group of employees against the nursing and rehabilitation facilities for which they worked. That single lawsuit involved more than 3,000 employees working among 60 health care facilities around the state and, while the settlement’s details remain confidential, at least $6 million dollars was issued to the employees in order to avoid a trial of the case. The case of McClean v. Health Systems, Inc. is just one of many such lawsuits pending around the nation.

Top Industry Issues

Various industries, because of their employment structures and practices, are being targeted for these types of lawsuits, and the health care industry is one of them. Likely due to the high number of employees working around the clock and expanding industry segments, health care facilities have seen a significant increase in collective actions. Even in Arkansas, plaintiffs’ law firms are currently issuing letters to industry employees informing them of their rights and the possibility of bringing such a lawsuit. Health care industry employers unaware of these issues may find themselves involved in their own lawsuit very soon.

There are three types of commonly-filed collective action lawsuits in the health care sector. First, employee misclassification cases are filed when an employee alleges that he or she, in addition to all others in a given job position, has been misclassified as “exempt” from overtime pay. The FLSA exempts from overtime premium pay certain job positions based upon the duties actually performed by the employee. The common exemptions by health care facilities include the “learned professional” exemption, the “professional” exemption and/or the “administrative” exemption.

A common mistake is that an employee’s education and training alone qualifies certain employees, such as Registered Nurses or Licensed Practical Nurses, for these exemptions because of their job titles. However, the FLSA determines whether an employee is in fact exempt by examining the day-to-day job duties performed by those employees. Although one RN may qualify as a “learned professional,” another RN may not due to variances in the two RNs’ job duties. For example, the Department of Labor issued an opinion letter in 2006 finding that a hospital’s Respiratory Therapists, which required a Bachelor’s Degree and specialized training, were non-exempt employees because they did not exercise “advanced knowledge” in their daily activities.

The next common form of collective action claims among health care facilities involves “off the clock” work. These lawsuits typically involve the manner in which non-exempt, hourly employees record their time worked. Under the FLSA, all employees (even if exempt) must be compensated for “all hours worked.” Thus, where a time clock program automatically deducts a half-hour meal break for a group of employees and those employees commonly perform “work” in that time period, they will allege that the FLSA was violated. Additionally, “rounding” employees’ time cards or allowing pre- and post-shift work to be performed by a group of employees may constitute a collective class.

For example, back wages may be owed where a facility allows LPNs to review forms or other paperwork from the previous shift before punching their time card in the time clock located on the other side of the facility. Even if not required for the job position, an employer’s knowingly allowing such off-the-clock work to occur can justify an FLSA collective action lawsuit in itself. While the amount(s) of time spent on such activities by one employee may not equate to very much time, aggregating those time periods among an entire facility’s workforce can be substantial (and could increase an employee’s 40-hour week into overtime pay).

Finally, even where an employee receives overtime pay, an employer’s miscalculation of the employee’s “regular rate of pay” can validate an FLSA lawsuit. If a non-exempt employee is paid by an hourly rate and also receives non-discretionary bonuses based on the quantity or quality of work, stand-by or on-call pay, employer-paid meals and/or shift differentials, then an overtime rate based upon the employee’s hourly rate alone would violate the FLSA. Another issue arises where an employee works one job position at one facility but performs a different job function at another facility (operated by the same health system) with two different rates of pay. Simply averaging the two rates for determining the employee’s overtime rate is insufficient; the time spent on each job must be weighted by the employer in setting the overtime rate to comply with the FLSA.

Limiting Liability

As can be seen, there are lots of practices—both direct and indirect—that can impose liability under the FLSA’s complex compliance requirements. As stated, health care companies are being targeted and employers can easily be surprised by the service of a complaint. A few general tips can help limit your potential liability as to the issues discussed above:

• Establish a job classification review system. Knowing what job positions actually perform exempt job duties, instead of relying on the job description, will limit possible exposure to an FLSA misclassification case. The FLSA allows a partial defense to these kinds of lawsuits where an employer can prove that it reviewed a job position and classified a group of employees erroneously yet in good faith.
• Monitor employees’ timekeeping practices. As discussed, employers can be held liable for allowing their employees to work before and after their shifts. Ensuring that supervisors understand the implications of tracking employees work can also limit FLSA liability.
• Develop updated policies. Instituting a handbook policy that requires employees who work through an automatic meal time to fill-out a time adjustment form can avoid off-the-clock allegations from turning into a lawsuit.
• Conduct regular payroll audits. Ensure that time recording software (such as rounding programs) or other timekeeping practices are not improperly deducting work time from employees’ time records.

These issues can be difficult to analyze. If you have a question regarding the Fair Labor Standards Act, please contact an attorney with our Firm.

On November 6, 2012, Barack Obama was re-elected to a second term as President of the United States. There are several employment-related items on Obama’s legislative agenda, as outlined below:

The Paycheck Fairness Act. The Paycheck Fairness Act (PFA) would amend the section of the Fair Labor Standards Act (FLSA) known as the Equal Pay Act (EPA) to broaden the enforcement of, and remedies for, sex-based pay discrimination. The PFA was originally introduced in Congress in 2009, but failed to gain approval in the Senate. The PFA has been reintroduced in 2013 in the 113th Congress. If passed, the PFA would:

• require employers to demonstrate that wage differences between men and women holding the same position stem from factors other than sex;
• prohibit retaliation against workers who inquire about wage practices or disclose their own wage information;
• increase penalties for equal pay violations; and
• extend class action protection under the EPA, making procedures more in line with class actions under Title VII.

Minimum Wage. On February 12, 2013, President Obama gave his State of the Union address to Congress. In his Address, the President called for an increase in the federal minimum wage. Obama seeks to raise the federal minimum wage from its current rate of $7.25 an hour to $9.00 an hour. Despite President Obama’s push, it is unclear whether a proposed increase would be approved by the Republican controlled House of Representatives.

Immigration Reform. President Obama has made it clear that comprehensive immigration reform is a top priority for his Administration during its second term. The specifics of any comprehensive plan are still unknown, as various members of Congress are busy hammering out the details of proposed legislation. However, it is no secret that the President considers a “path to citizenship” a must in any immigration reform legislation.

Title VII Discrimination. The rights afforded under Title VII are likely to continue to be expanded by the Equal Employment Opportunity Commission (EEOC) and the courts. In 2012, the EEOC issued a ruling which, for the first time, provided guidance on the extent to which Title VII sex discrimination prohibition applies to transgender employees. What this means is that investigators from the EEOC will now accept claims brought by transgender individuals and the EEOC’s legal staff can bring lawsuits against employers that the agency has determined have discriminated against transgender employees or job applicants. This will continue to be an area of focus for the EEOC and we will likely see some court cases on this issue in 2013.

Another example of the continued expansion of employee rights under Title VII is in the area of religious discrimination. At the end of 2012, a district court in Ohio found that it was plausible that a plaintiff could subscribe to veganism with the sincerity equating to that of traditional religious views and that these views may require reasonable accommodation. In this case, a hospital employee refused the flu vaccine because she alleged the use of eggs in the preparation of the vaccine ran counter to the beliefs of a vegan. She was discharged and argued that her discharge violated her religious and philosophical convictions. The court agreed and refused to dismiss her case.

FMLA. In the area of the Family & Medical Leave Act (FMLA), a new Administrator’s Interpretation was issued earlier this year by the Department of Labor, which addresses FMLA leave to care for an adult child. According to the new guidance, a parent is entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the child: 1) has a disability as defined by the Americans with Disabilities Act (ADA); 2) is incapable of self-care due to that disability; 3) has a serious health condition; and 4) needs care due to this serious health condition. Only when all four requirements are met is an eligible employee entitled to FMLA-protected leave to care for his or her adult child. The interpretation notes that employers should broadly define “disability” as required by the Americans with Disabilities Act Amendments Act of 2008. The interpretation makes clear that “the age of a son or daughter at the onset of a disability is not relevant in determining a parent’s entitlement to FMLA leave.” That means an employee may be entitled to use FMLA leave to care for an adult child who is disabled as a result of an old condition (such as a birth defect or childhood illness) or a recent illness or injury (such as a car accident).

Social Media. The area of social media also continues to expand. The Arkansas legislature has proposed an Act to prevent employers from requiring or requesting user names or passwords of employees or job applicants. The proposed Act would also forbid employers from retaliating against an employee or applicant for failing to comply with a request for access to the employee or applicant’s social media accounts. We are sure to see similar laws and regulations enacted across the country. Also in the area of social media, there continue to be legal disputes with former employees over the ownership of corporate social media accounts. Although many companies have social media policies, they often do not contain a discussion of ownership of the social media account. Employers should also be sure to have access at all times to passwords on corporate social media accounts.

Russell was a founding member of CGWG where he practiced labor and employment law and served as the firm’s managing partner for 16 years. Blessed with everything but a long life, he was a loyal friend, patient mentor and trusted advisor whose integrity earned him not only the respect of clients but also that of opposing counsel. Despite his diagnosis of cancer in 2008, he continued to work virtually uninterrupted until early 2013. His quiet demeanor, analytical skill, positive attitude and strong work ethic were hallmarks of his personality, both within the legal profession and among friends.

“Russell’s legacy is immeasurable,” says Rick Roderick, CGWG’s managing director. “His gentle presence touched the lives of those he worked with daily. His compassionate nature cultivated a feeling of family at our firm and his forward-thinking ideas regarding workplace practices earned CGWG local and national praise for family-friendliness and flexibility, something Russell was extremely proud of. It was an honor to work with him and to call him a friend. Our goal now is to continue his legacy of compassion and commitment in a way that honors his life’s work.”

While a student at Southern Arkansas University, Russell was a cross country runner. Having grown up on the flat terrain of west Texas, he loved running the hills of Arkansas in its prettiest seasons of Spring and Fall and it was then he knew he wanted to spend the rest of his life in Arkansas. After graduation, he returned to Texas long enough to earn a juris doctorate at Texas Tech University and then immediately returned to Arkansas and adopted it as his home state.

Although a self-acknowledged introvert, Russell took an active role in many organizations. He was a member of the Arkansas, Texas and American Bar Associations, served as Chair of the Arkansas Bar Association’s Labor Section and as Director of Government Affairs for the Arkansas Society for Human Resources Management. As a member of the Society for Human Resources Management, he served as Chair of the National Legislative Affairs Committee, testified before U.S. Congress and appeared on “The Today Show” on behalf of the Society’s legislative positions. He was President and a Board Member of the Central Arkansas Human Resources Association, and also served on the Board of Directors of the Arkansas State Chamber of Commerce.

The Arkansas Society for Human Resources Management named him Outstanding Human Resources Professional in 2001 and awarded him its Legislative Advocacy Award in 2005 and 2006. He received the Central Arkansas Human Resources Association Outstanding Member Award three times. Russell was named Best Lawyers’ 2012 Little Rock Lawyer of the Year for the category of Employment Law – Management. Other honors include being named to Best Lawyers of America for more than 25 years, Mid-South Super Lawyers since 2006 and Chambers USA for the past nine years.

Nothing was more important to him than his four daughters who survive him: Kimzey Gunter of Taos, New Mexico; Sarah Gunter Newman of Austin, Texas; Laura Gunter of California and Rachel Gunter of Little Rock. He was a constant in their lives and was proud of the adults they became. He also is survived by his grandchildren: Isaac, Tea and Cedar Hardaway of Taos, New Mexico, and his sisters Barbara Burton of North Carolina, and Shellie Sims and Diane Brown, both of Texas. He was preceded in death by his parents.

Russell was born on February 21, 1950 in Amarillo, Texas to the late John Allen “Buster” Gunter and Shirley Ann Russell Gunter. His mother died on his seventh birthday and his father later married Beulah Gay Harden.

A celebration of Russell’s life will be held at a later date.

The family requests that any memorial donations be made to the Winthrop P. Rockefeller Cancer Institute at the University of Arkansas for Medical Sciences.

For more information, please contact:
Rickie Smith, CGWG
T: 501-371-9999
E: rsmith@cgwg.com