This week the United States Supreme Court heard arguments in a case that we have previously reported on that was filed against Abercrombie & Fitch. In that case, a Muslim teenager applied for a job and was denied the job because she wore a head scarf which the hiring manager believed did not coincide with the company’s “look” policy. It is always dangerous to try to predict how the Supremes are going to rule simply based on the argument. News outlets have varied in how they believe the Justices’ comments may foreshadow the outcome. If you want a simple factual retelling of the argument the Christian Science Monitor‘s article is one of your better bets.
The fact that the Supreme Court may rule in the teen’s favor does not necessarily mean that employers cannot have dress codes. It will likely mean that employers need to follow existing guidance that accommodations may need to be made for religious beliefs.
Indeed, there are lots of things that employees may wear at work that would make an employer cringe and justify the imposition of a dress code. If you don’t believe me, check out today’s 5 minute laugh video:
For some employees, one of the hottest pieces of gossip is the scuttlebutt on raises and compensation. Depending on the company and industry, salary information may be considered by an employer to be highly “proprietary” information, which, if disclosed, has the potential to disrupt employee morale and retention. We periodically review employee handbooks and policies from our clients that contain strict prohibitions on the disclosure or discussion of compensation and/or benefits by employees. Unfortunately, such policies are highly problematic.
As Amazon.com recently experienced at its warehouses, the National Labor Relations Board (NLRB) is pursuing employers who prohibit salary and benefit discussions amongst employees. Under the current Board, the National Labor Relations Act (NLRA), in general, allows employees to communicate about pay and working conditions, free from retaliation, so that they can presumably bargain for better wages and/or benefits. As such, a salary and benefit non-disclosure policy will generally run afoul of the NLRA. This is not an intuitive concept for many. Managers and supervisors may require training to ensure “salary gossip” is not discouraged. Moreover, so called “lawful activities laws” in certain jurisdictions (e.g., New York) afford additional protections to employees who engage in personal and other enumerated activities during non-working hours.
What is an employer to do? We would, foremost, recommend reviewing your employee handbook and other policies to ensure compliance with federal, state and local labor and employment laws. In addition, increasing transparency regarding your company’s criteria for salary determinations, or even salary “ranges” if so inclined, can help diffuse gossip about compensation. Moreover, periodic reviews of salary and benefits during specified times, which are known to employees, may also help minimize or compartmentalize salary discussions.
Lawyers, and I suspect a good deal of employers, watched the Marchuk v. Faruqi & Faruqi case with a great deal of interest. The allegations after all were quite scandalous — namely that Juan Monteverde, one of Faruqi’s high profile partners, had sexually harassed Marchuk and raped her. Some of the interest may have been little more than schadenfreude as Faruqi & Faruqi have certainly made their share of enemies trolling for class actions against corporate giants.
Now that the verdict has come in and it was rather non-spectacular given the allegations, defense lawyers may be celebrating that a jury rejected most of the claims and only awarded a total of $140,000. Above the Law has tracked down a juror to explain the verdict, especially given the rape allegations. There is probably a lot of interest in reading the juror’s tale, most notably the rare glimpse inside jury deliberations.
What should be of note to employers is that the mere fact that the jurors did not 100% believe Marchuk did not preclude them from finding liability against the Firm. Instead, the jurors really delved into the evidence to see if that supported a verdict under the employee-friendly New York City Human Rights Law. The jurors understood that the law is much more lenient than state or federal law.
However, this case is not only a cautionary tale for New York City employers, but it is a reminder to employers and all of us defense attorneys not to fall in love with only a certain aspect of their case. The juror interviewed noted that there were several inconsistencies in Marchuk’s story regarding the rape and that was what led them to come to the conclusion that the sex had been consensual. However, the defense attorneys also tried to paint a picture of a woman who was only looking for a payday by introducing evidence that she joked she was going to Hawaii with the settlement money. This evidence was roundly rejected by the jury.
I have been involved in many investigations and lawsuits where clients have discovered that perhaps an employee was not truthful on one minor issue. Clients begin to convince themselves that this one misstep means that no one will ever believe the rest of the story. This may be true, but it may not be when you look at the totality of the circumstances. After all, jurors are human beings, most of whom have told partial truths about minor incidents, whether intentionally or not, but still expect people to believe them when they raise serious complaints. To borrow from the title of a much-ballyhooed movie currently in theaters, there are 50 shades of gray.
When evaluating risk of exposure in a lawsuit, employers need to look at the big picture.
The recent measles outbreak making headlines at Disney properties in California has been unnerving, to say the least. As any parent can attest, a visit to Disney is likely to be on someone’s wishlist at some point (as my two small children have already made clear!). Beyond planning a visit to see Mickey and Minnie, managers and HR professionals should also be cognizant of the disease’s spread, recently to New York, and be savvy to their obligations and restrictions vis-à-vis vaccinations and medical leave.
Must an employer require their employees to be vaccinated against measles? Generally, no, absent some specific health or safety regulation that may govern a particular industry in a particular jurisdiction (e.g. healthcare workers/first responders). For most employers, this is not an issue.
May an employer require employees to be vaccinated against measles? This is where things get tricky. There is nothing that would per se prevent requiring employees to be vaccinated against measles in order to work. However, dangers abound. Federal, state and local anti-discrimination provisions may require exceptions, primarily for religious and/or medical reasons. If the employee is in a high risk occupation, such as emergency medical services, the law provides more leeway, however each employer’s situation needs to be analyzed on a case-by-case basis.
A concerned employer could, alternatively, offer voluntary measles vaccinations, free of cost, which would provide employees some level of so called “herd immunity.” However, remember, you generally cannot ask about or disclose an employee’s vaccination status due to various privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). Proper consent forms should also be obtained through an authorized vaccination provider.
If an employee does contract measles, it may be reasonable and/or required to force an employee to stay home (preferably on paid leave) until they are healthy to avoid its spread in the workplace. Depending on the employer’s size, Family and Medical Leave Act (FMLA) protected leave must also be offered and appropriate FMLA notices given. Confidentiality regarding the employee’s medical status must also be maintained and any discriminatory employment actions avoided.
As always, we recommend giving your friendly local labor and employment attorney a call to discuss the complexities of any particular issues you may have.
We previously reported that the EEOC had filed suit against United Health Programs of America Inc. after workers alleged that they were forced to say “I love you” to co-workers on account of their employers’ beliefs in “Onionhead.” The suit also alleges that employees were forced to engage in prayer, wear Onionhead-related pins, and burn candles in the workplace. (Just in case any of you were confused, we really meant Onionhead; this is not a fake news post from the Onion.)
United Health Programs of America Inc. asked for permission to file a motion in federal court to bar the EEOC from contacting its employees. The motion alleges that employees were sent a letter that laid out “skewed facts” and seemed to imply that a response to the letter was mandatory. According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter.
It will be interesting to see how the Court rules on the motion. If the allegations in the motion are true, then employers should be aware that the EEOC may employ aggressive solicitation methods. Of perhaps bigger concern for employers is how to respond to employees who complain about being contacted by the EEOC.
Employers cannot tell employees that they must not cooperate with the EEOC lest they face claims that they interfered with the employees’ rights to report discrimination. Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so. It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth. Employers should be careful to also let employees know that no action will be taken against the employee if the employee chooses to speak with the EEOC.
As we approach our first “mega-snow storm” here in New Jersey and New York, we just wanted to clarify when employees can use sick leave under New York City’s Earned Sick Leave Act. I have gotten a few questions about the NYC’s paid sick leave law, especially the sections that allow for leave if an employee’s workplace or child’s school is closed during an emergency.
The law does not allow for the use of sick leave simply because a workplace or an employee’s child’s school is closed. Rather, sick leave is available if the workplace or school is closed due to a “public health emergency.” If, for example, the measles outbreak that seems to be hitting parts of California was happening in NYC and schools closed as a result, that would be due to a public health emergency.
The sick leave laws in the 8 municipalities in New Jersey (East Orange, Irvington, Jersey City, Montclair, Newark, Passaic, Paterson, and Trenton) also do not allow for the use of paid sick leave if work or schools are closed due to the snow.
If employees miss work due to the snow, their only available paid time off will be in accordance with their employers’ other paid time off policies.
A recent case out of Hawaii serves as a reminder to employers to be careful before assuming that a prior conviction and job-related and disqualifying. In Shimose v. Hawaii Health Systems Corporation, the court recently refused to dismiss a claim of discrimination brought by a radiology technician who was denied employment by a hospital based on his felony conviction for possession with intent to distribute meth amphetamine.
Hawaii, like 4 other states (Kansas, New York, Pennsylvania, and Wisconsin), has a law that makes it illegal for an employer to discriminate on the basis of a prior conviction. Under Hawaii’s law, employers may only use a criminal conviction to disqualify an applicant if it “bears a rational relationship to the duties and responsibilities of the position.”
Now, I know you are probably thinking this would be easy for the hospital to prove. I mean, the guy is going to be working in a hospital with lots of access to serious drugs. Not so, says the Court. In this case, the plaintiff was able to bring forth enough evidence that he would not be unattended in patient rooms or given access to pharmaceutical storage that would contain narcotics to defeat summary judgment.
In addition, even though federal law does not specifically prohibit discrimination on account of a criminal conviction, the EEOC has been very vocal in recent years about how there might be a disparate impact to minority groups where employers have a policy of disqualifying candidates based on criminal convictions. Indeed, it reissued updated guidance on the use of arrest and conviction records in 2012.
The important thing for employers to remember is that analyzing whether a conviction is job-related is a highly specific fact question and that they should not have blanket rules that certain convictions will be disqualifying for certain positions.
I must confess that I did not watch last night’s State of the Union as I was stuck at the office working on a brief. I have had time since to sift through the speech and have tried to distill out the employment-related issues. If you also missed it or just want to relive it, you can find the full transcript here.
So, what does the speech signal? The short answer is more of the same.
President Obama did talk at length about the economy and how to strengthen the middle class. He specifically called for higher wages, paid sick leave, and stronger unions. Of course, the State of the Union is really just the President’s opportunity to present his “dream list” of initiatives. Whether there is legislative movement on any of these initiatives is a wholly different story. However, this State of the Union may signal certain enforcement efforts of the Equal Employment Opportunities Commission.
As part of Mr. Obama’s agenda, he mentioned that we needed to think of child care issue as a national issue and not a “women’s issue.” Some employers may remember that the EEOC has issued guidance on discrimination against individuals with caregiver responsibilities. Although having “caregiver” responsibilities does not make a person a member of a protected class, the EEOC notes that what really may be at the heart of mistreatment of people with caregiving responsibilities is gender discrimination.
Mr. Obama’s speech may not have been intended to forebode a shift in enforcement priorities; indeed, he mentioned childcare in the context of making it more affordable. However, it is certainly true that the President can influence enforcement efforts. Indeed, under the Obama Administration, the EEOC has repeatedly focused on gender discrimination issues such as Equal Pay. As the EEOC continues to focus on these issues and test the limits of Title VII (see for example the recent lawsuits involving transgender employees), it is possible that we see more scrutiny of treatment of women with childcare responsibilities.
The Supreme Court sidestepped similar challenges even after the landmark US v. Windsor decision which foreshadowed the several circuit decisions that found that same-sex marriage bans violated the Equal Protection Clause. There is currently a split in the circuits when the 6th Circuit upheld Michigan, Ohio, Kentucky and Tennessee’s laws banning same-sex marriage. It is widely anticipated that the decision issued by the Supreme Court will not be a “punt” and instead will decide the issue once and for all.
Florida has become the latest state to recognize gay marriage. Same-sex marriages have started after the judge who recently struck down Florida’s gay marriage ban clarified that his order applied to all couples, not just the plaintiffs in the lawsuit. As we noted when US v Windsor invalidated the Defense of Marriage Act, employers would need to review FMLA policies and benefit policies, including healthcare plan documents and handbook provisions that may define spouse.
The dominoes have really been falling on state laws banning same-sex marriage as same-sex marriage is now legal in 36 of the 50 states. We understand that it may be difficult to keep up, but thought it might be easier to give you a list of states where same-sex marriage is notlegal since that list is shorter.
The states still prohibiting same-sex marriage are:
For those of you in the other 36 states here’s another friendly nudge to review your policies