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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Do You Have to Pay Employees Who Are Off Work for Religious Reasons?

Posted in General Employment Discrimination, Religious Discrimination

28835398_sIn the last few weeks, there have been several religious holidays including Rosh Hashanah, Yom Kippur and  Eid al-Adha.  These holidays may have caused employees to request time off from work.  Employers are often confused about just how far they must go to accommodate an employee’s religious beliefs.  Does a religious accommodation mean that time must be given off with pay?

Generally, the answer to that question is no.  Although an employer may have to grant a reasonable accommodation of time off to observe a religious holiday, that time off can be without pay.  Of course, employers should be consistent with their policies with regard to paid time off.  If some employees are permitted to use vacation or other PTO time for absences due to a religious holiday, then all employees who are absent from work due to religious reasons should be similarly permitted to use paid time off.

What if an employer is closed for Christmas and pays employees for that day off, does that mean that other non-Christian holidays must be paid lest an employer face a religious discrimination claim? Again, the answer to that question is no.

Employers are permitted to choose which holidays the workplace will be closed and on which employees will be paid holiday pay.  In such a case, there is no discrimination against other religions simply because other religious holidays are not paid.  This is because an employee who chooses to be off work on any day where the office is not closed is faced with two possibilities — take unpaid time or use vacation or other paid time off.  This is true regardless of whether the employee is off to attend a child’s high school graduation or due to a religious observance.


Want to Have a Successful Diversity Program? — Make Sure Everyone is on Board

Posted in Employee Training Programs, General Employment Discrimination, Harassment, Sexual Orientation Discrimination

33190898_sI recently read an article that Wawa, Inc. has been sued by a former employee who alleges that she was discriminated against on account of being gay.  What was interesting about the article was what she alleged about how the harassment supposedly started.

The employee alleges that she participated in Wawa’s Gay Straight Alliance.   She says that as soon as her supervisor was made aware of her involvement with the Alliance that he began punishing her — taking away her flex benefits and changing her work location.  The employee also claims that he made fun of National Coming Out Day.

What is alleged in the complaint is a fairly common description of bullying or harassment that we see in complaints.  What makes this unusual is that one of the reasons she was allegedly bullied was on account of her participation in Wawa’s diversity program.  This program seems designed to combat prejudices and to work towards making a more inclusive environment for homosexual employees.

If this complaint is true, then at least one manager did not get the message that this was an important initiative to the company.

Diversity programs can be met with resistance by some employees who believe that the diversity program is giving minority employees more benefits than them, rather than simply leveling the playing field.  Nothing exemplifies this more than the reaction by some to the Black Lives Matter campaign that has been posted in social media.  In response to the campaign, some reacted by posting signs like All Lives Matter.  Clearly, those who posted these signs felt that to say Black Lives Matter meant that other lives did not matter as much, rather than seeing it as an attempt to address perceived racism against black people.  Perhaps if the message was Black Lives Matter Too, people might have understood the message better.

How the message is communicated definitely matters, but it is only one obstacle to a successful program.  For diversity programs to truly work, there must be a commitment to them from the very top of the organization.  There also should be outreach and training to all employees to explain the initiative, demonstrate that the company will not tolerate discrimination, and combat perceptions of reverse discrimination.

Tom Brady Fallout- When Employees Win

Posted in Arbitration, General Employment Matters, Harassment, Retaliation

This past week, the sports world was rocked by the news that a federal judge vacated the suspension of New England Patriots* quarterback Tom Brady in the fallout over Deflate-gate, Ballghazi, or whatever puntastic name you have given to the scandal.  The ruling was a major coup for the NFL Players’ Association and the team, who successfully challenged the authority of NFL Commissioner Roger Goodell.  How Goodell and Brady, one of the league’s most recognizable faces, move on to do business together remains to be seen.

Even for companies without the visibility of the NFL, learning how to move forward with an employee who has beaten the company in a lawsuit, grievance, or regulatory hearing is crucial to mitigating risk going forward.  The problem is that the filing of lawsuits and most regulatory actions is protected conduct under most state and federal laws pertaining to retaliation.  Even if a victorious employee comes back to the workplace with a boastful spring in their step, it is illegal to take reprisals against them, no matter how hard that feeling are hurt.  The simple rule of thumb in these situations is to treat them no differently than before the protected activity.  Sticking by this rule will prevent one bad situation from becoming a second bad situation.


In the case where the bad blood is simply too much, consider settling the employee’s action with a promise of a resignation.  While this will likely require a substantial cash outlay, it is the only fail-safe insurance against a future retaliation suit.

No matter how thorough a company’s human resources policies are, legal actions will arise.  Moving on from an unfavorable outcome requires maturity, discipline, and a resolve to ensure that the victorious employee does not get a second bite at the apple.

*Editor’s Note: In the interests of full disclosure, the author is a long suffering, die-hard fan of the New York Jets.  In his humble opinion, any penalty short of stripping the Pats of their Super Bowl win (as well as additional other public shaming) was grossly inadequate.

When Employees Decline Their Maternity Leave

Posted in Family Medical Leave Act, General Employment Matters, Leave Laws, Pregnancy Discrimination

As I was getting ready for work this morning, the Today Show had a profile of Marissa Mayer, CEO of Yahoo, who announced that she was expecting twins.  The profile noted that when Mayer had her first child, she declined Yahoo’s (rather generous) Maternity Leave Policy and took only one week off from work.  The panel on the show debated whether a company’s chief executive was setting a poor example for new moms in her employ by declining a maternity leave.

I had a interesting perspective on the issue as I watched the segment with my wife, a junior management employee at a Fortune 500 company who is currently on maternity leave with our own 7 week old twins.  My better half harshly criticized Mayer, saying that her decision would have a chilling effect on Yahoo employees.  Would they get a message though their CEO’s actions that taking maternity leave is bad for their career?

Maybe yes, maybe no. Listen, companies cannot force new moms to take their full maternity leave.  It is an employee benefit that, like all benefits, can be accepted or declined.  But what companies can do is reinforce the message that new mothers (and dads) availing themselves of a paid leave policy will not be subject to retaliation or any other adverse employment actions.  This can be easily outlined in an employee handbook or, if applicable, at an exit interview before the leave.  Conversely, it should similarly be stressed that declining a postnatal leave is not the avenue to advancement in the company.



Feel free to contact our Labor and Employment Department if you wish to have your Policies and Procedures reviewed on this or any other issue.

Top 5 Interviewer Mistakes

Posted in Employee Hiring

I see a lot of posts focusing on mistakes that applicants make in an interview, but in my line of work, I see the consequences of what happens when employers make mistakes in interviews.  A mistake can be so easily made that could lead to a lawsuit by the applicant or losing a qualified candidate.

I was reminded of this by my own interview experience last week.  We were interviewing summer associate candidates last week and I asked one candidate what has been the biggest challenge so far in law school.  The candidate responded by asking “Biggest challenge in law school or in life?”  Although I was curious to know the answer to the “in life” question as there seemed a reason that it was brought up, I quickly realized no good could come of that question.

For all I knew, the biggest challenge involved fleeing a hostile dictatorship, dealing with a terminally ill child, or being the victim of a crime.  These may seem like extreme examples but are all things that relative strangers have told me over the years (thankfully not in an interview situation) after I asked what I thought was an innocuous question as I tried to learn more about a new acquaintance.  As these thoughts flashed quickly through my mind, I responded to the applicant, “Let’s just focus on law school.”


So, what are some common mistakes I’ve seen interviewers make that lead to losing candidates or worse, legal liability?

  1. Saying something discriminatory in the interview.
  2. Saying something that could be perceived as discriminatory — this may seem like a regurgitation of #1, but in my experience, it is rare that people say something outright discriminatory in an interview.  Instead, it is comments that are made about protected classes that could be perceived as discriminatory that get interviewers in trouble.  For example, an applicant notes on his resume that he is fluent in Spanish and happens to have a Hispanic last name.  It is perfectly fine for the interviewer to ask the applicant questions about how proficient he is in Spanish.  It is not acceptable for the interviewer to say, “I see from your last name that you are Hispanic. You must have learned Spanish from your parents, would you feel comfortable translating complicated written documents into Spanish?”  The interviewer should have just asked about the translation and said nothing else.
  3. Being distracted or checking emails during an interview — I think some hiring managers got a little spoiled by the economic downturn of a few years ago.  In the aftermath of the subprime mortgage crisis, there was a glut of qualified people suddenly thrust into the labor market due to lay-offs.  Candidates had limited options and were much more likely to take jobs that were not ideal simply to have a job.  As the market has improved, candidates have more options as to where they want to work.  Interviewers have to realize that they need to sell the applicant on working for the company just as much as the candidate needs to sell the interviewer on why he or she is right for the job.
  4. Promising Anything — until a final decision is made as to who is going to be hired and at what salary, no promises should be made that the employee is going to get the job or that a particular salary or benefit will be offered.
  5. Being negative about Human Resources — I have heard tales from friends who have interviewed with companies that the hiring managers grouse about Human Resources during the interview.  It usually comes up in the context of “I really like you, but I do have to get HR approval.  If it were up to me, I’d hire you now but they have to meet you just to sign off on the hire. It’s really silly, but they make us do it.  They can be really slow.  Expect to hear from them in about two weeks.”  Human Resources is responsible for addressing employee relations issues in the workplace, including complaints of harassment and discrimination.  Comments like these make HR seem ineffective and unnecessary, which plants a seed in an applicant’s head that HR is not the place to go to resolve disputes.  This may mean that complaints go unaddressed and discontentment festers until it erupts in a major problem.

I’m sure if I thought about it, I could come up with more examples of interviewer mistakes.  Do you have more examples?  We’d love to hear from you.

NLRB’s “Refined” Joint-Employer Test: Beware the Outsourced Employee

Posted in Employee Hiring, Employee Termination

38552358_sIn a highly anticipated decision, the NLRB today departed from three decades of an accepted standard for joint employment status and issued a new test that makes it far more likely that, even if a company does not directly employ an individual, it may be liable for employment torts and other encumbrances. (See Browning-Ferris Industries, 362 NLRB No 186).

In this particular action, Browning-Ferris Industries of California, Inc., utilized the services of numerous employees by way of an outside staffing firm.  This is a common practice, as almost 3 million workers were temporarily placed with American companies in 2014.  Prior to today, a company utilizing such services was only considered a joint-employer only if it had “direct control” over working conditions.

Under the new standard, which the board said was necessary due to generational and technological changes in the workplace, a company is a joint employer if it exercises “indirect control over working conditions or if it reserves the authority to do so.”  This implicates two huge groups:  companies who utilize staffing services and franchisers.

The practical import of the decision is that these companies, who previously enjoyed immunity from discrimination and harassment suits, workers compensation, and other benefits obligations, will have to completely revamp the treatment of such employees.  This will require things like handbook revisions, harassment training for outsourced employees, and an understanding that outsourced workers, who often come and go quickly, most likely will have to treated as in-house employees.

With the currently constituted Board in place for at least two more years, keep a look out for upcoming decisions that explain more specifically what does and does not consitute “indirect control over working conditions.”  We will certainly do so.


Come Join Me for the Webinar “Drafting Severance and Confidentiality Agreements Amid New EEOC, NLRB and Now SEC Scrutiny”

Posted in Employee Termination, Equal Employment Opportunity Commission

43369264_sI am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their separation agreements as part of its investigation of alleged wrongdoing.

We will discuss these recent challenges, as well as identify contract provisions that have been labeled problematic and provide practical drafting tips to avoid the wrath of these agencies.

If you would like to attend this webinar, you can register by clicking this link.  You’ll want to make sure you use this link as I can offer attendees 50% off the normal registration fees.

Hopefully, you can join us!

The Dreaded Litigation Hold

Posted in General Employment Discrimination, General Employment Matters

If you groaned when you saw the words “litigation hold,” then you are in good company.

38665679_sI have been enjoying the reemergence of Bloom County by Berkeley Breathed, so maybe this is why this image is fresh in my mind.  When I hear litigation hold, I now immediately think of Binkley’s anxiety closet and images of the Giant Purple Snorklewacker mixed with sanctions orders.  (If you do not have the slightest idea to what I am referring, check out Bloom County on Facebook).

We spend a lot of time on this blog trying to provide employers with information to avoid litigation and liability, but sometimes litigation happens.  When it does, or when it is threatened, employers need to start the process of gathering information to defend against the claims.  One of the first steps in the process should be identifying where relevant information might be stored. Increasingly, the answer to that question is in some electronic form, which may be subject to automatic deletion policies and disappear if steps are not taken.

When involved in a litigation or having received a demand letter or agency charge, the parties have a duty to preserve relevant information.  As lawyers, what this means is that we often issue litigation hold letters to clients that need to be disseminated to the individuals who may have that relevant information and to put a stop on the automatic deletion of electronic information. However, litigation hold letters can strike fear in the hearts of employees.  I have often had to explain to someone that the mere fact that we are issuing a litigation hold letter does not mean that there is a problem or that there will ultimately be liability in the case.

If you are tempted to skip having the litigation hold letter signed simply to keep the peace — don’t.  Litigations are typically not short affairs and may drag on for years.  Even if you were diligent and searched for all relevant evidence and took steps to preserve it, the fact is that something might have been missed or that there is an allegation that material was destroyed and you later face a sanctions motion.  Now, years after your initial search, you need to explain to a court that you took all reasonable steps to preserve the information.

Not even Opus from Bloom County may be able to calm you down when faced with a spoliation motion seeking sanctions because some information relevant to a lawsuit was accidentally destroyed.  However, signed litigation hold letters can be key evidence in such cases, especially as the employees who originally preserved the data may no longer work for you and are not available to testify that they conducted a search.

Generally, a discussion with your IT department is a great place to start to first figure out what your electronic storage policy is, whether a hold needs to be put in place, and which people may have electronic information that needs to be preserved.  You also need to make attempts to preserve documentary evidence such as hard copies of personnel files, notes on performance reviews, calendars, etc.  What you do not have to do to comply with your obligations is issue a blanket order that no one in the company may destroy any documents until the litigation is concluded.  Instead, the litigation hold should be limited to those people with documents that could be relevant to the litigation.

Deciding just who should be issued a litigation hold letter can be tricky and you should consult with your counsel as to what might be reasonable in each particular case.


Vote Early and Vote Often

Posted in General Employment Discrimination

In honor of our new Chicago office, and as reportedly stated by at least two influential Chicagoans, Mayor Daley and Al Capone, we are asking for you to get out the vote.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for 2015 is in full swing, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

We were so honored to be nominated to the Blawg 100 list for 2014 and would love to repeat this year.

We enjoy writing the blog and hope that you enjoy reading it and find it helpful.  We strive to keep you apprised of the latest legal developments and to provide practical advice for Human Resources and In-House Counsel.  Here is a sampling of our recent posts:

If you have enjoyed and valued our updates during the past year and believe the Employment Discrimination Report deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!