This week the country was rocked by headlines of campus unrest at the University of Missouri that culminated in the resignation of Timothy Wolfe, President of the University System. Campus-wide demonstrations alleging that Wolfe properly failed to respond to report of racial bias incidents lead to the Tigers football team refusing to practice (this was likely the tipping point, as a strike on the part of the football team would have caused a seven-figure penalty each Saturday).
While I would argue that the culture in academia at the moment is hypervolitle and more identity-driven that at any point in my lifetime, the lessons this campus and its former president learned are applicable to organizations of all types. Like most other things in employment law, an ounce of prevention is worth a pound of a cure. If the Mizzou administration has been more proactive in a timely, comprehensive response to perceived racial bias on campus, they could have short-circuited the campus unrest and ultimately preserved the organizational structure.
When an employee raises a concern that they believe they are the victims of a hostile work environment, take the allegation seriously and investigate promptly. Failure to do so can result in later litigation where the failure to investigate will be used by the employee to show racial animus on the part of the company. And we have seen at the University of Missouri, it can also mean the end of a career for senior executives.
Tomorrow is Veteran’s Day. A day to remember and honor the sacrifices made by our men and women who have served in our military.
Our partner, Patrick Murphy, is co-hosting a one-hour prime time television special on the Triumph Games which will air at 7 pm on CBS Sports tomorrow night. Another of our partners, Jody Simon, served as General Counsel for the show, so this one is definitely close to us here at Fox Rothschild.
The Triumph Games will feature 12 veteran athletes competing in adaptive games for $240,000 in prize money. The games should be inspiring to say the least.
We wanted to take this moment to encourage you to watch the games, but also to remind government contractors that the OFCCP’s benchmark for hiring protected veterans is currently set at 7%. Under the final Vietnam Era Veterans’ Readjustment Assistance Act regulations that went into effect last year, covered federal contractors are required to establish a hiring benchmark for protected veterans. Contractors are required to compare the percentage of employees who are protected veterans to this benchmark. Contractors should use this comparison to determine how effective their veterans outreach efforts have been.
The OFCCP has set two options for establishing the benchmark. More details can be found on the DOL’s website here.
We would like to thank everyone who has served for their service. We would also like to wish that those who are currently serving and are in harm’s way come home safely.
Finally, we would like to wish the Marines a Happy 240th Birthday!
Today’s post comes to us courtesy of Martin Burns, an associate in the Roseland office:
According to a recently filed lawsuit, Hajra v Wawa, by a former employee of Wawa, Inc., his manager singled him out and enforced an English-only policy because he spoke with an accent. The former employee claims that the manager required that he only “speak English” while on the job because no one understood what he was saying. A native of Kosovo, he alleges that the manager repeatedly instructed that he speak English despite only speaking that language while at work. From the claims in the lawsuit, it does not appear that Wawa has formally implemented an English-only workplace policy or that the manager gave similar instructions to other employees.
Putting aside the allegations that the manager singled out the employee and purportedly treated him differently because of certain characteristics associated with his national origin, could Wawa, or any other employer, require that its employees only speak English in the workplace?
The answer to that question depends upon the circumstances in question. The United States does not recognize an official language. Many states have existing official language laws. Although New Jersey does not have any such law, there is a bill in committee in the New Jersey State Senate that if adopted and signed into law would designate English as the state’s official language. Despite a lack of consensus on this issue by our federal and state political bodies, English-only work rules are not unheard of and can be legal at times.
It is clear that an English-only rule adopted by an employer must be implemented for nondiscriminatory reasons. Furthermore, prohibiting certain foreign languages and not all such languages is unlawful. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that any such rules should relate to specific circumstances and can be justified by business necessity, such as in case of emergencies, promoting efficiency or to monitor the performance of employees whose job duties require communication where a supervisor only speaks English. Even if the employer does not have a discriminatory intent or motive, however, federal law has been interpreted as prohibiting both intentional and unintentional discrimination against persons in protected classes. According to the EEOC, employers therefore need to weigh business justifications against the possible discriminatory effects of the rule and should consider alternatives to an English-only rule that would be equally effective in promoting safety or efficiency.
Back in June, we reported that the New York City Council passed, and Mayor Bill de Blasio had signed into law, the New York City Fair Chance Act (FCA). This new law prohibits most employers (with limited exceptions for law enforcement, industries that require background checks under federal, state, or local law, etc.) from inquiring about an applicant’s arrest or criminal conviction record until a conditional offer of employment is extended. This is just a friendly reminder that the FCA is now effective as of October 27, 2015 in New York City. If you have not already done so, employers with operations in New York City should review their employment applications and other hiring policies to ensure compliance with this new law.
So called “Ban The Box” legislation has been enacted in several states, and over one hundred other jurisdictions, in order to prevent individuals with arrest and criminal conviction records from being dismissed early in the employment application process. This legislation, most notably, prohibits questions commonly found in employment applications that require applicants to disclose arrest and/or criminal conviction history. Moreover, this new law prohibits an employer’s independent investigation of arrest and/or criminal history, as well as verbal inquiries regarding the same, prior to a conditional offer of employment.
Please note that, even after a conditional offer is made, Article 23(a) of the New York Correction Law still applies. The New York Correction Law contains strict requirements and restrictions if an employer in New York state wishes to conduct a post-offer criminal background check and/or rescind an offer of employment because of an individual’s criminal history. In sum, all employees who are responsible for hiring should be aware of these restrictions and know to proceed cautiously when criminal history issues arise.
In August, the Pittsburgh City Council passed a paid sick leave ordinance that will require employers with 15 or more employees to provide up to 40 hours of paid sick leave. Employers with less than 15 employees will be required to provide up to 24 hours of unpaid sick time for the first year. After that, small employers will have to provide up to 24 hours of paid leave. The Ordinance states that the law will be effective 90 days from the date regulations and the required notices are issued.
Before the law even had an effective date, several business groups filed a lawsuit challenging the Council’s power to enact the Ordinance. The legal challenge is premised on the fact that Pittsburgh is established pursuant to a home rule charter. The groups allege that there is a home rule law that prohibits cities formed under home rule charters from passing laws related to employment.
Not to be deterred, the City Controller issued the required posters on Monday and set the effective date as January 11, 2016. Copies of the posters can be found here. The business groups suing the City have stated that they plan to seek an injunction prohibiting the law from going into effect. In the absence of such an injunction, the law will go into effect on January 11th and employers should review their sick leave policies for compliance.
This week, the University of Southern California terminated Steve Sarkisian, their head football coach. The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol. The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.
Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track. But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.
Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability. But that should not be taken to mean an employer has to put up with an employees drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).
An employee who can’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not. Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease. The moral of the story is that the employer must set policies that separate the disease from conduct. This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.
Feel free to contact our Labor and Employment Department with any further questions
The Illinois Human Rights Commission recently ruled against Hobby Lobby and found that it had discriminated against a transgendered employee by refusing to let her use the women’s restroom unless she could provide legal authority mandating that she be allowed to use that bathroom or produce medical documentation that she had surgically completed her transition from male to female.
The case is pretty interesting and should alert employers that they need to be sensitive when dealing with transgendered employees. Our partner, Dori Stibolt, did a great post on this case for the South Florida Trial Practice blog describing the facts in more detail as well as her recommendations for best practices. That post, Potty Problems at Hobby Lobby, can be accessed here.
Over the weekend an employee of the Texas Rangers was pretty upset about the University of Texas’ dismal performance in its 50-7 loss against Texas Christian University. I get how upsetting it is when your college team plays like, umm, plays awfully. I myself hurled a few insults at the tv screen as I watched my Ohio State Buckeyes play terribly against Indiana.
However, I realize there is a time and a place for my negative comments. I would not, for example, go to the Firm’s @WorkplaceWatch Twitter account and complain. This Texas Rangers employee apparently does not understand that. As ESPN reported, the employee released a tweet from the Texas Rangers’ official Twitter account that said “Fire Charlie. #bye,” which referred to the Longhorns’ coach Charlie Strong.
If you thought this was the action of an errant employee who did not understand how damaging the Tweet could be to the Texas Rangers organization, keep in mind that the person who sent the tweet was part of the Rangers social media team. In other words, this is a person whose job it is to post to social media in an effort to enhance the organization’s reputation.
We talk a lot about training and policies on this blog. This is another example of why it is important to have policies and guidelines for the use of social media by employees and to clearly explain that termination could result from a violation of those policies. It is, of course, likely that the Texas Rangers do have such policies and that this person was trained in those policies. As Forest Gump’s mom noted, “Stupid is as stupid does.”
When drafting such policies, employers should be mindful that some jurisdictions, like Colorado and New York for example, have laws that prohibit employers from terminating an employee for engaging in lawful off-duty conduct unless the conduct falls into an exception under the laws. Terminating the employee in this situation is easier since the employee used the official company Twitter account to send the tweet, but employers in jurisdictions that have lawful off-duty activities statutes need to be careful before acting on a negative tweet.
In 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.
I 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.