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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

NJ Senator Jumps On Obama’s Equal Pay Bandwagon

Posted in Equal Pay

Following President Obama’s announcement of new EEOC reporting rules designed to target the gender wage gap, this week New Jersey Senator Weinberg introduced an Equal Pay Bill that, if passed, would require employers bidding on public contracts to provide gender, race, wage, and job responsibility information.

The bill introduced by Senator Weinberg goes far further than increasing reporting requirements on public contracts.  The bill also seeks to amend the New Jersey Law Against Discrimination to make it tougher for employers to defend against claims of wage disparity based on gender. 1960336_s

As drafted, the bill broadens the statute of limitations and is a departure from the Lily Ledbetter Act as well New Jersey precedent.  The law would, as is set forth in the Lily Ledbetter Act, say that each paycheck may be a discriminatory practice, but does not then limit the statute of limitations to two years from the last paycheck or the last time there was a discriminatory compensation decision.

Instead, the law provides that the “continuing violation” applies, which would mean that an employee who is a 15 year employee could make a claim as far back as his or her date of hire if it was alleged that the discriminatory wage disparity began at the start of employment and continued throughout.  The law also states that the “discovery rule” would apply which means that an employee could claim that he or she was not aware of the discriminatory practice, and thus not starting the statute of limitations clock, until several years after the termination of employment.

The proposed law also increases the burden on employers as to what would need to be proven as part of the affirmative defense that any pay disparity was based on a legitimate factor other than sex.  Employers would not only have to demonstrate that the disparity was caused by either a seniority system, a merit system or a bona fide factor other than sex, such as training, education or experience, or the quantity or quality of production.  Employers would also have to prove that they applied the factors “reasonably,” that one or more of the factors accounts for the entire wage differential, that the factors are job-related and consistent with job necessity, and that there were no alternative business practices that would serve the same purposes without causing a pay differential.

The proposed law also greatly expands retaliation protections for employees as “protected activity” would include merely consulting legal counsel regardless of whether the employee objected to the employer to a particular practice or filed a complaint or charge of discrimination with an outside agency or court.

It is too early to tell if the bill will get any traction, but we will keep you posted.

Obama on Wage Gap: Making a List, Checking it Twice

Posted in Employer Posting Requirements, Equal Pay, General Employment Discrimination

In recent years the issue of the so-called “gender gap” in employee wages has, pardon the use of this word, “engendered” strong feeling on the part of the labor and business communities.  Proponents of the gender gap theory maintain that the data is clear that women earn, on average, 79 cents per dollar that is received by their male counterparts.  Critics of the theory argue that the comparisons employed in the analysis are not identical and that theory ignores other cultural factors.  The Obama Administration  has always been an advocate of the former.


This is why it should come as no surprise that President Obama on Friday unveiled new rules that would compel companies with more than 100 workers to provide the federal government annual data for how much they pay employees based on gender, race and ethnicity.  The proposal, which covers over 63 million employees, is expected to be finalized by September, with the first reports due in the fall of 2017.  Of course, given the fact that this is not an act of congress, it is susceptible to being overturned by President Obama’s successor when he or she takes office in January 2017 (we’ll let you all have the fun of speculating which candidates would and which would not).

If you are a covered employer, our advice would be to begin drafting a process wherein this information can be collected, if not readily available, and wait for further guidance come fall.  At that time, we will revisit the regulations and talk about what will need to be done to ensure that your company does not run afoul of the regulations.

Carpool Got You Down? Maybe You Need New Carpool Buddies

Posted in 5 Minute Laugh

My assistant, Chrissie, reminded me that we have not done a 5 minute laugh video in a while.  While she was looking for a video, she came across a video of Carpool Karaoke with James Corden and Adele.

As I was previewing it, I was already thinking of how to tie it to a blog post.  I thought I would try to link it to something employment related, but mileage reimbursement policies seemed boring. There is a short cautionary message about the dangers of excessive drinking that I thought briefly about trying to tie to alcohol policies for company events, but then I got further along in the video.  It’s definitely a funny video and well worth watching, but also maybe not appropriate for work.

Chrissie is always resourceful and found this Carpool Karaoke with Jennifer Hudson.  If you need a ten-minute break from everything, grab some coffee and enjoy.

Bikram Choudhury’s Wife Ups the Heat on Yoga Guru and Damages His Defense to Sexual Harassment Claims

Posted in Gender Discrimination, Sexual Harassment

18691875_sBikram Choudhury, founder of Bikram Yoga or hot yoga as it is colloquially referred, has been the center of several well-publicized sexual harassment lawsuit.  As the trial of one former legal adviser’s claim of sexual harassment is now progressing, it gains even more publicity, whether because of the juicy allegations of rape or schadenfreude or a little of both.

The allegations have been very salacious and, if true, paint a picture of a predatory and abusive man.  Law 360 reported that his wife testified on Wednesday.  The reports of her testimony are fairly shocking as she confirmed that she heard her husband swear at students and called female students prostitutes and bitches.  Certainly not what his defense attorneys wanted to hear.

The Choudhurys are also going through a divorce so it is tempting to attribute her testimony to a spouse seeking revenge.  However, her testimony was not a full-scale attack on her husband. Instead, although she had to admit that she had heard him use those words during teacher training sessions, she claimed that what he was doing was merely theater and all part of his act.  In other words, she tried to rationalize what he said by saying that he did not mean it.

This brings up an interesting point.  Under anti-discrimination laws, the alleged harasser’s intent is largely irrelevant.  A person does not have to mean to harass someone to be guilty of harassment.  This is a point that I make at every training session I do with employees and managers and one that seems to be the most surprising to people.

The way hostile work environments are defined under most anti-discrimination laws is that the conduct is based on membership in a protected class, that the conduct was severe or pervasive, and that the victim perceived and a reasonable person would perceive that a hostile work environment had been created.  In short, even where someone was joking or putting on an act, if they engage in conduct that could be considered harassment, it does not matter what they meant.

So, although I think Rajashree Choudhury might have been trying to excuse her husband’s behavior, saying he was joking is not likely to cut it.


Welcome to Our New Colleagues in Minneapolis

Posted in Leave Laws, Sick Leave

We just wanted to extend a hearty welcome to our newest colleagues in Minneapolis.  Effective today Fox Rothschild LLP has merged with Oppenheimer Wolff & Donnelly LLP.  With this merger, we now have 22 offices in 12 states and Washington D.C.

Although we try to focus on anything that might be of interest to employers and human resource professionals anywhere in the United States and beyond, today we thought we would focus on 15437773_swhat is on the horizon for Minneapolis employers in 2016.

Of perhaps the biggest concern for employers is paid sick leave.  In October 2015, the Minneapolis City Council announced that it was cancelling a planned public hearing on the initiative which had been scheduled for November 4, 2015.  Instead, lawmakers decided to put the brakes on and slow down the process.

According to the Minneapolis Post, the cancellation of the public hearing does not necessarily mean that a sick leave ordinance does not have support amongst members of the Council.  Rather, it seemed that the Council had put the cart before the horse.  Just two weeks prior to scheduled public hearing, there was still not even a draft of the proposed ordinance for review.

Council members have promised to revisit the issue in the Spring of 2016 and the Council has formed a work group, the Workplace Regulations Partnership, with members from workers’ rights groups, organized labor, employers, and business groups to discuss this ordinance and other ordinances such as the Fair Scheduling Ordinance which would require pay by employers for certain last minute schedule changes and a minimum wage ordinance.

The Workplace Regulations Partnership is not scheduled to report back to the Council until late February 2016.  We will keep an eye out for the report to see if it gives hints about what legislation may be passed by the Council.

NYC Commission On Human Rights Issues Transgender Discrimination Guidance Just Before the New Year

Posted in Gender Identity or Expression, General Employment Discrimination, Harassment, New York City Human Rights Law

TransMayor Bill de Blasio and the New York City Council have made no secret of their desire to expand the reach and protections offered by the New York City Human Rights Law (“NYCHRL”).  This year saw the expansion of these protections, such as bans on using, or even inquiring about, individuals’ credit and criminal background information in many employment decisions. Given this flurry of recent added protections, one would expect there would be no new regulatory hurdles for employers ushered in as the year winds down.  However, the New York City Commission on Human Rights (“the Commission”) decided to provide one last surprise, issuing new enforcement guidelines under the NYCHRL as we say goodbye to 2015.  Entitled Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression, these new guidelines set forth various forms of conduct by employers (as well as landlords and businesses in general) that the Commission finds to be discriminatory based upon gender, gender identity, and/or transgender status.

As most employers in New York City are aware, existing law prohibits employers from terminating, refusing to hire or promote, or setting different terms of employment because of an individual’s actual or perceived status as a transgender person. This new guidance, however, targets less obvious forms of harassment and discrimination based on gender, gender identity, and/or transgender status, which now also run afoul of the law, including: (i) refusing to use a transgender employee’s favored name, pronoun and/or prefix; (ii) prohibiting a transgender employee from using a single-sex bathroom or locker room, even if inconsistent with their biological sex; (iii) imposing uniform or grooming standards based on an employee’s biological sex or gender; and/or (iv) considering an employee’s actual or perceived transgender status in employee benefits or when evaluating a request for accommodation.  For example, health benefits and leave must be extended on a non-discriminatory basis for transition-related care and/or gender-affirming care.  For many employers, particularly in the restaurant and hospitality industries, the new limitations on uniform and grooming standards will come as a shock.  Frequently uniform and grooming codes in the restaurant and hospitality industries will specify “neckties required for men” or “earrings allowed for women only,” which now appear to be verboten.

It is critically important for employers to review their employment policies immediately (or at least once the champagne has worn off tomorrow) to ensure compliance with the Commission’s new guidance.  You definitely don’t want to risk the draconian penalties, i.e. up to $250,000 where such conduct is found willful, wanton and/or malicious.  If you have any questions regarding the Commission’s new guidance, please reach out to an attorney in Fox Rothschild’s labor and employment department to assist you.  With that, and most importantly, a happy and healthy New Year to you and your loved ones.

New Brunswick Becomes the Latest New Jersey Municipality to Enact Paid Sick Leave

Posted in Employer Posting Requirements, Leave Laws, Sick Leave

17347130_sJust when we reported that Pittsburgh employers have gotten a reprieve from sick leave laws, New Jersey employers have yet another sick leave law with which to contend.

On December 16, 2015, the New Brunswick City Council passed Ordinance 121501 which will require New Brunswick employers to provide paid sick leave to employees.  That means that there will be 11 municipalities in New Jersey who have sick leave laws in effect in 2016.  To quote Bob Dylan’s “All Along the Watchtower,” “There must be some way out of here. . . . There’s too much confusion. I can’t get no relief.”

Adding to employers’ headaches is the fact the New Brunswick law differs from the other laws that have been passed.  However, the New Brunswick law is actually a more logical and business-friendly law than in the other 10 municipalities.  New Brunswick’s law focuses on the status of the employee to determine whether leave is available and if so, how much leave is available.  New Brunswick’s law also only applies to employers who have a business location in New Brunswick and who have at least 5 Full-Time Equivalent employees.

Under the law, employees are categorized as full-time or part-time and that classification determines the amount of leave the employee can accrue.  Full-time employees are defined as someone who averages 35 hours per week.  Part-time employees are defined as those who work between 20 and 35 hours per week.  Employees who average less than 20 hours per week or who are per diem or temporary employees for a hospital are not eligible to accrue paid time off.  Likewise, employees who work from home are not eligible for paid time off.

The law also differs from the other municipal laws in that leave accrues at the rate of 1 hour earned for every 35 hours worked.  Full-time employees may accrue up to 40 hours per year; part-time employees accrue up to 24 hours per year.  However, an employer with less than 10 total employees does not have to allow employees to accrue more than 24 hours per year.  Eligible employees begin to accrue time on the first day of employment and can use accrued time after the completion of 120 days of employment.

Leave may be taken for the following reasons:

  • the Employee’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • care for a family member’s mental or physical illness or injury, including the need for diagnosis and preventative care;
  • closure of the employee’s place of business or the employee’s child ‘s school  due to a public health emergency, or to care for a family member who has been quarantined;
  • as needed related to domestic violence, sexual assault, or stalking.

Employers in New Brunswick will need to examine sick/paid time off policies to insure compliance with the laws.  Even employers who have already reviewed policies due to one of the other municipal leave laws may need to take a second look given the differences in New Brunswick’s law.

The law goes into effect quickly.  It will be effective January 6, 2016.  The City has already issued the required poster which can be found here.

Flu Shot Refusal Issues Flare Up as Flu Season Beckons

Posted in Americans with Disabilities Act (ADA), Employee Termination

Last week, the calendar officially turned to winter.  While the weather has been uncharacteristically balmy in the Northeast, soon temperatures will plunge and cold and flu season will arrive.  In New Jersey, two employees who were terminated from their jobs after declining work-issued immunizations have brought suit claiming that the termination was nothing more than discrimination on religious grounds.

The two plaintiffs were employees of a faith-based social services agency in South Jersey.  The agency, which provides nursing home service, mandated the immunizations in light of their dealings with elderly and infirmed clients.  In lieu of submitting to the shot, the employees, who did not directly interact with client, were offered the alternative arrangement of wearing a surgical mask at all times.  The suit argues that a mask requirement is unnecessarily punitive and is not a reasonable accommodation of the terminated employees’ religious beliefs.


This is merely the latest salvo in an increasingly common struggle.  Vaccination rates in workplaces have risen as companies have realized that the cost of the vaccinations far outweighs lost production time from sick days.  In addition, a provision of the Affordable Care Act ties some Medicare reimbursements to employee vaccination rates.

So how should your company approach the issue?  First, review your handbook and if a written policy is not contained in it, make arrangements for an update.  In the policy, be sure to set forth a detailed procedure by which individuals can seek an exemption on protected grounds.  Finally, have a plan to have these requests reviewed by individuals familiar with the applicant’s job duties.

While inoculation policies have decided benefits for your company, a clear policy on exemptions can obviate the need for litigation later.

Pennsylvania Judge Says No to Pittsburgh Paid Sick Leave

Posted in Leave Laws, Sick Leave

25318124_sIn a decision anxiously awaited by Pittsburgh employers, on December 21, 2015, a Philadelphia Common Pleas judge struck down Pittsburgh’s paid sick leave ordinance which was poised to go into effect in January.

The Pennsylvania Restaurant & Lodging Association and five businesses had filed suit in August 2015 to enjoin the law.  Judge Joseph James agreed with the Association’s argument that a 2009 Supreme Court case was binding and that state law prohibits municipalities organized under a home rule charter from regulating businesses’ employees.

The City and proponents of the Ordinance have not ruled out an appeal as of yet.  However, at least for now, employers and Pittsburgh do not have to worry about changing sick leave policies.


New Year, New You, New Laws

Posted in Employee Hiring, General Employment Discrimination, General Employment Matters, Leave Laws, New York State Human Rights Law

Copyright: <a href="http://www.123rf.com/profile_damedeeso">damedeeso / 123RF Stock Photo</a>

End of year vacations and holidays are fast approaching. Everyone is eager to see family and enjoy some much needed time away. It is easy to forget, however, that the ball drop in Times Square will not only ring in the New Year, it will also ring in various new and modified employment laws in several jurisdictions.  December and January are often a hotbed of effective dates for new legal and regulatory changes, and this year is no exception. Now is a good time to review your handbook and other policies to ensure compliance with these various regulatory changes, before they go into effect this January.

For example, in New York, hospitality employers (including restaurants and bars) will see most of the tip credit typically applied to the minimum wages of tipped front-of-house employees evaporate. The tip credit minimum wage for food service employees in the hospitality industry is set to increase from $5.00 per hour up to $7.50 per hour come January 1, 2016. Moreover, beyond the hospitality industry, the regular minimum wage in New York will also increase to $9.00 an hour, in addition to higher minimum wages applicable to fast food employees ($10.50 in New York City, $9.75 in the rest of New York State). These minimum wage increases are not limited to New York alone, with several states and municipalities also implementing minimum wage increases as we approach 2016. Moreover, New York as well as many other states and municipalities also require any affected employees to receive new rate of pay notices and/or tip credit notices reflecting these minimum wage increases in accordance with federal, state, and local law.

In addition, numerous state and local discrimination laws, leave laws, and other employment-related laws will also go into effect January 1st. For example: California is expanding its child-related activities leave law to broaden what is considered covered child care and to include stepparents, foster parents, or those who are “in loco parentis” to a child.  In Oregon, ban-the-box legislation goes into effect prohibiting questions on an employment application regarding an applicant’s criminal background. In New York, the “Women’s Equality Act” goes into effect a few weeks after the New Year, which includes several new laws that increase equal pay protections, the applicability of sex discrimination laws, and recovery of fees in sex discrimination lawsuits, in addition to additional protections against familial status discrimination and requiring accommodations of some pregnancy-related conditions.

These changes are just a small sampling of the numerous legal and regulatory changes across the country awaiting us in the New Year. Getting ahead of these policy shifts is necessary to avoid unneeded headaches or, god forbid, liability later on. Before you head off for your holiday vacation, make sure to review any legal changes coming soon to the jurisdictions in which you operate.  It will provide you peace of mind once all the champagne has worn off on New Year’s Day.