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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

As of June 30, 2015, New Jersey Will Have Nine Municipalities with Paid Sick Leave Laws in Effect

Posted in Employer Posting Requirements, Leave Laws, Sick Leave

For those of you who have lost count or lost track of effective dates of local ordinances, the following New Jersey municipalities have passed paid sick leave laws:

  • Bloomfield, effective June 30, 2015
  • East Orange, effective January 7, 2015;
  • Irvington, effective January 8, 2015;
  • Jersey City, effective January 24, 2014;
  • Montclair, effective March 4, 2015;
  • Newark, effective June 21, 2014;
  • Passaic, effective January 1, 2015;
  • Paterson, effective January 9, 2015; and
  • Trenton, effective March 4, 2015.

25318124_sEmployers in Trenton won a court battle earlier this year to make Trenton’s Ordinance only applicable to employers physically located in Trenton.  Other municipalities’ ordinances will apply to workers who provide services in the municipality for at least 80 hours in a year.  This means the ordinances apply to workers who travel to the municipalities to perform work even if not regularly scheduled to work there and even if the employer is not physically located in the municipality.

Posters are required in all of the municipalities. However, not every municipality has issued the required poster as of yet. The municipalities also require that notice be given to each employee.  For the municipalities where posters are available, if you need copies of the posters, the English posters can be accessed by clicking on the links below (other languages may be required by the ordinances and can be found on the municipalities’ websites):

I spoke with the Irvington Clerk’s office who advised that the Township will not be issuing a poster. Employers must still comply with the posting requirements, but must create their own posters. Bloomfield and East Orange have not yet issued a poster.

In further news, at least a few New Jersey representatives have realized the difficulties of trying to comply with nine different ordinances that are similar but not identical.  Legislation has been introduced in the New Jersey Assembly and Senate to prohibit municipalities from enacting laws that affect terms and conditions of employment.  A4363/S2865 were both introduced on May 7, 2015 and have been referred to the Labor Committees.  It will be interesting to see what kind of support the bills will get as the bill to require state-wide sick leave has stalled.

Be Careful of Not So Random Random Drug Tests

Posted in Americans with Disabilities Act, Employee Hiring, Employee Termination, General Employment Matters

33239943_sA judge in California has ruled that a fired black supervisor can proceed with claims of racial discrimination based solely on a comment that he was driving a “pimpmobile” and the fact that he was randomly selected for drug testing three times in a nine-month period while a white supervisor was never selected for drug testing during that same time period.  The court in Perkins v. National Express Corporation, et als. found that a jury could conclude that there was a racial motivation behind Perkins’ selection for drug testing and that, as a result, the stated reason for firing Perkins — that he failed to show up for the drug test — was pretext for discrimination.

Random drug testing can be fraught with difficulties.  There is no federal law that prohibits random drug testing.  In fact, some laws, such as the Federal Motor Carrier Act, may require random drug testing for drivers of commercial vehicles.  There are, however, many states where random drug testing may be an invasion of privacy under tort principles.  In some states, case law provides that random drug testing may only be conducted where required by statute or where a person works in a “safety-sensitive” position.  Some municipalities, such as San Francisco, have local laws that restrict random testing.

Assuming an employer can conduct random drug tests, employers need to be careful about how employees are selected for “random” testing.  Courts have generally held that even if drug testing is disproportionate to a plaintiff claiming discrimination, being selected for testing is not an adverse employment action absent some evidence of manipulation of the testing process.

Many employers use a computer program to randomize the selection of employees who will be tested.  Others use less technologically sophisticated methods of selecting test subjects.  Employers need to be careful with whatever method they utilize anytime they are setting up the pool to be tested or are setting up the selection process that they cannot be accused of manipulating the process to target certain individuals.

In addition to discrimination claims, some states have very specific laws as to what substances can be tested and what notice or appeal process must be provided to an employee of a positive test.  In short, employers should consult with legal counsel before implementing a drug testing policy.

Can Criminals Be Rehabilitated?

Posted in Employee Hiring

This week, I read an article in AmLaw Daily that one of the “Jena 6″ is going to law school.  For those who might not remember, before there was Ferguson and Baltimore, Jena, Louisiana was thrown in the spotlight after racial tensions erupted in violence.  In December 2006, six black Jena teenagers had been arrested and charged with attempted murder after an assault on a white teenager at the local high school.   As with a lot of cases, witnesses’ accounts varied widely as to the cause of the assault but most reports had spoken about racial tensions beginning in August 2006.  ESPN has a fairly comprehensive report of the incidents leading up to the assault.

To summarize:

In August at a school assembly, a black student asked if black students could sit under an oak tree popularly used as a gathering place by white students.  When the principal said yes and three black students stood under the tree later that day, the next day three white students hung nooses from the tree.  Tensions started to rise when many black families in the community said the three students involved in hanging the nooses were not expelled from school.  Tensions continued through the fall with two fights occurring between black and white young men in town.  In one, a black student, Robert Bailey, Jr., attempted to enter a party.  According to Bailey, he was assaulted with a beer bottle by a white man, Justin Sloan.  Sloan was charged with only simple assault, which outraged many in the black community.

On December 4, 2006, a fight broke out at the high school.  At the end of the fight, Justin Barker, a white student lay unconscious on the ground.  Witnesses said the fight started when Barker taunted Bailey about being assaulted a few days’ prior and allegedly used the N-word.  Six black students were accused of being involved in the melee.  When the District Attorney decided to charge the six students with attempted murder instead of aggravated battery, the racial tensions that had been bubbling below the surface erupted and thousands of protesters descended on the city and called for justice for the “Jena 6.”

36717498_sTheodore Shaw was one of the Jena 6.  Shaw has repeatedly maintained his innocence over the years, but that was not why his story of going to law school got me thinking.  What got me thinking was Shaw’s actions since being arrested and his attitude about changing his circumstances.  What started with him reading law books in jail and filing his own motions to reduce his $130,000 bail, turned into a desire on his part to help others.  Since being released from jail, Shaw completed high school and enrolled in college.  Shaw has interned at the Innocence Project New Orleans which provides services to free the wrongfully convicted.  Shaw now works as a community advocate for the Southern Poverty Law Center.  His graduation from law school would be a good final chapter in his redemption story.

Shaw’s story fits the narrative of many politicians and community organizers who have been lobbying for “Ban the Box” laws that restrict the use of criminal backgrounds in employment.  In short, the argument is, people can learn from their mistakes and one criminal conviction does not a lifetime criminal make.

Employers on the other hand have to balance concerns about protecting the safety of their employees, customers, and property, which is what leads employers to consider criminal backgrounds in the first place.  Some Ban the Box laws, like New Jersey’s, recognize this tension between trying to provide employment opportunities and allowing employers to protect their businesses.  Others, such as Newark, New Jersey’s municipal ordinance which was pre-empted by the state law, made it very onerous for employers to review or consider criminal backgrounds when making hiring decisions.

For every Theodore Shaw out there, there are stories of individuals with long criminal histories who commit the same crimes repeatedly.  Take for example, the story of a county worker in Albuquerque, New Mexico, who was arrested in 2014 for stealing a county car and his co-workers’ Social Security numbers.  The first question asked by the media was how did this individual with a conviction for armed robbery get hired in the first place.  However, under some states’ and municipalities laws as well as EEOC gudiance, not every conviction can be used to not hire someone.  In Wisconsin and New York, for example, a conviction must be related to the job duties the employee is going to perform before it can be considered disqualifying.

I have nothing against giving people a second chance.  I just think that lawmakers need to remember to balance the interests of employers, and the other employees they are trying to protect, when considering laws about the use of criminal background checks.

Philadelphia Issues Paid Sick Leave Poster

Posted in Employer Posting Requirements, General Employment Matters, Sick Leave

31497781_sPhiladelphia’s Managing Director’s Office has issued the Philadelphia Sick Leave Poster summarizing employees’ sick leave rights.  Just as a reminder, the law goes into effect May 13, 2015.

The law provides that employees who work in Philadelphia at least 40 hours in a year, must earn 1 hour of sick time for every 40 hours they work.  Leave is paid if the employer has 10 or more employers.  For employers with less than 10 employees, employees will earn unpaid time.  A maximum of 40 hours of sick time can be earned in a calendar year. Sick leave may be used for the employee’s own needs, to care for a family member, or for leave due to domestic abuse or sexual assault.

Employers should make sure that sick leave or PTO policies are updated to comply with the new law.

As Seen On TV- How to Handle Employees Discussing Sensitive Current Events

Posted in Employee Training Programs, General Employment Discrimination

While it sometimes may not feel like it, there is a whole world happening outside of the four walls of your company.  Outside of those walls, events take place that capture the attention of the public and become a natural topic of discussion.  Take this week for instance, when civil unrest in Baltimore dominated the news cycle and touched on the undoubtedly sensitive issues of policing, class, and race.

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Copyright : Blend Images

They don’t call these events “water cooler moments” for nothing- your employees no doubt discussed the compelling television images they saw with coworkers in the areas where they congregate.  Being realistic, this is not something that any employer will be successful in stopping.  However, a failure to manage the time, place, and manner in which those opinions are expressed may give rise to an employee feeling as if they are being harassed, even if the comments are not directed at them.  This is especially true when issues that touch upon topics like race are involved.  You should take some simple steps to ensure that no employees later allege that they were subjected to a hostile work environment based on the expressed opinion of colleagues.

First, let all your employees know that if they are uncomfortable with the opinions expressed by their colleagues, they can come to management to talk about those feelings.  More often than not, an employee who feels aggrieved by such comments can be assuaged simply by talking to a management employee who will listen to the complaints and speak to offending employee(s).  If your employee handbook does not set forth a mechanism to report such complaints, you have bigger problems than an employee who is unhappy.

Further, ask your employees to confine conversations that touch on sensitive topics to their work station (if they have an office, even better!)  This will allow individuals to still express their opinions and lessen the chance it is overheard by colleagues not receptive to such opinions.

Finally, hold your supervisors and management employees to a higher standard.  Most harassment cases premised on a hostile work environment stem from the conduct and words of supervisors, so provide them with training on what and what not to say in the workplace.

While you have no control over the opinions of your employees, you do have some power to manage the ways in which those opinions are expressed through simple training.  Like so many other issues in employment law, an ounce of prevention is worth a pound of a cure.

Supreme Court Hears Argument on Gay Marriage

Posted in Gay Marriage, Gender Discrimination

3324553_sIf half of my Facebook feed is correct, then the Justices are definitely going to rule in favor of gay marriage.  If the other half of my Facebook feed is correct, then the Justices are going to punt and claim it is a states’ rights issue.

There is not a lot of point in trying to guess which way they are going to go simply by what questions were asked at oral argument.  I can tell you from experience that I have been at motions before judges and was convinced that I was going to win based on how hard the judge was hammering my adversary, only to be disappointed when the decision did not go my client’s way.

Rather than try to dissect the oral argument and look for hidden clues as to how the Justices may rule, for anyone who is interested, you can listen to the argument on the first question here: http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1 and on the second question here:  http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q2

Hey Boss, Stop Harassing Me

Posted in Employee Termination, Equal Employment Opportunity Commission, Sexual Harassment

1991649_sGenerally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources.  A lot of employees simply do not feel comfortable having that conversation with their bosses.

Of course, if an employee does have that conversation with his or her boss, the boss needs to be aware that the complaint cannot simply be pushed under the rug.  As a recent 6th Circuit case makes clear, this is where it is crucial that employers provide training and other guidance to supervisors in how to handle such complaints.  In EEOC v. New Breed Logistics, the 6th Circuit recently held as a matter of first impression that an oral complaint about harassing supervisor to that harassing supervisor is “protected activity” under Title VII for which an employee cannot be retaliated against.  In so finding, the Court upheld a $1.5 million award for the EEOC where the EEOC raised claims of retaliation on behalf of two female workers and a male worker who complained of a supervisor’s harassing behavior.

Although the case is headline news in the legal community since it is the first time the 6th Circuit has confronted the issue, the decision itself is not surprising.  This is because courts have routinely applied broad definitions of “protected activity” to insure that employees are not being intimidated from filing complaints of harassment.

Managers who hide complaints of harassment may think that they are protecting themselves, but they could be exposing themselves to greater liability.  In the New Breed case, the defense was that the plaintiffs had performance issues. However, where a complaint of discrimination is not investigated and then an employee is terminated very close in time to that complaint, the failure to investigate the claims muddies the issue of whether there was a legitimate reason to terminate the employee.

It is certainly possible that, had the complaint been investigated, it would have been found to be unsubstantiated and the manager would not have been in any trouble.  On the other hand, hiding the complaint clearly did not help the manager. It’s an expensive lesson to learn and is why companies should make clear that all complaints of harassment must be reported to human resources or whoever is else responsible for investigating complaints.

The Supreme Court Argument Date for Gay Marriage Cases is Around the Corner

Posted in Equal Employment Opportunity Commission, Gay Marriage, Sexual Orientation Discrimination

For those people who may have been living under a rock or enjoying an extended Tom Hanks-like vacation on a desert island a la Cast Away, the Supreme Court is set to hear argument in four petitions that challenge state laws in the 6th Circuit banning gay marriage.  It is widely anticipated that the Justices will finally squarely confront whether banning gay marriage violates the Equal Protection Clause.

17951947_sThe road to the Supreme Court was paved largely by US v Windsor, which struck down the Defense of Marriage Act as a violation of the Fifth Amendment.  The decision opened the door for many  courts to strike down gay marriage bans. However, states promoting the bans have argued that the Windsor decision makes clear that it is up to states to decide what is a valid marriage and those states could choose to define marriage as only being between a man and a woman.  Adding to the confusion is the fact that several states, in an effort to get around the Full Faith and Credit Clause which generally requires states to recognize the legal actions of other states, passed constitutional amendments defining marriage as being only between a man and a woman.  A “my constitution trumps yours” argument.

Without a decision based on the Equal Protection Clause, it is likely that there will remain conflicts over the issue.  As of today, there are still 13 states in the U.S. where gay marriage is illegal.  One of the states where it is legal, Alabama, has become a bit of a constitutional battle ground with a federal court declaring the ban on gay marriage illegal and the state’s Supreme Court issuing an order prohibiting clerks from issuing marriage licenses to same-sex couples.

It is widely anticipated that the Supreme Court’s decision will be in favor of gay marriage.  Although the plaintiffs in the case are taking no chances and have pulled out the big legal guns.  Lawyers for gay and lesbian plaintiffs have chosen Mary Bonauto, the movement’s pioneer, to argue the case.

Employers should be aware that if the decision is in favor of gay marriage, it may have an immediate impact on policies and benefits.  For example, under the FMLA, a spouse would be defined as including same-sex spouses.  The Supreme Court’s decision is not expected until June.  We will let you know as soon as it is decided.

I’m Not a Doctor, but I Play One on TV

Posted in Employee Hiring, Retaliation

36823178_sI was reading an article today about a former partner of a law firm who worked for the firm for a decade before the Attorney General charged her with practicing law without a license.  It turns out, at least according to the AG, that this attorney not only never passed the bar, she never even went to law school.

The article got me thinking about employers’ practices of checking references.  Some employers may never check references.  Other employers may have gotten lax about checking references in light of the fact that many former employers will not disclose anything besides “name, rank, and serial number.”  In fact, this has become the norm as former employers do not want to give more information than dates of employment and job title for fear that a former employee will raise a claim against them if they are honest about the former employee.  This is especially true as plaintiff’s attorneys attempt to stretch legal theories of retaliation to include post-termination conduct such as providing a reference.

So, what is an employer to do?  Even if you don’t think that you are going to get much useful information from a former employer, at the least, you will be able to verify that the employee did in fact work there.  Falsifications on resumes may not be limited to educational history; they could include lying about job histories.  Employers should also contact any schools listed to verify degrees were obtained.

If a prospective employee is required to be licensed, i.e., a doctor or lawyer, employers should also verify that the person is currently in good standing with the applicable  licensing authority.  In many states, this information, including any disciplinary history is available online.  The effort of tracking down the references and verifying a candidate’s educational history is well worth it when you consider that the alternative is that your company name could be in a headline similar to this one in the ABA Law Journal: “Was law firm duped? “Lawyer” practiced there a decade and won partnership; was she licensed?”