Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

David Miller, a litigator from Sydney, Australia, helpfully wrote about the workers comp decision from Australia which we discussed last week where an employer was found liable for injuries sustained from a falling chandelier by an employee who was traveling for work and had "wild sex" in her motel room:  

"And now the case is off to our High Court - the equivalent of SCOTUS in the judicial hierarchy - http://www.smh.com.au/national/sex-injury-compo-case-goes-to-the-high-court-20130510-2jdcc.html"

For those scholars who want to conduct further legal research into the factual underpinnings of this fascinating case, a click on the above link is a required first step.

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Is bad credit an accurate predictor of employee trustworthiness or reliability?  Or is it discriminatory?  We first discussed this in 2011, before the great debates began. 

See link: http://employmentdiscrimination.foxrothschild.com/2011/02/articles/another-category/careful-how-you-use-those-credit-checks-they-could-be-discriminatory/

The New York Times today has a great article, "The Long Shadow of Bad Credit," that nicely illustrates the on-going debate about credit checks and trustworthiness, and the proliferation of anti-credit checking laws.  It uses interviews with employees, employers and credit reporting bureau spokespeople, as well as studies on whether there is a statistical correlation between bad credit and job performance or propensity for committing fraud, to highlight the arguments for and against such laws. 

And whether the use of credit checks is a way to discriminate illegally "[i]f you have five people and can't make up your mind."

The NYT link: http://www.nytimes.com/2013/05/12/business/employers-pull-applicants-credit-reports.html?pagewanted=all

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A female employee traveling for her employer met a “friend” and at her motel room with him became “injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her.” She sued the employer under the Australian equivalent of workers comp – and won!

This Australian case piqued our (professional only) interest.   Could it be true?   The Australian Federal Court answered in the affirmative.  Open this link  and read the decision if you do not believe it.

Her claim amounted to this:  under the applicable statute, the employer is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment; compensation is not payable in respect of an injury that is intentionally self-inflicted; and compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

The lower court (the Employment Tribunal) held for the employer:   the injury was not suffered by her in the course of her employment; the employer had not expressly or impliedly induced or encouraged the applicant’s sexual conduct that evening, nor did the employer know or could reasonably expect that such an activity was contemplated by her. The activity was not an ordinary incident of an overnight stay like showering, sleeping, eating, or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced.

The Australian Federal Court reversed:   while it is true that the employer had not expressly or impliedly induced or encouraged the employee's sexual activity during the evening in question, the underlying question was whether there was a sufficient connection or nexus between the injuries suffered by the employee and her employment. “The relevant connection or nexus to employment was present in this case by virtue of the fact that the[employee's] injuries were suffered while she was in the motel room in which her employer had encouraged her to stay. … Here the temporal relationship between the [employee's] injuries and her employment is that they were suffered by her while she was at a particular place where her employer induced or encouraged her to be during an interval or interlude between an overall period or episode of work (emphasis in the original.”

While this case has no relevance at all to employment discrimination, it is nonetheless an interesting diversion on a dreary Monday morning! 

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After our April 18th post on performance reviews, a reader suggested that we take a look at the episodes of the Office where they do reviews to use for our Friday 5-Minute Laugh session.  I put my trusty assistant, Chrissie, on the case and she came up with a winner.

She even went old school, and pulled a clip from the original British version of the Office. 

Enjoy!

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The excellent UK discrimination blog, “Michael Rubenstein Presents … Expertise on Equality, Diversity and Discrimination Law” asks the question whether menopause is “the last workplace taboo.”  This is a fascinating question, although I think we will come up with a lot more workplace taboos over time.

Rubenstein states that almost half of the UK workforce consists of women over 50, and that “these women will be experiencing the menopause or have been through it.”  He notes that “[m]any managers are unaware of the many physical symptoms of the menopause which might affect a woman’s well-being at work.”  The Working through the Change study found that symptoms made worse by work may consist of “hot flushes, headaches and tiredness. Workplace temperature and poor ventilation also made symptoms worse.”

Because women are now working longer, “[b[y supporting working women experiencing the menopause employers can reduce absenteeism, maximize productivity and make the workplace environment as comfortable as possible.”

Citing research conducted by Amanda Griffiths of Nottingham University (Women’s Experience of Working through the Menopause), Rubinstein lists some relevant tips for employers, which I quote verbatim:

1.      Raising awareness of the menopause in an occupational setting through health promotion programmes and awareness training for managers.

2.      Organising social support within the work place.  This could include information packs, mentoring schemes and lunch time support.

3.      Offer flexible working hours, job sharing, and opportunities to work from home.  Many women experience tiredness.

4.      The temperature of the work environment can be an issue, especially in refined spaces. Fans and temperature controls could be implemented.

5.      A rest room where women can relax, just to have some space.

6.      Cold drinking water – many organisations do not provide this.

7.      Prioritise work life balance and maintain firm boundaries in working life and non-working life. Adopt buffer zones so that women feel in control more effectively. Many menopausal women experience feelings of ‘not coping’. If work becomes an issue encourage a specific time each day so that worries can be written down and then discarded.

8.      Remain hopeful and optimistic – women experiencing the menopause often go through different types of emotions such as anxiety and depression. Remember these feelings do subside. Encourage women to discuss how they feel as these feelings are very normal.

9.      Become a supportive manager, women are more likely to discuss menopausal issues with somebody they feel able to talk to. This also encourages organisational loyalty and less absenteeism which can only be a good thing for all companies.

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If you find yourself asking that question, we encourage you to check out our partner, and Immigration View blogger, Alka Bahal's upcoming April 18th webinar on the new I-9 form.

For details and registration info: click here.  A couple of nice details if you need more encouragement: it's free and HRCI and CLE credit will be offered.

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Taking a break from our normal topics, I just wanted to take a quick moment to encourage any women entrepreneurs or aspiring entrepreneurs in the New York tri-state area to attend the Own It Ventures Annual Conference and Pitching Expo March 20, 2013 at CUNY.  For more details, click here.

Own It Ventures is a great organization that provides support and creates opportunities for women entrepreneurs.  Full disclosure: I am a member of the Advisory Board, but my bias in favor of the organization is justified.  For instance, at the conference, women will have an opportunity to present their products to investors, media and retail buyers, such as Kevin Harrington from ABC's Shark Tank, the Huffington Post, and Bloomingdales.

I am looking forward to seeing the announcement of the Sharkette Tank winner and a lot of innovative products at this year's conference.

I will be speaking in the "Growth Panel" on health care and hiring issues impacting employers, including the obligations under the new Healthcare Act.  If you come to the event, please say hello or introduce yourself if we have not already met as I would love to meet you. 

To register for the event, click here.

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We highly recommend readers to the guest blog of Denielle Fisher, from Vertical Measures (www.verticalmeasures.com) which describes common HR mistakes. It was published in our firm’s New Jersey Human Resources blog (edited by our partner Francis Cook) on February 1^st.

It is useful for HR people because it addresses issues such as lack of communication from senior management and the Human Resources department, lack of focus, inconsistency and other problems.

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A legislative push in New York for women’s rights includes, among other initiatives, a bill proposed by an upstate Republican which would add a provision to the state's Labor Law to give victims of domestic violence the right to take 90 days leave from work to deal with family physical and emotional issues which require medical and counseling services without fear of termination, loss or reduction of health or other benefits. 

According to the January 18th online Law360, the bill would also provide a remedy for employees who are denied this: a claim for wages, benefits or other compensation, job reinstatement, and monetary damages for willful violations.

You will be reading more about domestic violence and workplace issues in this blog as we turn our attention to issues which we did not focus on in depth before.

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A free seminar in LA on "2013 Employment Law Issues Affecting California Employers" will be conducted by our partner Nancy Yaffe on January 29, 2013 at 11:30 am.

Details and registration:   

http://www.foxrothschild.com/events/eventDetail.aspx?id=15032388300

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Nancy Yaffe, a labor and employment  partner of ours in our LA office, has come up with a nice succinct list of the top ten things that California employers need to do in 2012:

http://www.foxrothschild.com/newspubs/newspubsArticle.aspx?id=15032388185

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My prophetic partner, Catherine Barbieri, has spent the last week huddled over her crystal ball and has come up with five predictions for the New Year relating to employment law.  Read it here:  

 http://www.foxrothschild.com/newspubs/newspubsArticle.aspx?id=15032388185

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You'd think with a name like Secret Service, that agents would already know the meaning of discretion, but apparently not.

USA Today recently reported that the recent scandal in Colombia involving hookers and lots of drinking seems to just be the tip of iceberg.  In fact, it looks like such bad behavior is fairly common according to the investigation launched after the incident.

The Secret Service's response has been to issue formal rules governing the drinking of alcohol and using social media.  Those rules, as summarized by the Washington Post ban the drinking of alcohol more than 10 hours before reporting for duty, prohibit certain social media disclosures, and ban agents from bringing foreigners to their hotel rooms.  According to the Secret Service, these formal rules merely put in writing informal rules that have long been policy.

So, the question is, do you think your employees are smart enough to behave themselves when traveling on a business trip or should you also have similar rules?  We have blogged several times about the importance of having a social media policy, but what about a rule on drinking?  Does it seem a little too Big Brother of you to tell employees what should be common sense?

Before implementing such rules governing off duty behavior, you should check state laws.  New York's Labor Law §201-d prohibits an employer from discriminating against an employee for engaging in lawful recreational activities off work time.  The law does give employer's an out where the legal off-duty conduct conflicts with the employer's business interest or, in the case of drinking rules, where there is an employer policy on substance and alcohol use. 

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Women in corporate leadership positions may be less likely to lay off employees than men, concluded a new study conducted by David Matsa, an assistant professor of finance at the Kellogg School of Management. and Amalia Miller, an associate professor at the University of Virginia, and discussed in Kellogg Insight.

The publication noted that “Earlier work in social psychology and management had found that men and women do indeed have disparate management styles, with women tending to interact and communicate with their subordinates differently than men.” But beyond mere “style,” the study looked to see if any such differences have any impact on the business of the corporation.
 

Matsa and Miller looked at Norway, which in 2006 adopted a quota mandating that all publicly held companies had to have 40% female board members within 2 years. They found that this female quota changed only the gender composition of the boards and nothing else about the companies, which permitted them to see what impact, if any, the increased number of females on the board had on the business of the companies.

The results showed that the quota had no effect on revenues, most costs, and rates of mergers and acquisitions, but although wages were not higher, nonetheless “labor costs” were higher. Their conclusion? “[I]t was coming from higher relative employment” -- these companies were laying off fewer employees. 

Matsa said that “the Norway results don’t seem to be specific to the quota [because] [e]ven in a setting without a quota, you still see a similar pattern.” Matsa and Miller speculate that perhaps female leaders have different values, which might make them less likely to lay off workers, or that they may see this as a good long-term economic strategy.

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The New York Times published an interesting article in the Business Section today which describes an ad industry initiative designed to address the lack of diversity at the top in advertising agencies and media companies.

Noting that the August 2011 Bureau of Labor Statistics reported that only 9.6% of advertising and promotion managers were Hispanic, only 2.3% were Asian, and only 1% were African-Americans, the Times reported that the Advertising Club of New York is spending $700,000 to undertake an initiative called “I’mpart,” which will promote diversity by funding various school and industry programs designed to “get talent into the pipeline” and into the senior ranks.
 

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Further our discussion yesterday about an AARP study which describes “family responsibilities discrimination,” we would like to point our readers to a study done by MetLife and a survey conducted by the Society for Human Resource Management (“SHRM”).

The 2011 MetLife study confirmed the results of the AARP study that the number of adult children who care for parents has tripled over the past 15 years, and an earlier MetLife study found that such caregivers frequently suffer from depression, diabetes, heart problems and hypertension.

While the AARP study described the hallmarks of what they call “family responsibilities discrimination” as limited flexibility, denial of leave, or even termination, the 2011 SHRM survey reported that cost-conscious employers are, in fact, cutting eldercare benefits, which benefits have been shown to reduce absenteeism, increase employee loyalty, improve employee health, and reduce employee turnover.

Commentators have noted that such care givers are frequently the hardest working and most valuable employees, and have counseled employers not to lose these employees by being short-sighted. They have suggested that employers offer such things as flexibility in work time and time for personal calls or emails during business hours; support groups or referral to support groups; subsidies for eldercare home aids and consultations; wellness programs; and sensitivity training for managers.  See 2012 report of the National Alliance for Caregiving. 

With the graying of the population and the workforce, employers should not only be sensitive to issues of age discrimination, but should also try to retain employees who are pulled in many directions as caregivers to children and parents. 
 

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Ernst & Young has just published a new survey about the concerns of working women in the United Kingdom. Rather than facing a single barrier in the workplace, the survey concluded that women faced at least four identifiable barriers – age; a lack of female role models; the effects of motherhood; and qualifications and experience.

Ernst & Young concluded that it is up to employers to help support women at each stage of their careers because they are losing valuable and talented employees at the early parts of their careers.
 

Surprisingly, more women reported that their age is more of a barrier than gender, i.e, they are seen as being too young or too old. Even more surprising is that younger women (between 18 and 23) reported the most difficulty at work based upon their age.
 

We have noted or reported before in the context of discrimination based upon appearance or sexual orientation, that employers who fail to recognize the value to them of skilled employees but instead focus on irrelevancies such as, for example, obesity, are bound to fall behind in the crucible of competition. Indeed, even employers in states such as Utah are dropping their resistance to hiring gay or lesbian employees, not wanting to be seen as being opposed to a “national trend,” and not wanting to fall behind in hiring talented workers.

Employers should consider this new survey and pay heed.

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Fox Rothschild has recently been reported to have more blogs than any law firm in the world - we now have 40!

I happily can announce that we now have 6 blogs online (five plus the present one) that discuss employment and labor matters.  The following are the links, which you should save as favorites -- they are all easy to understand and extremely informative and valuable to employers:

 California Employment Law Blog

 Employee Benefits (written solely by the incomparable Keith McMurdy, benefits attorney extraordinaire)

 Immigration View

 New Jersey Human Resources Blog

Wage & Hour — Developments & Highlights

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I am pleased to announce that my partner and blogging colleague, Christina Stoneburner, will be a speaker at  an upcoming seminar for HR professionals sponsored by the Princeton, NJ office of our firm Fox Rothschild, entitled "Hiring Considerations For New Jersey Employers."

Please use this link to check out the program and sign up!    

If you happen to be in the neighborhood, the address is:

Fox Rothschild LLP
997 Lenox Drive, Building 3
Lawrenceville, NJ 08648-2311
 

Future seminars in Princeton include:

Thursday, October 11
Essential Components of an Employee Handbook

Thursday, November 8
Preventing Sexual Harassment and Discrimination

Thursday, December 13
How to Conduct an Internal Investigation

Thursday, January 10
FMLA

I am also pleased to announce the publication of a new Fox Rothschild blog which will deal with New Jersey human resources issues.  Use this link to read it!  

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Lately the legal coverage on social media is the supposedly widespread practice of employers demanding access to applicants' and employees' social media accounts.  We blogged on May 11th about why employers should be concerned about the rash of legislation restricting employers' access to these accounts, so we don't need to rehash it here.

For those keeping count, Maryland is still the only state to have such a bill signed into law, but the National Conference of State Legislatures reports that as of June 5, 2012, 12 other states have proposed legislation pending that would ban employers' access to social media accounts.

There are legitimate reasons an employer may need to access social media, for example, investigating claims of insider trader or a harassment complaint.  However, there are already federal and state laws that impact how an employer may access electronically stored information and to what use the information may be put. 

Most notably, the federal Stored Communications Act has been used by employees to argue that employers have improperly accessed email and other electronic information. 

In addition, the National Labor Relations Board has jumped with both feet into the fray and has issued rulings that an employers' social media policies, even in an non-unionized facility, violate the National Labor Relations Act's protections of concerted activity.  In order to insure proper notice to employees, social media policies need to be carefully drafted.

 I did a presentation in February 2012 that addresses all of these issues and thought it might be helpful to attach a copy here.  To access my slides: http://www.slideshare.net/cstoneburner/social-media-policiespowerpointforlaborandworkforcedevelopmentinreview

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Yesterday we noted that according to one survey, gender discrimination is prevalent in the British workforce. Today, we note an equally disturbing state of affairs in India – the continued existence of the caste system and its impact on employment.  Caste and related discrimination is still practiced against 160 million Indians known as Dalits, especially Dalit women, who make up close to one-half of this group.

A 2007 Indian report states that: “The discrimination that Dalit women are subjected to is similar to racial discrimination, where the former is discriminated and treated as untouchable due to descent, for being born into a particular community, while the latter face discrimination due to colour. The caste system declares Dalit women as ‘impure’ and therefore untouchable and hence socially excluded. This is a complete negation and violation of women’s human rights. … Dalit women are thrice discriminated, treated as untouchables and as outcastes, due to their caste, face gender discrimination being women and finally economic impoverishment due to unequal wage disparity, with low or underpaid labour.”

The Hindustan Times has published a sad article by Pankaj Mullick on this caste discrimination, notes its existence not only in small villages, but also in cities, and states that “Atrocities against Dalit women include: Verbal abuse and sexual epithets, naked parading, pulling out of teeth, tongue and nails, and violence, including murder. Dalit women are also threatened by rape as part of collective violence by higher castes.”

Moreover, the caste system still resists change in the employment arena – an anthropologist claims that “In certain professions, especially academia and media, recruitment of lower-caste candidates is discouraged by the higher-ups. There is a fear of new opinions coming in conflict with existing thought. This resistance is also seen in art, cinema and the sciences — all influential professional spheres.”

The only positive news is that economics is forcing people of different castes to work together. As the above-quoted anthropologist joked, “Once there weren’t enough worldly goods to own and people thought more about life after death. Now, they think, ‘if I am without a good car or an AC, I am in hell’. The fear of hell within their lifetime is greater than the fear of hell after.” 

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Adam Liptak of The New York Times reported today that a large majority of the American public believes that Supreme Court decisions are influenced by the political and personal views of the individual justices.  Moreover, only 44% of respondents approve of the way that the Court is handling its job.

Liptak surmised that this could be a due to the general current disaffection with all government branches and agencies, or "it also could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions."

With the Court having no independent means of enforcing its decisions, its authority, power and legitimacy is due, in large part, to the public perception that it is not political and that its decisions adhere to legal precedents --  a perception previously carefully cultivated and guarded by the Court.  This new poll, and the reasonable assumption made by Liptak, merely underscores that the Court's recent de-legitimatization in the eyes of the public is a function of its own political activism.  And this bodes poorly for law and justice.

The good news is that Congress' approval rating is a whopping 15% -- which makes the Court's approval rating look fabulous by comparison.

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There have been a couple of major legal matters just reported that relate to dress, tattoos or grooming habits in the workplace and the impact of Title VII.   On May 15th we wrote a long blog about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See also our blog of 7/29/11.

Although Title VII does not per se prohibit dress or grooming rules or employer acts based upon them, nevertheless these rules may be violative of Title VII’s prohibition of employment discrimination based upon religion.  Accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group, such as religion, and we cited a few recent case examples.

New York -- It was announced yesterday that the NYC Transit Authority has settled a lawsuit brought by the US Department of Justice on behalf of Sikhs and Muslims regarding head coverings worn by transit workers.  See report of Jessica Dye of Reuters. 

California -- The California Assembly overwhelmingly passed a bill – A.B. 1964 (known as the “Workplace Religious Freedom Act of 2012”) which would provide that the state’s version of Title VII applies to religious clothing and hairstyles.

The New York lawsuit merits some discussion. It had long been the policy – but only enforced after 9/11 -- that all head coverings (i.e., headscarves, turbans and other religious headwear) had to bear a Transit Authority logo, or else the employee would be forced to work where the public could not see them. Now, the transit employees will be permitted to wear these head coverings - but only if they are in the same blue color as their transit uniforms.   Significantly, the California bill discussed in this blog, pushed by Sikh groups, was passed to prohibit the similar practice of employers who forced employees wearing religious clothing or headwear “to the back of the store” where they could not be seen.

Chris Dolmetsch of Bloomberg, reported that the Transit Authority also agreed not to “selectively enforce uniform policies or take adverse employment actions” against such employees, and also agreed to accommodate workers who can’t comply with uniform policies and work to eliminate policies and practices that discriminate on the basis of religion, according to the court filing.  It also agreed not to retaliate against employees or prospective workers who have complained that it has engaged in such discrimination, and to require mandatory training regarding religious discrimination, according to the court document.

A Justice Department attorney stated that he was “"pleased that the NYCTA has agreed to end its discriminatory practices that for years have forced employees to choose between practicing their religion and maintaining jobs."
 

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I was reading some articles on Media Post and Law.Com about a recent class action lawsuit filed by female employees against Publicis Groupe SA and their attempts to have the judge who issued an ediscovery ruling recused when I got a shiver down my spine.  Why? 

Because, quite frankly, ediscovery scares the bejesus out of me.

I recently had a case that involves three plaintiffs -- none of whom work in an office setting, so we all thought ediscovery would not be an issue.  Unfortunately, the case is a disability discrimination case and there are electronic health files that became relevant based on a demand from the plaintiffs. 

Now, this is not a case where any of the three plaintiffs has a significant amount of lost wages or other damages.  Nonetheless, after approximately six months of motions, conferences and generally arguing over how the information was going to be produced, the clients have now had to produce the information.  They now face spending close to $75,000 to analyze the very small electronic file.

So, what does this have to do with having an electronic retention policy? Ediscovery is certainly not new but there have been many recent decisions expanding penalties to employers who do not maintain electronic information related or even possibly related to a lawsuit.  One way to avoid harsh court sanctions is to have a written electronic retention policy and actually follow the policy.

The simple truth is you cannot produce what you do not have.  Of course, you cannot destroy evidence in anticipation of or during a legal claim.  Accordingly, your electronic retention policy should have a litigation hold provision that addresses how information will be frozen as soon as you find out about a claim or a potential claim.

A good electronic retention policy can reduce the costs of electronic production.  If, according to your policy, for example, emails are automatically deleted after one year, then you will not have the problem of sorting through thousands of emails for years.  The downside of a very short retention period is that you may delete evidence that could be helpful to your case, so you'll want to take that into consideration when crafting policies.

If you do not already have a comprehensive electronic retention program and you get sued, it is going to be difficult to explain to a judge why back-up tapes or other information was already destroyed.

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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The National Labor Relations Board (NLRB) recently issued a decision interpreting the United States Supreme Court (“SCOTUS”) decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) as prohibiting the NLRB from awarding back pay to undocumented immigrants whose rights under the National Labor Relations Act (“NLRA”) were violated; even when their illegal status was known to the employer at the time of hiring. NLRB Chairwoman Wilma B. Liebman, and Members Mark Gaston Pearce and Brian Hayes issued the unanimous decision in Mezonos Maven Bakery, with Member Craig Becker having recused himself.

The case involved seven employees at a bakery who were not asked for documentation when they were hired, worked for up to eight years, and were fired after complaining as a group about the treatment that they were receiving. After settling the subsequent unfair labor practice charges, the issue arose as to whether the employees could be awarded back wages and benefits post Hoffman.

Chairman Liebman and Member Pearce agreed that Hoffman precludes an award of back pay but they warned of the policy implications of Hoffman. In what is being heralded as an unprecedented criticism of a SCOTUS decision by the NLRB, Liebman and Pearce outlined the varying implications Hoffman has on the NLRB’s ability to enforce the NLRA. They contended that removing the Board’s ability to award back wages encourages unscrupulous employment practices and prevents the employee from “being made whole.” Specifically, Liebman and Pearce explained that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees [documented and undocumented] are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”

Liebman and Pearce were especially concerned that their ruling, required by Hoffman, gives violating employers a leg up on law abiding competitors by providing “a cost-free discharge guarantee—even where, as here, the employer is a knowing IRCA violator—the demand-side pull [for cheap labor] will be all the greater, directly contrary to Congress’[] purpose in enacting IRCA.”

Although Liebman and Pearce acknowledged that a first time employer-violator would be issued a cease and desist order and thereby “set the stage for contempt penalties should the employer reoffend,” their concern, and one shared by many, is that the damage will already be done. Those who complain will have been terminated, and others may refrain from exercising their rights out of fear of retaliation.

Despite your views on this decision, one thing is clear: it does little to impact the way most businesses function. The U.S. workforce is one of the most well-educated in the world and employees will generally file a complaint (only) when necessary and appropriate (some may argue that they will complain even in the absence of necessity or appropriateness). Thus, employers should continue to verify an employee’s work authorization because failure to do so, in addition to incurring liability for penalties under IRCA, may incur the wrath of the NLRB, which can be very creative in its punishment of violators. Should you be unlucky enough to violate the NLRA a second time, remember the old saying, “[h]ell hath no fury like a Board scorned” —or something like that.
 

As the Board put it, going forward: “[w]e would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”

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We want to offer our congrats to our blog colleague, Andrez Carberry, for having been selected as a "Rising Star 2011" in Employment & Labor by Super Lawyer - New York Metro Edition, a publication of Thomson Reuters.

Keep up the good work, Andrez!

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We reported on March 1, 2011 that a White House report noted that despite higher educational attainmnt, women earned only 75% of men doing the same job.

The Bureau of Labor Statistics now reports that full time working women slightly narrowed the pay gap with men over last year's figures by 1%, to 81.2%.  (The March 1st entry explained that the 75% gap was for workers doing the same job, while this new statistic does not compare precisely because it subsumes all categories of jobs and whether the worker was full or part time).   The report, to which we commend our readers, reviewed overall labor figures carefully and made many findings as to pay disparity among workers of different ages, races, and genders, as well as contributing factors such as level of education.  

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A recent HR.com blog had an interesting article on using biometric time clocks to curb employees' time clock fraud.  Although the article correctly notes that having employees scan their finger or palm to sign in and out would eliminate the problems of employees clocking out for another employee, these high-tech time clocks may violate state law.

For example, New York's Labor Law prohibits employers from fingerprinting employees unless required to do so by law.  This law may seem to apply only to fingerprinting employees as part of background checks, but in fact, is much broader than that.  The Department of Labor has issued an opinion letter that specifically states that the use of biometric clocks that scan employees' hands may violate the law, even though the fingerprints are not stored and saved. 

A New York employer would not violate the law by using the biometric time clock if the employees were otherwise required by law to be fingerprinted, for example, employees of public school systems.  Employers in other states should check whether their state has a similar law before eliminating time sheets and punch cards in favor of a biometric time clock.

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In this blog entry we deal with the U.S. Bankruptcy Code and its application to employment laws. 

Under the provisions of the Bankruptcy Code, a governmental employer cannot discriminate against applicants or employees who are or have been in bankruptcy. They cannot refuse to hire such applicants, fire such employees upon this ground, or discriminate with respect to the employment of such employees.    

What about private employers? Can a private employer refuse to hire a person because she is or has been in bankruptcy?  

A federal appeals court in Myers v. Toojay's has just held unanimously that the Bankruptcy Code provides that a private employer can refuse to hire a person because she is or has been in bankruptcy, but cannot fire such an employee upon this ground, or discriminate with respect to the employment of such employee.    

On the other hand, the EEOC has warned that under the employment discrimination laws, such as Title VII, employers should be careful when considering credit histories and bankruptcy filings in making hiring decisions because of the possibility of "disparate impact" upon people in protected classes (our blog entry dated June 8, 2011 discusses this).  

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In our blog of February 22, 2011, we noted that under the anti-discrimination laws there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination.  However, there is a concept known as “disparate impact,” which means that a hiring criteria, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. 

The EEOC conducted a hearing recently to explore, in the words of Chairwoman Jacqueline A. Berrien, the “emerging practice of excluding unemployed persons from applicant pools.”  Experts who testified at the hearing said that there may be a “disparate impact” on those who are disproportionately represented in the jobless rolls, such as older and disabled people, African Americans, Asian Americans and Hispanic Americans. 

No laws or regulations yet exist which forbid the use of employment status as a hiring criteria, but given the increase in the jobless rate, an employer who is hiring is certain to encounter applicants who are unemployed or who have unexplained gaps in their resumes. Don’t automatically disqualify these applicants, or advertise that only the employed need apply – there is no point in looking for increased scrutiny in these uncertain economic times.     

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Effective April 9, 2011, Section 195.1 of the New York State Labor Law, requires all employers, other than governmental agencies, to give employees at the time of hire (before work is performed), and on or before February 1st of each year, notice of:

1. the employee’s rate or rates of pay;
2. the overtime rate of pay, if the employee is subject to overtime regulations;
3. the basis of wage payment (per hour, per shift, per week, piece rate, commission, etc.);
4. any allowances the employer intends to claim as part of the minimum wage including tip, meal, and lodging allowances;
5. the regular pay day;
6. the employer’s name and any names under which the employer does business (DBA);
7. the physical address of the employer’s main office or principal place of business and, if different, the employer’s mailing address; and
8. the employer’s telephone number.

This notice must be provided in English and the employee’s primary language. The employer must also secure a signed statement from the employee acknowledging that they received the written notice in English and the employee’s self identified primary language. The signed acknowledgments must be retained for at least 6 years.

The New York State Department of Labor (DOL) has prepared several templates of the requisite acknowledgments and they are available to the public on the DOL’s website. Employers who use the DOL’s templates will not be penalized for errors in the templates. Further, if the DOL does not issue a notice template in the primary language of an employee, then the employer would only be required to provide the notice to that employee in English.

Exempt employees may be advised of the specific reason they are deemed exempt.

What’s Next: Many employers should be aware of this requirement. However, in the event you forgot about it, you should immediately review the requirements and develop the necessary steps to ensure compliance. Failure to do so may lead to a potential unpleasant visit from the Department of Labor.
 

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The ODEP's National Employer Technical Assistance, Policy, and Research Center (“the Center”) has launched a website to assist employers in the recruitment, hiring and retention of employees with disabilities.

A self proclaimed “one stop resource for private and federal employers seeking to recruit, hire, and retain qualified employees with disabilities,” the Center was established to provide free, confidential consultation, training, and support to assist employers in expanding their inclusion and diversity efforts by integrating employees with disabilities in the workplace.

The new website, furthers the Center’s goal of education and inclusion by providing among other things, links to sister organizations and a database of pre-screened student and recent graduates with disabilities seeking internships and/or permanent employment.

However, before you implement any policies or changes based on the information gather at this or any other website, please review it with counsel to ensure you are covering all the bases.
 

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No matter where you look in the language of Title VII, or in any state or local anti-discrimination laws (that we know of), there is no protected class known as “the unemployed.”  Therefore, if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Seems simple and case closed!

Not so fast!

As we noted in an earlier post (February 9, 2011), there is a concept known as “disparate impact.” This means that the use of a test or screening device, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. In the case of unemployment, an ad or policy that excludes the unemployed from applying, while seeming to apply equally to all genders, races, religions, ages and other protected classes, may nonetheless have a disparate impact upon African Americans, Latinos, and older applicants – each of which class of protected applicants has a higher statistical unemployment rate.

For example, African Americans have been reported to be unemployed at a rate of almost double that of whites, while Latinos have been reported to be unemployed at a rate of almost 50% more than whites. Moreover, more than half of the long-term unemployed are over 40 years of age. Clearly, a policy that excludes the unemployed from applying has a statistically good chance of disparately impacting these groups.

The EEOC has recently taken note of sporadic (and perhaps merely anecdotal) reports of ads or policies which exclude the unemployed from applying. Admittedly these are not common, but nevertheless the purported practice has crossed the EEOC’s radar.  

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A federal court in Michigan ruled on February 11, 2011 that an employee who was fired for testing positive for marijuana in a routine workplace drug test had no legal claim for wrongful discharge despite the fact that he was legally-registered under a 2008 Michigan state law as a medical marijuana user.  

The court waded into the thicket of this undeveloped area of the law when it ruled that the purpose of the state law, while providing a possible defense to state criminal prosecution or other adverse state action, nonetheless “was not meant to regulate private employment, but rather protect medical marijuana users from state action.” Michigan is an “at-will” state, and the new state medical marijuana law did not change the workplace relationship as it effects employers and employees, and did not confer upon an employee a private right of action for wrongful discharge.

The court recognized further issues and anomalies which will no doubt consume courts for years to come, such as the fact that marijuana use for medical purposes under the state law is still a federal criminal felony. The protection afforded registered state medical marijuana users is, indeed, quite limited, and, at least according to one court, no protection at all in the workplace.       

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Employers take notice -- the US Department of Labor recently announced its "Bridge To Justice" program, in which it has allied itself with the American Bar Association to farm out Fair Labor Standards Act ("FLSA") (pdf) and Family Medical Leave Act ("FMLA") cases to private attorneys .  The goal, apparently, is to hook up employees -- current and former -- who have filed claims under either statute, with attorneys willing to take on such cases.     

This is sure to generate an enormous number of new cases, and the collaboration between the government and the private bar portends all sorts of new problems for employers.   Stay with us on this one.     

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We noted in an earlier blog entry (January 12, 2011) that employment discrimination claims have reached an all-time high and continue to grow (according to the EEOC).  A new report put out by the United States Bureau of Labor Statistics indicates that union membership is at an all-time low and continues to decline (at least it is the lowest in the 27 years that such statistics have been kept).    

Is there a connection between these two trends?  And what does the decline in union membership augur for employment discrimination claims, if anything ? 

We have seen no commentary suggesting a connection.  But it occurs to us that with the decline in collective bargaining and the diminishing role of unions, individual employees are freed from any restraint in filing discrimination claims.  One management attorney was quoted recently as saying that younger workers, where the decline in union membership is most significant, are more inclined to believe in individual rights, and feel more mobile.  Could be.   But we also know that they are also more inclined to exercise these individual rights by more freely filing claims of discrimination when, for example, they are terminated in a down economy or excessed when the employer has too rapidly grown the workforce.  

Another commentator has stated that the realization by employers that a workplace that is cohesive rather than divisive may contribute to a lack of desire by employees to join a union.  Again -- could be.  However, in that case we might have expected that claims of discrimination would have fallen, and not risen at an unprecedented rate.    

We await further statistics and studies which might enlighten us.   In the meantime, whatever the reason for this decline, employers should be ever more vigilant in maintaining a discrimation-free, zero-tolerance workplace.         

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Gerard L. has asked us: "I am working as an independent contractor acting through  a corporation but I'm being supervised and controlled like an employee.  My question is - am I an employee or an independent contractor?"

We cannot, of course, provide legal advice in this blog, since questions such as Gerard's implicate a complicated, fact-based analysis unique to each situation.  However, Gerard's question is general enough that we can quickly review this complex area of law.   

The workplace of the last century is gone forever. More and more employers are classifying people in the workplace as “independent contractors,” and not as “employees,” because

(1) independent contractors are cheaper,

(2) it is not customary for employers to provide independent contractors with benefits such as paid vacation days, pension plans, and employer-sponsored health insurance;

(3) an employer need not withhold federal and state income taxes and social security tax on compensation for independent contractors, and are not required to pay federal and state unemployment insurance and the employer share of social security taxes; and

(4) independent contractors are generally more easily terminated because they are not covered by the civil rights laws -- yet.

But employers must be sure that workers are true independent contractors and not employees who are called independent contractors, because there have been major successful lawsuits by employees who have been mislabeled as independent contractors, and actions by governmental agencies such as departments of labor.  The difference is not easy to determine – there is no “bright line” test, and courts have used various tests reviewing a variety of factors to distinguish employees from independent contractors. 

The Supreme Court Test

For example, the Supreme Court established a thirteen-point test to determine whether a hired party is an “employee.” This test looks at the following factors:

--  the hiring party’s right to control the manner and means by which the product is made or the service rendered;

--  the skills required for the job;

--  the source of the instrumentalities and tools;

--  the physical location of the parties;

--  the duration of the relationship between the parties;

-- whether the hiring party has a right to assign additional projects;

-- the extent of the hired party’s discretion over when and how long to work;

-- the method of payment;

--  the hired party’s role in hiring and paying assistants;

-- whether the work is part of the regular business of the hiring party;

--  whether the hiring party is in the business;

--  the provision of employee benefits; and

-- the tax treatment of the hired party.

The IRS Test

The IRS, however, has its own test –  the more control over the worker, the more likely that the worker is an employee rather than an independent contractor. 

For example, control may exists where a worker must comply with instructions about when, where, and how he is to work; there is training of a worker by teaming him with an experienced employee (which may indicate that the employer wants services done in a particular manner or method); the worker’s services must be rendered personally; the business hires, supervises and pays assistants for the worker; there is a continuing relationship; the employer has the right to fire the worker; there is a requirement that the work is to be performed on the premises, the service is to be performed in a specific order or sequence, and/or there must be regular or written reports; and where the employer supplies tools, material, and equipment. 

On the other hand, when an employer pays a worker by the job or on a commission basis, it indicates lack of control, suggesting an independent contractor relationship. If a worker invests in facilities that are not maintained by employees (i.e., renting his own office), realizes a profit or loss, performs more than minimal services for a number of unrelated businesses at the same time, and makes his services available to the general public on a regular basis, this suggests that he is an independent contractor.  

Once again, this should not be considered legal advice but merely a summary of the law.  For legal advice to be given, someone like Gerard must seek legal counsel, who can analyze Gerard's specific fact situation in light of the prevailing law. 

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Once again the holiday season is here, with office parties galore, and the scolds are back to put a damper on the fun.  Or put another way, the prudent advisers are back to encourage you to have fun without the years-long hangover that an employment lawsuit will bring to those who indulge too much or too freely.  

It goes without saying that an office party is considered a work-related function, so that all work-related rules, policies and practices that are in place to shield you from lawsuits alleging discrimination, harassment and other related problems SHOULD CARRY OVER TO THE OFFICE PARTY.  It is as simple as that, or as difficult. 

Otherwise sensible, reasonable and well trained people can get carried away when under the influence of that devil egg nog.  And they can do things that they know, in more sober times, is impermissible.

By all means have fun and encourage a collegial and merry party.  That alone is an important part of employment.  But, to keep it brief, make sure that you let all employees and managers know in advance that you will not tolerate behavior at the party that would be considered harassing behavior in the office.  Moreover, note that over indulgence will not be considered a valid excuse. 

Have at least one manager there who remains sober, to keep an eye on behavior (or, perhaps, a family member who will be the designated scold).   Let everyone know that what could be seen as consensual intimate behavior (or what may very well be, in fact, consensual intimate behavior), in other venues and at other times can lead to claims of harassment the next day.   Too much alcohol consumption is a danger, and close dancing can lead to tomorrow's complaint of an unwanted touching.   Above all, remind everyone that they are adults and that a party atmosphere with unchecked drinking may result in out of control behavior and the loosening of otherwise normal day-to-day self-restraint which can have very serious undesirable workplace consequences.

With that reminder of the real world that awaits tomorrow, try to still have fun.  It CAN be done!

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On December 7, 2010, the Supreme Court of the United States (SCOTUS) heard oral arguments in Thompson v. North American Stainless, LP, 130 S. Ct. 3542. At issue is whether employers should be held liable for claims of retaliation asserted by their employees who are close friends, colleagues or family members of an employee who has filed a complaint or claim of discrimination. The nature of the relationship, ie., the closeness of the parties and/or the parameters of the relationship that would give rise to a retaliation claim is one of the major issues to be addressed by the Court. Under plaintiff’s theory, if a known “relationship” between the complainant and another employee is established, even if the latter did not participate in the filing of a claim or the investigation of a complaint, that other employee could assert a retaliation cause of action under Title VII.

To provide some further insight into the potential impact of the pending Supreme Court decision, here is a quick factual recap. Eric L. Thompson worked as a metallurgical engineer for defendant North American Stainless, LP, in Carroll County, Kentucky from February 1997 through March 2003. In 2000, Miriam Regalado was hired by Defendant. Thompson and Regalado began dating shortly after she was hired in 2000, and in 2003, when Thompson was fired, he and Regalado were engaged to be married. The relationship was common knowledge at North American Stainless at the time of Thompson’s termination.

Regalado filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. On March 7, 2003, the North American Stainless terminated Thompson’s employment citing performance based reasons. Thompson alleges that he was terminated in retaliation for his then-fiancée’s filing if her EEOC charge.

Thompson then filed his own charge with the EEOC, which conducted an investigation and found “reasonable cause to believe that [North American Stainless] violated Title VII.” After failed conciliation efforts, the EEOC issued a right-to-sue letter and Thompson filed suit against North American Stainless in the Eastern District of Kentucky. North American Stainless successfully moved for summary judgment on Thompson’s claim arguing that his “[r]elationship to [Regalado] was the sole motivating factor in his termination,” and was insufficient as a matter of law to support a cause of action under Title VII. The district court granted the defendant's motion, holding that Thompson failed to state a claim under Title VII or the anti-retaliation provision of Title VII The Sixth Circuit Court of Appeals affirmed the ruling, and the Supreme Court granted certiorari.

Defense counsel and employers are understandably concerned about the potential implications of this case, as is the Supreme Court Justices, based on their questions to the lawyers arguing the case. For example, how close or intimate must a relationship be for the “other employee” to be protected under Title VII, and what is the obligation, if any, of the employer to know or be aware of relationships in the workplace. However, in light of a more conservative leaning bench, the general consensus is that the Supreme Court will rule in favor of the employer, even if it carves out a limited exception, perhaps for married or engaged employees.

Take heart.  Even if SCOTUS recognizes a retaliation cause of action under the circumstances referenced above, it does not spell doom for employers. Instead, it signals the need for revisions of employment policies/handbooks (i.e., narrowly tailored non-fraternization policies—you should have them already) and updated training for supervisors and human resources personnel.

More to come on this important case.
 

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No matter your political inclination, one thing in certain, Tuesday’s midterm election results signal a potential change in the focus of legislative initiatives that will impact the labor and employment community. In the few days following the election, I have received countless invites for webinars and programs intended to dissect and predict the impact the elections will have on several pending legislative items. Since we all like prognosticators, here is my take (as in, not the opinion of Fox Rothschild) on the impact the election will have on three legislative items.

The Employee Misclassification Prevention Act would amend the Fair Labor Standards Act (pdf) to require covered entities to keep records of non-employees who are paid to perform services and also provides special penalties for persons who misclassify employees as non-employees or the more familiar “independent contractor.” My take, more penalties to employers is not going to be a focal point for the new regime, this bill dies.

In an attempt to preempt the Employee Free Choice Act, advocates of secret ballot voting successfully passed what is being heralded as “employer-friendly” measures in South Carolina, South Dakota Arizona, and Utah. In general, these measures guaranteed the right of individuals to vote by secret ballot when deciding whether to be represented by a union. My guess, this bill does not see the light of day.

The Paycheck Fairness Act would fortify the Equal Pay Act by among other things, clarifying and limiting the application of the employer’s affirmative defense to disparities in pay between men and women doing the same job. The Paycheck Fairness Act would also prohibit retaliation against an employee who inquires as to the employer’s salary practices or discloses their salary. The Act also strengthens penalties against violators and permits women to challenge an employer’s practices as an opt-out class action under the Equal Pay Act. The jury is out on the support this bill will garner in the coming months, but in the end I believe a revised version of this bill will pass.

Rest assured, we will monitor the legislative developments and update our fantastic and devoted readers. Have a great weekend.
 

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One of the hot topics of employment law in the past few years has been the concept of independent contractors and the liability associated with improperly designating an employee as an independent contractor. However, I have not seen much written with respect to how independent contractors are handled under one of the more employee friendly statutes in the country—the New York City Human Rights Law (NYCHRL) (pdf). That is, how does this liberal statute deal with independent contractors and claims of employment discrimination?

Title VII and the New York State Human Rights Law (NYSHRL) (pdf) look to the common law of agency to determine whether an individual is an employee or an independent contractor. If the individual is an independent contractor then generally the employer is not liable for claims brought by that individual under Title VII and the NYSHRL.

However, under the NYCHRL, independent contractors may be counted as employees and can file employment discrimination claims against the contracting company, if they are “[n]atural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers. . .” NYCHRL § 8-102 (5).

Thus, New York City employers that hire an individual who may be deemed an independent contractor under the common law of agency, may still be liable for that contractor’s claims of employment discrimination under the NYCHRL. Therefore, before you hire an “independent contractor” in New York City, consult your attorney and consider hiring contractors who are acting through a corporation.

Have a great weekend.
 

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The United States Department of Justice (DOJ) recently published in the Federal Register final regulations (pdf) detailing new accessible design requirements for entities covered by the Americans with Disabilities Act (“ADA”) (pdf).

The 2010 Standards will have a significant impact on entities that are open to the public, i.e. entertainment venues, museums, recreational facilities, restaurants, places of lodging, medical facilities, and schools (public and private). Specifically, covered entities must account for not only issues pertaining to physical design, but website and other technological equipment designed for customer service.

The 2010 Standards are effective March 15, 2011, six months after their publication in the Federal Register. However, covered entities are not required to comply with the 2010 Standards until eighteen months after the publication date — March 15, 2012. From September 15, 2010 to March 14, 2010, covered entities may choose to follow in their entirety either the 1991 or the 2010 Standards. But, as of March 15, 2012, all renovations, alterations and new construction must conform to the 2010 Standards. The applicable standard will be triggered by the date a covered entity submits an application for a building permit or, if no permit is required, by the start of physical construction or alteration.

Selected Highlights of the 2010 Standards

1. Clarification of covered facilities

A hallmark of the 2010 Standards is that they provide clarification and in some instances incorporate more facilities than their 1991 predecessor. For example, the 2010 Standards clarify their application to, and requirement for, among others:

• amusement rides: must be accessible and located on an accessible route;
• recreational boating facilities: boat slips and boarding piers must be accessible;
• exercise machines and equipments: at least one type of every exercise equipment must be accessible and positioned to enable use by a person with a disability;
• fishing piers and platforms: must be accessible, subject to the same exceptions for gangways;
• golf facilities: accessible routes or golf car passages to the course, rental areas, bag drop areas and one or two teeing grounds;
• miniature golf courses: at least fifty percent of all holes must be accessible and consecutive;
• play areas: now covered and must have accessible ground and elevated play components, routes, ramps, transfer systems, and accessible ground surfaces;
• swimming pools, wading pools, and spas: must have accessible means of entry/exit;
• saunas and steam rooms: must be accessible with appropriate turning space and an accessible bench.

2. Safe Harbor Provision
If a covered entity has built or altered an element in its facility in order to comply with the 1991 Standards, then it does not have to comply with the 2010 Standards until such time that the element again becomes a part of a planned alteration/renovation.

Note: Existing facilities that were not subject to, or not in compliance with the 1991 Standards, do not benefit from the Safe Harbor Provision.

3. Reach Range Requirements

The side reach range requirements is now 15 to 48 inches. This range applies to operable parts on accessible elements, elements on accessible routes, rooms and spaces.

4. Employee Work Areas

Subject to certain exceptions, employers must ensure that an employee using a wheelchair have access to their work area, and other common use paths within employee work areas.

5. Service Animals

A service animal is a dog (minor exception permits use of miniature horse). The dog must be “individually trained to do work or perform tasks for the benefit of an individual with a disability” provided the “work or tasks performed by the service animal is directly related to the handler’s disability.” A dog that provides purely emotional support is not a service animal. However, individuals with mental disabilities who use dogs that are trained to perform a specific task are covered.
In addition, individuals accompanied by a service animal cannot be required to pay a surcharge for the service animal’s admission.

6. Reservations for Places of Lodging

Places of lodging must permit individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; identify and describe accessible features in the hotels and guest rooms offered by their reservations services; and the accessible rooms must also be held for individuals with disabilities until all other guest rooms of that type have been rented. Accessible guest rooms must also be removed from all reservation systems to avoid inadvertent release to someone other than the person who reserved the room.

7. Timeshares, Condominium Hotels, and Other Places of Lodging

Timeshares and condominium properties that operate like hotels are subject to the 2010 Standards. These facilities are not subject to the reservation “hold back” requirement discussed above, nor the barrier removal and altercation requirements if the physical features of the respective room’s interiors are controlled by individual owners rather than by a third party operator. However, common areas in the overall facility containing the respective individually owned units must meet the 2010 Standards.

8. Assembly Areas

The scope of seating in large facilities has been altered such that under the 2010 Standards, facilities with 501 to 5000 seats must provide one additional wheelchair space for each additional 150 seats (or fraction thereof), and facilities with more than 5001 seats must provide one additional wheel chair space for each 200 seats over 5001.

9. Mobility Devices

A covered entity shall permit individuals using a manually powered aid (motorized and non-motorized wheelchair, walkers, crutches, canes etc) in any areas open to the public. The covered entity must also make reasonable modifications to permit access to individuals using other power-driven mobility devices (i.e. Segway®PT), unless the entity can demonstrate that the device cannot be safely operated in accordance with the regulation.

Note: A covered entity shall not ask an individual using a power-driven mobility device questions about the nature and extent of his/her disability. However, the entity may request proof that the motorized device is required, such as a valid state-issued disability placard, card or proof of disability, or “a verbal representation, not contradicted by observable fact.”

10. Water Closet Clearance in Single User Restrooms

The water closet must permit clearance for both a forward and a parallel approach, with further restrictions on the overlap of the lavatory and the water closet clearance.

Going forward, covered entities must audit their spaces and polices to ensure that they are in compliance with the 2010 Standards and/or maximizing the Safe Harbor Provisions. Nonetheless, although some entities will be able to operate under the 1991 Standards, be mindful that any future renovations, alterations or construction will require compliance with 2010 Standards. Finally, covered entities should retain documentation of all renovations and alterations conducted in an effort to conform with the 1991 and 2010 Standards.
 

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On Friday, September 24, 2010, Democratic Senators Robert P. Casey, Jr., of Pennsylvania and Thomas Harkins of Iowa introduced the Working Families Flexibility Act (S. 3840). Although the complete text of the bill has not been made available by the Government Printing Office, early indications are that the bill will seek to make it easier for employees to request flexible work hours and locations to accommodate their family obligations.

In a press release, Senator Casey acknowledged similar efforts by the late Senator Ted Kennedy, and explained that this bill will ease the strain on families and help create flexible work options that can benefit both workers and employers. Specifically, Senator Casey intimates that the proposed flexibility means the employee will have greater control over when and where they can complete their work and will result in less turn over, higher morale and more productive employees.

Early highlights of the bill includes:

• An employee’s right to request a modification of his or her hours, schedule, or work location;
• Employees and employers will be required to engage in an interactive process to discuss the employee’s needs and how to address them with no or minimal disruption to the employer’s business; 
• Employers who deny a request for modification must explain the grounds for the denial; 
• Employees who make requests for a modification are protected from retaliation; 
• Civil penalties can be assessed against any employer who discriminates against an employee for exercising any right granted under this legislation; 
• Small businesses are exempt from the legislation; and 
• The Department of Labor will develop regulations to smoothly administer the process, while ensuring the protection of employees’ legal rights. 

The bill is in its infant stages, however, as we have seen more and more, employers should expect continued emphasis on greater flexibility in the workplace including the use of alternate work arrangements. This is especially the case in disability accommodation cases and beyond, as is evident from this bill. 

More to come on this issue.
 

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Some time ago, we gave you the first five of our top ten tips to lower your risk of being sued for employment discrimination. Summarizing them, they were:

- know the rudiments of anti-discrimination law;

- maintain a zero-tolerance anti-discrimination and anti-harassment policy;

- hire a knowledgeable and experienced HR person, or general counsel, if you can afford it;

- have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, accountant, or outside vendor;

- draft and maintain an up-to-date employment manual or handbook.

Here are the second five of our list of top ten tips:

            6.         Even if it not required by your state’s law, maintain a periodic training program for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies. Keep the training current and specific to each state in which your company does business.  

            7.         Keep good records, especially about employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support disciplinary measures, termination or reductions in force. Don’t be caught short when, for example, a troublesome employee with a long history of insubordination, abusive behavior, or poor attendance, sues you after an adverse employment action and you have no documents to support your action. Even worse is to create records, or back-date them, when none exist, when you discover that you have nothing to prove that the employee was a problem for a long period of time, the reason that you have given for firing him/her. 

            8.         Let all employees know where to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly. 

            9.         Know who you hire. Consistent with the anti-discrimination laws, and laws relating to, by way of example, credit and criminal record privacy, and health record confidentiality, do the legal and proper due diligence before you hire someone, lest you find yourself with an employee who has a long history of suing employers for alleged discrimination or harassing co-workers. 

            10.       Above all, obey the “Golden Rule” as it applies to the workplace: be as honest, transparent and forthright with employees as is consistent with business considerations, keep employees in “the loop,” and maintain a fair and consistent workplace. Employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

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• The U.S. Department of Labor recently reported that in 2009 the jobless rate among people without disabilities was 9%, while the rate for those with disabilities was 14.4%.   22.4% of those people 16 years of age or older with disabilities were employed; while those without disabilities was 70.9%.
  
  The largest percentage of people with disabilities was in the 55-64 age range, likely accounted for by the fact that people defined as being disabled tend to be skewed up to the older age groups. Of this group, only 25.1% were employed – the unemployment rate goes down as the age group goes down.
   
• A recent report by the Joint Economic Committee of Congress found that despite the fact that more women are educated and employed today than 25 years ago, nonetheless in 2009 women, on average, earned only 80% of what men earned.
   
• The number of employment cases filed in federal court in the second quarter of 2010 increased by 62% from the second quarter of 2009, with FLSA actions rising 25%, and actions under the ADA rising 37%. Contrast that with an increase in this period of 2.33% in the number of all cases filed.
   
• Recent EEOC statistics reveal that the number of claims for pregnancy discrimination has increased by 30%, while claims of all other types of employment discrimination has increased by 25%. This may be accounted for by the increase in the number of women in the workforce; women's increasing awareness of their legal rights; and employers' concomitant lack of awareness and/or respect for the rights of pregnant women.
   
• The EEOC recently reported that sexual harassment claims by men increased from 8% to 16% in the last 20 years. Moreover, the number of gender discrimination claims filed by men has similarly increased.
   
• In a report entitled “New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women,” the Project for Attorney Retention (at the University of California, Hastings College of the Law) and the Minority Corporate Counsel Association, found that male lawyers still out-earn female lawyers, with women earning 74% of what men earn. Women equity partners earn $66,000 less than their male counterparts.
   
• Recently, the Senate Appropriations Committee voted to approve $385.3 million for the EEOC for the 2011 fiscal year, an increase of $18 million over the current annual budget, in part because of an enormous backlog of claims. 

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Governor David A. Paterson recently signed bill number A1470B into law. The new law--the first of its kind to be enacted in the United States, grants workplace protections to domestic workers who had always been excluded from the protections and rights afforded to other “traditional” employees.

In summary, the new law provides many of the same protections employees and employers have come to expect through more traditional work relationships. Specifically, under the new law, effective November 29, 2010, domestic workers are entitled to, among other protections:

1. The right to overtime pay at time and a half after 40 hours of work in a week, or 44 hours for in-home workers;
2. A day of rest every seven days, or overtime pay if it is waived;
3. Three paid days of rest annually after one year of work; 
4. The removal of the domestic workers exemption from the New York State Human Rights Law, and the creation of a special cause of action for domestic workers who are subjected to harassment and/or an intimidating, hostile, or offensive working environment; and
5. The extension of statutory disability benefits to the same degree as other workers.
    

Although the law excludes certain individuals, i.e. blood relatives, the reality is that an entirely new class of employees is now protected by New York law. Accordingly, employers--which may be a new concept for many individuals who simply employ a domestic worker, must ensure that they are in compliance with the new law to avoid an inquiry into their conduct. For a more detailed account of the new law, we invite you to read our firm’s “Alert” on this topic.
 

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Whoever said that summer months are slow didn’t tell my adversaries or the Courts. Alas, I promised you the top ten Essential Components of an Employee Handbook, so here are numbers six through ten. These are a quick recap of some of the essential components of a good handbook. However, handbooks must be tailored to fit your company/industry so consult your attorney prior to publishing a “generic” handbook.

6. Leave Policies
While the workaholics among us may not care too much about this, I can assure you that most employees are eager to know how they will accumulate leave time and what restrictions, if any, the employer places on the use of that time. This is also an area employees tend to abuse and if it is clearly laid out, the employer can rely on its policy in any disciplinary action taken against an employee.

7. Disability and Religious Accommodations
This is a great place to encourage collegiality, understanding and respect for everyone’s differences and beliefs. Good handbooks include references to the Family Medical Leave Act and/or its state equivalent and educate employees about their rights under each. This is also a great place to identify the individual(s) to whom requests by an employee for an accommodation based upon a religious belief or disability should be directed, thereby, limiting the potential impact of a rogue supervisor who has not been properly trained in this area of the law.

8. Confidential policies
If you require employees to execute confidentiality agreements to protect trade secrets, customer lists, and other confidential information, this is a perfect place to reinforce those agreements. Include a non-exhaustive list of confidential items and tailor it to your business.

9. Alternative dispute resolution policies
This is an evolving area of Labor and Employment Law, with many companies seeking to limit the costs and potential negative publicity associated with litigating work-related disputes. Arbitration is not a bad idea; in fact the Federal Arbitration Act permits waiver of statutory remedies in favor of arbitration. However, consents to arbitrate must be a clear and concrete manifestation of the employee’s intent.

In addition, some employers are restricted in their use of arbitration agreements. For example, in a recent Alert, we discussed the United States Department of Defense’s interim rule (pdf) issued on May 19, 2010, which restricts defense contractors in their use of mandatory arbitration for Title VII, sexual assault or harassment claims brought by its employees or independent contractors.

10. Distribute and Collect signed acknowledgments
I cannot stress this point enough. It makes little sense to spend all this time and effort, reading this blog, consulting counsel, reviewing and revising your handbook, and then forgetting to distribute to all employees and have them acknowledge receipt of it. An acknowledgment closes the door on the “I didn’t know that” defense. It can be accomplished in many ways under the law, even via electronic means. Ensure each employee acknowledges receipt and maintain a copy of the acknowledgment in each employee’s personnel file.

That is my top ten. There are several other policies that I would traditionally include in an employee handbook but I am certain you would agree that a “top ten” is more manageable than "top twenty." That said, consult your counsel, then draft and/or update your handbooks to ensure that you are complying with the law and are setting the tone of your workplace.
 

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In a recent case coming out of the United States Court of Appeals in San Francisco entitled Livingston v. Fred Meyer Stores, Inc., No. 08-35597 (unpublished opinion 7/21/10), the Court ruled that a store wine steward whose visual impairment affected her ability to walk and drive after dark was considered an individual with a disability entitled to the protections afforded under the Americans With Disabilities Act (“ADA”). The appeals court held that even if Livingston did not have any restrictions during the day time hours, her nighttime vision impairment prohibited her from performing the same tasks as an average person and, as such, she was “substantially limited in the major life activity of seeing” and the employer was required to accommodate such condition.

Livingston’s condition of “depth perception difficulties under low light conditions” made it difficult for her to walk or drive a vehicle safely after dark. As such, Livingston requested a modified fall and winter schedule that would allow her to work an earlier shift and minimize her driving after dark While her request was granted in 2005, it was denied when she made the same request a year later. When Livingston refused to comply with the schedule, she was terminated.

Employers should be aware that even if an employee’s medical condition on its face does not appear to restrict the employee’s job duties, it still could be considered a “disability” under the ADA requiring an accommodation. Employers should therefore evaluate an employee’s condition carefully, and request legal guidance on how to best handle an employee’s alleged disability.
 

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I recently attended a conference for which I prepared a presentation on the Essential Components of an Employee Handbook. After several discussions with Managers and Human Resource professionals at the conference, it was apparent that many employers do not have a basic employee handbook. Others have handbooks that fail to include the essentials. That said, to follow is a quick recap of some of the essential components of a good handbook. However, be careful: simply searching the Internet and inputting sections that resemble the headings covered below, without tailoring it specifically to your company/industry or consulting your attorney can be detrimental to your business.

1. Policies must comply with all the applicable laws and regulations
This goes without saying, but putting a policy in writing that violates the law will all but seal your fate if that policy is challenged by the government or an employee. Think federal, state and local law. If you have locations in more than one city or state, one handbook may not fit all.

2. Disclaimers
The key here is to clearly and prominently preserve the at-will employment status and not unwittingly draft your way into a contract that can only be terminated under limited circumstances.

3. Code of Conduct
Quite possibly the most heavily relied upon section of any handbook involves the disciplining or terminating of employees. This is your chance to set the tone of your workplace and outline your expectations. You might include, among many other provisions:
• Dress code
• Absentee policy
• Drug and alcohol policy

4. Discrimination and Anti-Harassment Policies and Reporting Mechanisms
Need I say more? Not having a clear and well disseminated anti-discrimination and anti-harassment policy – a “zero tolerance” policy -- will potentially rob employers of affirmative defenses to harassment actions and will undoubtedly lead to problems in the workplace and beyond.

5. Computer/Internet/Device Usage Policies
There is no turning back. We are and will forever be in the age of technology. Work-issued devices, such as company computers with access to emails and the Internet, can be beneficial to the company. However, in the same breath, it could make a company susceptible to litigation based on the employee’s conduct on the Internet or in emails. This is a new area of the law, but it is developing quickly and leaving oblivious employers in a dangerous position.

All said, draft and/or periodically update your handbooks to ensure that you are complying with the law. Anything less will be to your detriment. That’s all for today, more to come, including the one that some employers skip entirely…you guessed it……. to be covered in Tips numbered 6 – 10.
 

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Our entry of June 29, 2010 reported on a staffing company (Spencer Reed) which entered into a “consent decree”  to settle a case filed by the EEOC under Title VII and the Age Discrimination in Employment Act (“ADEA”). On June 15, 2010, another staffing company similarly entered into a consent decree with the EEOC, in a case filed under the Americans With Disabilities Act (“ADA”).  In EEOC v. Balance Staffing, N.D. Ill., No. 1:09-cv-6004, June 15, 2010, the EEOC claimed that the company hired Jocelyn Snower but that the offer was revoked when it discovered that she was blind.

As in the Spencer Reed consent decree, Balance Staffing not only made a cash payment to Ms. Snower, in this case in the sum of $100,000, but was also required to provide annual EEO training to all of the involved managers and human resources employees, and to report to the EEOC all future discrimination and retaliation complaints. 

Another expensive lesson learned too late -- the company should have practiced “preventive law,” and trained its managers and employees in advance.  

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On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division issued an Interpretation Letter (pdf) clarifying the definition of “son or daughter” under section 101(2) of the Family Medical Leave Act (FMLA). Under the interpretation, an employee who provides either day-to-day care or financial support to a child and intends to assume the responsibilities of a parent with regard to the child, may be entitled to FMLA leave to care for the child.

This new interpretation is heralded as a “victory” for nontraditional families, and for good reason. Although the analysis with respect to whether an employee stands in loco parentis (in the place of a parent) to a child, thereby qualifying for FMLA leave, will depend on the particular facts of every case, the new interpretation clearly expands the types of relationships that will qualify for FMLA leave. In fact, the DOL interpretation explains that employees who have no biological or legal relationship with a child may stand in loco parentis to the child and still be entitled to FMLA leave.

According to the DOL, the following relationships qualify for FMLA leave to care for a child with a serious health condition, and/or for birth of a child and to bond with a child within the first 12 months of birth or placement:

• An employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support);
• An employee/step-parent who provides day-to-day care for his or her wife/husband’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support); 
• An employee who will or does share equally in the raising of a child with the child’s biological parent;
• An employee who will or does share equally in raising an adopted child with a same sex partner but who does not have a legal relationship with the child;
• An employee who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; and
• An employee who assumes responsibilities for raising his or her niece or nephew after the death of the child’s parents.

If an employer is uncertain as to whether the employee’s relationship to a child is covered under the FMLA, the employer may require “a reasonable documentation or statement of the relationship.” But at all times employers must approach these issues with the understanding that they are fact sensitive matters that must be addressed on an individual basis.
 

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On June 17, 2010, the Supreme Court of the United States issued a much anticipated decision (pdf), ruling that an employer may review communications sent by an employee on a company issued device.

In 2002, the City of Ontario, California issued pagers capable of sending and receiving text messages to members of its SWAT team. Prior to issuing the pagers, the city announced a “Computer Usage, Internet and E-Mail Policy” wherein the city reserved its right to monitor employees’ activity on city issued devices and warned employees that they “[s]hould have no expectation of privacy or confidentiality when using these resources.” The employees who received the pagers were told in a staff meeting that the policy also applied to the pagers. Over several months, the employee at issue exceeded the texting limit on the pager. His supervisors decided to audit his usage of the pager to determine whether the texting plan was sufficient to cover the employee’s work-related messages or if the overages were for personal messages. After obtaining and reviewing the transcripts of the text messages from the supplier—Arch Wireless (now USA Mobility), the city determined that the employee had violated its rules by pursuing personal matters while on duty. For example, the investigation revealed that of the 456 messages sent or received by the employee in August of 2002 during work hours, only 57 were work related. The employee sued, claiming that the city violated his Fourth Amendment Rights and the Stored Communications Act.

Assuming that the employee had a reasonable expectation of privacy in the text messages, the Supreme Court explained that the employer’s search was justified because “[t]here were ‘reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose. . .” and was appropriately tailored so as not to be overly intrusive.

Interestingly, the Supreme Court did not address whether the employee had a “reasonable expectation of privacy” when he sent and received messages using the employer’s device. However, the Court did explain that whether an employee has a “reasonable expectation of privacy” must be determined on a “case by case basis,” with particular emphasis on the employer’s “policies concerning communications. . .especially to the extent that such policies are clearly communicated [to all employees].”

Therefore, going forward, public and private employers who wish to review the communications of employees on company issued devices must:

• Have a clear, comprehensive and well distributed communications policy retaining the right to review all employee communications sent and received by company devices; and
• If a review of communications is to be conducted, be certain it is narrowly tailored so that it is not overly intrusive.

Of course, if you are uncertain, call your labor and employment counsel. More to come on the impact of this decision. Stay tuned.

Have a great weekend.
 

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For years employers have been advised that if they apply their non-discriminatory and legitimate company policies and practices across the board, without exception, it will generally be much easier to defeat challenges to those practices. A recent case in the U.S. Court of Appeals for the Eighth Circuit, Norman v. Union Pac. R.R. Co. (Nebraska), highlights this point. In that case, the employer had a standard policy that required all employees seeking to return to work from a long-term disability leave to submit a “return to work release” prior to resuming employment. The plaintiff, an African American woman sued the company under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act of 1990, claiming that she was terminated because of her race, gender and her disability. The plaintiff argued that her termination was discriminatory because although she did not submit a return to work release, the company found a suitable position in the company for a similarly situated Caucasian male employee, while he was on leave, although he had a poor disciplinary history and inferior annual evaluations.

The court affirmed the lower court’s dismissal of the case finding that the employees were not similarly situated because the Caucasian employee submitted the required release while plaintiff did not. Therefore, the discrepancy in how the employees were treated had nothing to do with disability, race or gender but was a result of plaintiff’s non-compliance with the company’s rules.

This reaffirms the longstanding advice most employers have heard time and time again, from capable counsel--do not play favorites. Apply your non-discriminatory policies and practices equally across the board and you will be in a good position to defend against actions challenging your business policies and practices. Caveat: See Article on Disparate Impact Claims.
 

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Did you know that the number of federal cases involving theft of trade secrets by an employee or business partner doubled from 1988 to 1995, and then doubled from 1995 to 2004? Take a look at the Gonzaga Law Review (pdf), March 17, 2010. This increase appears to even dwarf the economy-driven steep increase in employment discrimination suits. Careful who you hire or associate with, and make sure that you get them to sign an appropriate confidentiality agreement — it will significantly improve your chance of success in court.

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As many pundits expected, the U.S. Equal Employment Opportunity Commission (EEOC) is stepping up its litigation of discrimination claims. In one week, the EEOC settled two lawsuits totaling $180,000. Although the financial recoveries may not be significant to many employers, having the EEOC’s nose in your business is never a good thing and can lead to protracted litigation for years to come.

On June 7, 2010, the EEOC announced that it settled a case with a Harley Davidson motorcycle dealership where the company agreed to pay $55,000 to settle a Title VII sex discrimination and retaliation lawsuit filed by the EEOC. In addition to the payment, the dealership was ordered to revise its equal employment policy and complaint procedure; conduct annual sexual discrimination and retaliation training; post a notice stating the terms of the settlement and how to complain about discrimination. On June 9, 2010, the EEOC announced that it settled a Title VII race discrimination and age discrimination and retaliation lawsuit brought pursuant to the Age Discrimination in Employment Act (ADEA) against the Atlanta office of Spencer Reed Group, LLC, a Kansas-based staffing firm for $125,000. In addition to the monetary relief, the settlement also requires the company to provide EEO trainings, submit reports to the EEOC, and post anti-discrimination notices.

These two employers will now have the EEOC watching their very basic employment functions such as training of staff, and will be required to file periodic reports with the agency from which additional litigation could ensue. In addition, the employees of these companies will now be apprised of the settlements and mandates placed on the company by the EEOC. These companies should expect more administrative charges and will have to strictly comply with the respective decrees. Employers that have a very good and consistent EEO training program and complaint process need not be alarmed by these settlements. However, if you can’t quite remember how many of your current employees are EEO trained, or the last time your employee handbook or complaint process was updated, I would suggest you contact your labor and employment attorney to address those matters before the EEOC does.
 

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