At this blog, we’ve written extensively about the proliferation of legislation at the state and local level to prohibit employers from inquiring about the salary or wage history of job applicants. As with state and local laws requiring employers to provide paid sick leave, laws restricting employers from making wage inquiries during the application process have become a growing trend across the country in the absence of federal action in this area. Sponsors of these measures describe their efforts as part of a broader public policy goal: closing the gender wage gap.

Now, Maine has joined the (growing) ranks of states that have passed laws on this point:

Earlier this month, Gov. Janet Mills signed a bill into law that makes it illegal in most cases to try to find out the salary history of a potential employee.

It’s not uncommon to ask for salary history even at the earliest stages of a job application. But studies have shown that the practice hurts women, people of color and people with disabilities, and it affects them more and more as they move through their careers, to the tune, in some cases, of hundreds of thousands of dollars. When the law takes effect 90 days after lawmakers adjourn, Maine will be the eighth state to prohibit the practice.

Maine’s new law prohibits employers from using or inquiring about an applicant’s compensation history, until after an offer of employment has been made that includes all terms of compensation. Nor may employers seek an applicant’s compensation history from the applicant’s prior employers.

However, the law does not prohibit applicants from voluntarily disclosing compensation history. There is also a carveout; the law does not apply to employers who make compensation history inquiries pursuant to a federal or state that “that specifically requires” disclosure or verification of compensation history for purposes of employment.

Critically, Maine’s new law states that an employer’s inquiry “either directly or indirectly” about an applicant’s compensation history is evidence of unlawful employment discrimination. In other words, employer practices that may have previously been routine have now been classified as discriminatory. Employers should review their hiring policies and practices in light of this new law and should continue to monitor the growing trend of these laws at the state and local level across the country.

If you are worried that, between the opioid epidemic and the expansion of medical and recreational marijuana laws, your employees will increasingly be coming to work under the influence, you are not alone. I’ve spoken on several panels lately where medical marijuana is a topic of discussion.  We also recently blogged on the issue.  Mostly, these discussions center around testing policies and whether accommodations have to be made.

I recently had the opportunity to be part of a panel talking about substance abuse in the workplace.  The panel was put on by NJBIZ.  For me, this was a very unique panel.  I did cover the usual issues about when you can test, what can be done with positive results, and what accommodations need to be made.  However, the interesting thing for me was that the rest of the panel were all addiction recovery specialists who talked about resources for employers and employees.

If you are interested, you can check out the video of the panel here.

Leave laws continue to be one of many jurisdictions’ top legislative priorities.

If you are going to be in Chicago next week, maybe I can help you understand your obligations under various leave laws.

I’m speaking at MAPI’s Benefits & Compensation in Manufacturing Conference on paid leave laws. Join me and other industry experts April 30-May 1 in Chicago for sessions and networking that will cover all aspects of benefits and compensation for manufacturers, including pay equity, health care trends and financial wellness. Learn more and register here: https://mfgbenefitsandcomp.com/

 

Often times when I am speaking to a client about an employee’s requested accommodation for a disability, we are talking about leave as that is often the request most difficult to accommodate.  Another one that gives employers fits is “light duty.”  But what about some other types of accommodations?

A recent Pennsylvania case reminds employers that they may have to consider other types of accommodations as well. 

Last week, a jury found that Premier Comp Solutions, Inc. had violated the Americans with Disabilities Act when it failed to give a former billing assistant extra breaks for her to address anxiety caused by her post-traumatic stress disorder. The company denied the breaks, mistakenly thinking that it did not have to provide an accommodation for her anxiety disorder.  The jury awarded plaintiff $285,000 in damages.

I have limited facts about this case, but can say from experience, that employers may be quick to dismiss accommodation requests related to anxiety where the requested accommodation is to provide a “less stressful” environment.  Yes, it is impossible to provide employees with a stress-free environment and there are plenty of cases that hold that is an unreasonable accommodation.

However, when faced with such requests, employers should make sure that they are asking questions and otherwise engaging in the interactive process.  For example, they should get specifics (backed up with medical documentation) as to what is requested and what specifically is meant by a “less stressful” environment.  Sometimes, employers may find that means something like here, which is additional breaks.  Perhaps, it might also mean moving an employee’s work station to a more quiet area. In other words, it may mean an accommodation that can be granted and, more importantly, would be difficult to deny based on an undue hardship analysis.

Sometimes, however, even after discussion it appears the request is simply to make the employee’s work stress-free, which cannot be accommodated.  Employers will not know until they open the discussion.  So, before dismissing requests out of hand that seem impossible, an employer must first engage in the interactive process.

With the prevalence of medical marijuana laws in this country, I routinely get asked by employers what are the rules where an employee has a medical marijuana card?  Can I still do pre-employment screening?  What if they are using at work?  Do I have to accommodate medical marijuana in the workplace?

Get the answers to these and other questions at a free webinar I am doing in conjunction with the Manufacturers Alliance for Productivity and Innovation (MAPI).

The webinar is January 22 at 2 pm.  If you are interested in registering, more information can be found here.

A new article in Bloomberg details an unusual (to put it diplomatically) strategy that some male executives in the financial sector are using to avoid claims of sexual harassment:

No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings.

In fact, as a wealth adviser put it, just hiring a woman these days is “an unknown risk.” What if she took something he said the wrong way?

Across Wall Street, men are adopting controversial strategies for the #MeToo era and, in the process, making life even harder for women.

[ . . . ]

A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.

The changes can be subtle but insidious, with a woman, say, excluded from casual after-work drinks, leaving male colleagues to bond, or having what should be a private meeting with a boss with the door left wide open.

The full article itself is well worth a read.  It details the results of Bloomberg’s anonymous interviews with over 30 financial sector leaders about how these leaders are conducting themselves in light of the #MeToo movement.  Bloomberg’s reporters, Gillian Tan and Katia Porzecanski, conclude that many of the individuals they surveyed are “spooked” about the possibility of being caught up in sexual harassment or sexual assault allegations and, as a result, are “walking on eggshells” at work.

The apparent solution that some executives are adopting, as relayed by Bloomberg, is to simply remove women from the equation, in an effort to avoid any allegations.  The results, described above, appear to lead to per se or de facto exclusion of female colleagues and subordinates from many opportunities.

At the risk of stating the obvious: this “solution” is no solution at all.  In fact, this misguided attempt to avoid liability for sexual harassment risks creating liability for sex discrimination. 

Indeed, systematically removing women from hiring and mentorship opportunities and meetings or treating female subordinates differently from male subordinates creates serious risks of sex discrimination claims under both the disparate treatment and disparate impact theories where the treatment at question rises to the level of an adverse employment action.  And if the exclusion is sufficiently severe or pervasive, it may even create sexual harassment liability under the hostile workplace theory.

In short: don’t follow the advice of these anonymous executives to reduce workplace harassment.  Instead, participate in regular anti-harassment and anti-discrimination trainings, foster a respectful and professional workplace, and don’t use sex as a basis to make decisions in the workplace.

As 2018 winds to a close, the EEOC has released a report showing the agency has been a busy bee in 2018.

As part of the EEOC’s 2018 Performance Accountability Report, the EEOC has made public a wide range of data regarding its activities for the 2018 fiscal year, which closed as of September 30th.  The agency has provided a snapshot of key statistics regarding its litigation and enforcement activities for the year:

  • The EEOC’s legal team resolved 141 lawsuits and filed an additional 199;
  • The EEOC facilitated approximately $505 million (in addition to other forms of relief) for nearly 68,000 individuals complaining of workplace discrimination; and
  • In addition to working through charges and other priorities, the EEOC filed amicus briefs on important legal issues in nearly 30 significant employment discrimination cases.

The EEOC also noted it has made progress in clearing its significant backlogs of discrimination charges, with private sector employment charges reduced by nearly 20% in the 2018 fiscal year.

Beyond its enforcement and litigation portfolio, the EEOC also announced data regarding its other initiatives.  The agency noted that its launch of a national web-based inquiry/appointment component of its public portal this past fiscal year led to a 30% increase in employee inquiries (and 40,000 intake interviews).

The EEOC’s outreach and education efforts were equally robust in fiscal year 2018, with the agency conducting over 300 Respectful Workplace training programs and with total outreach efforts reaching nearly 400,000 individuals.

We would expect the EEOC to build on its momentum from fiscal year 2018 during the 2019 fiscal year.

Earlier this year, New Jersey enacted a law to protect breastfeeding employees and require employers to provide certain accommodations to breastfeeding employees.

Notably, this law required reasonable accommodations as a general matter but also noted that reasonable accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.”  Employers are therefore required to provide reasonable accommodation generally, which must include but is not necessarily limited to this particular accommodation, unless they can demonstrate undue hardship.

On October 29, 2018, a group of New Jersey state legislators introduced a bill (A-4686) to expand the scope of required accommodations to breastfeeding employees.  The bill makes four changes to current law.

First, current law applies the accommodation obligation to an “employee breast feeding her infant child.”  A-4686 removes the word infant, clarifying that this obligation applies to breastfeeding beyond infancy.

Second, the bill notes that the reasonable break time accommodation should be “for such time as the employee desires.”

Third, the bill adds a second specific required accommodation to employers, which would be required to provide “a modified work schedule” to the employee.

Fourth, the bill clarifies that a restroom (as opposed to merely a toilet stall) is not an acceptable location for an employer to provide to an employee for the purpose of expressing breast milk.

While the proposed language changes are short, this bill represents a significant expansion of employers’ accommodation obligations.  We’ll keep an eye on this piece of legislation as it moves through the legislative session and update on any new developments.

In the meantime, New Jersey employers should review policies and practices to make sure they incorporate the requirements of the law enacted earlier this year.

It’s been a busy month for those keeping an eye on one of the most pressing questions in employment law:  whether Title VII, which prohibits sex discrimination in employment, also inherently prohibits discrimination on the basis of gender identity.

Last week, the US Department of Justice argued to the Supreme Court that workplace discrimination on the basis of gender identity is legal.  However, the Department requested the Court delay deciding whether to hear an appeal on this issue until it decides a similar question: whether Title VII prohibits discrimination on the basis of sexual orientation.

In contrast, Victoria Lipnic, Chair of the Equal Employment Opportunity Commission, has said she hopes the Supreme Court takes up a case on the issue of whether Title VII’s prohibition of sex discrimination forbids discrimination on the basis of an employee’s gender identity.  This position diverges from the position articulated by the Department of Justice:

“There’s a lot of litigation going on on this, we have lots of people who have filed charges with the EEOC that we have taken in,” Lipnic said. “I’m always in favor of clarity.”

The DOJ’s brief argued against the Sixth Circuit’s March ruling that Title VII’s bar on discrimination “because of … sex” blocks employers from firing workers based on their gender identities. The ruling revived a suit the EEOC filed for former Harris funeral director Aimee Stephens alleging the company violated the law by firing her after she started living as a woman.

The brief reversed the EEOC’s lower court stance that Title VII protects transgender workers from discrimination. Although the EEOC argues its cases at the district and circuit courts, the DOJ speaks for the agency at the Supreme Court . . .

The EEOC voted unanimously in 2012 to adopt its stance that Title VII covers gender identity. Lipnic, who voted for coverage, told Law360 that she doesn’t know whether the EEOC will revisit its interpretation of the statute if President Donald Trump’s nominees to two commission vacancies are confirmed. She had earlier said she’ll be keeping a close eye on what the high court says . . .

The DOJ’s brief urges the high court to wait on the funeral home’s petition until it decides whether to answer a related question about whether Title VII covers sexual orientation. If it opts to take up that issue, the justices should grant cert to Harris, the DOJ said. If it doesn’t, the justices should not, it said.

Meanwhile, congressional leaders speaking on behalf of over 200 members of the United States House of Representatives have strongly signaled a desire to move forward with the Equality Act in the next Congress.  The Equality Act seeks to expressly add sexual orientation and gender identity to Title VII’s protected characteristics.

Watch this space: these developments have been happening quickly, and we will continue to cover what this all means for employers as more information becomes available.

Today is Tuesday, October 30th, 2018, marking less than a full calendar week until the polls open across the country for the 2018 elections.  (This, of course, doesn’t include the many states that offer some form of early voting.)  And while “midterm” elections such as this year’s have historically seen lower turnout, a mix of polling, analysis, and reporting suggests that the November 6th election will see particularly strong voter interest.

This is all very interesting, you may be saying to yourself, but what on earth does it have to do with employment discrimination?  Simple!

A majority of states have some form of laws that require employers to provide employees with time off for voting.  In these states, employers are frequently prohibited from taking adverse action or retaliating against employees who exercise their right to take voting leave, with significant penalties for noncompliance.

Just check out this map from Business Insider to get a sense of how prevalent employee state voting leave laws are (disclaimer: do not rely solely on the descriptions from the Business Insider article to assess compliance with state voting leave laws; at minimum, you’ve got to actually read the applicable laws, of course!).

There is no federal law providing voting leave, and state voting leave laws often vary in their scope and terms.  In addressing workplace policies and practices as it concerns state voting leave laws, some questions that typically come up are:  is the leave paid or unpaid?  How much time off must employees be given to vote?  Can employers verify that employees who take voting leave have, in fact, voted?  How much notice must employees provide of the intent to use voting leave?  To what election(s) do voting leave requirements apply?  Is there an exception for small businesses?  Can the employer designate times for employees to take off?  Can employees be required to request absentee or vote by mail ballots in lieu of taking voting leave?  Etc.

With Election Day quickly approaching, employers should review the applicable laws on voting leave in their state(s) of operation, in order to facilitate proper planning and legal compliance.