Patti Ramseur and Alex Maultsby of Fox Rothschild’s national Labor & Employment Practice offer insights on employee classifications.


Engaging independent contractors instead of hiring employees is enticing… no overtime pay, benefits, tax withholdings, FICA obligations or legal liability for certain claims.

If you misclassify a worker, however, the penalties are great — back overtime pay, interest, liquidated damages, federal income tax liability, FICA contributions, IRS penalties, and more.

There are no clear, bright-line tests, and you cannot determine status based upon title.  It is about who has control.

If your worker does the following, the DOL may try to treat him or her as an employee:

  • Provides services that are integral to your business;
  • Has a more permanent, than short-term, arrangement;
  • Uses your tools/equipment and works in your facility;
  • Works exclusively for your company;
  • Does work largely controlled by the company;
  • Has little or no opportunity for profit and loss; and/or
  • Exercises little or no initiative, judgment, or foresight.

If you use independent contractors, take the time now to carefully analyze those positions.  If you have concerns about any classification, we are glad to help you work through those issues now, before the DOL comes knocking.

On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Guidance, in part, requires employers to make a case-by-case assessment of whether a criminal conviction is disqualifying.  So, does this mean that employers can now have blanket bans on applicants with criminal history?

The short answer is no.  First, this ruling and the related injunction are limited to saying the EEOC cannot use this Guidance against Texas.

Second, even if other states, or even private employers, are able to make a similar argument in the Fifth Circuit and other jurisdictions, employers would institute broad bans on criminal convictions at their peril.  A broad ban on applicants with criminal histories may violate the Fair Credit and Reporting Act (“FCRA”).  FCRA requires that before an employer takes an adverse employment action based on a credit report, the employer must send a pre-adverse action notice.  Lawsuits have been filed alleging violations of FCRA where an employer has a blanket ban on criminal convictions.  The theory is that the employer already decided not to hire an applicant prior to sending the pre-adverse action notice.

Another issue is that several states/municipalities have laws either prohibiting discrimination based on criminal conviction history or are so-called “Ban the Box” laws that may require an individualized assessment of whether the criminal history is disqualifying.

Employers faced with enforcement actions from the EEOC may certainly use this decision to argue against use of the Guidance.  However, it is doubtful, in the absence of a nationwide injunction, that the EEOC will back down from using the Guidance.

By Julianna Earp, Alexander Maultsby and Patti Ramseur

Strong business leaders keep their eyes open for unintended consequences—if our company adopts a new program, what could happen (positive or negative) that was not intended as part of our efforts?

Employers are seeing unintended consequences play out in their efforts to eliminate harassment in the #MeToo era–as employers have acted to train and educate their workforce, some males are developing concerns about engaging in mentoring relationships with female employees. Companies are losing the benefit of employees sharing valuable experiences and lessons be-cause communications are stifled. But, mentoring is as important today as ever—for both males and females. Just think about the many mentors (including of the opposite sex) who have helped you along the way.

While remaining sensitive to harassment issues, employers must challenge employees’ tendencies to simply retreat. Educate employees about the importance of mentoring relationships and appropriate boundaries. Here are a few common-sense tips for mentoring relationships:

  • Meet in public places.  This may include the corner coffee shop or a windowed conference room at the office.  Be transparent about where the meetings occur.
  • Meet at a respectable hour. Have you heard the saying, “Nothing good ever happens after 12:00 am?” Similarly, a good rule for men-tors/mentees is to avoid meeting one-on-one at night. Try to schedule meetings in the morning or during work hours. Only rarely schedule a meeting for after work and, if it is necessary, immediately after work.
  •  Focus on work issues. What are the mentee’s goals? What obstacles is the mentee currently facing in the workplace?
  • Again, focus on work issues. As a mentor, be very careful not to discuss physical appearance or family responsibilities. Remember, the value in mentoring comes from the ability to learn and grow from what is happening at work, not at home. Leave broader life coaching to life coaches.

Mentoring is admittedly tricky. A mentor is not a supervisor and is not conducting an appraisal. Discussions are more wide-ranging than when a manager is completing a performance evaluation. Yet, mentoring is critical to developing your workforce.

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.