Volvo Group North America, LLC will pay $70,000 and institute a three-year consent decree to resolve a federal disability discrimination suit brought by the U.S. Equal Opportunity Employment Commission (EEOC).

According to the suit, Volvo made a conditional job offer to a qualified applicant for a laborer position at its Hagerstown, Maryland facility.  The applicant, a recovering drug addict enrolled in a supervised medication-assisted treatment program, disclosed during his post-offer physical that he was taking medically prescribed suboxone.  When he arrived for his first day of work, a human resources representative told the applicant that Volvo could not hire him because of his suboxone use, the EEOC said.

The EEOC filed suit (EEOC v. Volvo Group North America, LLC, Civil Action No. 1:17-cv-02889) alleging that Volvo violated Americans with Disabilities Act by failing to conduct an individualized assessment to determine what effect, if any, the suboxone had on the applicant’s ability to perform the job.

In addition to the $70,000 in monetary relief to the applicant, the consent decree prohibits Volvo from violating the ADA in the future. Additionally, Volvo will distribute to all employees at its Hagerstown facility an ADA policy explaining the right to a reasonable accommodation and will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a threat under the ADA.  Volvo will also provide ADA training, report to the EEOC about its handling of future complaints of disability discrimination, and post a notice regarding the settlement.

 

This case is a good reminder to employers that the ADA protects recovering addicts who are not currently using illegal drugs and prohibits discrimination on the basis of past drug addiction. Of course, employers are allowed to hold such individuals to the performance standards applicable to their jobs, may prohibit the use of illegal drugs in the workplace, and may require that employees not be under the influence of illegal drugs in the workplace.  However, recovering addicts prescribed medication as part of a treatment program are likely entitled to full ADA protection, including the right to a reasonable accommodation that does not cause undue hardship to the employer.  This means that employers cannot simply dismiss individuals in such a treatment program as unfit for employment.  Instead, employers should routinely review their policies regarding the use of prescribed medications to ensure compliance with the ADA.

 

In one of his final acts in office, New Jersey Governor Chris Christie signed legislation to prohibit discrimination against breastfeeding employees.  The bill, which was introduced by Democratic legislators and passed both houses of the Legislature unanimously, amends the New Jersey Law Against Discrimination and takes immediate effect.  New Jersey employers should expect this law to affect their workplace in at least two ways.

First, the law amends the NJLAD’s enumeration of protected classes, adding the words “or breastfeeding” after “pregnancy” as a protected basis in employment.  In other words, an employee’s status as a breastfeeding employee joins the ranks of protected characteristics that employers may not consider in taking adverse actions against employees and applicants.  Moreover, the law provides for a broad definition, defining “breastfeeding” as including “breast feeding or expressing milk for breastfeeding . . . or medical conditions related to . . . breastfeeding.”

Second, the law requires employers to provide employees who are breastfeeding an infant child with a reasonable accommodation, which “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.”  The employer is not required to provide this specific accommodation if the employer can demonstrate that this accommodation would cause an undue hardship, and the hardship analysis requires consideration of the following factors:

[T]he overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; the type of the employer’s operations, including the composition and structure of the employer’s workforce; the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business 
necessity requirement.

Note, though, that it is the employer’s obligation to establish that an undue hardship exists.  And, the employer must establish an undue burden, in light of these specific factors.  It is not enough to just conclude accommodations would be burdensome without examining these specific factors.

In light of the change in the law, employers should consider whether their workplace policies, HR/accommodation request processes, and facilities are up-to-date with the newly enacted law.

Several recent New York City human rights law amendments in the past year have steadily increased worker protections applicable to New York City employers. As is no surprise, the mayor’s office recently adopted yet another new amendment passed by the New York City Council amending the New York City Human Rights Law (NYCHRL) effective October 15, 2018.

What is particularly noteworthy here are the administrative obligations placed on New York City employers under this new law. Once effective, New York City employers are required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation (whether for disability-related, religious, or other covered reasons) and to document that process. Employers with operations in New York City should be aware of these new changes and grow accustomed to their administrative burdens prior to the enactment’s effective date.

Under the NYCHRL, as most New York City employers are already aware, reasonable accommodations (such as workplace rule changes and unpaid leave) must generally be provided to employees for any covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a disability; (3) as a result of pregnancy, childbirth or a related medical condition; or (4) as a result of domestic violence, sex offenses or stalking. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.

However, the new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

That last part, involving required written determinations, is likely to be the most difficult issue for employers (from an administrative standpoint). While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law.

If prior to the effective date additional guidance is issued by the New York City Commission on Human Rights that helps clarify or to mitigate the law, we will prepare a follow-up to this piece. Otherwise, employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.

Our office was closed last Monday in celebration of Martin Luther King, Jr. Day.  I was at the dog park talking to a woman I know who also happens to be a lawyer.  During our discussion of how nice it was to be off of work, she mentioned that not everyone at her firm felt that way.

She then told me that there is one partner in her office who every year insists on coming into work on Martin Luther King, Jr. Day.  Not only does he insist on coming in, he insists on announcing to everyone in the office that the reason he is coming in was because Martin Luther King, Jr. Day was a “made up holiday” and he did not believe in the concept of the holiday.  Notably, this partner apparently has no such qualms about taking off other holidays, such as President’s Day.

As this attorney told me the story, she was annoyed but not visibly upset.  I should mention that the attorney I was speaking to is diverse.  Although she is not African American, I can imagine how she felt that this partner was going out of his way to basically say that he does not support the concept of equality and diversity.

I then thought about the fact that this partner, who is apparently very senior at her firm, is allowed to make such statements unchecked.  Although he did not use a racial slur or directly say that he was opposed to minorities, that certainly is one interpretation of his comments.

I can also imagine how other partners who heard his comments simply shook their heads and walked away, likely thinking to themselves that it was inappropriate but not bad enough that they should say something.  However, little comments like that fester just as much as other more egregious behavior.

If employers are truly serious about reducing harassment and discrimination in the workplace and reducing possible legal exposure, they must establish an inclusive culture.  No workplace is perfect and there might always be a bad apple, but one bad apple is likely to turn into a bushel if these “little” comments are not also addressed.

On January 12, the Maryland General Assembly overrode Governor Larry Hogan’s veto and passed the Healthy Working Families Act. The Act will go into effect on February 11, 2018, unless the General Assembly passes legislation delaying its implementation.  Yesterday, one of the principal sponsors of the law did introduce legislation that would delay enforcement of the law until April 2018.  We will keep you posted on whether the implementation of the Act is delayed.

In the meantime, the Act requires Maryland businesses with at least 15 employees to offer paid sick and safe leave as well as requiring smaller businesses to provide unpaid sick and safe leave.

More specifically, the Act requires employers with at least 15 employees, regardless of whether those employees are seasonal, temporary, part-time, or full-time, to offer eligible employees the ability to earn up to 40 hours of paid leave a year.  The 40 hours can be awarded at the beginning of each year or accrued at a rate of one hour for every 30 hours worked.  Moreover, employees can carry over up to 40 hours of paid leave a year.  Employers can cap use of paid leave at 64 hours per year and are not required to pay out unused, accrued sick leave when an employee is terminated.  Employers with up to 14 employees must provide unpaid earned sick and safe leave under the same terms.

The paid leave can be used to: 1) care for the physical or mental health of the employee or a family member, including obtaining preventative care; 2) take maternity or paternity leave; or 3) obtain relief in response to domestic violence, stalking, or sexual assault of the employee or a family member.

There are some exceptions.  For example, the Act does not apply to workers who 1) regularly work less than 12 hours a week; 2) are under the age of 18; 3) are certain independent contractors; 4) are certain agricultural workers; or 5) work on an as-needed basis in the health and human services industry.  Additionally, there are exceptions for employers in the construction industry that are parties to collective bargaining agreements.

Additionally, employers may set some restrictions on the use of paid leave such as 1) only allowing the use of paid leave after an employee has worked 106 calendar days from the date of hire; 2) require up to seven days’ notice for foreseeable leave; and 3) implementing policies to prevent improper use.  Employers can also obtain verification regarding appropriate use of paid leave if it is used for more than two consecutive scheduled shifts or between the 107th and 120th calendar days of employment and the employee agreed to provide verification at the time of hire.

Employers are required to notify employees of their rights under the Act and to provide a written statement each pay period detailing the amount of earned leave available for use.  The Department of Labor, Licensing, and Regulation (DLLR) has been directed to create a model notice, but it is not clear when such notice will be available.

Next Steps for Employers

Employers should immediately review and revise their paid time off (PTO), sick, and other leave policies to ensure compliance with the Act.  At the same time, employers should monitor any action the General Assembly takes to delay implementation.  In the review and revision process, particular care should be given to:

  • Recordkeeping: employers must keep records regarding leave accrual and use for three years;
  • Notice: if DLLR does not issue a model notice before the implementation date, employers must create their own;
  • Payroll systems: employers must update payroll systems to report leave balances on pay stubs and meet the Act’s requirements;
  • Applicability: the Act applies to all part-time employees who do not fall into one of the exempt categories; and
  • Carryover: employers must allow employees to carry up to 40 hours of paid leave time over per year (subject to the 64 hour use limitation)

UPDATE (February 2, 2018): Today, the bill to delay the Act’s implementation received a favorable vote from the Maryland Senate Finance Committee and will move to the full Senate for a vote. The bill passed out of Committee with two important amendments that will benefit employers.

  • First, the Act would not take effect until July 1, 2018, rather than April 11, 2018, giving employers additional time to implement policies and procedures in compliance with the Act.
  • Second, leave accrual – currently slated to begin on February 11, 2018 – would also not begin until July 1. This should eliminate issues that would have arisen as leave accrued prior to employers being required to track it and in the absence of any regulations from the Department of Labor, Licensing, and Regulation.

The bill still has to pass both the Senate and the House of Delegates with a 3/5 vote if the Act’s implementation is to be delayed due to the bill’s designation as emergency legislation. The full Senate is expected to vote on the bill as early as Monday, February 5th.

UPDATE (February 8, 2018): The Senate passed the bill delaying the Act’s implementation, as amended, by a vote of 29-17.  The bill will now move to the House of Delegates for consideration where it will face an uphill battle due to the short time frame until the Act’s effective date.  Additionally, key legislators in the House have expressed opposition to delaying the Act’s implementation.

UPDATE (February 12, 2018): The Act is now in effect as the House of Delegates chose not to delay implementation.  A sample employee notice poster created by DLLR is here: http://www.dllr.maryland.gov/paidleave/paidleaveposter.pdf


Rachel Severance is an associate in the firm’s Labor and Employment Department, resident in its Washington D.C. office.

As of January 1, 2018, all New York employers, regardless of size, must offer paid family leave to their employees.  Hopefully, employers already have revised policies in anticipation of the law taking effect.

If employers have not revised handbooks or other policies, the law does not require employers to have a paid family leave policy.  However, the state is strongly suggesting that employers do so.

New York has a website devoted to Paid Family Leave that provides resources to employers.  They have also issued a guide that contains a sample handbook policy, which can be found here.

New York has also issued a fact sheet that outlines the basic responsibilities employers have under the law.

Employers with questions are encouraged to consult their labor counsel.

I’ve been meaning to blog about all of the harassment charges that have appeared in the news.  Every morning I would get up with a plan to talk about the latest person accused.  And almost every morning it seemed as if there was a new person to talk about.   I quite simply could not get ahead of the avalanche of claims.

There were, after all, so many lessons to be learned from each allegation.

Rather than try to address them all at once, let me start by saying that employers should be looking at cultural shifts, not isolated responses to a particular claim.

After all, if the corporate culture is such that all people, regardless of gender, are treated fairly, employers will be looking at far fewer claims of harassment or discrimination.  If employers need more proof of this, all they have to do is look at the companies where the corporate culture is the opposite of fair.

Before there was a #metoo campaign trending on Facebook and Twitter, there were allegations against companies, like Uber, that the male executives not only ignored complaints of harassment but set a culture that “high performers” were untouchable as far as bad behavior was concerned.  These allegations were detailed in claims first made by Susan Fowler, but the scandal has become far more encompassing than just her claim.

I have noticed a weird reaction by some people I talk to who know I do harassment training for clients.  Most have assumed that this means that more clients are looking to do training, and those people would be correct.

The perplexing response I have gotten from others assumes that employers are too scared to open a can of worms and are probably not looking to schedule training.  Hopefully, none of you fall in the latter camp.

Now is precisely the time to have training.  This is true even if you think that your company does not have a harassment or discrimination problem.  If you are right, then the training merely reinforces the positive corporate culture.  If you are wrong, then you can begin the process of correcting behavior and getting issues brought to light before your company becomes the latest headline.

On November 6, 2017, the New York City Council passed Int. 1313-2016 that amends the Paid Sick Leave Law.  Don’t panic, employers.

The law does not require additional leave. It merely adds another covered reason that employees may use earned paid time off.  New York City’s paid sick leave law will now be entitled the “Earned Safe and Sick Time Act.”

Employees will be able to use earned safe/sick time for the following reasons if the employee or the employee’s family member has been the victim of a “family offense matter”, sexual offense, or human trafficking:

  1. to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  2. to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  3. to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
  4. to file a complaint or domestic incident report with law enforcement;
  5. to meet with a district attorney’s office;
  6. to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers should update policies to make sure they are compliant with the new law as the law is effective May 5, 2018.

Employers will also be required to issue to all employees a Notice of Employee Rights notice to employees no later than June 4, 2018.  New hires hired on or after May 5, 2018 should be given a copy of the revised Notice of Employee Rights as well.  The DCA will be issuing a revised Notice of Employee.  We will update you when that is issued.

The Pennsylvania Human Relations Commission (“PHRC”), which enforces Pennsylvania’s state law prohibiting discrimination, has made a bit of splash in 2017.  How, you ask?  Well – that requires a bit of explanation.

One of the hottest topics of debate in employment law in the past few years relates to legal protections for LGBTQ employees.  While some states and municipalities expressly prohibit discrimination on the basis of sexual orientation and gender identity, this isn’t the case everywhere.  Indeed, only 20 states and the District of Columbia protect these characteristics in all employment.  That leaves 30 states that lack comprehensive state law protections for sexual orientation and gender identity in employment, including 17 states who have zero express protections at all.  Similarly, Title VII of the Civil Rights Act of 1964, which establishes protected characteristics and prohibits employment discrimination based on those characteristics, does not expressly cover sexual orientation or gender identity — despite a long history of Congressional efforts to amend Title VII to do so.

Nevertheless, both state and federal law prohibit employment discrimination on the basis of an employee’s sex.  Regular readers of our humble blog will recall a growing trend from courts around the country holding that sexual orientation/gender identity discrimination constitutes sex discrimination as a matter of law.  Moreover, the EEOC has adopted this position and taken enforcement action accordingly.  The EEOC has argued that sexual orientation discrimination is sex discrimination under three separate legal theories: (1) a traditional “but-for” analysis, (2) an associational discrimination analysis, and (3) a sex stereotyping analysis.  You can read at greater length about these three theories here.

The PHRC’s proposed guidance focuses on the third of these: sex stereotyping.  This argument proceeds roughly as follows:  (1) sex discrimination in employment is prohibited;  (2) sex discrimination includes discriminating against employees because they fail to align with stereotypical male or female appearance, mannerisms, behaviors, etc.;  (3) the “default” assumption that an employee is or should be heterosexual and cisgender represents one of the preeminent kinds of sex stereotypes;  and therefore, (4) discrimination on the basis of an employee’s sexual orientation or gender identity is impermissible sex stereotyping that constitutes sex discrimination as a matter of law.  While the nuances of this argument tend to vary with the facts of each individual case, this outline provides a 30,000 foot view of the sex stereotyping theory.

In late April 2017, the PHRC issued proposed guidance stating it would investigate complaints of discrimination by LGBTQ individuals, including claims of employment discrimination, as prohibit sex stereotyping.  Specifically, the proposed PHRC guidance states as follows:

The gist of these claims is that LGBTQ individuals do not comply with sexual stereotypes and that adverse action(s) against an LGBTQ individual due to that person’s failure to comply with sexual stereotypes amounts to discrimination based on sex. Accordingly, it is the position of the Pennsylvania Human Relations Commission that it will take and investigate sex stereotyping claims filed by LGBTQ individuals.

The PHRC has received extensive public comment on this proposal, and it is expected that the Commissioners will review the public comments at their November commission meeting.  Pending further action by the commission, this guidance remains proposed guidance.  Nevertheless, the PHRC’s action reveals a growing enforcement trend in this area of law.  Stay tuned for the PHRC’s final decision regarding what, if any, guidance on this topic it will issue.

As discussed in last week’s Fox Workplace Watch Alert, the Office of Federal Contract Compliance Programs (OFCCP) announced its largest pay equity recovery to date – a $5 million settlement of gender and racial pay discrimination claims it brought against State Street Corporation after a six-year investigation into the financial services firm’s compensation practices.  In essence, OFCCP alleged that a statistically significant disparity existed between the compensation paid to hundreds of women, and more than a dozen black, executives than that paid to their similarly situated male and white coworkers, respectively.

OFCCP’s action demonstrates how it can marshal sophisticated analytics to tease out pay disparities that otherwise may have gone unnoticed.  Like many other issues championed by the prior administration, it remains to be seen whether OFCCP’s recent focus on this issue will continue in the Trump Administration.  But federal contractors should pay attention to this settlement and take the opportunity to perform internal audits and address any potential issues before being the subject of a pay equity action (not to mention blog posts and alerts!).

Today’s post was written by Justin Schwam, an associate in our Labor and Employment Department in the Morristown office.