General Employment Matters

Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018, which awaits Gov. Larry Hogan’s signature, imposes stricter waiver and disclosure requirements regarding sexual harassment on Maryland employers beginning on October 1, 2018.  The bill was passed by both houses of the Maryland General Assembly and a Governor’s veto is not anticipated.

The bill impacts Maryland employers in two ways.  First, the bill prevents employers from asking employees to waive their future rights to come forward with sexual harassment complaints and provides that such waivers are void as a matter of public policy.  Second, the bill requires employers with 50 employees or more to disclose: 1) how many settlements the employer has made after a sexual harassment allegation; 2) how many times an employer has settled allegations of sexual harassment made against the same employee; and 3) the number of settlements of sexual harassment complaints that included non-disclosure provisions.  The Maryland Commission on Civil Rights will collect and compile the data and make it publicly available, including the employers’ identities (although not the identities of the alleged harassers or victims).

Maryland employers should  pay close attention to whether any of their contracts, policies, or agreements require employees to waive a future right to assert a sexual harassment claim or complaint.  Any waiver requirements should be eliminated by October 1, 2018, in accordance with the new law.  Additionally, employers subject to the reporting requirement should develop a reliable method of accurately tracking the data required to be disclosed.  This is a good opportunity for employers operating in Maryland to perform a comprehensive review of their sexual harassment policies, make any necessary revisions, and provide training to their managers in an effort to educate their employees as well as reduce the risk of sexual harassment claims being asserted in the future.

 

Recently I watched a male attorney speak to opposing counsel (a female) in a condescending, chastising manner that I cannot imagine he would have used if he had been speaking to a male attorney.  Her male colleague, who was standing right next to her, said nothing.  I said nothing.  And the female opposing counsel said nothing in her own defense.

During an emergency custody hearing a female friend of mine who practices family law pushed back on the terms proposed by opposing counsel, an older male.  Opposing counsel shook his head and muttered “every time with female attorneys.”  When my friend asked “what did you say?” he responded, “nothing, just talking to myself.”

We all know that discrimination based on gender is prohibited in the workplace.  We can’t refuse to hire or promote a woman simply because she is a woman.  We can’t prefer a male over a female solely on that basis.  We can’t do that because the law won’t allow it.

But what about the much more subtle, and yet maybe more pervasive, forms of discrimination that women experience every day, such as the examples above?  What about being expected to laugh demurely when a male judge referred to me as “kiddo” in front of a jury?  What about criticizing women based on appearance instead of their qualifications or capabilities (“she’s such a fat slob” instead of “she’s incompetent”)? What about the female told to “stop overreacting” or to “calm down” when she advocates fiercely on behalf of a client (or herself)?  And what about all of us who silently tolerate these types of behavior?

In many (although certainly not all) professional environments, blatant gender discrimination is the exception, rather than the rule.  However, more subtle forms of gender discrimination are ignored, shrugged off, and even accepted or condoned every day in the workplace.  Until we stop tolerating this behavior, gender discrimination will continue to permeate and poison work environments.  Not only does this perpetuate gender imbalance in the workplace, it also hurts morale, results in decreased productivity, increases turnover, and promotes inefficient hiring and promotion practices.  Accordingly, employers should pay close attention to the day-to-day practices in the workplace and enforce anti-discrimination policies to help ensure that productivity and profitability are not being negatively affected by gender discrimination.

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.

 

Yesterday, we posted about Representative Nunes stepping down from the investigation into Russian interference with the election.  As we noted, as a direct result of his actions in briefing the White House on certain evidence that was found, he appeared less than impartial.

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The mere fact that he briefed the White House in the midst of the investigation is to me less damaging to the appearance of impartiality than what he actually said.  After briefing the White House, Representative Nunes rushed to make statements to the media that a “source” showed him intelligence reports indicating that communications of members of Trump’s campaign had been collected by the intelligence community.  This gave President Trump the chance to argue that he was “somewhat vindicated” and that his claims of wiretapping were true.

What likely got missed by most people in Representative Nunes’ statements was the fact that there was no evidence that Trump Tower or Trump himself had been illegally wiretapped as had been claimed.  Although Nunes and Representative Schiff had both previously noted there was no evidence of illegal wiretapping, Nunes’ statements as he rushed from the White House made it appear that there was new evidence since those statements; evidence that corroborated the President’s claims.

Instead, as was clarifed by Nunes in later days, members of Trump’s team were not targeted for a wiretap.  Rather, those members merely happened to be recorded having communications with Russian agents in legal surveillance.  Even fellow Republicans questioned why Nunes made the disclosure he did or that it was significant.  However, by this point, the damage was done and it is likely that the general public at large believes the broader claim that there was evidence that President Trump was subjected to an illegal wiretap.

If it is not already apparent from the above, making public statements about details of an ongoing investigation is not a good idea.  In the employment context, this could have a chilling effect on the investigation and future investigations.  For example, employees may not raise future complaints if they believe that an investigation will not be confidential.  With regard to the current investigation, witnesses may not come forward as they believe there is no point since there was already a finding in the investigation.

Finally, even assuming that a thorough investigation is completed and no wrongdoing is found, the complaining employee will likely not believe that there was an impartial investigation.  Instead, the employee will believe that the employer was always on the side of the acccused and is now engaged in a cover-up to protect that employee.

About a month ago, we posted that employers could take some lessons from the investigation into President Trump’s claims that he was illegally wiretapped by the Obama Administration.  This investigation still proves to be a cautionary tale for employers.

One of the key, and sometimes difficult, decisions in any investigation is who should conduct the investigation.  Should the investigation be done by HR or an executive in the Company?  Or should the investigation be conducted by an outside third party?

What may have gotten lost in last week’s news of the bombing in Syria is the fact that House Intelligence Chairman Devin Nunes has recused himself from the committee’s probe into Russian interference in the election.  This news came after Nunes was criticized for speaking publicly about classified surveillance reports that seemingly gave support to President Trump’s claims that he was wiretapped.

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Why the criticism?  Well, because before Nunes disclosed the evidence to his fellow members of the committee, he briefed the White House on what he found.  As anger grew over this breach of protocol and the fact that it lent credibility to claims that the investigation was biased, it was discovered that he had in fact reviewed the documents in question at the White House.

Now that he has recused himself in the face of ethics charges filed against him for his actions, the question remains whether anyone on the outside will believe that the new lead, Representative K. Michael Conway (R-Tex.) will conduct an impartial investigation.

Employers should take note that the perception of impartiality is key to a good investigation.  In this case, regardless of whether Nunes could be impartial if presented with evidence of ties to the Trump campaign and the Russian hackers, by so publicly rushing to the defense of the President and his team before any investigation was complete, he tanked the investigation.  Employers should be careful to select an investigator that can be seen as impartial and not favoring the accused in the investigation.

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In the past year or so, we’ve noticed an increasing legislative trend around the country — governing bodies passing bills to prohibit employers from inquiring about their job applicants’ wage history.  The precise details of these efforts naturally vary from locale to locale.  Still, whether at the federal, state, or local level, the rationale for these legislative efforts is often the same: they are efforts to close the gender wage gap.

This past August, Massachusetts became the first state in the nation to enact a statewide ban on the practice of employers seeking wage information from their applicants — a practice that many employers currently use as a matter of course in their hiring process.  Shortly thereafter, federal legislation seeking similar goals was introduced, and other states have started to get the ball rolling on their own legislation.  Cities have also joined the fray, with Philadelphia Mayor Jim Kenney signing a city ordinance to this effect several months ago.

Effective May 23, 2017 (that’s eight weeks from today, if you’re counting along with me), Philadelphia will become the first city to ban employers from asking about the wage history of job applicants.  The provision will take effect as an amendment to the City’s Fair Practices Ordinance and will be enforced by the Philadelphia Commission on Human Relations.  Our colleague Steven Ludwig has written an excellent summary of the law’s provisions, which you can find here.  Philadelphia employers should check out this information and begin planning (to the extent they have not done so already) to ensure their hiring procedures comply by May 23rd.

Moreover, in your author’s humble opinion, it’s highly likely that similar legislative efforts will continue to spread and gain steam across the country.  While the federal government is unlikely to act in the next two years, states and cities are likely to begin the process of following suit.  Employers should be mindful of the jurisdictions in which they operate and key tabs on legislative developments in this area that may affect their hiring practices.

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It seems that every day we are hearing something about investigations involving the White House.

Whether it is the investigation into Russia’s hacking of the election that has resulted in the indictment of suspected Russian spies or President Trump’s call for an investigation into whether he was wiretapped, it seems everyone wants an investigation.

Such calls for investigations bring up other questions — should there even be an investigation, who should do the investigation, when the investigation should start, and when should the investigation end.  These are all questions faced by employers when addressing employee complaints.

It may not be fair to compare investigations into employee conduct to Congressional hearings or law enforcement investigations, but employers can learn a lot from those investigations.  In later posts, we’ll get into pitfalls of a poor investigation, but for now we are focusing on whether an investigation is necessary.

Employers frequently face complaints from employees of varying degrees of credulity and proof.  What does an employer do with the “crazy” or unsubstantiated complaint?

Let’s look for example at President Trump’s recent tweets about alleged wiretapping.  Those are pretty sensational claims, that, if true, mean members of the Obama Administration violated the law.  Based on what we know now, the complaint appears to be unsubstantiated by any proof.  Instead, as the White House calls for others to come forward with that proof, it appears that the allegations are based on untrustworthy sources or the President’s bare belief.  This is not that dissimilar from an employee who claims that he or she has been discriminated against based on a “feeling.”

Employers are often tempted to stop the investigation at this point.  After all, if the employee cannot come forward with any proof, then why should the employer waste resources continuing the investigation?

There are two very good reasons to continue.  First, although the employee cannot articulate proof, the employee’s feeling may actually be correct.  In those cases, stopping the investigation early means that a problem will not be uncovered and resolved, leading to much greater liability in the future.

The second reason is for the integrity of the complaint process.  If employees feel that their complaints are summarily dismissed without any investigation, those employees will believe that filing a complaint is fruitless. Those employees are likely to tell others not to complain because the company does not take complaints seriously.  Once that happens, employees who file complaints in court before filing any internal complaints will have an argument against the employer’s affirmative defense that the employee failed to use the internal complaint procedure.

So, the lesson is, even if the complaint seems to be a waste of time, devote some time to investigating it.  Just how much time to invest will be the subject of a future post.

 

 

We are just rounding out our list of new employment laws before the clock strikes midnight tomorrow.

If you missed the first two parts of our list of new laws, you can find them here and here.

It seems that we are not done with sick leave laws.  Illinois recently passed the Employee Sick Leave Act.  Before Illinois employers panic, this law does not require that employers provide paid or unpaid sick leave.  The law simply requires that employees be given greater flexibility in how they can use sick leave benefits that may be provided by employers.  Basically, employees must be permitted to use up to half of their accrued sick leave benefits for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Switching gears from sick leave laws, the new I-9 forms have finally been issued.  Employers must use the new I-9 forms beginning on January 22, 2017.  More details can be found on our Immigration View blog here.

In perhaps the most unusual news, Portland, Oregon has made history as being the first jurisdiction to implement a CEO tax for highly compensated executives.  Starting on January 1, 2017, any company who has a CEO who makes 100 times the average employee’s income will see their corporate tax rate increased by 10%.  If the CEO makes 250 times the average employee’s income, then the increase will be 25%.

Finally, what round-up would be complete without some mention of California.  It seems that new employment laws in California are as frequent as a Kim Kardashian selfie.  Although there are several new laws for 2017, the ones going into effect in January are changes to California’s Fair Pay Act, an increase in the minimum wage, and restrictions on arbitration agreements:

  • Fair Pay Act — the protections against discriminatory pay will go beyond gender.  Under the amendments to the law, employees must be given equal pay for equal work regardless of gender, race or ethnicity.
  • Arbitration Protections — There are two new statutes that provide additional protections from employees who may be subject to arbitration agreements.  The first is to state that any party to an arbitration proceeding has a right to have the proceeding recorded by a certified shorthand reporter.  The second is more substantive and prohibits employers from requiring California employees to arbitrate or litigate their claims in any other state besides California, nor can choice of law provisions apply any other states’ laws.
  • Minimum Wage — The minimum wage will increase to $10.50 per hour for any employer with 26 or more employees.

Hopefully, our list of new employment laws did not depress you so much that you over indulge in champagne on New Year’s Eve!  Starting the New Year with a hangover is bound to get you off on the wrong foot.

 

First, a disclaimer.  Let me assure you that the contributors to the Employment Discrimination Report run the full gamut of the political spectrum.  This is not a post about politics, it just so happens that our demonstrative example comes from the presidential race.

It is not uncommon for employers and employees to execute Non-Disclosure Agreements (NDAs) to govern the employment relationship following its conclusion.  To wit, one of the major presidential candidates made all campaign employees (and volunteers but that is a whole other can of worms) sign an NDA that governs all information of a “private, proprietary or confidential nature or that (the candidate) insists remain private or confidential.”  The NDA in question further prohibits former employees from making negative comments regarding the candidate or family members…in perpetuity.  It’s worth noting that the other major candidate also has asked campaign employees to execute an NDA, though the substance of it remains undisclosed.

Compensation on the Whisper

When executing NDAs with employees, be it at the end of the employment relationship or as part of a restrictive covenant at some earlier point, it’s important to do keep the scope reasonable so as not to be judicially struck later.  Here are some simple rules that were not followed above:

  1. Identify with specificity the information that must be kept private and confidential. Simply saying “confidential information” is a recipe for failure on this front, as the ambiguity as to what information is “confidential” will be read against the employer.
  2. Put a time frame on the responsibility. While it is not per se impossible to have an agreement enforced in perpetuity, the path of least resistance is put a time frame on the responsibility that bears some relationship to legitimate business necessity.
  3. Restrict Nondisparagement to Reasonable Topics. While nondisparagement clauses, the legal cousin of NDAs, are valid, they similarly need to be narrowed in scope to include only information for which there is a legitimate business purpose.

While keeping your corporate information in-house is a compelling aim, understand that there is no fool-proof way to keep information under wraps.  But adhering to simple rules of the road will help make sure that What Happens At Work, Stays at Work.

I know what you’re thinking, it’s not even September yet.  I’ll worry about January sometime in December.

The beginning of the year may seem like a long way away, but it can sneak up on you.  I often have employers who are scrambling at the end of the year to understand legal changes and to update policies to insure compliance.

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In the spirit of getting ready to go back to school, we thought we’d start educating employers now of the changes to come and laws that are effective on January 1, 2017.  We will periodically update the list and try to do an overall round-up in December of laws going into effect in January 2017.

1.   FLSA exemption rules.  The biggest sea change on the legal landscape is the revised definition of the salary test under the Fair Labor Standards Act.  In order to be exempt employees, employees must meet the salary test and perform exempt job duties.  The final rule settled on the new weekly salary of $913 (or $47,476 per year), which is a significant increase over the old threshold of $455 per week.  Employees must earn at least $913 in salary (may include certain bonuses) per week or they cannot be considered exempt employees regardless of whether they perform exempt job duties.  More details can be found here in the Firm’s alert.  Be warned, however, that the effective date of this rule is December 1, 2016;  it is such a big deal that we wanted to include it here.

2.   Connecticut Ban the Box.  The Fair Chance Employment law was signed in June 2016 and is effective January 1, 2017.  The law prohibits employers from inquiring about an applicant’s criminal background history on an employment application.  There are two exceptions to the rule and employers may ask questions about criminal history on applications where: (1) required to do so by law; or (2) a security or fidelity bond or equivalent bond is required for the position.  In addition, employers may not at any time ask about criminal records that have been “erased” by statute.

Employers should review application forms to remove any objectionable questions.  Where employers are permitted by statute to ask about criminal backgrounds on an application, the employers must include a clear disclaimer that applicants are not obligated to disclose erased records and must advise what records may be subject to erasure.  Employers must also advise that where a criminal records has been erased, the applicant will be deemed to have never been arrested.

Employers must also insure that portions of applications that disclose criminal backgrounds can only be viewed by HR personnel, or where there is no HR, the person in charge of employment and any person involved in interviewing the candidate.  There are limited exceptions to the disclosure rule as may be required by FINRA, for an insurance producer, or the FDIC Act.