This past week, a news story appeared in New Jersey that caught my eye. It was the story of an eighth grade female basketball player at St. Theresa’s school in Union County. Admittedly, the story initially piqued my interest because it was set at was my childhood parish, with the accompanying warm memories of playing basketball in the parish hall gym.

But after reading the story, it was a great illustration of how to handle opportunities in the workplace that, for one reason or another, are not available to all genders. St. Theresa’s had previously made a decision to cut the girls eighth grade basketball team due to low enrollment. However, the boys’ eighth grade program was left intact. Thereafter, the girl sought to play on the boys team but was rebuffed by the archdiocese.

sttheresas

In fairness to the archdiocese, it offered her the opportunity to play on the girls basketball team at a neighboring parish. Her family declined the offer and brought suit. This week, the court dismissed the case as a matter of law, saying that there was no implicit right to play on a team of the other gender.

While your company likely does not have single-gender sports teams, there are undoubtedly company activities that intentionally or unintentionally segregate by gender or another identifier. We discourage such practices. Even if separate activities are provided to both genders, there runs the risk that one activity will be seen as more desirable than the other.

To the extent that you must segregate workplace activities by gender, make sure the terms and conditions (time, place, budget) are the same for both. Also, ensure that decision makers and senior employees attend both events, regardless of their gender.

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.

 

The end of the year, that is.  Although given the number of celebrity deaths in the last week, I think some people might be reading that headline a little more broadly.  We are not making doomsday predictions, however.

Back in the fall, we started a list of employment laws that were going to go into effect in January 2017.   We tried to get a jump start on the list as we knew how quickly the end of the year can creep up on you.  How right we were as the Fall flew past and now we find ourselves just days away from the New Year without having updated the list.

Our first big update is to remind everyone that the FLSA salary test has been enjoined.  The other big changes have to do with sick leave laws.  The last few years have seen a lot of jurisdictions adopting sick leave laws.  This year is no exception. The sick leave laws going into effect in January 2017 are as follows:

  1. Executive Order 13706 — Back in September, President Obama issued an Executive Order that applies to federal contracts entered into, sent out for bid, or renewed after 1/1/17.  The EO requires that contractors provide up to a maximum of 56 hours paid sick leave per year.  The DOL has issued guidance for the Final Rule, which can be found here.
  2.  Morristown, New Jersey becomes the latest New Jersey municipality to have a paid sick leave law.  The law goes into effect on 1/11/17 and requires employers with 10 or more employees to provide up to 40 hours of paid sick leave.  Employers with less than 10 employees are not exempt from the law; they only have to provide 24 hours of sick leave.
  3.  Vermont –  The law applies to employers with 6 or more employees and goes into effect on 1/1/17.  This law does have two phase-in provisions.  For employers with less than 6 employees, the law will not be effective until 1/1/18.  For other employers, in the first year, they must only provide up to 24 hours of sick leave.  After the first year, employers must provide up to 40 hours of sick leave.
  4.  Spokane, Washington – This law is also effective as of 1/1/17 and is similar to Morristown’s law in that there are different requirements for employers with 10 or more employees and less than 10 employees. Employers with 10 or more employees must provide up to 40 hours of paid sick leave while employers with less than 10 employees must provide up to 24 hours of sick leave.

The laws will not only require a review of policies to insure that employees are being provided with sick leave, they also come with record keeping requirements and notice requirements.  Employers with questions are encouraged to seek the advice of employment counsel.

Delaware’s legislature and Governor have been busy bees in 2016.  This post details three protections added to Delaware’s employment discrimination law in 2016, two of which become effective on December 30th (i.e., next Friday).  Specifically, these laws protect employees on the basis of an employee’s (1) reproductive health decisions, (2) family responsibilities, and (3) wage discussions or disclosures.  Also worth noting:  each of these three provisions applies to employers who have 4 or more employees within the state at the time of an alleged violation.

Legislation

Reproductive Health Decisions

Effective December 30, 2016, Delaware employers should be aware that it is an unlawful employment practice to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment (including failure/refusal to hire or discharge) because of a “reproductive health decision” by the individual. Reproductive health decision is defined as any decision “related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy.”

It’s noteworthy here that this section doesn’t limit the prohibition against discrimination to actions taken against employees; that is, applicants are protected under this definition.  Nor is there language that carves out certain religious employers from this law, unlike there is for sexual orientation and gender identity under Delaware law.  As a general matter, an employee’s reproductive health decisions are probably not something most employers are (or should be) interested in, but as of December 30th, employers should not use any such knowledge they may have as the basis of an adverse employment action.

Family Responsibilities

Effective December 30, 2016, Delaware employers also may not engage in certain discriminatory acts based upon an employee’s “family responsibilities.”  As defined in the statute, family responsibilities means an employee’s caregiving obligations “to any family member who would qualify as a covered family member” under the FMLA.  This section does, however, permit employers to take certain actions “with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards.”  It will be interesting to see if the Delaware Department of Labor issues any regulations or guidance to further clarify this section.

It’s also important to note that this law does not create an entitlement to leave for purposes of family responsibilities in and of itself.  The law itself notes that employers are not obligated to make special accommodations for employees who may have family responsibilities.  Rather, this is a non-discrimination provision, meaning the employer must apply its policies “related to leave, scheduling, absenteeism, work performance and benefits” in a manner that is not discriminatory against employees with family responsibilities.  This law provides another reason for employers to audit their workplace policies and practices — and seek any needed training — on these items to ensure compliance moving forward.

Wage Discussions/Disclosures

Delaware employers should also note that since June 30, 2016, it has been an unlawful employment practice under state law to:

(1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing his or her wages or the wages of another employee;  (2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss his or her wages; [or] (3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing his or her wages or the wages of another employee.

The law does not obligate employers or employees to discuss wages; instead, it merely provides state law protection for employees who do choose to discuss wages.  A number of other states across the country have similar provisions.
Need to get up to speed on how these new laws may affect your workplace (including any needed updates to your employee handbook)?  Give us a call, or email us!

Employers take note:  the EEOC has issued an updated Strategic Enforcement Plan (“SEP”) for fiscal years 2017-2021.

What’s a Strategic Enforcement Plan?

The EEOC’s SEP describes the areas that will be a priority focus for its enforcement efforts over a particular period of time.  In some instances, it describes a particular component of the employment relationship (for example, the application process) that it will scrutinize more.  In other instances, it describes a particular basis of discrimination that it will focus on (for example, employees who are or are perceived to be Muslim, or LGBT employees).  Ultimately, the SEP is best understood as a kind of statement of intent–i.e., where the EEOC will focus resources in the coming years.

What Isn’t a Strategic Enforcement Plan?

The EEOC’s SEP is not a statement of exclusion.  That is, just because a specific workplace issue or protected characteristic is omitted (or not emphasized) within the SEP doesn’t mean the EEOC will ignore that particular issue or characteristic.  Employers should expect that the EEOC will continue to enforce all of the relevant discrimination laws on the books.  The SEP merely acts as a guide for the EEOC to focus its enforcement efforts.

What Will the EEOC’s Priorities Be under the Updated Strategic Enforcement Plan?

The EEOC’s SEP has identified six national priority areas for enforcement in FY 2017-2021:

1.  Eliminating Recruitment/Hiring Barriers.  Moving forward, the EEOC will put additional emphasis on recruitment and hiring.  This includes exclusionary policies and practices.  In addition, the EEOC has noted it will focus on job channeling/steering and job segregation; restrictive applications; pre-employment tests/screenings and background checks that affect African-American and Latino employees; date-of-birth inquiries that affect older employees, and medical questions that affect people with disabilities. On the issue of restrictive applications, the EEOC has also highlighted online application systems that are inaccessible to applicants with disabilities.

2.  Protecting Vulnerable Workers and Underserved Communities.  Evaluating local issues and concerns, the EEOC’s district offices will identify particular vulnerable workers and underserved communities for enforcement attention.  As an example, the EEOC notes that some offices may target discrimination against Native American employees for increased focus.

3.  Addressing Selected Emerging and Developing Issues.  These include: qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).

4.  Equal Pay.  The EEOC will continue its efforts to address sex-based pay discrimination under Title VII and the Equal Pay Act and will also focus on pay practices that discriminate on any protected basis.  In particular, the EEOC has noted pay discrimination on the basis of race, ethnicity, age, and disability remains an issue that it intends to continue targeting.

5.  Preserving Access to the Legal System.  The focus here will be on employer policies or practices that it perceives as limiting employee rights, discouraging employees from exercising their rights, or impeding the EEOC’s efforts.  In addition to retaliation, the EEOC has indicated it will focus on overly broad waivers/releases, certain mandatory arbitration agreements, and employer failure to retain required applicant/employee data.

 6.  Preventing Systemic Harassment.  The EEOC notes that over 30% of charges allege harassment (and that “the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency”).  The EEOC has stated it will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.

Of course, this brief summary is not exhaustive; click here for the full document.  Ultimately, the updated SEP is a reminder for employers to review their policies and practices as 2016 draws to a close, in order to ensure compliance.

Query: a longtime employee, who has previously identified in your workplace as female, begins dressing for work like a man, grooming according to male standards, and identifying as male.  He begins to make arrangements to have his name formally changed, and a number of other legal documents changed as well.  He also begins using the men’s room at work.  Other coworkers complain about “a woman using the men’s bathroom at work.”  What do you do?

According to the U.S. District Court for the District of Nevada, what you do not do is: 1) ban him from the men’s bathroom for being biologically female, 2) ban him from the women’s bathroom for identifying as male, and 3) require him to use only gender-neutral bathrooms.  Last week, the court made headlines when it granted summary judgment against a school district, on a Title VII sex discrimination claim brought by one of the district’s police officers.  (Roberts v. Clark County School District, No 2:15-cv-00388-JAD-PAL, ECF No. 147).

While the court denied summary judgment as to the officer’s retaliation and hostile workplace claims, it noted that established case law holds that sex stereotyping is prohibited sex discrimination under Title VII.  In this case, the court noted that the district banning the officer from using the women’s bathroom “because he no longer behaved like a woman” was direct evidence of impermissible sex stereotyping.

Also of note: in granting partial summary judgment, the court held that Title VII’s prohibition against sex discrimination includes both sex and gender.  At this point, some of our readers might be somewhat confused at the difference between sex and gender. Citing language from the Ninth Circuit, the court noted the difference between these key terms, in recounting the case law history in this area:

These early cases distinguished between the term ‘sex’, which referred to an individual’s distinguishing biological or anatomical characteristics and the term ‘gender’, [which] refers to an individual’s sexual identity, or socially-constructed characteristics.

The court’s language is significant because it simultaneously rejected the school district’s argument to draw legal distinctions based on these terms:

Although [the district] contends it discriminated . . . based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. [The officer] was clearly treated differently than persons of both his biological sex and the gender he identifies as–in sum, because of his transgender status.

Moreover, the court held that the bathroom action alone was a sufficiently adverse employment action — in that “access to restrooms is a significant, basic condition of employment” — to involve Title VII protections.

We have previously discussed two separate theories that the EEOC and plaintiffs have used to argue sexual orientation and/or gender identity are incorporated into Title VII’s ban on sex discrimination.  These theories have had a mixed track record of success, and there is no certainty in predicting how they will continue to play out in the coming months and years.

Still, a key takeaway from this case is that employers should retain knowledgeable counsel to advise on employee workplace transitions.  Effective transition management can not only help defuse potential workplace tension and avoid litigation, but it can also lead to a more productive workplace, happier employees, and keeping pace with the market’s movement in this direction.

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.

11298754_sTime for a pop-quiz on disabilities in your workplace!  (I hope you brought your No. 2 pencils, because it’s multiple choice).

You are a supervisor at Company X. You have an employee who has worked for the company for a number of years. By all accounts, he’s a reasonably good employee — receiving raises and benefits for performance over the years. At the time he was hired, he disclosed a number of his medical conditions, including hemophilia, HIV+ status, and Hepatitis C. The employee comes to you and says he will be undergoing a six-month treatment regimen for his hepatitis, for which he will not take leave during the treatment period.

Do you:

(A) Share with the employee your own personally-held fears and stereotypes regarding his illness
(B) Distance yourself from the employee, speaking to him less and less during the course of his treatment
(C) Fire the employee four months after he completes the treatment
(D) None of the above

If you picked (D), congratulations — you’re correct!  One supervisor at NJ Transit, however, appears to have run afoul of a similar situation, resulting in the state transportation agency shelling out $200,000 to settle a discrimination suit:

Kenneth Hitchner, a nine-year employee at the public transit agency, disclosed when he was hired as a public information officer in 2002 that he had hemophilia, Hepatitis C and was HIV positive, according to a copy of the lawsuit obtained by The Trentonian . . .

Hitchner’s direct supervisor, Ken Miller, allegedly had an animus towards people infected with Hepatitis C.

“Miller had previously told Hitchner that Miller was afraid of Miller’s own mother because she had Hepatitis C and was afraid that she would infect his kids by going to the bathroom in the house,” the lawsuit reads . . .

“Miller began distancing himself from Hitchner and speaking to Hitchner less and less during the months that Hitchner was undergoing the Hepatitis C treatment,” the lawsuit states.

After his treatment was complete in February 2010, Hitchner was advised four months later that his job was eliminated due to “budget cuts,” court documents outline.

Hitchner then learned that other employees without disabilities whose positions were also eliminated were offered other jobs with the agency at the same rate of pay. When Hitchner protested this to the agency and requested a similar placement, he was offered a customer service representative position, which is an entry-level position with lower pay, documents show.

A few disclaimers. The news story above only cites the plaintiff’s complaint. Thus, we don’t have the benefit of knowing what legal defenses the employer would have asserted, nor the additional facts the employer might use to support those defenses. Another point to keep in mind: as the case has settled, none of its allegations or theories have been tested by rigorous cross-examination. Nor has any liability been duly adjudged by a jury. It’s fair to say that we are probably not getting the full picture by merely reading the story and that the hypothetical presented above is somewhat oversimplified.

All of that said, the story raises a few worthwhile points to remember when it comes to employee disabilities in the workplace. (Note: the suit alleges a claim under New Jersey’s Law Against Discrimination, but for the benefit of our broader readership, I will discuss these points in the context of the Americans with Disabilities Act).

First, do not rely on fear, generalizations, or stereotypes in making decisions about an employee’s disability.  The ADA does permit employers to set qualification standards that an employee will not pose a “direct threat” to health and safety in the workplace. “Direct threat” is a legal defense established by the ADA that refers to “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require an employer to weigh a number of factors, and as such, this defense is very fact-specific. However, the determination must be established through individualized judgments of the employee’s ability to safely perform the job’s essential functions and must be based on reasonable medical judgment and objective evidence. In other words, taking adverse action against an employee that may be motivated by fear or stereotypes regarding their disability (such as, a supervisor allegedly expressing fear that people with Hepatitis C will infect others by using the bathroom) is asking for legal trouble.

Second, remember: “disability” is broadly defined. A bit of backstory may be helpful here. In 2008, Congress amended the ADA via the Americans with Disabilities Amendments Act (or, “ADAAA”). Congress did so in response to a number of court decisions, including Supreme Court decisions, that construed the definition of disability in what it regarded as too narrow or technical a fashion. In particular, the ADAAA included a directive that disability should be broadly construed in favor of coverage.

One method to establish protected disability status is when an employee has a physical or mental impairment that substantially limits one or more major life activities.  The Act itself states the determination of whether a life activity is “major” should not be interpreted strictly or create a demanding standard for disability.  Moreover, with the exception of eyeglasses or contact lenses, determining if a major life activity is substantially limited is done “without regard to the ameliorative effects of mitigating measures,” such as medication.  Thus, in the example above, an employer would not be able to successfully argue that because the employee was undergoing treatment, he was not disabled under the meaning of the law. 

Third, train, train, and train some more. Training your supervisors, managers, and HR team on the nuances of the ADA (and any state/local law equivalents in the states where your business operates) is a crucial component of ensuring compliance, promoting harmony in the workplace, and reducing potential legal exposure. You should plan for regular training — at least annually.

Last Friday, my colleague Alexander Leonard, reported that Massachusetts had just passed a sweeping gender equity law that would prohibit employers from asking applicants about their past salary history.  Days after the Massachusetts law was signed by Governor Baker, the New York City Public Advocate Letitia James introduced a similar bill.  We wonder if laws like these will be become part of a new grassroots movement that produce a lot of patchwork laws like sick leave laws have been in the last few years.

The proposed bill has 6 co-sponsors and was designed to implement one of the policy recommendations from Ms. James’ April 2016 pay equity policy report.

If passed, it would be illegal for NYC employers and employment agencies to ask about any applicant’s salary history or benefits.  Employers and employment agencies could not get around this law by conducting public record searches on applicants.  Finally, the law would make it illegal for employers to rely on salary history to determine an applicant’s salary.

Employers have long asked applicants about their salary history in an attempt to find the appropriate salary to offer a candidate. This is done both to save money for the employers, but just as often to insure that a previous salary is at least being matched with the new offer.

Massachusetts’ law does not go into effect until January 2018.  If New York City’s law passes it will likely be effective before Massachusetts’ law goes into effect.  This means that New York City employers won’t have the benefit of seeing how this law will affect the interviewing and hiring process.  Questions remain as to whether laws such as this will in fact close the gender pay gap or will simply make the hiring process more time-consuming and drawn out as employers struggle to hit on the appropriate compensation to get candidates to accept job offers.

We will keep an eye on this one.

56212572 - business cartoon about two different perceptions of compensation level.