Monday, August 29, 2016

That is SO last week

Last week, we were reminded of the impact of the Department of Labor’s Wage and Hour Division enforcement activities. The agency announced that National Freight, Inc. will pay more than $1,000,000 in back wages to 359 workers following a Division investigation of the company’s classification and overtime practices.  An investigation of a pay-to-work scheme affecting farmworkers from the Dominican Republic resulted in a finding that a Foley, Minnesota farm owes the workers $576,000 in back wages and other restitution.  In Nebraska, an investigation of wage violations and worker intimidation resulted in a payment of $250,000 to 89 farmworkers by Daniels Produce.
  • Illinois has passed legislation, effective January 1, 2017, that extends anti-discrimination protections to domestic workers.
  • In an unusual development, the EEOC has sued a Michigan employer for failing to abide by a voluntary settlement agreement reached in a suit alleging race and age discrimination and retaliation.
  • To settle a sexual harassment and retaliation suit brought by the EEOC, a Baltimore restaurant has agreed to pay $200,000 and allow an independent monitor to investigate harassment concerns.
  • Robin Shea reminded readers what can happen when an employer does a bad job of investigating a sexual harassment complaint.
  • The Department of Justice issued a new video warning employers not to discriminate against certain foreign workers with Temporary Protected Status, a special category of work authorization for immigrants.
  • Regis Corporation has agreed to settle a disability discrimination lawsuit based on the company’s alleged failure to accommodate a stylist’s claustrophobia.
  • Time examined the current status of women in the workplace—and showed that we still have a long way to go to achieve equality in the workplace for women.
  • Jezebel highlighted how the restaurant industry gets away with looks-based discrimination.
In Other Developments:
  • Graduate students at private universities can unionize, according to a recent ruling from the National Labor Relations Board.
  • The National Labor Relations Board announced it will change the way it calculates lost wages in unlawful termination cases.
  • Lexology reported on new posters that the Department of Labor now requires. Employers must display new posters on the federal minimum wage and federal law prohibiting polygraph testing.
  • The Ninth Circuit contributed to a circuit split over the legality of class waivers in arbitration agreements, agreeing with the National Labor Relations Board that an arbitration provision in an employment contract violated federal labor law.

Friday, August 26, 2016

HR Tech and the Law: An Update

Over the past two years, we at the Navigator have been fascinated with all the new technology showing up in the workplace.  We’ve repeatedly cautioned employers about the risks of adopting technology before understanding and mitigating the accompanying risks.  The law does not change nearly as fast as technology does, but it has begun to address the issues that arise, at least in three major areas:
Big Data and Data Analytics: Employers use “big data” and data analytics to identify the best candidates, measure employee satisfaction and productivity, and discover internal threats, among other uses.  Slicing and dicing data can create useful information, but it can also create issues related to discrimination, cybersecurity, and privacy. 
The application of discrimination law to data analytics has been the focus of significant attention in the last two years. Scholarly articles have been published questioning whether the current law will apply or what evidence can be used.  The Equal Employment Opportunity Commission has taken a great interest, holding meetings and openly discussing the risks and benefits of employers’ use of data analytics.  Issues related to the storage and security of data could be addressed by federal and state statutes and show up in lawsuits that follow data breaches.  Access and privacy concerns are being addressed in litigation and legislation.
Employee Monitoring:  Employer use of employee monitoring devices and technology has increased significantly in the past two years.  Employee badges monitor the location and conduct of employees, under-the-desk heat monitors track when employees are using their desks, and implantable devices monitor when employees enter and leave buildings.  This Big Brother tech, although popular among employers, has caused employees to question whether or not they have privacy rights.  Some states have passed laws limiting monitoring, and  lawsuits related to employee monitoring and related privacy rights continue to be brought. Not all result in helpful legal precedent, however: when Myrna Arias sued her employer after she was terminated for deleting an app on her phone that tracked her every movement, the case resolved quickly and quietly before it produced any meaningful guidance from the court. 
Social Media:  Social media continues to impact the workplace and create legal issues for employers.  Just this past week, a divided National Labor Relations Board panel held that an employee’s tweet about low wages was not protected concerted activity, but the employer’s unlawful social media policy nevertheless created an unfair labor practice.  In general, the National Labor Relations Board has taken employee-friendly positions about social media, finding, for example, that employees may use social media to criticize their employer or a manager (and even use vulgar language to do so) without fear of retaliation.
Employers have increased their use of social media, using branding techniques to bolster their organization’s image and social recruiting to lure candidates. Access to applicants’ and employees’ social media profiles, whether through direct employer action or the use of vendors’ apps and software, means access to information that employers must not consider and, in some cases, may not request or keep without risking violation of anti-discrimination laws.  For example, a man in Illinois sued a company for age discrimination after he was denied a job.  The employer argued that it could not have considered the applicant’s age because the interview was conducted over the phone. The applicant countered by demonstrating that his LinkedIn profile was reviewed by the company and clearly showed he was over the age of 40.  This case was dismissed on summary judgment, but we expect that there will be others.
New forms of HR technology seem to be showing up every day.  Legislative actions and court decisions applying employment law to this technology aren’t as common, but the pace is increasing.  We promise to keep an eye on both.
Posted by Kate Bischoff

Monday, August 22, 2016

That is SO last week

Last week, a federal judge dismissed a transgender discrimination lawsuit brought by the EEOC, citing the company owner’s religious beliefs and the Religious Freedom Restoration Act.  The case involved the termination of a transgender woman who began presenting as a female during her employment at a funeral home chain.  The owner of the chain requested an exemption under the Supreme Court’s Hobby Lobby decision, stating that if the employee presented as a female she would be “violating God’s commands.”  No word yet if the EEOC intends to appeal.
In other developments:

Thursday, August 18, 2016

The Government Focus on Pay Equity

Wage gaps between the genders and among the races, although smaller than they were decades ago, remain significant in the United States. Among full and part-time workers, the median wages of women are 83% of the median wages of men, and the median wages of African-American workers is 75% of the median wages of white workers. In an effort to address these disparities, the EEOC and at least one state legislature have taken steps to spotlight pay equity issues.
The EEOC’s effort includes revamping the traditional EEO-1, an annual report required for all employers with more than 100 employees. The changes to the EEO-1 are significant, and require employers to examine and analyze wages at twelve different levels within pre-existing job categories. The basis for establishment of the twelve levels is unclear, and the increments range from as little as $5,000 to as much as $45,000.  Based on the Bureau of Labor Statistics’ Occupational Employment Statistics, employers will need to place and report every position and employee into the extensive new form. Employers have until March 2018, when the new form will first be required, to prepare human resources and payroll information systems for the change. The purpose of the enhanced EEO-1 is the identification and monitoring of pay disparities related to protected class status, which employers are expected to correct in order to remain in compliance with anti-discrimination law.
A number of states are considering pay equity legislation. Massachusetts recently passed a new law, effective July 2018, which prohibits employers from asking candidates about salary histories. Proponents of this legislation argued that if employers know an applicant’s salary history, wages will be set based on what the candidate earned before and that may perpetuate existing inequities. A lot has been said about this legislative prohibition, and it remains to be seen whether it will result in a smaller gap between the earnings of women and men.
Irrespective of whether an employer is in a state considering pay equity legislation, all should be aware of wage disparity issues, which may be evidence of unlawful discrimination. Regardless of their confidence in the fairness of their pay practices, employers with more than 100 employees should prepare for implementation of the new EEO-1.  Here are steps such employers should consider taking:
  • Perform a basic analysis of the wages currently paid. A report from a payroll provider or the company's human resources information systems can provide the necessary information, which should be sorted and analyzed based on the EEO job classifications already established on the EEO-1. 
  • With current wages in hand and sorted by job classification, determine whether there are any obvious race, national origin, or gender-related disparities. Are women in comparable roles paid more or less than men? Are Asian programmers paid more or less than Caucasian programmers doing essentially the same work? Are higher paying jobs disproportionately populated by employees of a particular gender, race, national origin, or other protected class status?
  • If disparities are noted, determine whether or not they exist for defensible, nondiscriminatory reasons. The Equal Pay Act allows for differences in pay if they are based on nondiscriminatory factors. Do differences in wages exist due to skill level, education, or level of responsibility? Are they based on the cost of living in a particular location? Are they based on seniority, and if so, does time in service actually add value? Will employees have the opportunity to earn comparable pay at some point in the future, or will the discrepancies exist in perpetuity? 
  • Determine if changes need to be made in order to avoid unlawful pay disparities, and remember that employers cannot cut employee wages just to equalize pay. It can be complicated and time-consuming to modify job classifications or a pay structure, but a Department of Labor audit or a lawsuit alleging discriminatory pay practices can cause even more headaches and expense.
  • Remember the importance of documenting this analysis, the reasons for disparities, and the corrective measures, if any, that have been taken. Explanations that are clear, consistent, and easy to understand will be helpful to an agency investigating potential discrimination and in the defense of claims of discrimination. 
Finally, because doing the analysis described above may uncover problems, consider having an attorney supervise. The involvement of legal counsel offers the chance to protect the findings of such an audit through attorney-client privilege. It can limit agency or opposing-party access to audit results, and may afford the employer the opportunity to correct problems and come into compliance without worrying about outside scrutiny.
Posted by Kate Bischoff

Monday, August 15, 2016

That is SO last week

Last week, Vanity Fair reported that the ongoing settlement talks between Gretchen Carlson and Roger Ailes may contemplate a settlement payment in the eight-figure range as more and more women claim sexual harassment by the former head of Fox News.  Some women allegedly recorded conversations with Ailes and assert that the recordings support their claims of repeated unlawful conduct.  These new allegations accompanied claims that Ailes used network funds to fight his personal battles.
In other developments:

Thursday, August 11, 2016

More Mythbusting

Here at the Navigator, we were very pleased by the positive reaction to last month’s post about employment law myths that can get employers in trouble, and we’re glad it was helpful.  Although the inaccurate beliefs described last month are among the most common we encounter, there are many more that can create liability for the unwary employer. 
“Hiring through an agency or third party means no worries about employment law.” This is a common misunderstanding, and one that is sometimes promoted – intentionally or unintentionally – by temp agencies, staffing services, and providers of leased employees.  The law is pretty clear on this: organizations that use workers provided by a third party agency or service are joint employers of those workers, and will be liable to the workers for violations of employment law that occur during the workers’ assignment to them. 
“We hire independent contractors – less paperwork for us, more flexibility for them.”  Workers are not independent contractors just because an employer wants them to be.  Similarly, the fact that a worker requests independent contractor status doesn’t make it okay for the employer to treat him or her that way.  The IRS, the Department of Labor, and individual states’ statutes and regulations control and define independent contractor status.
“We’re an EEO/AA employer.” All employers should be “EEO” employers; that is, they are required to abide by federal, state, and local anti-discrimination laws that require equal employment opportunity regardless of race, religion, gender, age, disability, and other protected class status.  But “AA”? Affirmative action, defined generally as positive action designed to remedy the effects of past discrimination, is not required of most employers.  Government contractors often have to adopt affirmative action plans, but absent a court order most other employers do not, and may violate the law by having a voluntary affirmative action plan.
“Disability discrimination laws only apply to permanent disabilities.” This misunderstanding of federal (and many state) discrimination laws has hung on for a long time.  In fact, applicants and employees affected by temporary illness or disability are protected by disability discrimination laws as long as the illness or disability is a “physical or mental impairment that substantially limits one or more major life activities.” An impairment that is “episodic” or “in remission” may qualify for protection, and even temporary, non-chronic impairments can qualify if they are substantially limiting.
“We’re non-union.  The National Labor Relations Act doesn’t apply to us.”  Although the NLRA contains lots of provisions that apply only to employers’ collective bargaining agreements with unions, that doesn’t mean non-union employers can ignore it.  The National Labor Relations Board has taken positions on protected concerted activity, social media policies, confidentiality policies, and joint employment that all employers need to understand.
We run into these myths frequently, often in our dealings with very well-intentioned employers.  Because they persist and because the consequences of believing them can be significant, we’ll keep trying to debunk them.
Posted by Judy Langevin

Monday, August 8, 2016

That is SO last week

Last week, Massachusetts became the first state to prohibit employers from asking about salary history before offering a candidate a position.  The law is designed to help close the gender wage gap. Supporters argued that gender inequities are less likely to be perpetuated if employers are not aware of an applicant’s salary history. The law includes two additional provisions related to pay. It makes it unlawful for employers to prohibit employees from talking about their pay, and it requires equal pay for work of “comparable character” or for employees who work in “comparable operations.”  The new law will go into effect in July 2018.
In other developments: