Monday, June 27, 2016

That is SO last week

Last week, a television reporter filed a lawsuit against her former employer alleging that she was discriminated against because she is white.  The reporter was terminated following a post on her employer’s Facebook post that included her reactions to a mass shooting at a backyard barbeque in Pennsylvania.  Many critics called the reporter’s post racist.  The reporter’s lawsuit argues that her comments were judged differently, and more harshly, than comparable conduct of an African American employee.  Her suit also pointed out that African Americans have made statements similar to hers without negative reaction. 
In other developments:

Thursday, June 23, 2016

Employment Law Issues in Mergers and Acquisitions

Last week, Microsoft announced its purchase of LinkedIn for $26.2 billion.  This acquisition is interesting for a number of reasons, and is very likely to affect the future of professional social networking. It also got us thinking about the employment law issues that arise when two (or more) companies join forces, whether through a merger or an acquisition. 
Here are some employment law issues that come up frequently:
            Compensation.  Most companies try to pay the going “market rate” for employees, but  different companies have different salary scales for all kinds of reasons, and chances are slim that two combining companies will have matching compensation for all jobs. That means somebody’s pay is going to change. As a part of preparing for a merger or acquisition, compensation differences need to be identified and compensation changes explained to those who will be affected.  In addition, all employers, whether recently merged or not, need to be ready to provide the EEOC with new pay information on the EEO-1 when new requirements go into effect in a little more than a year.
            Benefits.  As with wages, changes in benefits that occur when two employers merge, or one employer is acquired by another, can have a significant impact on workers. Differences in health care benefits, retirement benefits, and paid leave, among others, need to be identified and changes communicated to affected employees.  Obligations created by benefit plans, including stock plans, will require particular attention during the pre-merger process. 
            Policies.  From discipline to social media to leave, policies represent the workplace culture that is particular to an organization.  Merging policies as a part of a merger or acquisition means human resources will have to work closely to identify differences and create policies which reflect the new culture of the combined entity. As policies are created and adopted, compliance should be a focus, particularly in organizations that have multiple locations spread across several states.
            Contractual obligations.  In addition to contractual obligations related to benefits, noncompetition, nonsolicitation, and confidentiality agreements need to be revisited when organizations combine.  Depending on the nature of the merger or acquisition, such agreements may or may not be enforceable after the combination occurs, and the combined entity may be required to enter into new agreements.  A merger or acquisition is an opportunity to consider whether or not such agreements are necessary and what, if any, cost will be incurred to put them in place.  In addition, in light of the new Defend Trade Secrets Act, revisions to existing agreements may be required. 
            Employee overlap & reductions.  Merging employers often have some overlap in staffing, particularly in the areas of human resources, finance, accounting, and information technology.  In some cases, entire departments or divisions are redundant.  In either case, employees will lose their jobs. Combining employers must be mindful of laws that govern reductions in force, including the Worker Adjustment and Retraining Notification Act (WARN) and its state counterparts.  If an employer wants to enter into severance agreements, the Older Worker Benefit Protection Act will also come into play. 
            Liabilities.  Employment law issues arise in nearly every organization.  As a part of due diligence, combining organizations must examine and fully understand internal complaints, agency investigations or charges, and pending or threatened litigation that could result in liability. It’s also helpful for combining organizations to review compliance programs generally to identify systemic problems that could give rise to litigation.  Wage and hour and employee classification issues, for example, are the focus of enforcement agency attentionAlso, organizations should look at compliance as a whole to see if there is any potential for litigation.  Common compliance issues, like wage and hour and employee classification, deserve particular attention.
Mergers and acquisitions can produce stronger and more prosperous entities, but they are often  incredibly scary for employees.  To keep morale high and avoid unnecessary worry and disruption, we recommend transparency and lots of communication. When employers share as much information as possible, communicate frequently about upcoming changes, and are prepared to deal with employees’ questions, affected employees are more trusting, less fearful, and better able to concentrate on their jobs during times of change.
Posted by Kate Bischoff 

Monday, June 20, 2016

That is SO last week

Last week, cybersecurity was a big issue.  Fortune reported that the average cost of a data breach is $4 million, and Inc. explained that even mom-and-pop shops can be victims of a hack.  HR Examiner framed the discussion a bit differently, arguing that if 27 percent of employees are willing to sell their passwords for as little as $100, cybersecurity is a human resources issue.  We couldn’t agree more.

Thursday, June 16, 2016

Reasonable Accommodation Includes Electronic Accessibility

Computers, mobile devices, and the Internet are integral parts of today’s workplace. Employees email, log into various systems and programs, complete employer forms, and manage their time online. Job seekers research employers and submit job applications online. For the 56.7 million Americans with disabilities, these simple tasks may be impossible unless electronic systems are accessible.
When employees are required to be online, whether to perform their usual duties, download a paystub, or change their benefits enrollment, the Americans with Disabilities Act requires the employer to make reasonable accommodations to ensure that their tools and systems are accessible.  This requirement of reasonable accommodation extends to recruiting and hiring, and protects applicants as well as employees. Images without descriptions, “click here” buttons, and certain color schemes are among the barriers that can prevent individuals with disabilities from accessing and using a website or mobile app, even if they use adaptive technology like screen readers. 
To address accessibility concerns, employers need to focus on website accessibility standards.  The Web Accessibility Initiative has developed a set of standards that, when implemented,  allow most individuals with disabilities to use the Internet and mobile apps with the assistance of screen readers and other adaptive technology.  These standards are recognized by the U.S. Department of Justice when the agency enforces Title III of the ADA in the ecommerce industry. They are likely to be recognized by the EEOC and other employment law enforcement agencies as well.   When the standards (technically referred to as WCAG 2.0) are integrated into websites and systems, individuals with disabilities are much more likely to be able to access the tools necessary to apply for or successfully perform a job.
These website accessibility standards are not easy to understand.  They were created for website and software developers, and it takes expertise to review and implement them.  It’s not likely that employers will have sufficient expertise in-house, but HR professionals and corporate counsel can and should discuss accessibility standards when choosing vendors and website developers.  Compliance with accessibility requirements is ultimately the responsibility of the employer, but can be a requirement imposed on every vendor or website developer from which the employer makes purchases.
Here are the most common circumstances that can cause an employer to fall short of meeting its legal obligation to make its systems accessible:
1.         Online applications.  Requiring that applicants complete application forms on an inaccessible website can keep individuals with disabilities out of the workplace.  Employers want diverse workforces, and federal contractors have 7 percent utilization goals for individuals with disabilities as a part of their affirmative action plans.  If an online application cannot be completed by individuals with disabilities, employers and prospective employees miss out.
2.         Employee “self service.”  Employees may need to change their address or phone number in company records, report time or activities, elect benefits or make benefit changes, or check a paystub.  Employers are increasingly turning to self-service style programs that let employees do these tasks themselves rather than relying on human resources staff.  If the self-service system is not accessible, employees will have to forego the task or seek assistance, and may not know where or how to get help.
3.         Job duties.  Many jobs require the use of multiple systems every day. If the systems and tools employees work with are not accessible (or cannot be made accessible through the use of adaptive technology), individuals with disabilities may be prevented from meeting the employer’s standards of performance.  If that results in reduced pay, discipline, or termination, the employee may utilize the ADA and comparable state laws to make legal claims against the employer.
In February, Corporate Counsel called website accessibility the “next class action threat.” When individuals with disabilities are kept out of ecommerce or the workplace by inaccessible websites and electronic tools, class action and individual litigation can result. Employers’ best defense to this threat of litigation and liability is prevention through careful attention to accessibility.
Posted by Kate Bischoff  

Monday, June 13, 2016

That is SO last week

Last week, the National LGBTQ Task Force and the District of Columbia’s Office of Human Rights issued a new report entitled Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers.  This follows the EEOC's recent guidance on transgender employees' bathroom use and discrimination in employment based on sexual orientation.

  • A federal judge in St. Louis granted judgment for the EEOC in a disability discrimination and GINA case. The employer had required that all applicants fill out a health history form before they were considered for a position. 
In other developments: 
  • Senate Republicans introduced a Congressional Review Act aimed at stopping implementation of the new FLSA regulations. 
  • The Eighth Circuit Court of Appeals ruled that Minnesota’s Drug and Alcohol Testing in the Workplace Act can reach employers outside of Minnesota when the testing occurred there. 

Thursday, June 9, 2016

Sexual Harassment Training Revisited

In 1980, the EEOC first recognized sexual harassment as a form of sex discrimination prohibited by Title VII. In 1986, the United States Supreme Court agreed in Meritor Savings Bank v. Vinson. Courts and anti-discrimination enforcement agencies began to urge employers to adopt policies against sexual harassment and provide training aimed at preventing its occurrence in the workplace. In the intervening years, sexual harassment training has become commonplace, and has become an important part of the defense of harassment lawsuits. In some states, training is mandatory or “encouraged” by state law. California’s law is very specific, requiring all employers with more than 50 employees to provide training to supervisory and managerial employees.
The quality and effectiveness of training varies, of course, and despite the fact that training is relatively common, some sources claim that 1 in 3 women aged 18 to 34 still report being sexually harassed at work. The EEOC suggests that the number is 1 in 4, regardless of age. The cost of sexual harassment remains high for employers, whether incurred through legal fees and judgments or through lost productivity and diminished morale.
A recent article in The Guardian questions the value of sexual harassment training, citing studies that suggest training may increase instances of harassment or provoke “male backlash.”  We aren’t qualified to judge the science underlying the cited studies.  Having trained on the subject since 1980, however, we remain firmly convinced that training can be valuable. Here are our suggestions for making it effective.
  • Don’t do it on the cheap. Good training doesn’t have to break the bank, but it’s worth paying for quality. 
  • Don’t rush it. We have yet to see a 30 minute, one-size-fits-all video or desktop training module that adequately educates employees.  At a minimum, training needs to include examples and a mechanism for questions.
  • Make sure the trainer understands the law. Sexual harassment basics are complicated enough.  Differing state laws and court interpretations add complexity.  Employers need to insist that those they hire as trainers demonstrate deep, current knowledge of all applicable laws, as well as an understanding of the impact of sexual harassment in the workplace.
  • Avoid shame and blame. Although sexual harassment has real and damaging consequences that must be taken seriously, a lot of harassment happens as a result of ignorance, carelessness, or insensitivity, rather than bad intentions.  Most people – even those whose words or actions constitute legally actionable sexual harassment – don’t intend harm.  An important purpose of training is to make employees understand that harm can occur even when it’s not intended.  That’s best done with empathy and a matter-of-fact approach, rather than hostility.
  • Use examples, and invite discussion.  Training should include lots of examples. At its best, training will include examples of conduct and statements that don’t constitute sexual harassment, as well as words, actions, and materials that do.  It should also provide an opportunity for those being trained to discuss and react to examples.
  • Make it clear that management thinks the training is important. Just as upper management’s attitudes and behavior send a message about acceptable and unacceptable workplace conduct, the way that management describes and implements sexual harassment training will send a message about its importance. 
Posted by Judy Langevin

Monday, June 6, 2016

That is SO last week

Last week, Kris Dunn of Fist Full of Talent offered some sage advice about sexual harassment training.  He recommended using real world examples and creating debate about what is and isn’t sexual harassment.  This advice was sparked by a quote from the CEO of Tinder in remarks at a Fast Company event.  CEO Sean Rad said that when a Tinder conversation does not lead to a date, he can still say “… ‘Hey, why don’t you come by and interview about this role?’”  For the record, we don’t recommend using Tinder as a hiring tool.
In other developments: