Monday, September 26, 2016

That is SO last week

Last week, 21 states filed a lawsuit challenging the Department of Labor’s new overtime rules. Within hours, another suit was filed by the U.S. Chamber of Commerce and business groups. The lawsuits contend that the Department of Labor exceeded its authority and violated the Tenth Amendment by issuing the rules. The new rules, which are scheduled to take effect December 1, 2016, will require employers to pay overtime to workers earning less than $47,476 a year, which is double the current threshold of $23,660.

Wage and Hour
In Other Developments:

Thursday, September 22, 2016

Harassment Investigation Techniques

In a recent post, we talked about how digital technology can provide a platform for sexual harassment in the workplace. Today, we want to focus on the investigation of complaints of sexual harassment, including a review of the resources—some old standbys and some new technology—that can assist employers in carrying out their investigative responsibilities.
It’s generally well known that federal law, as detailed in EEOC guidelines,  requires employers who  know or should know of possible harassment to promptly investigate and, if harassment appears to have occurred, to take timely and appropriate remedial action in response. Many state laws also impose a duty to investigate harassment complaints and concerns. In case after case, courts have held that employers’ failure to promptly investigate complaints of harassment may result in liability for sexual harassment.  It’s important for employers to remember that the obligation to investigate arises even when the term “harassment” is not specifically used by a complaining or concerned employee. Employers are expected to use reasonable judgment in identifying and responding to possible harassment.

The investigation of a complaint of sexual harassment need not be limited to interviewing the alleged harasser and the apparent victim.  Indeed, ending an investigation there often leads to conflicting accounts of the facts and circumstances and the employer’s inability to come to a conclusion about who’s telling the truth.  That’s why it’s important to consider and, if appropriate, turn to the following sources of relevant information: 
  • Personnel records.  Does the alleged harasser have a history of similar complaints? Does the apparent victim have a history of making complaints? Such information may not be conclusive or even particularly enlightening, but an employee’s history of dealings with other employees can help the employer make a judgment about credibility.
  • Witnesses and other employees with relevant knowledge.  If the alleged harassment took place in front of witnesses, it’s important to know what the witnesses saw or heard.  Even if no-one witnessed particular acts of alleged harassment, employees familiar with the general conduct of and relationship between the complaining employee and the alleged harasser can often provide important information and insights to assist the employer in determining what occurred.
  • Managers’ and supervisors’ perceptions of credibility.  Even when involved managers and supervisors don’t have direct knowledge about alleged harassment, they may have history with the complaining employee or alleged harasser that will assist in determining who is likely to be telling the truth.

Beyond these basics, technology can provide important information.  No workplace is likely to have all the tools listed below at their disposal, but many workplaces will have some.  A thorough and unbiased investigation requires that the employer use all reasonable means at its disposal to investigate claims of harassment, so if these tools are or can be available, their use should be considered: 
  • Email and internal messages. Email can provide lots of information to support or disprove allegations of harassment.  Beyond emails containing inappropriate communications from the alleged harasser to the complaining employee, an employer’s email records may contain evidence that the complained-of conduct was actually welcome or invited, or evidence that the complaining employee was not the only victim of harassing communication.  Email and instant messaging searches should be set up to cover all relevant times and all potentially relevant sources, including communications from the alleged harasser and complaining employee to third parties.  If an employer’s information system allows targeted word searches, the time and effort involved in reviewing email for relevant content can be reduced.
  • Social media.  Although employers must exercise care in accessing employees’ social media, and should generally not ask for access to private social media accounts, a review of publicly available social media may provide relevant information about the relationship between the complaining employee and the alleged harasser, as well as examples of inappropriate communication between the two or with other employees.
  • Monitoring technology.  Employers can and should determine if any visual monitoring devices or devices used to track employees’ locations can provide information relevant to the complaint under investigation.  Interactions may have been caught by monitoring cameras, and location tracking devices may prove or disprove assertions that an employee was at a certain place at a certain time. Even a review of time records can sometimes be helpful in determining whether the employees involved in the allegations were at work at relevant times.
  • Data Analysis. Software is available that can search and classify large quantities of data, including electronic communications, to quickly identify relevant communications and patterns. Such tools, while not common in the workplace, are available from outside vendors and can be of great assistance in investigations that involve a large quantity of information and data. Such data analysis can take place entirely behind the scenes and without disrupting day to day operations.  If the stakes are high enough, it may be appropriate to include such data analysis in an investigation. 

In a future post, we will address what it means for an employer to take timely and appropriate remedial action in response to the results of an investigation.  A clear anti-harassment policy, the prompt and effective investigation of all complaints, and swift remedial action are the three essential elements that are required if employers wish to avoid—or at least minimize—their liability for workplace harassment.

Monday, September 19, 2016

That is SO last week

Last week, the legal battle between federal authorities and North Carolina over transgender bathroom access took a turn. North Carolina’s governor quietly withdrew the state’s suit against the federal government, instead electing to present its case as it defends a federal Department of Justice Civil Rights Division action that claims that North Carolina’s HB2 constitutes sex-based discrimination in education and employment in violation of three federal laws. Meanwhile, the NCAA announced it is pulling all events from North Carolina because of the state’s law banning transgender individuals from using the bathroom of their choosing—and Wired details how much that discriminatory law is costing North Carolina. In California, a new jobs program will place transgender job seekers into entry-level positions at California restaurants, and bill AB 1732, which designates single-occupancy restrooms across the state as “all gender,” has been sent to Governor Jerry Brown for signing.
A security firm will pay $115,000 to settle an EEOC retaliation discrimination case involving a male employee who claimed he was fired for his role in a woman’s sexual harassment complaint.
The EEOC sued a Baltimore hospital, alleging the hospital fired an employee because of his disability.
Emails leaked by Apple employees revealed that women at the company face extensive harassment and discrimination.
A new start up is fighting unconscious bias by concealing identifying information such as gender, age, and name when initially matching employers and job seekers.
Jacob Morgan offers a primer on the Internet of Things.
In Other Developments:
The Department of Labor announced a new preassessment program to screen government contractors’ labor law compliance.
A bill was introduced to Congress that would ban employers from asking job applicants about their salary histories.

Thursday, September 15, 2016

Paid Sick Leave – An Update

Since we last featured the subject of paid sick leave, it has remained a focus of interest for legislators at all levels of government.  Although we don’t yet know whether there will be a federal mandate requiring paid sick leave, employers need to stay aware of that possibility, as well as state and local laws that may affect them.

For now, there is no federal requirement for paid sick leave, although most employers are required to provide unpaid leave under the FLSA, the FMLA, or comparable state laws.  In addition, federal contractors are subject to an executive order requiring that they offer paid sick leave. Congress is currently considering the Healthy Families Act, which would require employers with 15 or more employees to allow workers to earn up to seven paid sick days each year.  The Department of Labor strongly supports the implementation of paid sick leave policies, and argues that employers and employees both benefit.

According to a recent publication from A Better Balance, an employee advocacy group, Connecticut, California, Massachusetts, Oregon, Vermont, the District of Columbia, one county, and 28 cities across the country have paid sick leave laws in place.  Who is covered, when the legislation became or will become effective, and what is required of employers under these laws varies from one jurisdiction to another.  For example, Vermont’s law covers workers employed for an average of no less than 18 hours per week, while Santa Monica, California’s ordinance covers those who work at least 2 hours per week. Many jurisdictions require that employees be allowed to use their sick leave to care for a child or other relative, but the specifics vary. In New York City, paid sick leave is accrued beginning on the first day of employment but can’t be used for 120 days, while under Vermont’s law, workers may have to wait a full year before using paid sick leave benefits.  A newly-passed St. Paul, Minnesota ordinance will become effective on July 1, 2017 for employers with 24 or more employees and on January 1, 2018 for employers with fewer than 23 employees.  All these variations—and others—matter, and require that employers know and understand the requirements of every jurisdiction in which they have employees.  For SHRM’s helpful analysis of California’s law one year after its implementation as well as compliance advice applicable to all employers, check out the articles here and here.

Employers should also keep in mind the overlap and interplay between unpaid leave mandates and paid leave requirements, and make sure that their policies and practices comply with both.
Many employers, of course, voluntarily offer paid sick leave or PTO.  According to the US Bureau of Labor Statistics, 64% of private sector workers now receive at least some paid sick leave, and the number of covered workers continues to increase.  That leaves more than 41 million private sector employees, however, without any paid sick time.  The ongoing high level of legislative interest in passing paid sick leave laws is a reflection of the concerns of those 41 million.

Posted by Judy Langevin

Monday, September 12, 2016

That is SO last week

Last week, as we learned that the CIA has invested in another Big Data analytics startup, new headlines and commentary addressed the dangers of hidden bias in technology. LinkedIn changed its search algorithm after the Seattle Times reported that its search results apparently favored men. Time and Salon spotlighted a new book—Weapons of Math Destructionthat addresses “the effects of computerized discrimination” across different sectors of society and the economy. The Time story reminded us of the Obama Administration’s May 2014 report warning of the potential for big data analytics to obscure civil rights protections in the use of personal information in employment, housing, health, education, and other areas.
In Other Developments:

Friday, September 9, 2016

Sexual Harassment Goes Digital

News of the $20 million settlement reached in the FOX News sexual harassment suit has us—and other commentators—thinking about the current wave of sexual harassment claims. Sexual harassment remains a significant and expensive issue for employers even after all these years. The EEOC received more than 6,800 sexual harassment charges in 2015, and obtained more than $46 million in damages and benefits for claimants. That amount doesn’t include monetary benefits obtained through litigation, so the numbers are staggering. Employers continue to lose money paid out in settlements, judgments and fees and the costs don’t end there. Sexual harassment results in reduced productivity, lowered morale, and increased turnover. Public disputes can diminish an employer’s reputation and limit opportunities to hire the best workers.
Sexual harassment in the workplace can take many forms. From the sexually explicit remarks and suggestive innuendo alleged by Gretchen Carlson, to unwanted touching, to demands for sex in exchange for job benefits, to the circulation of sexual materials and pictures, people find many ways to create a hostile and offensive working environment.  The ever-increasing use of electronic communication and digital technology in the workplace has brought huge benefits, but it has also created a series of new opportunities, and a new platform, for inappropriate behavior.
As employees engage with one another—in and out of the office—through email, text messages, instant messaging, and social networks, the lines between professional and personal lives become blurred. Harassment can take the form of offensive and uninvited emails or text messages, comments and posts on Facebook or Snapchat, or communications through other social networks or online forums. Even digital communications that occur between co-workers outside of the workplace can be deemed to contribute to a hostile, offensive or sexualized working environment.  If they are, an employer can be liable if it was aware of the postings, if the communications occurred between supervisors and subordinates, or if the harassing employee was using employer-owned devices or accounts.
It isn’t all bad news, though. Digital technology can help solve some of the problems it creates. Employers are able to monitor the digital technology and platforms they provide, and can use monitoring to identify and correct inappropriate communication as it occurs. Employee monitoring, like all applications of technology, comes with risks and rewards of its own, but is an important part of meeting the employer’s obligation to provide a working environment that is reasonably free of harassment.
So what can an employer do?
We’ve previously covered the basics of preventing sexual harassment in the workplace, but there are a few things employers can do that are particularly relevant to harassment that occurs through electronic communication.
  • Review your sexual harassment policy to ensure that it encompasses electronic communications and online and social media activities.
  • Expressly prohibit sexually explicit communications on company technology.
  • Implement or update your electronic communications policy. It should inform employees that they have no expectation of privacy when using company devices or accounts, that the company may monitor their computer usage, and that they may be disciplined for inappropriate use of company technology.
  • Make sure your policies broadly define social media and online activity.
  • Review harassment and electronic communications policies annually to ensure that they address ongoing developments in technology and social media.
  • Consider implementation of routine or complaint-related monitoring of electronic communication to identify inappropriate content.
  • Update harassment training to address issues related to electronic communication.

Tuesday, September 6, 2016

That is SO last week

Last week, it was reported that 10,000 Chipotle workers have joined the class action against the Tex Mex chain for unpaid wages, claiming Chipotle routinely made them work off the clock. That’s roughly one in five Chipotle employees who say they were forced to work for no pay. The suit, which was filed in 2014, alleges that Chipotle “routinely requires hourly-paid restaurant employees to punch out and then continue working until they are given permission to leave.” With 9,961 current and former workers jumping on board from nearly every state that Chipotle operates in, this is the largest wage theft lawsuit Chipotle has faced.

It is only the most recent of a wave of worker-related discrimination lawsuits targeting the Tex-Mex chain. In August, a jury awarded $500,000 to a former employee who claimed she was fired from a Washington D.C. Chipotle because she was pregnant. In February, a Cincinnati federal grand jury found that three female managers were “discriminated against and fired because of their gender” and ordered the company to pay the women $200,000 each.

  • This just in! Vanity Fair reported this morning that Fox News has offered a public apology and reached a $20 million settlement with former anchor Gretchen Carlson in her lawsuit alleging former boss Roger Ailes sexually harassed her.  
  • As we noted last week, the EEOC issued new enforcement guidance on retaliation claims brought under the anti-discrimination laws the EEOC enforces.  
  • The EEOC sued Motel 6, alleging the hotel chain unlawfully placed a pregnant employee on leave.  
  • A female lawyer sued her law firm for $100 million on behalf of herself and other female partners who she alleged made less than male partners even when they earn more client revenue.  
  • To settle a lawsuit for associational disability discrimination brought by the EEOC, a medical facility has agreed to pay $165,000 and conduct anti-discrimination training. 
  • Tech firm Glint raised $27 million to build technology designed to help companies figure out why their employees are leaving.   
  • The Guardian examined how mathematical modeling used in screening applicants for everything from jobs to insurance is encoding human prejudice into automatic systems that increasingly manage our lives. 
In Other Developments 
  • The Minnesota Supreme Court unanimously held that the question of whether Minneapolis should raise its minimum wage to $15 could not appear on the ballot of Minneapolis voters in November.
  • The Washington Post reported that President Obama’s Fair Pay and Safe Workplaces executive order will go into effect in October. A “pre-assessment process” to screen federal contractors begins in a couple of weeks.
  • The National Labor Relations Board held that charter schools are private corporations, not public schools, so employees wishing to unionize must organize as private employees under the National Labor Relations Act.
  • The National Labor Relations Board heard testimony from a representative of 1,200 Menards truckers who allege that Menards misclassified its drivers as independent contractors.
  • Settlements totaling more than $12 million were reached in back-pay lawsuits against transportation and hospitality companies that provide services at or near Seattle-Tacoma International Airport.