Thursday, May 25, 2017

Transgender Basics

In 2016, 1.4 million adults in the United States identified as transgender.  Federal Circuit Courts have consistently ruled that Title VII prohibits discrimination in employment based on an applicant’s or employee’s transgender status.  The EEOC has issued guidelines encouraging employers to avoid discrimination based on transgender status.  At least 20 states and more than 200 cities and counties have laws that specifically protect transgender individuals from employment discrimination. Now, a federal district court in Pennsylvania has ruled that the American with Disabilities Act protects the medical condition known as gender dysphoria, defined as “strong persistent feelings of identification with the opposite gender and discomfort with one’s own assigned sex that results in significant distress or impairment.”  Although it’s too soon to tell how that decision will hold up if appealed, or how other courts might decide the issue, it now seems possible that transgender individuals can seek reasonable accommodation, as well as disability discrimination protection, under the ADA.

Case law on this topic continues to develop, and relevant legislation continues to be introduced, debated, and sometimes passed. Employers need to stay informed about both, and they need to be prepared to react sensibly when transgender status becomes an issue in their workplace.  Here’s how: 
  • Get educated.  Make sure that upper management and HR staff understand what it means to be transgender and what’s involved in gender reassignment.
  • Know the applicable law.  Most employers are subject to Title VII and the ADA.  Find out whether state or local laws protecting transgender individuals also apply, and if so, what they require.
  • Figure out how healthcare benefits will work for transgender employees.  If an employee seeks insurance coverage for gender reassignment surgery, will it be provided? Must it be?
  • Review policies on bathroom use and facility access.  The EEOC has issued a fact sheet on this topic, and expects employers will allow transgender employees equal access to bathrooms assigned to the gender with which the employee identifies.
  • Get ready to educate your workforce.  If an employee identifies as transgender and begins the process of gender transition, his or her co-workers may need information and guidance.  At a minimum, co-workers need to know that policies against discrimination and harassment protect transgender individuals, and that those policies will be enforced.
  • Think about names and pronouns.  Transgender employees may change their names.  At some point, an employee in gender transition will want to be referred to as “she” instead of “he” or “he” instead of “she”—or an employee may prefer the gender-neutral pronoun “they.” Be ready to manage those changes without fuss.

There are resources available for employers who want to stay up to date on transgender issues, and for employers who want to support their transgender employees.  Two of our favorite bloggers, Robin Shea and Eric Meyer, have written on this topic recently, and offer great suggestions and links to other resources.  SHRM offers several excellent articles on these issues. The Human Rights Committee, an LGBT advocacy group, has published Workplace Gender Transition Guidelines.

Published by Judy Langevin

Monday, May 22, 2017

That is SO last week

Last week, a California Department of Transportation worker with severe allergies to scents and  household chemicals won a $3.3 million jury verdict in a disability harassment lawsuit. The employee claimed that his supervisors disregarded accommodations he’d been given, harassed and bullied him, and allowed scented items to be used in his vicinity. For five years, the agency had provided a reasonable accommodation for the employee’s severe allergies by asking employees not to wear certain perfumes and asking cleaning staff not to use certain products. The employee alleged that a new supervisor failed to enforce the fragrance-free policies, used abusive language with the employee, and had the employee relocated to workspaces that exacerbated his condition. The case is a good reminder that fragrance sensitivities can be disabilities, and may be entitled to reasonable accommodations or other protections under the ADA and comparable state disability laws.


A religious camping and retreat business in Texas agreed to pay $70,000 to settle EEOC charges that the business demoted an employee after learning she had a pregnancy-related complication.

Ask a Manager’s Alison Green addressed the potential fallout from an HR investigation of an employee’s report of workplace harassment or discrimination.

Two former Wal-Mart employees filed a lawsuit alleging that the retailer’s company-wide policy  denied pregnant women the same accommodations as workers with other disabilities.

A Pennsylvania federal court held that a transgender woman can maintain claims under the Americans with Disabilities Act for employment discrimination related to her “gender identity disorder." 


Morning Consult suggests that AI is more likely to replace jobs traditionally held by women, such as those in the retail and service sectors.

New York Magazine examined how the workplace instant messaging app Slack is changing the workplace and worker behavior.

Harvard Business Review argued that the best cybersecurity investment is employee training.

In Other News

The Washington Post reported that the number of CEO dismissals due to ethics violations increased by 36% from 2011 to 2016.

As reported by Fast Company, an Economic Policy Institute study estimates that US employers collectively fail to pay $15 billion owed to workers under minimum wage laws.

HR Dive interviewed Eric B. Meyer on how to support transgender employees during their transition.

The Department of Labor suspended an Obama-era OSHA rule that requires employers to report injury and illness data electronically.

New York’s Freelance Isn’t Free Act took effect on May 15, giving independent contractors and other on-demand workers some of the pay protections and other rights afforded to employees.

Thursday, May 18, 2017

Who’s Protected Where? State and Local Laws Expand Protections Against Discrimination

Prohibitions against discrimination in employment based on race, national origin, religion, sex, age, and disability are generally familiar to business owners, HR professionals, and in-house counsel.  Because these protections are created by federal law, they apply in every state.  Depending on where an employer operates, however, there may be other, lesser-known discrimination laws that require compliance.  Here are some examples:

Age Discrimination Against the Young. Most states have a law that prohibits discrimination on the basis of age, but the protection is defined differently from jurisdiction to jurisdiction. The Age Discrimination in Employment Act, a federal law, prohibits discrimination in employment against those over 40, and that’s the protection that comes to mind most readily when age discrimination is considered.  A number of states, however, including  Oregon, New York, Minnesota, and Iowa prohibit discrimination against employees and applicants aged 18 or over. Some states, such as Maryland, do not specify a minimum or maximum age requirement to qualify for protection. Nine states have laws that mirror the ADEA and protect employees and applicants aged 40 and over from discrimination, and a few jurisdictions specify an age range; Indiana, for example, protects only those aged 40 to 75.

Familial or Parenting Status. Alaska, Minnesota, Oregon, Pennsylvania, and a number of municipalities have laws that prohibit employment discrimination based on parenthood or familial status.  Generally, these laws protect against discrimination based on the makeup of one’s family, usually defined to include minor children who live with parents or legal guardians, pregnant women, and those seeking to secure custody of children under eighteen. Although discrimination based on parental or familial status is not expressly covered by federal discrimination law, parenting claims and claims related to caregiving responsibilities may be gender or disability discrimination under federal law in some circumstances.

Marital Status. At least 19 states and the District of Columbia prohibit discrimination in employment on the basis of marital status. An applicant’s or employee’s status as a single, married, divorced, or widowed person cannot be used as a basis for employment decisions in those states.  In a few jurisdictions, the protection extends to employees discriminated against because of the situation or identity of their spouse.

Status as a Victim of Sexual Assault, Domestic Violence, or Other Crimes. Several states have enacted laws prohibiting an employer from terminating or penalizing an employee because the employee is a victim of domestic violence, sexual assault, or another crime. Some jurisdictions, such as Oregon, require employers to offer reasonable accommodation so that a victim can continue to work. Many states (Minnesota, for example) have enacted laws allowing victims of sexual assault, domestic violence, or stalking to take time off from work to seek counseling or medical attention or appear in court, and prohibiting employers from taking adverse employment action because a victim takes such time away from work. 

Use of Medical Marijuana. Twenty-nine states and the District of Columbia have legalized the use of medical marijuana, and seven states and the District of Columbia have legalized marijuana for recreational use.  Only eight states (Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York, and Minnesota) prohibit discrimination in employment based on an employee’s lawful use of medical marijuana. However, as commentators have noted, such laws do not necessarily preclude adverse employment action based on results of a drug test. Many state laws expressly prohibit the use of marijuana at work, and employers are generally not required to accommodate the use of marijuana in the workplace.

Public Assistance Status.  Minnesota and North Dakota prohibit discrimination against an employee or candidate because of public assistance status. This protects those who are or have been recipients of welfare, Medicaid, housing assistance, and other forms of public support.

The list of lesser-known protections doesn’t stop there.  For example, in Louisiana, California, and the District of Columbia, employers are prohibited from considering or trying to control employees’ political activities.  Delaware, Oregon, Vermont and Hawaii prohibit discrimination based on credit history. Michigan, California and Maine, among other states, have laws protecting employees who breastfeed from negative workplace consequences. These and other protections create the same risks of legal liability that employers face if they discriminate based on race, religion, sex, or disability.  Those responsible for employment decisions need to know and understand what’s protected and what’s prohibited in each jurisdiction in which they operate.

Published by Laura Bartlow

Monday, May 15, 2017

That is SO last week

On Friday of last week, a ransomware cyberattack struck 45,000 targets in 74 countries, including organizations such as FedEx, Telefonica, and the UK’s National Health Service, which cancelled operations and diverted patients elsewhere when their computer systems were rendered unusable by the attack. The impact in the US has been limited, thanks to a cybersecurity expert who discovered and advised officials of a “kill switch” that slowed the spread of the ransomware, although copycat varieties are proliferating. As the workweek begins, employers should heed this unfortunate reminder of the critical need to maintain updated and secure computer systems and warn workers to remain on guard for ransomware attacks.


An applicant’s job offer was allegedly rescinded when she refused to “party” with the CEO. The EEOC announced that the employer will pay $57,000 and adopt new anti-discrimination policies and procedures to settle the applicant’s claims.

Indiana became the first state to bar local “ban the box” laws.

A staffing agency agreed to pay a civil penalty of $16,290 and provide employees with training and information to resolve claims by the  U.S. Department of Justice that non-U.S. citizens were subject to harsher job eligibility requirements.


A survey of more than 1,400 private employers found that 70 percent use technology to manage payroll, but a much smaller percentage use HR technology for things like benefits and performance management.

The Atlantic covered Canada’s developing technology sector, which is poised to attract tech talent from the U.S. as U.S. restrictions on workplace immigration increase.

Quartz highlighted a happy story of automation and growth in the field of engraving.

The Toronto Sun reviewed the major privacy implications posed by workplace wearables.

Fast Company identified data integration as a key component of the future of workplace wellness programs.

Inc. explained why social media is a wonderful tool for promoting business but may not be the most effective way to build a career.

In Other News

HR Dive offered advice on avoiding liability for employee pay differentials under the Equal Pay Act.

Fast Company suggested that employers can improve workplace collaboration by not automatically deferring to the “highest paid person’s opinion.”

A tech company bought a “grand mansion” in Hawaii for its employees and their families to use for vacations.

Talent Economy found a lesson on how NOT to fire someone in the Comey dismissal.

The New Yorker examined the gig economy.

SHRM offered guidance on how often HR should review and update an employee handbook.

Thursday, May 11, 2017

What’s Compensable?

The Fair Labor Standards Act has made plenty of news recently, but most of the attention has been focused on who qualifies for overtime.  For much of 2016, it looked like new federal regulations would require that anyone making less than $47,476 per year would be non-exempt and would qualify for overtime.  That ended with a federal court injunction in late 2016 and the new administration’s equivocation on the regulatory change. For now, workers qualify for overtime if they make $23,660 or less per year.  Workers who make more than $23,660 per year may not qualify for overtime if they fit within the executive, administrative, professional, computer, or outside sales exemptions set out in the FLSA. 
Even though the proposed big change in overtime eligibility failed to materialize, FLSA compliance is a challenge for employers and should remain front and center for HR professionals, business owners, and in-house counsel.  One of the most difficult aspects of compliance is understanding what time needs to be paid for. The question of what time is compensable becomes even more complex as workers use and rely on technology and remote electronic communication. We know that non-exempt employees must be paid for all time worked and paid time and a half when they exceed 40 hours in a workweek. (Note that state requirements may vary.) With that basic rule in mind, here are examples of how employers should treat time worked that falls outside employees’ standard “on the clock” hours.
  • Pre-shift and post shift work.
Time that an employee spends immediately before or after work may not be considered compensable hours worked even if spent at the employer’s premises. Unless a contract or industry custom or practice identifies such activities as compensable time, preliminary and postliminary activities are generally not compensable. 
For example, an employer is not required to compensate employees for time spent “changing clothes.” In Sandifer v. U.S. Steel Corp., the Supreme Court held that the FLSA’s reference to clothes encompasses protective gear necessary for job performance, so an employee does not need to be compensated for time spent donning and doffing protective gear. 
In Integrity Staffing Solutions, Inc. v. Busket al., the Supreme Court held that time employees spend waiting to undergo and actually undergoing security screenings after work each day is not compensable time.
  • On-call and waiting time. In some circumstances, an employee must be compensated even for periods of inactivity during work time. For example, a call center worker who reads a book between calls is working while waiting for the phone to ring. The employee is “engaged to wait.”

    Time an employee spends “on call” at the place of employment is compensable, but the time an employee spends “on call” while at home or elsewhere is generally not compensable work time, unless the employee is otherwise working.
  • Rest and meal periods. Short rest and meal periods—20 minutes or fewer—are generally considered compensable working time. But if an employee takes lunch at her desk while answering phones or responding to a supervisor’s requests for help, that time is working time and is compensable.  A bona fide meal period of longer duration is generally not compensated as work time as long as the employee is completely relieved of work duties for the purpose of eating the meal.
  • Training time.  Time that non-exempt employees spend in training (or at seminars, lectures, or meetings) is compensable if it is non-voluntary, happens during work hours, is job-related, or if job duties are performed during the training. However, a mandatory ten-day unpaid training program that occurred before the date of hire was found to be not compensable time under the FLSA and California law.
  • Travel time. Time spent traveling during normal working hours is compensable, but time spent commuting to and from work is generally not deemed compensable work time. Travel for work that extends an employee’s work day is usually compensable, but if an overnight trip is required, time spent in travel as a passenger that goes beyond the regular work day is not compensable.

  • Time spent reviewing or responding to emails or texts outside regular working hours. Even if reading or responding to texts or emails is not required by the employer, time spent doing so outside working hours will be compensable if the employer “suffers or permits” the practice.
There are other types of compensable time, of course, and other situations in which time isn’t compensable even if it appears to fit into one of the categories above.  Remember that employers are required to keep records of all compensable time, including time spent on email or text correspondence that occurs outside normal working hours.  
If unauthorized compensable time is a problem, there are steps an employer can take to limit it.  In addition to a clear policy prohibiting unauthorized overtime, employers can develop and enforce a policy prohibiting unauthorized work outside of normal hours.  Access to the employer’s email and data can be restricted outside working hours.  Supervisors and managers should be instructed to avoid emailing or texting hourly employees before or after the work day.  Although employers cannot avoid paying for compensable time that’s worked in violation of their policies, they can discipline employees for violations.
An understanding of these general guidelines is a good starting point, but employers may need to dig deeper, particularly if a large number of employees are affected.  As The Walt Disney Co. found out recently, the cost of non-compliance can be high. The Department of Labor announced in March that Disney would pay $3.8 million to resolve Florida minimum wage, overtime, and recordkeeping violations involving 16,400 Florida employees. 

Posted by Laura Bartlow

Monday, May 8, 2017

That is SO last week

Last week, The Wall Street Journal broke the news that code written by female engineers at Facebook gets rejected much more frequently than code written by male engineers at the company. Five years of data collected by a longtime engineer at Facebook purportedly shows that code submitted by female engineers was rejected 35 percent more often than code added by men, suggesting that work submitted by women is more heavily scrutinized. Facebook performed its own internal review and publicly stated that the analysis is “incomplete and inaccurate” and any discrepancy is attributable to employee seniority, rather than gender bias. Meanwhile, an internal memo that was leaked to The Guardian advised employees that leaking information about gender bias damages the company’s “recruiting brand” and makes it more difficult for Facebook to hire women.


Quartz examined why corporate hotlines for reporting sexual harassment don’t work.

The EEOC sued a Minnesota design, printing, and packaging company on behalf of an employee who claims he was unlawfully required to submit to medical exams and then fired because he suffered from depression.

Sterling Jewelers announced an agreement with the EEOC to settle claims of widespread pay and promotion discrimination against female employees.

The EEOC announced that a Florida insurance brokerage firm has agreed to pay $100,000 to resolve allegations that the company rescinded a job offer when it learned that a prospective employee was pregnant.

Harvard Business Review offered advice for reacting to biased comments at work.

An Alabama staffing agency agreed to pay $50,000 and furnish other relief to settle a sex discrimination lawsuit in which the EEOC alleged that the staffing agency’s recruiter refused to interview or consider a female for a shipping-and-receiving position, telling her “This is a man’s job,” the job is “not suitable for women,” and “the work is difficult.”


Fortune covered a new app that allows employees to access mental health advice in real time.

Infosys announced that it will open four US tech centers and hire 10,000 American workers to focus on developing cutting-edge technology like artificial intelligence.

Artificial intelligence failed to correctly predict this year’s Kentucky Derby winner.

In Other News

SHRM reported on a recent Ninth Circuit court decision allowing an employer to use salary history to set an employee’s pay, a decision that creates a split among appellate courts.

Quartz explained why it’s hard to concentrate while working at a standing desk.

A New York Times Opinion piece offered a sharp critique of employment non-compete agreements.

NPR reported on efforts by private business groups to fight against the growing number of state, city, and county ordinances mandating paid sick leave.

Thursday, May 4, 2017

Check Your Map: The Changing Landscape of Reasonable Accommodation

We recently helped a client work through a collection of reasonable accommodation issues.  In doing so, we realized that we were dealing with questions that wouldn’t have come up 10 years ago, or maybe even 5 years ago.  Regulations, case law, science, technology, and politics have changed what’s required and what’s reasonable.

Legal fundamentals haven’t changed.  The Americans with Disabilities Act and comparable state laws require that some employers (generally, those with 15 or more employees) provide reasonable accommodation to qualified applicants and employees with physical or mental disabilities.   Title VII and its state counterparts require accommodation of religious beliefs in certain circumstances and prohibit discrimination based on pregnancy and childbirth-related conditions.   So what has changed, and how do those changes impact an employer’s obligations to accommodate?

There is some new law.

In 2008, the Americans with Disabilities Act Amendments Act amended the ADA to create a broader definition of physical and mental disabilities. The result is that a broader range of conditions must be accommodated. The Genetic Information Nondiscrimination Act of 2008 (GINA) impacts the medical information employers can use to assess and accommodate disabilities, and reinforces the ADA's restrictions on the gathering and use of employee medical information.  The Patient Protection and Affordable Care Act passed in 2010 (and now under attack by the House of Representatives), reinforced prohibitions on pregnancy discrimination by amending the FLSA to require that employers with 50 or more employees provide lactating mothers with reasonable break time and facilities for expressing breast milk.

There have also been developments in state laws that relate to reasonable accommodations.  Several states now require employers to treat pregnancy like a disability and provide reasonable accommodations to pregnant employees, and several states and municipalities require employers to provide reasonable break time and location for expressing milk following the birth of a child. In addition, at least 29 states have passed laws allowing the use of medical marijuana. Although, as we note below, an employer’s obligation to reasonably accommodation use of medical marijuana is far from settled, there is no doubt that the issue will be raised and litigated in the years ahead.

There are new regulations and agency interpretations of the law.

In 2016, the EEOC issued a new resource page explaining its interpretation that the ADA requires employers to treat requests for leave as requests for reasonable accommodation, and in 2013 it published guidelines in addressing accommodation of religious practices, including dress codes. The agency has also announced that it treats lactation as a pregnancy-related medical condition that requires accommodation. 

There are some new court decisions.

Reasonable accommodation issues continue to be litigated around the country, and sometimes result in important holdings that impact employers' responsibilities.  

In EEOC v. Abercrombie & Fitch, the U.S. Supreme Court held that an employer could not refuse to hire an applicate if the decision was motivated by avoiding the need to accommodate a religious practice, such as wearing a hijab, even if no reasonable accommodation was expressly requested.

In 2015, in EEOC v. Ford Motor Company, the Sixth Circuit held that Ford Motor Company was not required to provide telecommuting as a reasonable accommodation under the ADA.

In 2012, the Ninth Circuit held that the ADA does not protect employees from discrimination based on the use of the medical marijuana, even in states that have legalized medical marijuana, because marijuana remains a controlled substance under federal law. The Massachusetts Supreme Court is currently considering whether an employer unlawfully discriminates by firing an employee for medical marijuana use.

In Young v. United Parcel Service, decided in 2015, the Supreme Court outlined the requirements for a pregnant employee to establish a prima facie case of disparate treatment based on an employer’s refusal to provide a reasonable accommodation during pregnancy.

There are all kinds of new technology.

Assistive technology developed over the past decade allows people with disabilities to perform the key functions of their jobs and increases the opportunities for reasonable accommodation.  A broad range of tools have become available, including mobile technologies and electronic accessibility tools. Employer and employees should consider these technologies in deciding whether accommodation is possible and whether it can be provided without undue hardship for the employer.

New technology can also create barriers for those with disabilities. For example, online recruiting tools can be difficult for some to navigate. Employers should not forget that reasonable accommodation is required during the application process, and should be aware of accessibility issues when choosing all equipment, including technology.

Some accommodations cost less.

An accommodation is reasonable if it allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace without creating an undue hardship for the employer.  Cost has always been a factor in the accommodation an employer can reasonably offer. Innovations and changes driven by technology may mean that accommodations cost less.  

There are societal changes that matter.

The number of women in the workplace has been steadily increasing since World War II. Women today are more likely to work while pregnant, to work further into pregnancy, and to return to work while breastfeeding. This means that the accommodation of lactating mothers will be an issue for more employers, more often.  Medical and recreational marijuana use have been legalized in some jurisdictions, and marijuana use is more widely accepted than ever before.  Employers are likely to be challenged by requests for the accommodation of medical marijuana, and may be asked to accept drug test results that indicate recreational use. The number of religious discrimination complaints has increased as a result of a backlash against those who practice (or are perceived as practicing) Islam, and many of those complaints involve issues of accommodation. 

Like the rest of employment law, reasonable accommodation is a subject that requires regular attention from HR professionals, business owners, and in-house counsel.