Monday, May 23, 2016

That is SO last week

Last week the long-awaited final FLSA overtime regulations were published.   The regulations are intended to make an additional 4.2 million workers eligible for overtime.  The new rules raise the salary threshold for exempt employees to $913, or $47,476 per year. The new rules also include a requirement that employers track time worked for each employee and an increase in the salary level at which employees are designated as highly compensated workers. The rule will go into effect for the pay period including December 1, 2016. 
Some commentators, including SHRM, believe the overtime regulations will be disastrous for small business and non-profits. Republican senators have introduced a resolution that would block the new rules from going into effect.  Other commentators, including Newsweek, believe the new rules will be a boon for the middle class.
We will hold a free webinar on June 2 at Noon CDT covering the new rules and what employers can do to prepare.  All are welcome.
In other developments:

Thursday, May 19, 2016

Transgender Employee Bathroom Use

Ah, the bathroom.  A place of relief and solitude for many, but for the last six weeks, it has been the focus of controversy.  North Carolina now requires that people only use restrooms designated for the gender that appears on their birth certificate. Supporters of this requirement claim that without this restriction, pedophiles and sexual deviants will see public bathrooms as invitations for unlawful behavior.  In response to North Carolina’s HB2, the Department of Justice filed suit against the state, arguing that the legislation violates Title VII of the Civil Rights Act of 1964.  In another development, late last week the Departments of Justice and Education issued a Dear Colleague Letter stating that Title IX requires educational institutions to allow transgender students to use the bathroom that corresponds to their gender identity. 

Any analysis of the impact of North Carolina’s legislation or the federal government’s response requires perspective. Transgender men and women have been using bathrooms that correspond to their gender identity all along.  Each of us has very likely shared a restroom with a transgender individual without being aware of it. And, regardless of legislative requirements, transgender individuals are quite likely to continue using restrooms that correspond to their gender identity; it’s hard to imagine how to effectively enforce requirements like those that have now been adopted in North Carolina. 

Media attention and social perspective aside, it’s important to focus on what the current controversy means for employers. Outside of North Carolina, there will likely be very little impact. If an employer has no policy on transgender use of bathrooms, or has an affirmatively inclusive policy, no action is required.  If, however, an employer has a policy that mirrors North Carolina’s legislation, the federal government’s attention to this issue should be noted.  In particular, employers should take note of Attorney General Loretta Lynch’s comments and the Fact Sheet recently issued by the Equal Employment Opportunity Commission (EEOC).

The Fact Sheet does not provide any groundbreaking pronouncements on sex discrimination under Title VII.  Since 2012, the agency’s position has been that discrimination based on transgender status is unlawful sex discrimination.  In the past two years, the EEOC has initiated significant litigation, arguing in each case that Title VII’s prohibition on sex discrimination includes sexual orientation, gender identity, and transgender status.  While less than half of the states prohibit these forms of discrimination, the EEOC is accepting charges from employees in any state who believe they have been discriminated against by their employer.

North Carolina HB2 supporters assert that the federal government is overreaching. The Departments of Justice and Education and the EEOC argue that they are trying to create an and environment free of discrimination for transgender workers and students.  The EEOC’s Fact Sheet is clear that “these protections do not require any employee to change beliefs.  Rather they seek to ensure appropriate workplace treatment….” In short, the federal government believes that treating transgender men and women differently by designating specific bathrooms for their use, conditioning their use of a bathroom on reviewing their birth certificates, or otherwise interfering in their bathroom use constitutes unlawful discrimination.

There is no doubt that some, in North Carolina and elsewhere, are fearful and confused about the presence of transgender individuals in gender-specific restrooms. In its 2015 decision in Lusardi, the EEOC wrote, “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”  This has been true since anti-discrimination laws were first enacted and applies to discrimination based on every protected class status. The personal beliefs of individual employees cannot dictate how an employer treats applicants or employees protected by Title VII.

This post originally appeared in the ABA for Law Students blog, Before the Bar.

Posted by Kate Bischoff  

Monday, May 16, 2016

That is SO last week

Last week, news broke that Nicola Thorp, a UK temp worker assigned to PwC, was sent home for violating her temp agency’s dress code by failing to wear high heels.  Portico, the agency, explained that the policy requiring women to wear shoes with one-to-two inch heels is intended  to “ensure customer-facing staff are consistently well presented and positively represent a client’s brand and image.”  In an interview with the BBC, Ms. Thorp stated, “I think dress codes should reflect society, and nowadays women can be smart and formal and wear flat shoes.” 100,000 people signed a petition in support of Ms. Thorp.
In other developments:

Thursday, May 12, 2016

New FMLA and ADA Resources, Old Problems

In the past three weeks, employee leaves have gotten a lot of attention.  The Department of Labor issued new FMLA guidance and a new poster.  Then, this week, the EEOC issued a new resource page for employer-provided leaves under the ADA.  Although these new resources do not include any earth shattering revelations, they do provide helpful advice and are worth reading.    
These new resources also remind us about some of the most common employer missteps.  Here are two that we often get asked about:
Work vs. Non-Work Injuries
In employment law, we sometimes refer to the FMLA, ADA, and workers’ compensation laws as the Bermuda Triangle, where employers can find themselves lost at sea.  Under the workers’ compensation laws of many states, employers must provide light duty for employees injured on the job when the work is available.  It is tempting for employers – particularly in industries where injuries are relatively frequent - to reserve light duty work for employees affected by work related injuries. The EEOC, however, states explicitly that regardless of the source of the injury, injured or disabled employees must be accommodated, through assignment to light duty work if appropriate, unless such an accommodation imposes an undue hardship.
Young v. UPS is a great example.  UPS had a policy of providing light duty work only to employees who suffered a work injury.  When a pregnant employee requested light duty work, she was not accommodated.  She sued, alleging that UPS treated her differently because she was pregnant.  The U.S. Supreme Court agreed, holding that the UPS practice of treating employees differently based on the source of their disability (however temporary) was unlawful.    
The EEOC’s position on this issue is not new. In an Informal Discussion Letter dated January 28, 2000, the EEOC wrote:
If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.
Instead of treating employees differently based on the source of or reason for their injury or illness, employers should seek reasonable accommodations that focus on what the employee is able to do.
“No Restrictions” Policies
For years, employment attorneys have advised clients that they cannot prohibit employees from returning to work until they are 100% healed or have no work restrictions.  The EEOC asserts that such policies and practices are violations of the ADA.
The new EEOC ADA resource page states that employers must treat requests for leave as requests for a reasonable accommodation.  Even when an employer is not required to grant leave under the FMLA (e.g. because it has too few employees), the ADA may still apply and may require the employer to consider unpaid leave as an accommodation. 
When an employee returns from leave, the ADA also applies.  Employees may request additional time off or some other accommodation to enable them to do their work.  As with all requests for accommodation of a covered illness or injury, employers in this situation are required to engage in an interactive process before determining how to respond to an employee’s request.  Employer and employee must discuss what the employee can do and what assistance he or she may need to perform the job.  Only after the interactive process occurs can an employer determine that the employee’s return to work will create an undue hardship. A blanket policy requiring that employees only return to work when all medical restrictions are lifted violates the ADA.
There is no doubt that it’s challenging to comply with all the laws that may apply to an injured or disabled employee.  Each situation must be considered on its own merits. Shortcuts and one-size-fits-all policies can end up creating more problems than they solve.  With thoughtful attention to compliance requirements and frequent use of resources like those listed above, however, employers can find their way.
Posted by Kate Bischoff 

Monday, May 9, 2016

That is SO last week

Last week, the EEOC continued its efforts to include sexual orientation and gender identity as forms of prohibited sex discrimination under Title VII.  The agency obtained a $140,000 settlement from a technology company that barred a transgender employee from the workplace after she announced her intention to transition from male to female.  The EEOC also issued a new fact sheet on bathroom access for transgender employees.  The fact sheet followed North Carolina’s enactment of legislation that requires individuals to use bathrooms that match the gender stated on their birth certificate.  Just today, North Carolina filed a lawsuit against the federal government over its “bathroom bill.”
  • The EEOC obtained a nearly $7.7 million judgment against an agricultural employer for discrimination and harassment of foreign workers.
  • The Guardian covered a new study that found that sexual harassment training may have a negative effect. 
  • After being told “pregnancy is not part of the uniform,” a woman was terminated.  She filed a new lawsuit.
In other developments:

Thursday, May 5, 2016

Fast-Track Compliance

Compliance: employment lawyers love it, business leaders sometimes see it as a roadblock to innovation, and human resources professionals know how difficult it is to achieve and maintain. Laws change constantly, and now that more cities and counties are getting into the employment law game, staying compliant is even harder. Case in point: in just the last five weeks, five significant changes  have occurred in employment law.  Here’s what’s new:
When you add those developments to new NLRB interpretations, recent decisions from the U.S. Courts of Appeal interpreting Title VII, the ADA, and the FLSA, and recent U.S. Supreme Court decisions, it’s enough to make even a seasoned HR pro’s head spin.  And we haven’t even mentioned the new overtime regulations, which will be issued any day now, and will affect nearly every employer.
HR professionals and in-house counsel often don’t have the time or energy to keep up with all the employment law action, all the time. With that in mind, here are some tips for staying current:
1.         Read blogs.  Employment lawyers are prolific bloggers, and there are some great ones out there.  In addition, the Department of Labor has a blog that provides guidance and reports on workplace trends.  The EEOC’s newsroom is a great place to see what the agency has been up to and read about new initiatives.  Spending 15 minutes a day reading employment-law related blogs will go a long way toward keeping you up to speed.
2.         Attend webinars.  Employment lawyers also hold free webinars designed to educate about current and new employment law issues.  Webinars can provide up-to-date information and sometimes include PowerPoints you can keep and reference.  (We’re busy planning one on the new overtime regulations, scheduled for June 2.)
3.         Attend HR conferences.  HR conferences almost always include legislative updates and sessions on employment law developments. 
4.         Let an employment lawyer treat you to coffee or lunch.  We’ve never met an employment lawyer who doesn’t like to talk about employment law.  If you want to learn more (or are just hungry or caffeine deprived), let your employment lawyer know.  Don’t have time for lunch?  Then buzz us over email, social media, or on the phone.  We can’t speak for all of our colleagues, but we here at the Navigator promise to respond.
HR compliance is tough stuff.  It requires vigilance and, at times, creative problem-solving.  Employment lawyers are eager to help. 
Posted by Kate Bischoff 

Monday, May 2, 2016

That is SO last week

The Department of Labor announced in 2015 that it would issue regulations setting $50,440 as the salary below which eligibility for overtime would be presumed. Employer organizations were quick to criticize that salary threshold, claiming it was too high.   Last week, the DOL indicated that it is considering a lower threshold for its new overtime provisions, which could be set at $47,000.  The move may not satisfy many critics, and one former Wage and Hour Division Administrator called the lower level an “empty gesture” and said that a salary threshold higher than $35,000 is “irresponsible.”
In other developments: