Tuesday, January 17, 2017

That is SO last week

Last week, there were developments in two cases in different Pennsylvania courts involving employer liability—or lack thereof—for data breaches involving employee personally identifiable information (PII). A Pennsylvania state appellate court affirmed a dismissal of a proposed class action by employees of the University of Pittsburgh Medical Center whose PII was stolen in a data breach perpetrated by hackers. And in Pennsylvania federal court, in a case in which an ex-employee accuses Coca-Cola Co. of exposing himself and other employees to identity theft after several dozen company laptops were stolen, Coca-Cola told the court that it was not obligated to safeguard the worker’s personal information pursuant to an employment contract.
  • The EEOC seeks public comment on its proposed enforcement guidance on harassment.
  • A Houston nightclub was ordered to pay $139,366 to a waitress who alleged the club discriminated against her for refusing to provide documentation proving she was not HIV-positive.
  • The EEOC sued Marquez Brothers International Inc. and its affiliates for failing to hire non-Hispanic candidates because of their race.
  • News broke that Fox News secretly settled a suit over sexual harassment allegations against Bill O’Reilly.
  • Harvard Business Review studied the impact of biased managers on minority job performance.
  • LexisNexis Risk Solutions agreed to pay more than $1.2 million to resolve allegations of systematic pay discrimination against women managers.
  • Amazon announced it will create 100,000 full-time jobs with benefits in the next 18 months.
  • The Economist issued a compelling article on the necessity and difficulty of equipping all workers to keep pace with technological change.
  • A guest contributor to HR Dive identified some workplace tech trends to watch out for in 2017.
  • A former Snapchat employee alleged in a lawsuit that the social media company misrepresented its user statistics and attempted to make him share trade secrets about Facebook during recruitment.
  • ManPower Group issued a report detailing how technological change will alter the employment landscape.
In Other News
  • The Supreme Court agreed to consider whether employers can require workers to sign arbitration agreements that prevent them from pursuing group claims in court.
  • SHRM offered advice for staying civil at work while handling sensitive subjects like performance reviews and budgeting.
  • A private arbitrator ruled that Uber drivers are independent contractors, not employees, in the first U.S. arbitration to test that issue.

Thursday, January 12, 2017

Understanding National Origin Discrimination – Part 1

In 2000, 7,792 complaints of discrimination based on national origin were filed with the EEOC.  By 2002, in part because of the societal effects of 9/11, the number had increased to 9,046.  In 2010, 11,304 such complaints were filed. As issues related to immigration continue to be the focus of political and media attention, it seems likely that employers will be faced with instances and complaints of workplace discrimination and harassment based on national or ethnic origin. Effective management of those issues will require an understanding of what the law requires, careful oversight of employee behavior, and a measured reaction to employee complaints and concerns.
This post is the first of two, and will concentrate on the definition of national origin discrimination and the related requirements imposed on employers by Title VII and its state counterparts. Next week’s post will provide examples of common workplace scenarios involving workers’ national origin.  
The EEOC has recently issued new enforcement guidance on national origin discrimination that provide detailed explanations and examples, as well as a shorter, more accessible publication entitled “Questions and Answers: Enforcement Guidance on National Origin Discrimination.” Both publications can serve as a resource for HR professionals and in-house counsel responsible for EEO compliance and personnel best practices. Here are some highlights:
How national origin discrimination is defined. This form of discrimination includes less favorable treatment because of an applicant’s or employee’s actual or perceived country of origin or ethnicity, because of where an individual’s ancestors are from, or because of affiliation with an ethnic identity, cultural practice, or language.  Title VII also prohibits workplace harassment based on national origin, just as it prohibits harassment based on race, sex, or religion. Hiring or employment practices that have a disparate negative impact on individuals of a particular national origin may violate Title VII and comparable state laws.  Title VII’s national origin protections may overlap with protections from discrimination based on race, color and religion.
National origin, citizenship, and national security.  National origin and citizenship are not the same thing.  Federal law requires that all workers be authorized to work in the US, and some government, military, and government contractor jobs require citizenship, security screening, or both.  It is not discriminatory to require that applicants and employees verify that they are authorized to work in this country, or to enforce legitimate citizenship requirements.  Similarly, it is not discriminatory to enforce legitimate, legally mandated security screening requirements that include inquiries into foreign origin, travel, or relatives.  Note, however, that all authorized workers, regardless of citizenship, are protected by Title VII against unlawful discrimination.  
English fluency requirements and English-only rules.  In some circumstances, employers have legitimate business reasons for requiring that workers are fluent in English.  An English fluency requirement is only lawful, however, if fluency is necessary for the effective performance of the position.  It is generally not lawful to base hiring or employment decisions on the existence of an accent, unless the accent materially interferes with job performance.  Any policy that requires employees to speak only English at work risks violating Title VII if it applies at all times or if it is adopted for discriminatory reasons or enforced in a discriminatory way.  An English-only policy that is imposed in limited circumstances, when necessary to promote safe and efficient performance or business operations, does not violate national origin discrimination protections. 
Ethnic or national-origin based practices. Employers are generally not required to accommodate traditions or practices based on national origin or ethnicity.  Reasonable accommodation of religious practices is required, however, and it’s important to consider and understand whether a requested accommodation is ethnic or religious in nature. Lack of familiarity with religious customs or practices does not excuse an employer from its obligations of reasonable accommodation.  
Customer preference. Employers may not consider customer preference related to national origin (or any other protected class status) when hiring, making assignments, or taking other employment actions. 
Next week, we’ll focus on how national origin issues play out in the workplace and provide suggestions for lawful and effective employer response. 
Posted by Judy Langevin

Monday, January 9, 2017

That is SO last week

Last week, the Department of Justice issued a release describing efforts to increase diversity in law enforcement.  The release states that “Underlying this work is a recognition that while greater workforce diversity alone cannot ensure fair and effective policing, there is a significant body of research suggesting that diversity can make policing more effective, more safe and more just.” Also last week, the EEOC published regulations that explain the obligation of federal agencies to engage in affirmative action and act as “model employers” for individuals with disabilities. The new rule requires agencies of the federal government to adopt employment goals for individuals with disabilities and meet other requirements designed to improve the recruitment, hiring, retention, and advancement of individuals with disabilities in the federal workplace. The regulations do not apply to private employers or state and local governments. The EEOC also published a question and answer document on the new rules.
  • IBM is preparing for an automated future by encouraging development of a new class of jobs it calls “new collar jobs.”
  • HR Dive highlighted the doppel, a wearable wristband for the workplace that is said to keep employees alert and calm, reducing stress and increasing focus.
  • A new ransomware campaign is targeting HR departments with fake job applications.
  • Tech companies in New York are supporting legislation that would allow “portable” benefits plans for gig economy workers.
  • Talent Culture studied how Americans use work email.
In Other News

Thursday, January 5, 2017

A Particular Challenge: Managing Mental Disability in the Workplace

Understanding disability discrimination and reasonable accommodation is a challenge for employers, and particularly for the in-house counsel and HR professionals who must manage disability issues in the workplace.  As you probably already know, any employer with 15 or more employees for at least twenty weeks a year is subject to the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against employees or job applicants with disabilities. There are comparable state laws with similar (and sometimes broader) prohibitions.  An individual with a disability is a person who has, has had, or is regarded as having a physical or mental impairment that substantially limits major life activities. 
It can be particularly hard for employers to manage their responsibilities to applicants and employees with mental health disabilities. Conditions considered to be protected disabilities under the law include depression, post-traumatic stress disorder, bipolar disorder, anxiety disorders, schizophrenia, and many others.  Here are some practical pointers, based on the EEOC’s recent publication explaining the legal rights of those with mental health conditions. 
  • Mental disabilities are protected disabilities. The law treats mental disabilities exactly as it treats physical disabilities. It is unlawful for an employer to discriminate against or harass an individual because the person has a mental health condition. Unlawful acts include firing an employee, rejecting a candidate for a job or promotion, or forcing an employee to take a leave of absence because of his or her mental health condition. In addition, employers must provide reasonable accommodations to qualified individuals with mental health conditions, unless doing so would cause significant difficulty or expense for the employer.
  • Although covered employers can’t discriminate because of a person’s mental health condition, they don’t have to hire or retain an employee with a mental health condition for a job the individual cannot perform, or when the individual would pose a threat in the workplace. The disabled employee must be able to perform the essential functions of the job (with a reasonable accommodation, if necessary) and must be no threat to him or herself or to others in the workplace. 
  • Don’t rely on stereotypes or assumptions when deciding whether a person can perform a job or poses a risk to safety. Lots of mental disabilities are not well understood by the public, and lack of knowledge can result in poor handling of workplace issues.  As with the management of physical disabilities, any assessment of a mental disability must be based on objective evidence. Employers should seek the guidance of expert health professionals when in doubt.
  • In dealing with an applicant’s or employee’s disability, whether mental or physical, the employer does not necessarily get to know all the details. An employee has a right to keep his or her condition private, but an employer can ask medical questions—including questions about mental health—only in limited circumstances.  Remember that any medical information the employer does obtain must be kept separately and securely and should not be mixed with other personnel file information.
  • Once an employee is hired, an employer can seek medical documentation or require an exam from a healthcare provider if the employee requests a reasonable accommodation or if the employer believes the employee is not able to perform a job safely or to support an employee’s request for accommodation.
  • Be aware of the significant stigma involving mental health conditions, and don’t allow it to drive personnel policies or decisions. HR professionals and in-house counsel should have access to expert advice about how mental disabilities affect workplace behavior, and employers should be prepared to educate managers and supervisors when appropriate.
  • Don’t gossip or allow gossip about an applicant’s or employee’s mental disability. Do not tolerate harassment or teasing of individuals with mental health conditions—or those who are perceived to have such conditions. Promptly investigate and respond to incidents of mistreatment or harassment, just as you would investigate and respond to incidents of other forms of discrimination in the workplace.
Posted by Laura Bartlow

Tuesday, January 3, 2017

That is SO last week

During the Navigator’s holiday break, many commentators wrote about what the new year is likely to bring for employers and employees. The Washington Post identified social policy, technology and diversity as the three issues employers should be considering in 2017. SHRM predicted federal deregulation and increased state regulation in the employment law arena, particularly involving these seven issues: the DOL fiduciary rule, CEO pay, the Affordable Care Act, parental leave, the overtime rule, and predictable scheduling rules. HR Dive rounded up its HR predictions for 2017, and Forbes offered ten workplace trends for 2017. Legaltech News urged private employers to prepare for privacy and data security challenges in the coming year, and Fast Company predicted five workplace trends.
  • A federal jury awarded $250,000 in damages in a case brought by the EEOC on behalf of a former Costco employee who alleged she was harassed and stalked by a Costco customer.
  • The EEOC filed its first North Dakota suit charging that an employer subjected a male employee to sexual harassment because of his sexual orientation.
  • A federal judge in Texas issued an injunction preventing enforcement of Affordable Care Act protections for transgender and abortion-related healthcare services, just one day before they were to take effect.
  • The Minneapolis Star Tribune examined why Twin Cities employers struggle to retain employees from diverse backgrounds.
  • Fitness trackers and other wearables are on the rise in American workplaces.
  • An Taiwanese manufacturer of Apple’s iPhone plans to replace nearly all of the human workers in its Chinese factories with robots.
  • France passed a “right to disconnect” law giving French workers the legal right to ignore work emails when they’re off the clock.
In Other News

Thursday, December 22, 2016

2016: Year in Review

As 2016 comes to a close, there is understandable concern about and interest in changes to employment laws and regulations that may be initiated by a new federal administration. Although enforcement and regulatory priorities of agencies like the Department of Labor and the EEOC may be altered, it’s important to remember that the pace of bureaucratic change can be slow, and that Congress and the courts will remain in the mix. We believe that it’s almost impossible to predict the pace of change or the ultimate impact of the new administration’s agenda.
Even with the prospect of change ahead, it’s valuable to look back on the year just ending and note important trends in key areas. 
EEOC Highlights
The EEOC has spent 2016 explaining and regulating. The agency updated its strategic enforcement plan for the next four years, issued regulations describing how the ADA and GINA apply to employer-sponsored wellness programs, held public meetings on the use of big data in employment decision-making and promoting diverse and inclusive workplaces in the tech sector, created The Small Business Resource Center, updated its enforcement guidance on national origin discrimination and retaliation, significantly revised pay data reporting requirements for employers with more than 100 employees, and issued publications on the rights of workers with medical conditions. The agency also continued to pursue Title VII protection for sexual orientation and gender identity through lawsuits—including the Hively case currently being reconsidered by the Seventh Circuit Court of Appeals—and issued a fact sheet on bathroom access for transgender employees. On top of all of that, the EEOC increased the number of charges it resolved this year and secured more than $482 million for victims of workplace discrimination.
Wage & Hour Highlights
As everyone surely knows by now, the Department of Labor’s expansion of overtime protection under the Fair Labor Standards Act was finalized in May, scheduled to take effect in December, and stopped by a temporary injunction in late November when 21 states and several business groups went to federal court in Texas. The Texas court’s injunction has been appealed to the Fifth Circuit, the battle in the lower court continues, and so far the DOL says it will continue to fight for implementation of the rules. 
The overtime injunction wasn’t the only setback for the DOL this year. In May, the agency issued its controversial “persuader rule,” requiring employers to disclose any arrangement with outside consultants in which the consultants attempt to influence employee unionization efforts. In November, a court issued a permanent order declaring the rule unlawful.
There was a lot of activity at the state and local levels related to  minimum wage. Twenty-five states, cities, and counties approved minimum wage increases for 11.8 million workers in 2016. In the November elections, voters in Arizona, Colorado, Maine, and Washington approved ballot measures to increase their state’s minimum wages, while South Dakota voters rejected an attempt to lower the minimum wage for youth workers. California, Oregon, New York City, and Washington D.C. approved future increases.
Leave Laws & Policies
Employee leaves also received a lot of attention this year. The DOL issued new FMLA guidance and a new FMLA poster, and the EEOC issued a resource page on employer-provided leaves under the ADA.
Just a few days ago, Washington DC passed one of the country’s most generous paid family leave bills. In November, voters in Arizona and Washington passed statewide paid sick leave laws. Earlier this year, San Francisco and New York state passed comprehensive paid family leave policies, and our own cities of St. Paul and Minneapolis enacted ordinances requiring private employers to provide paid sick leave. The DOL released a rule requiring federal contractors to provide their employees with seven days of paid sick leave annually.
Many, many private employers also expanded their leave policies this year. Companies such as Chipotle, IKEA, Netflix, Microsoft, American Express, 3M, and many others announced expanded sick and/or family leave policies.
Sexual Harassment & Sexual Assault
Unfortunately, sexual assault and sexual harassment continue to be a major problem in the workplace. We’ve written about it a lot this year. The EEOC issued a report with recommendations for harassment prevention.
National attention was drawn to these issues in 2016. Gretchen Carlson’s allegations and suit concerning former Fox News chairman and CEO Roger Ailes was major news. Several high-profile cases of sexual assault and harassment on college campuses drew national attention, most recently in our home state of Minnesota. And sexual assault and harassment became an issue for both Democrats and Republicans in this year’s presidential campaign.
Increased awareness of sexual harassment and sexual assault caused by media attention and public discussion can result in expanded enforcement agency focus on workplace claims. It may also increase the number of claims made. Employers should remain vigilant about enforcing anti-harassment policies, investigating complaints, and taking appropriate action in response to inappropriate workplace behavior. 
Those are the 2016 developments and trends that strike us as particularly important, but they aren’t the only ones. There have been many other developments in employment law this year, as others have observed.
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Thanks for reading The Employment Law Navigator this year. We’re going to take next week off, but will be back with our next That is So Last Week recap on Tuesday, January 3. Happy holidays to all!

Monday, December 19, 2016

That is SO last week

Last week, the EEOC issued a publication on the rights of job applicants and employees with mental health conditions, along with a companion document addressing the mental health provider’s role in reasonable accommodations in the workplace. These documents explain, in layman’s terms, workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990.  According to the agency’s press release, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions in fiscal year 2016, and obtained approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations. This is the third EEOC publication this year aimed at providing workers with medical conditions or work restrictions a user-friendly explanation of their rights. The agency previously published resource documents addressing the employment rights of individuals living with HIV infection and pregnant workers.
  • A class action lawsuit alleging that an employment agency discriminated against black applicants in favor of Hispanic applicants will move forward in Illinois.
  • A California court held that the state’s anti-SLAPP statute, which shields First Amendment activity from abusive lawsuits, cannot be used by CNN to defend against a race discrimination suit brought by a former CNN producer.
  • Another female reporter filed a discrimination and hostile work environment suit against Fox, alleging that Roger Ailes harassed her when she applied for a job at Fox News.
  • A class action lawsuit filed on behalf of 250 workers alleged that Disney laid them off based solely on their national origin and race and then required them to train their foreign replacements in order to collect severance pay.
  • A Louisiana judge held that the state’s governor overstepped his authority by issuing an order protecting gay and transgender state employees from discrimination.
  • HR Dive examined the import of the Hively case, currently under consideration by the Seventh Circuit Court of Appeals, for federal LGBT employee protections.
  • The New York Times called itself out for failing to hire diverse reporting and editorial staff.
  • Yahoo disclosed that a hack in 2013 exposed more than a billion user accounts, the largest data breach in history.
  • The clinical laboratory services company Quest Diagnostics announced a data breach by a third party who accessed the personal and health information of approximately 34,000 patients.
  • IBM plans to hire 25,000 U.S. workers in the next four years.
  • SHRM gave advice for protecting company data when employees travel.
In Other News
  • California employers, take note: new fair pay rules go into effect on January 1.
  • Baked-goods company Flower Foods agreed to pay $9 million to settle a class action lawsuit alleging violations of the Fair Labor Standards Act.
  • American Express and 3M both announced expanded family leave policies allowing up to 20 weeks of paid and unpaid parental leave.
  • Some employers are rescinding raises promised in anticipation of the overtime rule that was temporarily enjoined as of December 1.
  • Fast Company shared advice on how to use the office holiday party to advance your career.
  • Forbes covered innovative ideas to attract and retain employees.