Category Archives: employment law

Acknowledging Intersexuals in the Workplace

Here at HRE, we like to think we’re pretty well-versed in the labyrinthine lingo associated with the world’s workplace, including all manner of obscure HR term and every form of TLA (three-letter acronym).

So it came as quite a shock to me yesterday to discover a previously unknown — unknown to me, at least — term while participating in my company’s mandatory annual training sessions that addressed (among others) the old chestnuts of drugs in the workplace, IT usage, ethics, and gender, ethnic and sexual diversity.

The term in question? Intersexuals.

After some initial research (mostly the Wikipedia page for “intersex”) I found the following:

Like all individuals, intersex people have various gender identities. Most identify as either a woman or man, while some may identify as neither exclusively a woman nor exclusively a man. Some intersex individuals may be raised as a woman or man but then identify with another gender identity later in life.

That same Wikipedia page also notes that in 2015, the UN Office of the High Commissioner for Human Rights described intersex people simply as being “born with atypical sex characteristics” that don’t meet “binary sex stereotypes.”

After learning a little more, the questions started popping up in my head: How can employers best accommodate such workers? How many people in today’s workforce actually identify themselves as intersexual? Which workplace bathroom should an intersexual person use?

I’ve reached out to the Human Rights Campaign as well as other experts in the arena of LGBTI issues, hoping to get some clarity on the issue in terms of how organizations can best accommodate such workers, but I’ve yet to hear back from them.

When I do, though, I’ll pass along their answers to you. In the mean time, I suppose I’ll just be thankful that I work for a company progressive enough to already acknowledge intersexuals in its work policies, even if not everyone (including me) may know they even exist.

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The Feds’ War on Employee Misclassification

Seeking to clarify the issue of just what it is that distinguishes an independent contractor from an employee, the Department of Labor yesterday  issued its first Administrator’s Interpretation (AI) of the issue as it pertains to the Fair Labor Standards Act. The issue has only grown more heated in recent months with the rise of “gig economy” companies such as Uber and Lyft, along with long-running disputes between companies and workers such as FedEx Ground’s dispute with its drivers, who claim they were misclassified as independent contractors.

Written by the DOL’s Wage and Hour Division Administrator, David Weil, the 15-page memo states that the misclassification of employees as independent contractors “is among the most damaging to workers and our economy.” It emphasizes the WHD’s six-factor economic realities test that’s used to determine a worker’s status along with what a just-released briefing from law firm Seyfarth Shaw describes as “an extremely expansive reading of the FLSA’s ‘suffer or permit to work’ definition of ’employ.'”

“Combined,” the Seyfarth Shaw briefing says, “WHD’s efforts indicate a significant hostility towards the use of independent contractors.”

An agreement between an employer and a worker stating that the worker is an independent contractor “is not indicative of the economic realities of the working relationship and is not relevant to the analysis of the worker’s status,” Weil’s memo states. The true measure of whether a worker is an employee or an independent contractor, Weil writes, is the extent to which the worker is economically dependent on the employer. A worker who is really in business for him-or-herself is an independent contractor, he notes; a worker who is economically dependent on the company is an employee.

Weil’s AI serves as a reminder to employers to regularly question their independent-contractor classifications as a part of their global risk audits, writes Michael Droke, a partner in the labor and employment division of Dorsey and Whitney. They should also be keeping records on the process used to determine whether one is an independent contractor or employee, and ensure that those classified as independent contractors aren’t given rights or access that may call their status into question, he writes: “For example, contractors should not have internal email accounts, should not be given server access, and should not be invited to employee functions.”

Weil’s AI is yet one more piece of evidence that the federal government is aggressively seeking out employers that misclassify (either deliberately or by mistake) employees as independent contractors and that businesses must proceed very carefully in this area, according to the Seyfarth Shaw memo.

“The guidance now makes it likely that DOL investigations and enforcement actions and private litigation contesting the classification of such workers will intensify,” the Seyfarth Shaw attorneys write. “Businesses should, therefore, carefully evaluate the DOL’s guidance and its potential impact on their operations.”

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H-1B: Disney Retreats; DOL Investigates

The Walt Disney Co.’s Disney ABC Television Group appears to be backing off from a layoff announcement two weeks ago, in which it had told a group of approximately 35 of its IT workers that their jobs were being outsourced to Cognizant Technology Solutions, a New Jersey-based company with large overseas operations. But now, reports Computerworld, those IT workers have been told that the layoff has been canceled.

Some of the IT workers who were to be laid off were told by Disney/ABC managers they would have to train their replacements before leaving, Computerworld reports. This is, of course, reminiscent of the move by Disney’s Parks and Resorts division to outsource 250 IT jobs to workers allegedly brought in under the H-1B visa program and have many of those employees train their replacements in order to receive severance. The furor this created when it was reported recently by mainstream publications such as the New York Times may have led Disney to cancel the latest layoffs, a source told Computerworld.

“They [Disney officials] want this to go away — right now,” said the source, a Disney/ABC IT employee who asked not to be named.

A source at Disney confirmed to Computerworld that the layoff had been rescinded. Although Cognizant is a major user of H-1B visas, it is unclear whether any of the workers in the Disney/ABC project had been brought in under the program.

Other companies besides Disney have come under fire for replacing their IT workers with H-1B visa holders, including Southern California Edison. The Department of Labor has announced it will investigate two outsourcing companies, Infosys and Tata Consultancy Services, for possible violations of rules for H-1B visa holders in conjunction with work they did for Southern California Edison. Those two companies, along with several others, are the biggest recipients of H-1B visa allotments each year. Sen. Bill Nelson, D.-Fla., has also called for an investigation of the H-1B program.

The fracas continues to focus more negative attention on the H-1B program. In a post on his blog, longtime tech observer and consultant Robert X. Cringely labels the  H-1B program “a scam” and says the argument that it’s necessary due to a shortage of technical talent here in the United States is false. He quotes an anonymous source, identified as a former chief technology officer at several companies, who said that — throughout his career — H-1B visa holders were routinely brought in by companies as a cheaper alternative to hiring more-expensive American tech workers: “The reason of course was $$$.  The H1B’s cost approx. 1/3rd or 1/4th the cost of the comparable American in the same job.”

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Clearing the Haze Around Medical Marijuana

smokeEarlier this week, the Colorado Supreme Court handed down a ruling that one attorney says “may serve as a roadmap” for other courts—and employers—navigating the gray areas surrounding medical marijuana laws.

On Monday, the state high court’s 6-0 decision in Coats v. Dish Network determined that an organization can terminate an employee for using medical marijuana, even if said marijuana use occurs while off-duty.

Court documents indicate that former Dish Network employee Brandon Coats has been confined to a wheelchair since he was a teenager, as a result of injuries sustained in a car accident. Court records indicate that Coats registered for and obtained a state-issued license to use medical marijuana in 2009, as a way to treat leg spasms brought on by his quadriplegia.

On June 7, 2010, however, Coats was fired from his job as a telephone customer service representative with the Dish Network, after testing positive for tetrahydrocannabinol—a component of medical marijuana—the previous month.

At the time, Coats informed the company that he was a registered medical marijuana patient, and planned to continue using medical marijuana, according to court records. After being fired for violating the organization’s drug policy, Coats filed a wrongful termination claim against Dish, alleging the company was prohibited from firing an employee based on his or her engagement in “lawful activities” off the employer’s premises during non-working hours. Coats argued that his off-the-clock and away-from-work medical marijuana use was lawful under the Medical Marijuana Amendment and its implementing legislation.

In affirming lower court rulings, the Colorado Supreme Court found the term “lawful” applies only to those activities that are legal under both state and federal law. Ergo, employees engaging in activities such as medical marijuana use that are permitted by state law but forbidden by federal law are not protected by the statute.

While not binding in other states, this Colorado ruling could hold lessons for employers elsewhere, John DiNome, a Philadelphia-based labor and employment attorney and partner at Reed Smith, told HRE this week.

“The short takeaway,” says DiNome, “is that Federal law trumps state law. The Federal Controlled Substance Act lists marijuana as an illegal substance. As such, use of marijuana is not a lawful activity in Colorado.”

For employers, “this seems to confirm that, if they choose to have a ‘zero-tolerance’ policy with respect to drug use, they are on fairly solid ground in doing so.”

As such, “even if an employer is operating in a state where marijuana is either legal for medical or recreational use, the employer may ban use of illegal drugs and take the position that marijuana is not legal at the federal level,” he says.

DiNome notes that, while the Justice Department has said it will not prosecute certain marijuana use offenses, “the fact remains that Congress has not addressed the topic, and marijuana is still an illegal substance under federal law.”

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Increased Skepticism Around EEOC Claims?

lawsuitAccording to at least one attorney, a recent Sixth Circuit appeals court ruling in a disability discrimination case underscores the federal courts’ increasingly cynical view of EEOC claims.

An overview of what led to the April 10 decision in EEOC v. Ford Motor Co.:

Jane Harris, a now-former Ford employee with irritable bowel syndrome, sought a job schedule of her choosing, which would allow her to work from home as needed, up to four days a week. Ford denied her request, determining that “regular and predictable on-site attendance” was essential to Harris’s “highly interactive” job as a resale buyer with the company.

Early in her career with Ford, Harris—who joined the automaker in 2003—earned awards and accolades for what court documents describe as her “strong commodity of knowledge” and “diligent work effort.” Her performance soon deteriorated, however, and by her fifth full year with the company, Harris ranked in the bottom 10 percent of her peer group within Ford. By 2009, her last year with the organization, she “was not performing the basic functions of her position,” according to court records.

In addition, Harris missed an average of 1.5 work days per week in 2008, and frequently arrived at work late and left early, court records indicate.

Harris’ irritable bowel syndrome naturally exacerbated the situation, with her symptoms contributing to greater stress. In turn, the added stress worsened her symptoms and made it more likely for her to miss work.

Court records suggest that Ford “tried to help” Harris, adjusting her work schedule and allowing her to work from home on an ad hoc basis, for instance. But, despite these measures being taken, Harris was still “unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.”

After Ford attempted to offer alternative accommodations—some of which Harris rejected—she was terminated in September 2009, as a result of what the company called “several years of subpar performance and high absences.”

In August 2011, the EEOC sued Ford under the Americans with Disabilities Act. While the Sixth Circuit ruled against Ford in an April 2014 decision, an appellate panel voted to rehear that ruling. The court ultimately reversed that decision, noting that an employee with a disability is not qualified for a position if he or she cannot perform the necessary functions of the role with or without reasonable accommodation. The court noted that telecommuting may be a reasonable accommodation per the ADA, except in a scenario in which regular attendance is essential to performing the job’s critical functions.

The EEOC “has been pursuing telecommuting claims on a regular basis,” says Mark Girouard, a Minneapolis-based labor and employment attorney with Nilan Johnson Lewis.

This decision, however, figures to make establishing these claims more difficult for the organization, says Girouard.

“Obviously, each position must be analyzed individually, but the Sixth Circuit’s description of the job at issue in this case could be applied to many other positions.”

In other words, there are many jobs where availability to participate in face-to-face interactions should necessitate regular and predictable performance, he says, adding that “the en banc decision makes clear that courts should defer to employers’ business judgment on that issue.”

Last week’s decision “adds to the list of recent major losses for the EEOC,” says Girouard. “Separate and apart from the substance of the decision, the fact that the EEOC lost another major lawsuit highlights the increasing skepticism applied to the EEOC by the federal courts.”

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Supremes Revive Young v. UPS Case

The reaction to yesterday’s Supreme Court decision to revive a pregnancy-discrimination lawsuit against United Parcel Service has been decidedly swift and, of course, decidedly mixed.

The Supremes based yesterday’s decision on the belief that lower courts had used the wrong standard to determine whether the company had discriminated against one of its drivers, according to the New York Times.

When Peggy Young’s doctor recommended that she avoid lifting anything heavy after she became pregnant, the company refused to give her lighter duties to accommodate her and placed her on unpaid leave, according to the 2006 lawsuit.

(UPS has since changed its policy to offer light duty to pregnant women, the Times reports.)

Barry Hartstein, co-chair of Littler’s EEO and diversity practice in Chicago,  says “the Court  essentially treated pregnancy under the classic disparate treatment theory, finding that discrimination can be inferred by certain employer conduct.”

Meanwhile, Katherine Kimpel, managing partner of Sanford Heisler Kimpel in Washington and co-author of an amicus brief in support of Ms. Young for medical providers and organizations involved in female and infant health and for the National Partnership for Women and Families, says the decision was more than just a victory for Young, who accused the delivery company of violating the federal Pregnancy Discrimination Act:

“The Supreme Court today handed a victory not only to Ms. Young but also to all pregnant women and mothers working in this country.  Ms. Young will have her day in court.  UPS does not get to subject women to a least-favored-nation status.  Other employers should be on notice.  The Supreme Court makes clear that the Pregnancy Discrimination Act has teeth.  Employers who accommodate everyone but pregnant workers will be held accountable.”

Meanwhile, Michael Droke, a Seattle-based partner in the labor and employment practice at the international law firm Dorsey & Whitney, calls the 5-4 decision a “fractured” one, adding that the Court “noted that the expansions to the Americans with Disabilities Act definitions of ‘disability’ might require companies to accommodate employees with temporary lifting restrictions, separate from the Pregnancy Discrimination Act.”

He says employers should beware that federal law, either under the ADA or Pregnancy Discrimination Act, protects disabled employees from discrimination and, in some cases, require reasonable accommodation.

“The Court refused to grant pregnant employees, in the Court’s words, a ‘most favored nations’ status,” he says. “In other words, an employer is not automatically required to give pregnant workers the same accommodations they would offer to others with temporary disabilities.

However, he adds, the Supreme Court required UPS to justify its treatment by establishing a legitimate, non-discriminatory reason for the difference.

“This may prove a very difficult burden for most employers to meet,” he says. “Employers must be very careful when granting leave requests or making job accommodations, because the Company might later be required to justify any difference in treatment for other employees.”

 

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Krawcheck Calls for Greater Diversity

Sallie Krawcheck

Sallie Krawcheck

The second day of SHRM’s Employment Law & Legislative Conference featured a morning talk by Sallie Krawcheck, a former high-profile Wall Street executive who’s now the chair of Ellevate, a New York-based mentoring network for women (formerly known as 85 Broads).

In describing her experiences as one of the few female leaders in an industry that continues to be dominated by white males, Krawcheck paid tribute to HR. “The first young man I had to fire threatened to kill me,” she said. “He said he would hunt me down in a dark alley. The second young man I had to fire insisted that I was doing so because I was actually in love with him. He suggested that I put him up in a love nest. So, I have a great deal of respect for what you in HR have to deal with.”

She also offered her own take on what led to the financial meltdown of 2008: “I don’t think it was greed so much as groupthink,” she said. “And what breaks groupthink? Diversity of thought.”

Krawcheck called on HR to “keep us honest, give us training on this, encourage us to have those courageous conversations where we say, ‘Dave, you interrupted Susie five times during her presentation, but you didn’t interrupt Bill once during his.’ ”

Companies today suffer from a surplus of mentoring opportunities for women but a deficit of sponsoring programs, she said, in which executives actively advocate for women in their careers. “Some companies are actually replacing their mentoring programs with sponsoring programs.”

Companies can demonstrate their commitment to diversity by making it a key developmental milestone, said Krawcheck. “Here’s a thought: Give responsibility for diversity to a high-potential white guy.”

Later on that day, a breakout session featured two board members from the National Labor Relations Board, who sought to explain the Board’s reasoning on controversial matters such as so-called “ambush elections” rule regarding union-certification elections.

“I’m told the best part of the new rule starts on page 500, where [Harry] Johnson and I write our dissent,” said Philip Miscimarra, who is — along with Johnson — one of the two Republican appointees to the five-member Board.

He and Johnson disagreed with the new elections rule on a number of different issues, particularly its dramatic compression of the time allowed between when a union files a certification petition and the election. “The [National Labor Relations Act] is silent with respect to timing,” said Miscimarra. “How fast is too fast, or how slow is too slow — it is silent on those issues.” He noted that both houses of Congress have passed a “resolution of disapproval” of the new rule — a resolution that could potentially nullify the rule should a Republican win the next presidential election and sign the resolution into law.

One of the most contentious issues the Board continues to wrestle with, said Miscimarra, is the extent to which companies have the right to restrict concerted activities by employees that could be considered as “disrespectful, discourteous or insubordinate.”

“Employers have been surprised to learn that rules they have in place for a good reason — rules that require employees to show courtesy and respect — are unlawful under our statute,” he said.  “I do hope the Board can do a better job of devising a standard in this area that people will find helpful.”

 

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Another City Tackles Paid Sick Days

The Philadelphia City Council today is debating a hot-button topic with potential HR ramifications that may reach far beyond the city’s limits: whether to enact a paid sick days bill into law.

If passed, the City of Brotherly Love will join San Francisco, Washington, D.C., Seattle, Portland, Ore., New York City, Jersey City, Newark and the state of Connecticut as municipalities with such laws on the books.

While the debate around such laws has been growing over the years, momentum for its passage increased after President Obama’s recent State of the Union Address, which called for cities to ensure paid sick days for millions of Americans. The president is also urging Congress to require companies to give workers up to seven days of paid sick leave a year.

According to the National Partnership for Women & Families, San Francisco became the first locality in the nation to guarantee access to earned paid sick days in 2006.

In 2008, the District of Columbia and Milwaukee passed paid sick days standards that included paid “safe” days for victims of domestic violence, sexual assault and stalking. In 2011, the Connecticut legislature became the first in the nation to pass a statewide paid sick days law, and Seattle became the fourth city, with Portland, Ore., and New York City joining their ranks in 2013.

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Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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