Category Archives: employment law

Firing Someone over Politics

With conflict between President Trump supporters and detractors still at a fiery pitch, and with his protested inauguration still in the rearview mirror, this recent post on the Littler site might prove helpful.

In it, a boss in Sacramento, Calif., is asking the San Francisco-based employment law firm whether an employee can be fired, or at least disciplined, after the boss “saw one of my employees on the local news the other night participating in a political rally over the weekend.”

“Can I at least institute a policy prohibiting this kind of behavior going forward?” the boss asks.

Well, it all depends, Littler’s Zoe Argento writes, “on the employee’s location, the legality of his conduct, the employee’s contract, the nature of your business and the characteristics of the individual.” But best advice: Probably not a good idea and tread very carefully.

There are some state laws that prohibit employers from taking adverse action against employees because of their off-duty lawful political activities. So know your state’s laws on this. According to Argento:

“In California, employers may not coerce employees, discriminate or retaliate against them, or take any adverse action because they have engaged in political activity. Similar prohibitions exist in other states, including Colorado, Louisiana, New York, South Carolina, and Utah. Connecticut actually extends First Amendment protection of free speech to the employees of private employers. Some of these laws provide exceptions for public or religious employers or for off-duty employee conduct that creates a material conflict with respect to the employer’s business interests. Under such laws, and absent some exception, the proposed termination or demotion of this employee because of his lawful, off-the-clock political activity would be illegal.”

Also, Argento points out, at least three states — California, Louisiana and Colorado — prohibit employers from adopting any policy, rule or regulation that forbids or prevents employees from engaging or participating in politics or from running for office.

On the federal level, she says, firing or disciplining workers who engage in rallies, protests, marches or any other polticial activity could run afoul of the National Labor Relations Act, which provides that “employees shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection.” She continues:

“The U.S. Supreme Court has interpreted this provision to mean that employees may organize as a group to “improve their lot” outside the employer-employee relationship. Employees’ participation in political advocacy would therefore be protected if it relates to labor or working conditions. Such advocacy can include contacting legislators, testifying before agencies or joining protests and demonstrations. If the means used are not illegal, an employer would generally be barred from retaliating against employees who participate in these political activities outside the workplace.

“Depending on the nature of the activities your employee engaged in and his role in your organization, it may violate the NLRA to penalize him. If the employee participated in a rally concerning sick leave, minimum wage, or immigration reform, for example, that conduct would likely be protected.”

Argento signs off with some sound practical advice, that a decision to terminate or discipline an employee “should be based on an objective assessment of both the individual’s job performance and your business needs.” She writes:

“If the employee is otherwise a solid performer, and if his behavior does not interfere with the operation of your business, an adverse employment decision may be difficult to explain, undermine morale in your workforce, and, on balance, have more negative than positive results.”

Rule of thumb, she signs off, “proceed with caution” before penalizing employees for lawful, off-duty poitical activities, whether they’re frustrating to you or not.

LGBTQ Protections Spared — For Now

Given the combative tone of the first week of the Trump administration (at least as it related to Mexicans, Muslims and the media) it may have come as a surprise to some to learn President Trump will maintain workplace protections for gays and lesbians instituted during the Obama administration, according to multiple news reports.

“The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump,” the administration said in a statement.

USA Today reported that gay rights groups had expressed concern that Trump would reverse that order, but White House aides said such a step has not been contemplated. Drafts of proposed orders to roll back the Obama order had circulated through Washington in recent days, which caused concern among LGBTQ activists and others.

The Washington Post’s coverage includes a statement from Chad Griffin, president of the Human Rights Campaign, in which he says he and other activists remained concerned that the new administration could still undermine other legal protections based on sexual orientation or gender identify:

“Claiming ally status for not overturning the progress of your predecessor is a rather low bar. LGBTQ refugees, immigrants, Muslims and women are scared today, and with good reason. Donald Trump has done nothing but undermine equality since he set foot in the White House,” Griffin said. “Donald Trump has left the key question unanswered — will he commit to opposing any executive actions that allow government employees, taxpayer-funded organizations or even companies to discriminate?”

The New York Times first reported the decision by the White House to stick with the Obama-era protections.

 

Philly Bans Salary Questions

Philadelphia, well known as this country’s Cradle of Liberty, may soon become known as a Grave of Salary Questions.

According to this Associated Press report, Philadelphia has joined other cities and municipalities that have banned employers from asking potential hires to provide their salary history, a move supporters say is a step toward closing the wage gap between men and women.

(The story notes that similar salary history bans have been introduced in New Jersey, and the city councils of New York City and Pittsburgh as well as the District of Columbia. In November, New York City stopped asking applicants for municipal jobs what they currently earn, and earlier this month Democratic New York Gov. Andrew Cuomo signed an executive order banning state entities from asking about pay history. Democrat Eleanor Holmes Norton, the District of Columbia’s delegate to Congress, has sponsored similar legislation in Congress.)

Mayor Jim Kenney (Democrat) signed the measure on Monday, and said he’s confident the bill can withstand legal challenges, likely led by Philadelphia-based Comcast.

“I know that Comcast and the business community are committed to ending wage discrimination, and I’m hopeful that moving forward we can have a better partnership on this and other issues of concern to business owners and their employees,” he said. “This doesn’t need to be an either/or argument — what is good for the people of Philadelphia is good for business, too.”

However, the report notes, Comcast and the Chamber of Commerce see the bill as yet another roadblock to Philadelphia-based businesses:

“The wage equity ordinance as written is an overly broad impediment to businesses seeking to grow their workforce in the City of Philadelphia,” Rob Wonderling, president and CEO of the Philadelphia Chamber of Commerce, wrote in an opinion piece to a city business journal this month, adding it “infringes upon an employer’s ability to gain important information during the hiring process.”

Comcast had urged the mayor to veto the bill or face legal challenges, according to a legal memo obtained by The Philadelphia Inquirer earlier this month. The memo said the law would violate employers’ First Amendment rights to ask potential hires about their salary history.

Comcast referred questions to the Chamber of Commerce for AP’s story.

 

 

Landmark Ruling on the Horizon?

A new landmark ruling affecting how employers view sexuality when considering applicants could soon be in the offing, according to Reuters.

The 7th U.S. Circuit Court of Appeals will hear arguments tomorrow in Hively v. Ivy Tech Community College, in which a former Ivy Tech adjunct professor, Kimberly Hively, claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian.

The case , Reuters notes, gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.

Lambda Legal lawyer Kenneth Upton told Reuters:

“Sexual orientation doesn’t have anything to do with employees’ ability to do their job,” Upton said. “It shouldn’t be a determiner of whether you should continue to be employed.”

The Hively case spotlights a weird legal paradox, according to the Reuters piece.

Title VII of the Civil Rights Act forbids employers from treating workers unequally on the basis of race, color, religion, sex or national origin. A plurality of justices on the U.S. Supreme Court said in 1989’s Price Waterhouse v. Hopkins that employers cannot discriminate against workers who don’t conform to sex stereotypes.

Yet as a three-judge panel at the 7th Circuit explained last summer in its since-vacated Hively opinion, every federal appellate court to have considered the question of whether employers can discriminate based on workers’ sexual orientation has concluded that Title VII’s bar on sex discrimination doesn’t give redress to gays and lesbians.

Upton added that three-judge panels at the 5th and 2nd Circuits are also facing the question, so ultimately, it will probably be up to the Supreme Court to provide an answer.

 

The EEOC Enforcement Agenda

Earlier this week, the Equal Employment Opportunity Commission issued its updated enforcement guidance on national origin discrimination.

(The EEOC also issued two resource documents to accompany the guidance: a Q & A publication on the guidance document and a small business fact sheet designed to illustrate the guidance’s chief points in plain language, according to the organization.)

The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural or linguistic characteristics of a particular national origin group.”

The documents also address Title VII’s prohibition on national origin discrimination as applied to a broad range of employment situations and highlight practices for employers to prevent discrimination, as well as discussing legal developments since 2002, when the EEOC issued the national origin discrimination compliance manual section that these new guidelines are intended to replace.

“EEOC is dedicated to advancing opportunity for all workers and ensuring freedom from discrimination based on ethnicity or country of origin,” says EEOC Chair Jenny R. Yang, in a statement.

“This guidance addresses important legal developments over the past 14 years on issues ranging from human trafficking to workplace harassment. The examples and promising practices included in the guidance will promote compliance with federal anti-discrimination laws and help employers and employees better understand their legal rights and responsibilities.”

This announcement comes just weeks after the EEOC unveiled its Strategic Enforcement Plan for fiscal years 2017 through 2021. One pillar of this plan is the agency’s expanding focus on protecting immigrant and migrant workers, such as those who are Muslim or Sikh or persons of Arab, Middle Eastern or South Asian descent, as well as those perceived to be members of these groups, as HRE’s Julie Cook-Ramirez noted earlier this month.

Of course, the EEOC’s new guidelines and its stated strategy for the next five years arrive almost exactly two months before the scheduled inauguration of President-Elect Donald Trump, who stands to significantly shake up the agency’s agenda.

In a recent blog post at www.law360.com, law professor Michael LeRoy explains how the incoming president could very well upend the EEOC’s enforcement agenda with regard to national origin (and other forms of) discrimination.

“Trump’s popularity derives in no small measure from people who are tired of ‘political correctedness,’ ” writes LeRoy, a professor in the School of Labor and Employment Relations and College of Law at the University of Illinois at Urbana-Champaign. “This concept is generally found in Equal Employment Opportunity Commission regulations that prohibit employers from creating a ‘hostile work environment.’ ”

That term applies to sexual harassment, but racial, religious and national origin harassment as well, adds LeRoy.

“A Trump EEOC could redline ‘hostile work environment,’ thereby signaling that no federal employment policy prohibits the type of degrading language that Trump has used against women, Mexican, Muslims and other groups.”

For that matter, President Trump will have the opportunity to appoint high-ranking personnel that could in turn impact staffing decisions throughout the EEOC, potentially shifting the agency’s enforcement priorities, as Seyfarth Shaw attorneys recently pointed out.

In addition to the possibility that President Trump could designate a new EEOC chair, the agency will see General Counsel David Lopez leave at the end of 2016.

“[Lopez’s] impending departure means that President Trump will have an early opportunity to appoint his successor,” Seyfarth attorneys wrote. “These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.”

A Trump administration could also signal budgetary constraints for the EEOC, which may alter the way the agency approaches enforcement of discrimination guidelines.

“Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants,” Seyfarth attorneys note. “The theory was that large, high-profile cases, settlements and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries.”

Faced with the possibility of fewer resources and new personnel, however, the EEOC of the near future could be forced to find “new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.”

 

Retaliation for ‘Playing by the Rules’

There’s a troubling new HR-centric theme spinning out of the Wells Fargo illicit-accounts mess, according to today’s New York Times: A group of aggrieved Wells Fargo workers who say they faced retaliation in some form from their employer — by being either fired or demoted — for staying honest and falling short of sales goals they say were unrealistic.

These workers who claim that they played by the rules and were punished for it, the NYT reports, are starting to coalesce around two lawsuits that were just filed and that seek class-action status:

The first was filed in Los Angeles last week by former Wells Fargo workers who say that while their colleagues created unauthorized accounts to meet cross-selling quotas, they were penalized or terminated for refusing to do the same. The bank’s chief executive, John Stumpf, has often stated his goal that each Wells customer should have at least eight accounts with the company. That aggressive target has made the bank’s stock a darling on Wall Street, the lawsuit notes.

The story notes that a federal lawsuit with analogous claims was filed on Monday in the United States District Court for the Central District of California, seeking to create a class of current and former Wells employees across the country who had similar experiences.

“These are the people who have been left holding the bag,” said Jonathan Delshad, the lawyer representing the workers in both suits. “It was a revolving door. If you weren’t willing to engage in these types of illegal practices, they just booted you out the door and replaced you.”

One of those people, Yesenia Guitron, told the paper that she did everything the company had taught employees to do to report such misconduct internally. She told her manager about her concerns. She called Wells Fargo’s ethics hotline. When those steps yielded no results, she went up the chain, contacting a human resources representative and the bank’s regional manager:

In a statement on Monday, Wells Fargo said: “We disagree with the allegations in the complaint and will vigorously defend against the misrepresentations it contains about Wells Fargo and all of the Wells Fargo team members whose careers have been built on doing the right thing by our customers every day.”

No matter the ultimate resolution to this dark chapter of the venerable bank’s history, this latest twist to the story should serve as a reminder to HR leaders to ensure that the processes they have put in place to catch illicit activity in the workplace are actually doing their jobs.

 

 

A Groundbreaking New Pay Equity Law

Beginning July 1, 2018, employers in Massachusetts will be prohibited from asking job candidates about their salary history before offering them a job or asking candidates’ former employers about their pay. The new law, the Pay Equity Act, is designed to reduce the pay disparities between men and women in the workplace.

Although other states (including California and Maryland) have also enacted recent legislation designed to reduce pay inequity, Massachusetts is the first state to ban employers from asking about candidates’ salary history. The law, signed earlier this week by Republican Gov. Charlie Baker, not only had bipartisan support in the state legislature but also from business groups such as the Greater Boston Chamber of Commerce.

Nationally, women still earn only 79 cents for every dollar earned by men, according to the U.S. Census Bureau. Because companies tend to use candidates’ pay history as a guideline in making offers, these inequities can follow candidates throughout their lifetimes, pay-equity advocates say.

The Massachusetts law, which amends and expands upon the state’s pre-existing pay equity law, also makes it illegal for employers to ban employees from discussing their pay with others and will require equal pay employees whose work is “of comparable character or work in comparable operations.” The law also bars employers from reducing the pay of any employee in order to come into compliance with the Pay Equity Act.

The law also increases the penalties for violations, according to an analysis by law firm Holland & Knight:

The law expands the remedies available to plaintiffs by extending the statute of limitations from one year to three years, and creating a continuing violation provision under which a new violation of the law occurs each time an employee is paid an unequal amount. This provision may permit employees to recover years of back pay discrepancies as well as liquidated damages. Fines are increased from $100 to $1,000 per violation. There is no requirement that an employee file first with the Massachusetts Commission Against Discrimination (MCAD). Lawsuits may be filed directly in court.

Notably, however, the law features a safe harbor provision for employers that have been accused of pay discrimination, writes attorney Victoria Fuller of White and Williams:

Employers may avoid liability for pay discrimination under the Act if they can show within the last three years and before the commencement of the action, they have completed a good-faith self-evaluation of their pay practices and can demonstrate that reasonable progress has been made towards eliminating compensation differentials based on gender for comparable work in accordance with the evaluation.

Eliminating the ‘Mad Men’ Mind-set

Less than two weeks from today — August 15 — federal contractors that work with the U.S. government will need to comply with modernized rules when it comes to sex discrimination in the workplace.

According to the Office of Federal Contract Compliance Program’s fact sheet, the revisions will bring the “guidelines from the ‘Mad Men’ era to the modern era,” as well as protect women and men from discrimination on the job.

The U.S. Department of Labor is publishing new sex discrimination regulations that update – for the first time in more than 40 years – the department’s interpretation of Executive Order 11246 to reflect the current state of the law and the reality of a modern and diverse workforce.

“Updated rules on workplace sex discrimination will mean clarity for federal contractors and subcontractors and equal opportunities for both men and women applying for jobs with, or already working for, these employers,” the department said in a release.

“We have made progress as a country in opening career opportunities for women that were, for decades, the province of men. Yet, there is more work that lies ahead to eradicate sex discrimination. This is why it is important that we bring these old guidelines from the ‘Mad Men’ era to the modern era, and align them with the realities of today’s workplaces and legal landscape,” said director of the Office of Federal Contract Compliance Programs Patricia A. Shiu.

The final rule updates OFCCP’s sex discrimination regulations to make them consistent with current law. It makes explicit the protections against compensation discrimination; sexually hostile work environments; discrimination based on pregnancy, childbirth or related medical conditions; and discrimination based on unlawful sex stereotypes, gender identity, and transgender status. The regulations also promote fair pay practices.

The rule implements Executive Order 11246, which prohibits companies with federal contracts and subcontracts from discriminating in employment on the basis of sex.

But before the new rules take place, says Brett Draper, a partner at Alston & Bird’s labor and employment group:

“[E]mployers should review current policies to determine what changes should be made to processes in order to keep up with new regulations and ensure compliance.”

The new rules add to the growing employment obligations imposed on federal contractors through various guidelines and regulations, adds Clare Draper, also a partner with the law firm.

“While the OFCCP seeks to minimize discrimination in the workplace through these expanded requirements, the burden on businesses to comply grows as well. Businesses should take immediate action to protect themselves from exposure that can arise through OFCCP compliance reviews, class actions and other legal actions.”

A Glimpse Inside a Strange Corporate Culture

At Bridgewater Associates, the world’s largest hedge fund, employees are expected to familiarize themselves with “a little white book” written by the firm’s founder, Ray Dalio, that’s filled with more than 200 of his “principles” on life and business. Aside from the overtones of Chairman Mao and his little red book, a New York Times story that’s based on documents from a filing against Bridgewater by the National Labor Relations Board and interviews with former employees and people who’ve done work with the $154 billion company suggests there are other odd practices at the Westport, Conn.-based firm.

An employee who filed a complaint earlier this year with the Connecticut Commission on Human Rights and Opportunities likened the company in his complaint to a “cauldron of fear and intimidation,” the Times reports. Employees are under constant video surveillance, all meetings are recorded and security guards regularly patrol the building, all as part of an effort to “silence employees who do not fit the Bridgewater mold.”

Employees in some units of the company are required to lock up their personal cell phones when they arrive at work, the sources tell the Times.

Such secrecy and surveillance sounds, and probably is, uncomfortable, but then again hedge funds do tend to be secretive places with enormous amounts of money at stake. But at Bridgewater, the practice appears to have been taken a step further, with meetings between employees and managers not only routinely recorded but also shown to other employees. For example, new are shown videos of confrontations between executives and managers in an effort to “give new employees a taste of Bridgewater’s culture of openly challenging employees and putting them on the spot,” the Times reports. In one such video (which is no longer shown, according to the former employees), a confrontation between executives and a female manager ends up with the woman breaking down and crying. That certainly must have made for a memorable onboarding experience.

The employee who filed the initial complaint with the state commission was Christopher Tarui, an adviser to large institutional investors, who contended that he was sexually harassed by his male supervisor. In his complaint, Tarui said he did not report the conduct “out of fear it would become public because of the firm’s policy of videotaping confrontations between employees.” He ultimately complained to Bridgewater’s HR department, he said, because his supervisor gave him a bad performance rating despite the fact he’d been promoted and given a pay raise a few months earlier. Tarui said in his complaint that the firm promised to investigate, but management tried to persuade him to withdraw his allegations.

Tarui said all of his meetings, including his meeting with HR to complain about the alleged harassment and a subsequent meeting with top executives, were recorded and “widely shared” with managers at Bridgewater, the Times reports.

“The company’s culture ensures that I had no one I could trust to keep my experience confidential,” Tarui said in the complaint.

He filed the complaint in January. However, in March both Tarui and Bridgewater jointly asked to withdraw the complaint from consideration by the Connecticut human rights commission, which halted its investigation. The Times notes that Bridgewater employees (as at many companies) are required to settle disputes through binding arbitration.

However, the Times reports that in a related action, the NLRB later filed a separate complaint against Bridgewater accusing the company of “interfering with, restraining and coercing” Tarui and other employees from exercising their rights through confidentiality agreements that all employees are required to sign once they’re hired. The Times obtained the NLRB complaint and Tarui’s initial complaint through a Freedom of Information Act request. In a statement to the Times, Bridgewater said “we are confident our handling of this claim is consistent with our stated principles and the law.”

EEOC Steps Up Data Collection on Discrimination

In case you missed this bit of news on your rush out the door to start your weekend last Friday:

In an effort to improve the information available about religious discrimination, the U.S. Equal Employment Opportunity Commission  announced it will implement changes in the collection of demographic data from individuals who file charges with the agency. These changes, the agency says, will allow it to collect more precise data about the religion of the individual alleging discrimination – allowing the EEOC, as well as the public, to recognize and respond to trends in charge data.

Additionally, the EEOC also announced the release of a one-page fact sheet designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination. The fact sheet is available at EEOC’s Youth@Work website, which presents information for teens and other young workers about employment discrimination.

Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes. The report from the effort is available at https://www.justice.gov/crt/file/877936/download.

Finally, EEOC plans to improve coordination with the Department of Labor’s Office of Federal Contract Compliance Programs, which enforces the prohibition of religious discrimination in employment by federal contractors and subcontractors. EEOC and OFCCP will work together to develop joint outreach and education efforts concerning discrimination based on religion.