The beginning of the new year often brings fresh resolve, brightened attitudes, and a renewed sense of hope for the coming year.  Savvy employers harness those emotions in their workforce and engage their employees to reach new goals and achievements.  But behind the scenes, employers also need to be aware of new laws and regulations that must be implemented to keep things on track.

One of the best ways to capture critical updates is to conduct an annual review of your company handbook and employment practices.  Many states and localities have adopted regulations that require certain procedures and information be included in a company handbook.  Employers should review those updates for each location where employees work, paying special attention to the following:

  • Minimum Wage: Alaska, Arizona, California, Colorado, Florida, Hawaii, Maine, Michigan, Minnesota, Missouri, Montana, New Jersey, New York, Ohio, Rhode Island, South Dakota, Vermont, and Washington have all implemented an increase of the minimum wage for 2018.
  • Ban the Box: California and other states have also prohibited questions regarding an applicant’s criminal history from being included on an application for employment.  While employers may still check an applicant’s or employee’s criminal background, these laws specify when it may be done and what may be considered.
  • Equal Pay and Salary History: Joining Massachusetts, Delaware, California and other states and some cities (Philadelphia, for one) have recently enacted various statutes to prohibit questions regarding an applicant’s salary history on an employment application.  While confirmation of prior salary may be done in certain circumstances, basing an employee’s salary on prior compensation is generally prohibited by these laws.  Recruiting managers and their teams need to be trained to avoid such inquiries unless and until the point in the process where they may lawfully ask about prior salary.
  • Anti-Harassment Policies and Training: Ensure that your non-harassment policy is compliant with applicable federal, state and local laws by including at least two methods to report complaints and checking to be sure that your policy covers all forms of potential harassment and discrimination against protected classes.  Employers should also check their training records to be sure that trainings are being conducted with appropriate frequency and that all required persons have timely completed them.
  • Update Labor Law Postings: Many of the new laws enacted for 2018 require updated labor law postings.  California and New York both have new poster requirements, as do cities including New York City and San Francisco.  Employers should consult with counsel regarding these new requirements and be sure that their postings are up to date.  A government agency conducting an on-site inspection of a workplace will look for updated posters, and out-of-date posters can lead to fines under some laws, or at least signal that an employer does not focus on compliant employment practices.
  • New Mileage Rate: As of January 1, 2018, the IRS mileage reimbursement rate for the use of a car for business travel has been raised to 54.5 cents per mile.

With up-to-date policies and practices in place, employers can focus on building great teams and achieving business success in the new year.

Late last year, to protect hospitality workers from sexual harassment and assault, the Chicago City Council passed what is known as the “Hands Off Pants On” ordinance.  This legislation requires all Chicago hotels to:

  1. provide a “panic button” for employees working alone;
  2. adopt an effective anti-sexual harassment policy; and
  3. face real “teeth” such as fines and other penalties for repeat offenses or for retaliating against workers who raise complaints.

While the law’s details are interesting, what it represents more broadly offers a lesson for all employers.

First, the ordinance appears unique in requiring a specific action to protect vulnerable workers:  employers must provide all employees who work alone in guest rooms or restrooms a “panic button” (or other portable emergency contact device) that alerts and summons hotel security or management to their location in response to a crime, sexual harassment or assault, or other emergency.  While existing federal and state laws created a duty for employers to protect its employees, this legislation uniquely sets out a specific method they must use to address a specifically risky situation.  This law resulted after many hospitality employees reported on years of assaults and being subjected to hotel guests’ inappropriate behavior.

Second, this local law requires hotels to develop, maintain, and comply with a written anti-sexual harassment policy that protects employees from assaults and harassment by hotel guests.  While many hotels likely already had general policies, this ordinance suggests that local lawmakers concluded the policies were not being complied with or were ineffective.  The new law includes detailed requirements for the policy that go beyond normal employer rules, including (i) instructing employees to stop working and leave the area of any perceived danger, (ii) providing temporary work assignments for complaining employees while a guest remains at the hotel, and (iii) providing paid time off for employees to file police reports or testify in resulting legal proceedings.

Finally, clearly anticipating a possible weakness in the panic button provision, the ordinance also makes it unlawful for hotels to retaliate against employees for reasonably using a panic button or speaking out about a violation of this law.  Further, the ordinance provides daily fines for violations, and states that hotels with 2 or more violations in any 12-month period may have their business license suspended or revoked.  For local hotel operators, those are potentially serious penalties.

But if you are not a Chicago area hotel, why does this law matter?  Well, it should remind all employers that they need to take specific steps to protect all employees, including uniquely vulnerable employees, from assaults and sexual harassment.  One-size-fits-all policies that are not effective will not be enough.  If employers do not take sufficient steps that really work, local or state authorities may require certain additional actions.  As with this Chicago ordinance, those requirements might be detailed and costly, with a real impact on business operations.

Likewise, this Chicago law underscores that employers must seriously address issues of employee sexual harassment and assault – whether by co-workers, visitors or customers – and take all reasonable steps to prevent it, as well as addressing it when it happens anyway.  Failing to act, whether in a community generally, an industry specifically, or at a single worksite, causes real harm to employees and liability to employers.  Further, employers who are deemed “unresponsive” to such issues or “unwilling” to protect their employees may receive public scorn, harm employee relations and their public reputations, and may even get legislative attention they certainly should want to avoid.

In today’s internet-driven world, employers have never had more options from which to recruit new hires. Sites like Zip Recruiter, Monster.com, and Career Builder specialize in talent acquisition, serving as stand-alone classified pages of sorts. Employers also can utilize ever-present social media channels, like Facebook and LinkedIn, to find the best candidate for a position. The old rules of hiring, however, still apply even to these modern recruiting avenues.

Recently, the Communications Workers of America (“CWA”) filed a class action lawsuit against Amazon, T-Mobile, Cox Communications, and Cox Media group alleging age discrimination in their Facebook ads. Specifically, the complaint alleges these employers, and many others, have adjusted the settings on their job advertisements to target potential employees under 40. Furthermore, Facebook has a feature that allows the advertiser to see why an individual saw the specific add (i.e., did he or she meet the targeting criteria for the ad).

This suit poses many interesting questions. First, does advertising on Facebook and other social media sites alone mean the pool from which employers are pulling candidates skews younger, or is social media so ubiquitous that it does not make a difference?  If the ubiquity of social media means it does not create discrimination issues, then can employers engage in targeted advertising?  In other words, are there non-discriminatory criteria employers can use to take advantage of social media’s wealth of built-in information?  Can they create ads that will reach those best qualified to apply versus creating a general ad that may flood their HR team with wholly unqualified applicants?

Another interesting question will be how social media differs from traditional advertising. In an earlier era, employers could similarly target younger applicants by selecting when and where they advertise. For example, an employer could take out an ad in a magazine it knows is popular among the age 18-35 demographic. Or a company could advertise a job opening during a television show popular with the same section of the population. Is advertising through targeted Facebook ads truly different simply because there is written proof the employer selected an age range?

These are all very complex questions that do not have an immediate answer. Employers, however, always need to be cognizant of how and to whom they focus their job-opening advertisements so as not to run afoul of the various anti-discrimination laws – or even draw unwanted attention from plaintiff’s lawyers or labor unions. We are happy to advise and assist in creating hiring processes and policies that will both protect your business and help you find the best candidates for your positions.

California companies with five or more employees are subject to new legislation that prohibits criminal background screenings prior to a conditional offer of employment.  This legislation also prohibits requesting information about criminal history on an application or at a preliminary point in the hiring process.  Affected employers should carefully review the law’s requirements as set out in this advisory from attorneys from Troutman Sanders’ Labor & Employment and Financial Services Litigation Sections.

Read “California’s Statewide “Ban-The-Box” Law To Go Into Effect January 2018” here.

United States executive agencies are practically always on the same page when presenting to the public. So, it is incredibly unusual to see two such agencies taking positions directly contrary to one another in pending litigation. This, however, is exactly the current situation between the U.S. Department of Justice (DOJ), headed by Attorney General Jeff Sessions, and the Equal Employment Opportunity Commission (EEOC), chaired by Victoria Lipnic.

Last week, Mr. Sessions issued a memo setting out the Justice Department’s stance that Title VII does not protect individuals against discrimination on the basis of “gender identity per se, including discrimination against transgender individuals.” The memo states that the DOJ is now taking the position that “sex” (as used in Title VII) only means “biologically male or female.” This is a reversal of its 2014 policy under then-Attorney General Eric Holder that the word “sex” in the statute “extends to claims of discrimination based on an individual’s gender identity, including transgender status.”

Notably, the DOJ’s position now is directly contrary to the EEOC’s position on the matter. The EEOC’s position is that transgender status is protected under Title VII. In fact, the EEOC just filed suit against a tire company in Denver over alleged discrimination against a job applicant on the basis of transgender status. This is consistent with the EEOC’s 2016 Strategic Enforcement Plan, which includes “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex” as a top enforcement priority.

The DOJ has also come out swinging against the EEOC in a pending lawsuit on this very issue. In a case pending in the U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express, the plaintiff, a skydiver, claimed that his employer fired him because of his sexual orientation. A three-judge Court of Appeals panel previously ruled that the instructor had no claim for sex discrimination under Title VII. However, the full court (as opposed to a three-judge panel) has agreed to review that decision.

So, the Second Circuit then asked the EEOC to file an amicus (“friend of the Court”) brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief states that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

Not to be outdone, the DOJ also filed an amicus brief with the Second Circuit in opposition to the EEOC (even though the Second Circuit had not asked for the DOJ’s input). The DOJ argued that this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” The DOJ went on to state that the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” The Court heard oral arguments in the case in late September 2017, with the EEOC and DOJ completely at odds.

This is not the only case where the DOJ has taken a position adverse to the EEOC’s position.  In a well-known case involving a Colorado cake shop which refused to make a cake for a gay couple in 2012 known as Masterpiece Cakeshop v. Civil Rights Commission (which is now pending before the U.S. Supreme Court), the Colorado Civil Rights Commission relied on a state statute that prohibits sexual orientation discrimination in public accommodations to order the cake shop to stop discriminating against same-sex couples. The shop owners contend that violates their First Amendment rights to free speech and free exercise of religion.

The DOJ has recently filed an amicus brief in favor of the cake shop owners. The DOJ argues that baking a cake for money is “expressive conduct” and “association” that raises First Amendment concerns, and a state’s interest in protecting gay residents is not strong enough to justify “compelling” this “creative process” for same-sex couples. While not an employment case, this position is clearly contrary to the EEOC’s position on these issues when the workplace is involved.

It seems that the EEOC and the DOJ will remain at odds on these issues in the coming months (and possibly years). It will be interesting to watch how this impacts courts’ analysis in these cases and whether any enforcement efforts or positions will change as a result.

Troutman Sanders’ lawyers Wendy Sugg and Megan Nicholls will co-present this free background screening webinar. Participants will learn about:

  • General versus confidential personnel files;
  • Access to employee records and files;
  • Record keeping and compliance;
  • Background screening policies and procedures;
  • Training parameters to ensure compliance; and
  • L.A. Fair Chance Initiative and similar policies in U.S

Wednesday, October 18 • 3:00 – 4:00 pm EST | 12:00 p.m. – 1:00 p.m. PST

The program is presented by Hire Image Background Screening Specialists. Register below for this free program.

RSVP HERE

For more information, call (888) 720-HIRE (4473) or visit www.HireImage.com.

You may have seen the news that the City of Atlanta recently passed an ordinance decriminalizing the possession of less than one ounce of marijuana. Individuals found in possession of such small amounts of marijuana will now be fined $75 and face no jail time. Earlier this year, Georgia enacted a law expanding the qualifying medical conditions for which cannabis oil may be legally used. Now individuals with certain health conditions (including seizure disorders, Crohn’s disease, Multiple Sclerosis, Parkinson’s, Sickle Cell, cancer, Alzheimer’s, AIDS, Autism, and Tourette’s Syndrome) may possess twenty ounces of cannabis oil with up to a 5% THC level with doctor’s approval. While Georgia (and most of its Southeastern neighbors) remains far from legalizing marijuana for medicinal or recreational purposes, these two recent legal changes reflect a national trend towards marijuana that can create a problem for many employers.

Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the federal Controlled Substances Act, possession of marijuana is still illegal under federal law, prescription or not.

Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act and similar state laws. In 2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies.

More recently, however, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s anti-disability discrimination law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.

While the laws regarding marijuana (and especially its presence in the workplace through a positive drug test) is jurisdiction dependent there are a few general points for employers to consider. First, to the extent employers work with the federal government or have employees subject to federal regulations, marijuana use of any kind is still off-limits. It is also helpful for all employers to explicitly list marijuana as a drug covered by its drug use policies so that employees and applicants understand expectations. However, until the current conflicts between state (or local) and federal laws are resolved, employers need to keep apprised of news laws and interpretations of existing efforts to permit marijuana use, both medically and recreationally where they may have employees living and working.

Last month, the Trump Administration announced plans to end President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program. This change in policy is sure to have a significant impact on employers.

First, a little background on DACA. Beginning in the 1990s, illegal immigration from Central and South America changed. Illegal immigrants used to consist of predominantly working-age men who crossed the border to go to work, then returned at the end of the day. This changed when more and more families crossed illegally to settle permanently in hopes of finding a better life here in the United States. This change meant that millions of children who grew up here but were brought here illegally were vulnerable to deportation due to a choice their parents made for them. It is very difficult to obtain legal status after coming here illegally. So, these millions of childhood arrivals could potentially be forced to return to a country of which they have no recollection without some sort of protection.

In response, President Obama authorized DACA to provide that protection. Immigrants who came to the U.S. before 2007, who were under 15 years old at the time they came and were younger than 31 in 2012 were permitted to apply for DACA protection. To receive protection from deportation, they had to have a nearly spotless criminal record and either be enrolled in high school or have a high school diploma or equivalent. DACA’s protection lasted two years, but could be renewed. In total, roughly 800,000 out of an estimated 1.3 million immigrants have obtained DACA protection. Part of this protection included authorization to work.

With the ending of DACA, employers will bear some of the cost of abiding by new regulations (or lack thereof). Many of the largest employers in the country have hired the so-called Dreamers – individuals working and living under DACA’s protections. Apple’s CEO, Tim Cook, claims they have 250 employed at the tech giant. It is estimated that 91% of Dreamers are employed. So, with DACA gone, roughly 720,000 employees will become ineligible to remain employed overnight. The cost of replacing these employers is staggering. One think tank estimates it will cost employers $6.3 billion in turnover costs.

Fortunately for employers, the Trump administration announced it will delay ending DACA by six months. It is possible that during that time Congress will enact a law affording the same or similar protections allowing those same individuals to remain and stay employed. Therefore, employers do not need to start terminating their Dreamers right away. However, now is the time to create an action plan so that you are prepared if Congress is unable to reach and enact a solution. Employee turnover is costly and disruptive; abrupt and significant turnover is even more so. Smart employers will be prepared.

For those who missed it while getting an early start to their Labor Day weekend, late last week a federal judge closed the door on regulations that would have significantly changed overtime exemptions after previously leaving that door ajar.

Most employers became very familiar — and concerned — with the proposed regulations over the past two years. The regulations would have increased the minimum salaries required for executive, administrative and professional employees to remain exempt from overtime pay under the Fair Labor Standards Act (FLSA). We wrote about the regulations and their effects in detail here. They were set to become effective December 1, 2016, and would have more than doubled those salary minimums from $455 per week, or $23,660 annually, to $913 a week, or $47,476 annually. The regulations would also have increased the salary threshold for the “highly compensated employee” exemption from $100,000 to $134,000. However, a lawsuit was filed in the Eastern District of Texas and the judge who was assigned the case granted an emergency, nation-wide injunction in November of last year which preliminarily (and temporarily) prohibited the Department of Labor from implementing the new rules.

On Thursday of last week, that same court entered a final judgment against implementing the higher salary thresholds. In doing so, the court found Congress intended that both the salary levels and the duties of executive, administrative and professional employees be considered in determining whether they are exempt from overtime requirements of the FLSA. The court concluded that the high minimum salaries proposed by the regulations placed too much emphasis on only one factor and effectively eliminated consideration of what duties are performed by those employees. The ruling can be found here.

For all practical purposes, the court’s ruling means that the door is now shut on those higher salary thresholds. The Department of Labor has even stated in filings that it no longer seeks to increase the salary minimums to the levels called for by the regulations it fought to implement last year. Rather, the DOL seeks now only to clarify with the courts whether it has any legal authority to increase those minimums at all. When that clarification comes, the DOL may well again implement increases, though not like the ones just struck down.

Employers should keep their eyes open for requests for information and comments from the DOL in anticipation of possible increases to minimum salary thresholds in the near future. Fortunately, those increases will likely be substantially smaller than those which would have been implemented late last year. In addition, many employers, having already prepared their workforces and compensation schemes to allow for the possibility of higher minimum salaries, will likely have less cause for concern with the smaller increases to come.

Earlier this month, a widely-recognized Fortune 50 company reached a $1.7 million agreement with the Equal Employment Opportunity Commission to resolve nearly a decade of litigation over the company’s nation-wide policy of discharging workers who do not return from medical leave after 12 months.

While this settlement still requires approval by a federal judge, the litigation itself (and the size and scope of the settlement, which also includes changes to the company’s policy, notice-posting, record-keeping, reporting, and other requirements) should be instructive for employers dealing with a common issue: what to do with employees who are granted a medical leave but cannot return to duty at the end of a set time period.

Continue Reading Could The EEOC Sue Over Your “Maximum Leave” Policy?