Reversing itself, the Second Circuit held on Monday, February 26, that sexual orientation discrimination is discrimination “because of . . . sex” under Title VII in Zarda v. Altitude Express. The Second Circuit’s decision aligns it with the Seventh Circuit and places it squarely at odds with the Eleventh Circuit.
Last year, we heard the federal government announce that it would increase the number of raids and site inspections to ensure businesses were going through the proper procedures to hire employment-authorized workers. Well, we are beginning to see the government live up to its word.
On January 10, Immigration Customs and Enforcement (ICE) agents visited 98 7-Eleven stores in 17 states and in Washington, D.C. in search of undocumented workers and employers who hired them. The raid ended with 21 arrests, the largest operation against a single employer since January 2017 when President Trump took office. Then, just a few weeks later, ICE visited 77 businesses in northern California, serving Notices of Inspection that typically give employers 3 days to comply with their document requests. A raid of this scale devoted to a single region is also unprecedented.
ICE has always been in the business of conducting raids such as these to catch individuals who are in the U.S. without proper status (and therefore has no authorization to work for a U.S. employer). But after ramping up the scale of their activities, ICE has been in the limelight more recently. Some experts posit that the goal of these large-scale raids at places of employment is to discourage undocumented workers from showing up to work. Whereas previously ICE agents typically arrested undocumented workers at their residences, ICE is shifting its focus to place greater pressure on employers who hire such workers. Indeed, ICE Deputy Director Thomas D. Homan stated following the 7-Eleven raids that this was to “send a strong message to U.S. businesses that hire and employ an illegal workforce. ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.” This year, ICE is planning to increase worksite enforcement actions by 4 to 5 times.
Northern California became a regional target due to its reputation for protecting immigrants from the reaches of the government. But in other places throughout the United States, it seems that there is no particular industry or size of business that ICE is making their priority. Also, since the agencies enforcing employer compliance have increased their staff by about 4 times, the chances of being audited are greater than before.
It is critically important that businesses take proactive steps to do an internal review/audit of their records before they are visited by ICE (this is because remedying I-9 errors to the extent possible before an audit can reduce the amount and degree of fines).
For starters, ensure that an I-9 Employment Eligibility Verification form is completed for every employee following an offer and acceptance of employment. Even if you completed an I-9 for an employee but it ends up going missing, that is the same as if an I-9 was never completed (and that’s a serious violation). Then, conduct an internal audit of the Forms I-9 with the help of an experienced immigration attorney. The earlier you examine and assess where your violations lie and identify ways to avoid those violations in the future, the sooner you will begin to eliminate perpetual I-9 errors and thereby reduce the overall penalties should you be faced with an I-9 audit.
An immigration attorney with I-9 experience can also advise you of the difference between certain I-9 violations. While some errors are considered technical and can be corrected, some are substantive and cannot be remedied after the fact. Being able to identify what the substantive violations are and taking proper actions to avoid repeating errors in the future is vitally important to demonstrating that the employer has made a good faith effort to comply with the rules.
Lastly, train your workforce so they know how to respond when a government agent pays you a visit. For example, employees who will be the first to interact with them need to know what information to obtain, and where to direct them. The designated point of contact needs to know things such as whether the company wants their attorney to handle the situation, where the Forms I-9 are kept, and whether there are any laws or regulations that need to be complied with before any forms are handed over to the government. An unprepared workforce might be more susceptible to acquiescing to an officer’s request prematurely, and other inadvertent mistakes can be committed to the detriment of the employer.
Believe it or not, there’s a growing trend among some employers to offer a new benefit: “pawternity leave,” or leave for new pet owners. Offerings range from a few days of leave up to a week or more, and might come in addition to other pet-related benefits, such as pet insurance, pet adoption consulting, bereavement leave—and even bring-your-pet-to-work policies. So, should you join the trend?
Admittedly, while “pawternity leave” is certainly unique, this type of benefit might not work for many businesses. However, its growing popularity offers a good reminder for all employers: you should be thinking about the types of benefits your workforce might want—even if those benefits are a little untraditional. In doing so, the following tips can help.
First, know your workforce. What are their values, what matters most to them, what do they enjoy? Employers offering pet-related benefits know that the type of employees they hope to attract and retain value the presence of a furry companion in their lives—so much so that they consider their pet part of the family. This might not be true for your workforce. But if that’s the case, then what does top your employees’ list? If you don’t know, it’s worth finding out. Consider going straight to the source: conduct surveys to ask your workforce what benefits they’d like to see most. Not all suggestions may be viable, but they’ll provide valuable insight on your employees’ priorities either way. Or, perform market research regarding similar companies to try and find out what matters most to employees in your industry.
Second, think outside the box. Once you’ve got a handle on what your workforce wants, how can you best offer it to them? Think creatively, and don’t be afraid to see what your competitors are offering. “Pawternity leave” has been a popular benefit offering among employers who tend to attract a younger workforce and are in urban areas, likely because such employees tend to own pets in higher percentages. But other employers might find that their workforce prefers different benefits. Perhaps purchasing season tickets to a popular area sports team for employee rewards and use, stocking healthy prepackaged meals at the office, or providing college counseling assistance for employees with high-school aged children, might be better fits.
Third, recognize that a benefits offering doesn’t have to cost a lot of money to make a big impact. Even a small change can really make a difference if it’s targeted at your workforce’s biggest priorities. Regardless, employee satisfaction will often pay for itself in spades. Plus, it’s certainly more cost-effective (and more beneficial) than paying for benefits that your workforce won’t use, or doesn’t appreciate. Study after study has shown that happiness is key to productivity. Happy employees are productive employees (who are also less likely to jump ship for a competitor). Your employees are one of your most valuable resources, so consider what you can offer to ensure that they remain that way. And heck, who wouldn’t want time off to play with a new puppy?
Part I of this post offered predictions related to DOL Opinion Letters and a likely rule increasing the minimum exempt salary level under the FLSA. This Part II offers three more predictions involving legal issues quite different from wage and hour concerns.
Prediction 3: Continuing and Increasing Focus on Harassment in the Workplace.
2017’s #MeToo movement empowered and emboldened individuals to bring forward stories of sexual harassment and assault in and out of the workplace. Allegations of sexual harassment continue to dominate headlines and this trend shows no signs of slowing down. 2018 will likely see these claims leveled against managers and executives at companies of all sizes and types, not just celebrities or very high-profile figures. It seems that the #MeToo movement has greatly reduced the negative stigma associated with raising these allegations, so the overall volume will likely increase as the year continues.
If you have not already done so, your Company should implement appropriate written policies and training at all levels of the organization to actively try to change or better the culture at work. The two-part process of training employees and holding them strictly accountable is the only proven way to create the major paradigm shifts that some employers need to end and prevent this type of behavior from happening in the workplace.
Prediction 4: Retaliation Claims Will Continue to Dominate.
The EEOC’s data shows that the number of retaliation claims continue to outpace other claims in charges of discrimination filed with that agency. One reason for this is because retaliation claims are often included with other claims as “tag-along” claims. While there are certainly instances where a retaliation claim is filed alone, most frequently retaliation claims (often flimsy ones) are tacked on to more substantive discrimination allegations.
There are two primary reasons behind this. First and foremost, the more claims there are in a charge or lawsuit, typically the more it will cost the employer to defend the case. Charging parties (and their attorneys) try to use the greater defense costs of additional claims as leverage for a more favorable settlement. Second, retaliation claims are often easier to pursue than other claims, since all an employee must do in many instances to survive summary judgment and get their case in front of a jury is complain verbally about discrimination or harassment to someone in management relatively close in time prior to the employee’s termination or other adverse employment action. Sometimes that’s all they need to show to get in front of a jury.
So, it’s no huge surprise at all that retaliation claims continue to surge, and there’s no reason to think this trend will slow in 2018. Employers should consider any complaints from employees (either in writing or verbally) prior to taking any action against employees to help prevent retaliation claims arising (and to reduce the risk they might have any merit).
Prediction 5: Marijuana in the Workplace Will Get Renewed Focus.
Medical and recreational marijuana is now legal in 8 states. More than half of all states allow for limited use of medical marijuana under certain circumstances. For instance, Louisiana, West Virginia, and a few other states allow only cannabis-infused products, such as oils or pills, for medical uses. Other states have passed narrow laws allowing residents to possess cannabis only if they suffer from select medical illnesses. There are 21 states with broader medical marijuana laws.
Marijuana is, however—whether for medicinal or recreational purposes—still illegal as a Schedule I controlled substance under federal law. So, the question remains: If an employee in a state where medical marijuana is legal has been prescribed the medication by a physician, can the employee be fired for testing positive for marijuana on a drug test?
The answer remains unclear. One case from Colorado held that while marijuana is illegal under federal law as a Schedule I drug (which means it officially has no medicinal uses under federal law), an employee is not protected for discipline or discharge for a positive test. Another case from Rhode Island held that an employer could not refuse to hire a medical marijuana cardholder when the prospective employee said that she would fail a pre-employment drug screening. A third case from Massachusetts held that an employee’s off-duty use of medical marijuana was not a “facially unreasonable accommodation” under state law.
Amid this backdrop of uncertainty, employers with operations in states with legalized medical marijuana should evaluate their current drug testing policies (if they haven’t done so recently), consider their legitimate reasons for testing their employees (such as safety or business-related reasons), and be sure to engage in the interactive process when dealing with employees who establish their marijuana use is prescribed for medical purposes.
2018 is sure to be full of exciting and even surprising developments in the world of labor and employment law. We will continue to update you on these topics, re-visit our “predictions” and address any unexpected changes throughout the year.
With the holidays now over and everyone settling back into our regular work routines, some predictions on labor and employment law developments for 2018 might be helpful. Overall, federal agencies are expected to continue last year’s trend of taking more employer-friendly positions under the current Administration. In addition to that general theme, however, here are five specific “predictions” for what employers will likely see in 2018.
Prediction 1: We’ll Get (A Lot of) New Opinion Letters from the Department of Labor.
For years the U.S. Department of Labor’s (DOL) Opinion Letters were a helpful source of information for employers as they answered questions received from members of the community (primarily on wage and hour issues). For example, if an employer or other entity had a question about how a particular wage and hour regulation applied to its employees and an answer wasn’t clear from the case law or administrative decisions, the employer could send in its question and DOL officials would issue an Opinion Letter offering guidance.
While the Opinion Letters functioned as the DOL’s official, written opinion on how a specific law applied to a given situation, they weren’t binding authority on the DOL or any courts. But they were certainly helpful for employers when there was no other guidance (or differing opinions) available on a sticky issue. Courts also found the letters helpful and they were (and still are) cited to support reasoning offered in judicial decisions.
In 2010, however, the DOL stopped issuing Opinion Letters. Instead it started issuing more general “Administrator Interpretations” which were intended to provide general interpretations of certain laws applied to a specific type of employee or industry. Notably, the DOL only issued 11 Administrator Interpretations between 2010 and 2016. Opinion Letters were issued with much greater frequency, sometimes with dozens being issued in a single year.
Now, however, the DOL has reinstated the issuance of Opinion Letters. “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Labor Secretary Alexander Acosta. The DOL “is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”
So, it seems probable that the DOL will issue many Opinion Letters in 2018 on a variety of topics. To date, the DOL has already issued 17 Opinion Letters in 2018 on the FLSA. The Department’s Opinion Letters can be found at https://www.dol.gov/whd/opinion/flsa.htm. Keep an eye on the site for plenty more this year.
Prediction 2: We’ll See A(nother) New Overtime Rule.
According to the DOL’s regulatory agenda (which you can see here), a new overtime rule will likely be issued this coming October. Based on comments from Labor Secretary Acosta, it seems like a good bet that the new rule will raise the exempt salary threshold for white-collar workers above the current $23,660 minimum annual salary threshold, though almost certainly not as high as was proposed under the Obama Administration’s ill-fated 2016 rule (which more than doubled the annual minimum to $47,476).
In addition to raising the minimum exempt annual salary level, the new rule may again contain a provision allowing for automatic adjustments so that the numbers keep pace with inflation (as the 2016 rule did as well). Inclusion of such a provision is far from certain, however, because there is some debate as to whether the DOL has the authority to implement such a feature under the language of the FLSA. Assuming such a provision is included, this could cause some problems for employers as it may require them to implement pay raises at times that do not coincide with employers’ fiscal years or follow performance evaluations.
Employers should begin planning now for a possible increase to the minimum exempt salary level. Speculation is that the new threshold will be in the $30,000 to $35,000 range. Planning and considering options and impacts now could be smart business strategy.
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:
- provide a “panic button” for employees working alone;
- adopt an effective anti-sexual harassment policy; and
- 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.
Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether this is a long- or short-term trend. It is, however, an opportune time for employers to review their own policies and procedures in place to prevent and respond to claims of sexual harassment.
Sexual harassment policies should be clear and unambiguous as to what is not appropriate for the workplace. They should prohibit unwelcomed sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Policies should also make it clear that submission to such conduct must not be an implicit or explicit condition of employment, that response to such conduct will not serve as a basis for continued employment, and that such conduct will not be permitted to interfere with an employee’s work. In sum, the goal of any policy should be to clearly prohibit both specific harassment and the creation of a hostile work environment.
An effective policy must go beyond prohibiting demands for sexual favors or inappropriate physical touching at work. Actions such as sexually-oriented “jokes” or “teasing” should not be permitted in the workplace. Offensive flirtations, repeated verbal abuse of a sexual nature, degrading comments about appearance, and the display of sexually suggestive or explicit materials must also be clearly banned. Employers should also clearly state that subtle pressure for sexual activity, physical contact or blocking of movement are also inappropriate.
These prohibitions, however, do not mean employees cannot have friendly interactions. Indeed, we recommend including a caveat that the policy does not consider things like occasional socially acceptable compliments or consensual social relationships as harassment. The stated goal of the policy should be to eliminate unwelcomed, intimidating, hostile, or offensive behavior. It should also be noted that the policy applies to and protects employees of all genders.
As important as a strong anti-sexual harassment policy is, there must also be a complete procedure for enforcing it. This procedure should have at least two reporting mechanisms. The first should be what would be considered the “normal” reporting mechanism, an employee, position or department designated to receive complaints of harassment and investigate. There also needs to be a secondary reporting mechanism for when normal person is either the subject of the complaint or in a position where investigation may be too difficult. For example, if the normal investigator is the head of HR and the accused is her second-in-command, then the secondary reporting mechanism would be best to use. The goal is for an impartial, objective investigation to occur – not one that is just impartial, but also one that is properly perceived as impartial too.
The complaint procedure should also guarantee as much confidentiality as possible. Victims, witnesses, and those who report harassment should be assured their information will be kept as confidential as possible while still conducting a thorough investigation. They should also know that non-frivolous complaints will not result in discipline. So, if they report behavior in a good-faith belief that it violates the sexual harassment policy there will be no negative consequences even if the investigation cannot substantiate the claim. In contrast, complaints made in bad faith, to retaliate or harass, or to otherwise abuse the system should not be tolerated.
Every investigation into a complaint or possible situation of harassment must be thorough, objective, and unbiased. Investigators must seek out and interview witnesses. They should make it clear that neither the complainant nor the accused should have any inappropriate contact with the witnesses during the investigation. Investigators should also seek any documentation, video surveillance, or other tangible evidence of the alleged events available to them. All reasonable steps should be pursued to try to get as clear of a picture as possible as to what truly happened.
Lastly, the policy should clearly define the consequences of such unacceptable behavior. Recommended action for substantiated violations can range from a simple written warning all the way up to and including termination – whatever is necessary to stop the behavior and ensure it is not repeated and the victim (and others) are not at further risk. It should also be made clear that while discipline for violations of the policy may be progressive, the employer reserves the right to implement whatever punishment it deems appropriate, including termination.
Employers know that sexual harassment is a serious issue and should not be tolerated in any workplace. Beyond the civil liability it may bring, it makes a workplace undesirable and saps employee morale. It can hurt a company’s brand, reputation and standing in the business community. This general outline as to how such policies and procedures should work is a start, but smart employers will reach out to counsel to review and update their policies and procedures and make sure they are never the subject of any similar negative headline news articles.
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.