LB4HR – August 2016
Welcome to Legal Briefs for HR, an update on employment issues sent to over 6000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know via reply email you’d like to be added to the list and you’re in! Back issues are posted at www.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” A big welcome to new subscribers who attended my presentation at the Texas Association of Business/Texas SHRM Employment Relations Symposium in San Antonio on July 21! I look forward to speaking at the luncheon meeting for the North Texas Compensation Association on August 18.
While your employees are engrossed in Pokemon Go or the Olympics, sneak in a read of what’s hot in your world and mine:
1. Counting Noses – As summer simmers into back-to-school time, many employers know that means it’s also time to file their Standard Form 100 (aka EEO-1 Report), a VETS-4212 Report (fka VETS-100 and -100A reports), or both:
1. EEO-1 is an annual exercise to report gender and race demographics of your workforce, by EEO job groups. Employers who are subject to Title VII and have 100+ ees must complete the report. Also, federal contractors with 50+ ees and are [a] a prime contractor or first-tier subcontractor with a contract/subcontract/purchase order for $50,000+; [b] a depository of Government funds in any amount; or [c] a financial institution that issues/pays U.S. Savings Bonds and Notes are also required to submit this report. For more info on the process, see https://www.eeoc.gov/employers/eeo1survey/2007instructions.cfm. The deadline for filing is September 30. In preparation for the proposed expanded form and beginning with the 2017 report, EEOC is proposing to give employers until March 31st of the following year to file their EEO-1s. This proposed change aligns the EEO-1 filing deadline with employer’s December 31 deadline for calculating and reporting W-2 earnings . . . because you’re going to need that W-2 info to provide wage data on the “new and improved” EEO-1. Oh joy.
2. VETS-4212 is an annual exercise to report covered employers’ affirmative action in employing U.S. military veterans. Employers with a federal contract or subcontract for $150,000+ are required to submit this report. If the contract was entered into prior to October 1, 2015, the threshold is $100,000+. For more info on the process, see https://www.dol.gov/vets/vets4212.htm. The deadline for filing is September 30.
2. Getting Oriented – Is discrimination in employment based on one’s sexual orientation a form of gender discrimination prohibited under Title VII? It depends who you ask and where you live. The federal agency tasked with enforcing Title VII, the EEOC, has long taken the stance that sexual orientation discrimination is gender discrimination. They often point to SCOTUS’ Price Waterhouse decision, where the Supremes held that gender-stereotyping is a form gender discrimination. The back story was about a woman who repeatedly failed to make partner and was told that her chances would improve if she would walk and talk more femininely and maybe wear a little make-up and jewelry. What the EEOC says is not “the law” but quite a few states and local jurisdictions have amended their employment discrimination statutes and ordinances to ban employment discrimination based on sexual orientation (and some also reference gender identity and gender expression). That covers the executive and legislative branches of the government . . . so what does the judicial branch have to say? Recently, the 7th Circuit held that Title VII provides no redress for employment discrimination based on sexual orientation. The judges mused that the gender stereotyping cases focus on whether a person conforms to societal norms of femininity or masculinity, but discrimination based on sexual orientation may be caused by other issues (e.g., ideas about promiscuity, religious beliefs, spending habits, child-rearing, sexual practices or politics). Further, the sex-stereotyping mantle does not fit well since there is no stereotypical way for a gay or lesbian person to act. Hively v. Ivy Tech Community College (7th Cir. July 2016). Although the judges felt bound by legal precedent (a 1984 case, Ulane v. Eastern Airlines Inc.) in siding with the employer, they concluded the decision by making clear they do not condone discrimination based on “who they date, love or marry” and invited SCOTUS or the legislature to change the law. Aside from the legal and regulatory pronouncements, many employers have decided it is a good business practice and consistent with their corporate culture to prohibit sexual orientation discrimination in their workplaces. Stay tuned for the next chapter in this debate.
3. Breathing Room – OSHA’s August 10 deadline for employers to comply with new regs that encourage reporting and discourage employer retaliation has been pushed to November 1, 2016. For more details and the injury/illness reporting forms, go to https://www.osha.gov/recordkeeping/. The delay is a result of lawsuits filed by trade associations who defend employers’ use of incident-based safety programs, including incentives, and believe they make workplaces safer and not less so.
4. Not So Hot – OSHA’s general duty to provide a workplace free from known safety hazards includes summertime heat for outdoor workers. If you have those, check out their webpage devoted to heat issues at https://www.osha.gov/SLTC/heatillness/index.html?utm_source=Twitter including provision of smartphone apps that provide real-time data (e.g., temperature, humidity) on exactly how hot it is and what you should do about it. Be mindful of state laws that go further, such as the law in CA that mandates the provision of water and shade for outdoor workers. See https://www.dir.ca.gov/title8/3395.html.
5. Hop On This Train – Do you have an awesome anti-harassment policy and complaint procedure in your employee handbook or posted on your intranet? Do you think that’s enough to claim SCOTUS’s Faragher and Ellerth affirmative defenses to avoid liability, if and when bad behavior occurs at work? If you do, then read on. The Fifth Circuit (covers courts in LA, MS and TX) recently allowed a harassment claim to proceed by reversing the lower courts grant of the employer’s motion for summary judgment. Why? To avoid liability, an employer must show that it was reasonable in its efforts to prevent and correct sexual harassment AND that the employee failed to take advantage of the employer’s remedial measures. Here, the employer claimed it had an anti-harassment policy on a bulletin board and on its website, employees had been trained on the subject and the plaintiff took two years to complain. The court determined the employer had failed in its remedial measures because several long-term employees testified they had never been trained, the alleged harasser (a supervisor) had never been trained, and the policy location was not conspicuous enough. Pullen v. Caddo Parish School Board (5th Cir. July 2016). Lesson learned? Have a great written policy and an easy-to-use complaint procedure. Give it to new hires as they are walking in the door and then reiterate it, during employee meetings, occasionally. Conduct anti-harassment training and repeat as often as necessary, to keep up with new hires and employee turnover. Training everyone is best. Training your managers and supervisors is crucial. I can help.
6. Speaker of the House – So, an employer got in trouble with the NLRB for firing an employee who had testified before the Texas Senate about “smart” electrical meters. The Board decided the employee was testifying as a union official and the content of his remarks was protected union activity, resulting in an order for both reinstatement to employment and back pay. Oncor Electric Delivery Co. LLC (July 2016) This case caught my eye for another reason . . . it’s a great reminder that most states mandate job-protected leave for employees who serve as witnesses. The Texas version of this protection extends to employees who have been subpoenaed to testify in a civil, criminal, administrative or legislative proceeding. Other states have broader protection, such as no subpoena requirement, or may require the absence be with pay. Employers often address jury duty in their employee handbooks but many omit mention of witness duty . . . but not you, right?
7. ADA Rarity – Since the ADAAA amended the ADA effective January 1, 2009, most ADA disputes center on the availability of a reasonable accommodation and the existence of a qualifying disability is often presumed. This case is good reminder to presume nothing. Plaintiff applied for a machinist job with a railroad and headed into his pre-employment medical exam with a conditional offer of employment. That offer was revoked based on the doc’s opinion that the job candidate was obese. Mr. Rejected sues under the ADA. The district court granted the employer’s motion for summary judgment and the 8th Circuit (covering courts in AR,IA, MN, MO, NE, ND, SD) affirmed. Simply put, obesity is not a disability under the ADA unless it arises from a physiological disorder or condition. Mr. Rejected was morbidly obese, but he also admitted there was no underlying physical condition or impairment and he felt his weight caused no physical limitations. Morriss v. BNSF Railway Co. (8th Cir. July 2016).
8. Set, Hike! – College football is almost here! But this hike is not going to be welcome to some employers. The Department of Justice posted increased penalties for immigration-related violations in an interim rule that took effect August 1, 2016 and many believe this is a signal to employers that the lull in ICE enforcement activity is over. The increased amounts will apply to violations that occurred after November 2, 2015. Check out these stats:
9. Get Noticed – As part of the EEOC finally coming around to agree with other federal agencies that employer-provided wellness programs can be a good thing, the agency issued rules in May 2016 explaining how to create a program that does not run afoul of the ADA. In June, the agency issued a sample notice for employer-sponsored wellness programs which is posted at https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm The form can be provided by the employer or the wellness program provider and explains what information will be collected and how it will be used and stored. The form is not mandatory but provides a template of what the EEOC will expect to see in communications explaining your wellness program.
10. Bite Me – Concerns about the mosquito-borne zika virus have migrated from South America to the U.S. in recent week, especially after the first U.S.-based infections were found in Florida. It’s no surprise then, that OSHA wants a word with employers who have outdoor workers. Check out their blog with guidance on zika virus prevention at https://blog.dol.gov/2016/08/02/how-to-protect-workers-from-zika-exposure/
11. Strange Bedfellows – The Subway sandwich chain is now besties with the U.S. Department of Labor (DOL). With more than 800 DOL Wage and Hour Division (WHD) investigations of Subway franchises in a three-year window and significant backpay awarded to around 6,000 employees, the two entities have entered into an unusual arrangement. WHD and Subway will co-develop training materials to help franchises become and remain wage and hour compliant and WHD officials are invited to Subway’s owner’s meeting and annual convention. Both entities will share data connected with the franchisee investigations and analyze the data, over pizza (oops! sandwiches!), toward improved Fair Labor Standard Act compliance.
12. Stated Differently – Here are some hot topics for you multi-state employers:
1. California – On November 8, voters in the Golden State will decide whether or not to legalize recreational marijuana. If passed, the measure will allow individuals aged 21+ to possess, transport and purchase up to one ounce of marijuana and grow up to six plants for recreational use. The measure says it will leave workplace rights undisturbed and nothing in the proposed law would preempt the rights and obligations of public or private employers to maintain a drug and alcohol free workplace. Recreational use of marijuana is already on the books in AK, CO, DC, OR and WA. Other states voting on the same issue this November include AR, AZ, FL, ME, MA, MO and NV.
2. California – Effective January 1, 2017, the state law requiring an employee’s pay stub to include hours worked is modified to address open issues caused by inexact verbiage in the original law. The existing law excluded individuals who are paid “solely” via salary and are exempt from payment of overtime from the requirement. This implied that outside sales staff (who are often paid in whole or in part via commission) or executives (who often are paid, in part, with bonuses) would be subject to the pay stub reporting requirement. The modified law expands the definition of the exclusion to address these gaps. See section j. of AB 2535 at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2535 for the expanded exclusion. Also, AB 1506 amends the Private Attorneys General Act (PAGA) to allow employers 33 days to cure pay stub errors before being subject to PAGA litigation. Because some people were hopping on this mix-up as an opportunity to make some quick cash.
3. Massachusetts – Effective January 1, 2018 (this is not a typo), MA will have a new pay equity law which [a] prohibits employers from asking an applicant or the applicant’s prior employers about the applicant’s pay history until after a conditional offer of employment is made (although the applicant’s voluntary disclosure of this info is OK); [b] provides a more robust definition of “comparable work”; [c] imposed beefed up penalties (double damages plus attorney’s fees) and a three-year statute of limitations (which runs from the most recent unequal paycheck, not when the unequal pay rate was first set); and [d] creates a new affirmative defense to liability for claims under the statute, if the employer has conducted an adequate compensation self-evaluation within three years prior to the dispute. The new law’s anti-retaliation provisions protect an employee who has “disclosed his or her compensation or has inquired about or discussed the wages of any other employee.” There are many details to watch out for, including the prohibition against reducing employees’ wages solely to achieve parity. Full text and history of the bill can be found at https://malegislature.gov/Bills/189/Senate/S2119/History. As a side note, the EEOC has long taken the position that employers’ pre-employment inquiries about job applicant’s job history could support a claim of disparate treatment, where the information tends to perpetuate lower wages for women or minorities based on their earnings history and their expectations. It will be interesting to see if this state law emboldens the EEOC to ramp up their efforts in this area.
4. New York – As part of a settlement agreement with the NY Attorney General’s office EMSI, a medical information services company, will no longer impose noncompete agreements on all of its staff and will limit their application to the most senior executives, such as directors and officers. The post-employment restrictions were to last for nine months and prohibited working for a competitor within 50 miles of any location where the employee had worked for EMSI. A phlebotomist with a heavy travel schedule was interested in working in a clinical setting, which offered more pay and no travel. Her job offer was rescinded when the employer read EMSI’s noncompete. The AG was notified and intervened, noting that rank and file workers should be able to change jobs without fear of being sued by their former employer. The press release is posted at http://www.ag.ny.gov/press-release/ag-schneiderman-agreement-ends-non-compete-agreements-employees-national-medical.
13. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
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