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OCTOBER 2017

 

Upcoming Events

 For the Winter meeting at Amelia Island, we are happy report that our Section has joined forces with the ADR Section to discuss the following: “Hold on, Class, it’s not time to waive goodbye just yet!”  We are very pleased to have Daniel C. Gerhan, Director and Senior Litigation Counsel at Boston Scientific Corporation and Jeff Kelsey, Managing Director – Employment Law at Federal Express Corporation on our panel.

We will discuss the challenges for employers attempting to use class action waivers in employment agreements and the differing views among the federal circuits. With the importance of controlling litigation costs and predictability, employers are seeking to pursue waivers, but the courts are not always receptive.  Our panel will review the status of cases on the topic and some best practices for employers to address these issues.

 

News and Noteworthy

 

EEOC Harassment Prevention and Respectful Workplace Training

Paul M. Finamore

NILES, BARTON & WILMER, LLP

 

The EEOC is offering on-site training in harassment prevention and respectful workplaces.  To sign up or for more information, you can access the materials on the EEOC Training website at https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x25476ef8&varPage=activity.

 

Has the Marijuana Slope Become Slippery?

Jean Faure

FAURE HOLDEN ATTORNEYS AT LAW, P.C.

 

In August 2017, the Supreme Court of Connecticut unanimously decided that despite the state's "explicit, well-defined and dominant public policy against the possession and recreational use of marijuana in the workplace[,]" discipline less than termination could be appropriate.  See State of Connecticut v. Connecticut Employees Union Independent, August 30, 2017.

The case involved Gregory Linhoff, a 15-year employee of the University of Connecticut Health Center. In March 2012, the Health Center's police found Linhoff smoking marijuana in a state van during his night shift.  Linhoff also had two bags of marijuana in his his possession. Linhoff was arrested (the criminal charges were dismissed), and UC Health terminated his employment.  UC health defended the termination, noting that Linhoff had violated numerous workplace policies, including the health center's drug-free workplace policy, and had shown himself to be untrustworthy to perform his duties, given that he was mostly unsupervised at work and had access to all areas of the Health Center.

Linhoff's union, the Connecticut Employees Union Independent, contested his discharge, and, pursuant to the operative collective bargaining agreement, the parties arbitrated the matter. The arbitrator found that termination was too harsh a punishment under the circumstances and was not mandated by the heath center's drug-free workplace policy.  The arbitrator also noted mitigating factors, such as Linhoff's testimony that he had been taking the marijuana as part of his therapy for anxiety and depression.  The arbitrator concluded that Linhoff had engaged in substantial misconduct, but found that a more proportional punishment was six months of unpaid suspension and random drug testing upon his return to work.

The state sought to vacate the arbitrator's award and reinstate the termination.  The trial court agreed with the state, finding that in light of the "defined public policy" against marijuana in the workplace, termination was the appropriate course of action. In reversing the trial court's decision, the Supreme Court of Connecticut began its analysis by observing the high-level of deference typically afforded to arbitration awards. The court noted, however, that such awards could be overturned where they violated a strong public policy.  The court noted Connecticut’s strong public policy against recreational marijuana use in the workplace, but found that the arbitrator's decision did not run afoul of it.

Specifically, the court found that (1) discipline other than termination did not necessarily offend the state's public policy; (2) Linhoff's return to employment would not likely implicate the public's safety; (3) his conduct was completely inappropriate, although not necessarily egregious; and (4) Linhoff was not incorrigible. The court concluded its opinion by again noting that "judicial second-guessing of arbitral awards … is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue."  

Given that it is a review of an arbitration award, it provides limited guidance on handling employees using marijuana in the workplace. But it does highlight the Court’s perspective on the evolving issue of marijuana use in the workplace. 

TOP EMPLOYMENT LAW TRENDS TO WATCH AS 2017 WINDS DOWN

Michele Ballard Miller

MILLER LAW GROUP

 

This year has brought a variety of new challenges and obligations for employers in California and across the nation. Now, as summer fades and the fourth quarter of the business year begins, employers should take stock of the following employment law trends as they wind down 2017 and prepare for the year ahead.

 

Deferred Action for Childhood Arrivals (DACA)

On September 5, 2017, the Trump administration announced that it would phase out DACA, which provides deportation protection and work permits to unauthorized immigrants who came to the United States as children. Absent a quick legislative solution by Congress, the phasing out of the program effectively sets work eligibility expiration dates for an estimated 800,000 DACA recipients.

 

Employers should keep posted on further developments, as recent discussions between President Trump and members of Congress indicate that a deal to protect those affected by the DACA rescission may be reached in the near future. Until then, employers should be certain that they are properly tracking, for Form I-9 purposes, when employee work eligibility expires, and must obey the law when their workers are no longer eligible to work. In doing so, however, employers must take care to not jump the gun and take action against DACA recipients before their work eligibility actually expires. Taking action too early could result in claims of discrimination and wrongful termination based race or national origin, as well as I9 violations.

 

Equal Pay

The federal Office of Management and Budget recently announced that it was issuing an immediate stay of the revised EEO-1 form, which had been slated to take effect in March 2018 and would have required employers with 100 or more employees to substantially expand the information disclosed to include data on pay and hours worked. The Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) had planned to use the new data to step up enforcement of federal wage bias laws.

 

Although this reporting requirement has been put on hold, employers still need to be vigilant regarding compliance with applicable equal pay laws, including at the state level. California, in particular, has been on the forefront with respect to equal pay, with the recent passage of the Fair Pay Act, which requires equal pay for “substantially similar” work based on gender, race and ethnicity. In addition, Assembly Bill 168, which is currently pending in the California Senate would, if passed, bar employers from inquiring about applicant salary history.

 

Employers should take proactive steps to evaluate their compensation policies and practices and consider conducting a self-evaluation (possibly under the direction of legal counsel) to identify and fix any pay disparities – before disputes arise.

 

Paid Family Leave

The United States remains among only a handful of countries without federally mandated paid family leave – and just 14 percent of private workers in this country receive paid leave through their employer. That may be changing. For example, this year San Francisco’s landmark Paid Parental Leave Ordinance took effect, requiring employers to supplement state paid family leave benefits for up to six weeks.

 

At the same time, companies that provide their own paid family leave benefits may want to take a close look at how such benefits are allocated, in light of a new gender bias suit filed by the EEOC against Estee Lauder Companies, Inc. The EEOC charges that the cosmetics company violated the federal Equal Pay Act and Title VII by maintaining a policy of providing two weeks of paid parental leave for child bonding to fathers, in contrast to six weeks of paid parental leave for child bonding to mothers (separate from paid leave for childbirth recovery). A similar lawsuit recently was filed against J.P. Morgan Chase & Co. Employers should anticipate that more lawsuits like these will follow and evaluate their paid leave policies accordingly.

 

Marijuana In The Workplace

While marijuana use remains illegal under federal law, the passage in California of Proposition 64, the Adult Use of Marijuana Act, will make recreational cannabis legal effective January 1, 2018. The conflict between federal and state law has led to some confusion about whether employers will be required to accommodate their employees’ use or possession of the drug. On the one hand, Proposition 64 expressly protects an employer’s right to maintain workplace policies relating to marijuana, which would generally include narrowly crafted drug testing policies. On the other, court decisions like the recent Massachusetts Supreme Judicial Court’s ruling in Barbuto v. Advantage Sales and Market, LLC (Mass. 2017) 477 Mass. 456 – where the court ruled that an employee who was fired after testing positive for marijuana during the hire process could proceed with her disability bias claim – highlights that employee rights relating to marijuana are expanding, particularly where marijuana use is connected to treatment for an employee’s disability.

 

As this area of law continues to develop, employers should regularly assess their written policies, training and education of employees to ensure compliance with California’s drug testing and disability laws.

 

Ban The Box Laws

“Ban the Box” or “fair chance” laws are increasingly widespread across the United States. These laws generally require employers to remove questions about criminal convictions from job applications and to postpone criminal background inquiries until later in the hiring process, usually after a conditional offer of employment is extended, to give applicants an opportunity to explain their criminal history. Twenty-seven states currently have some form of Ban the Box law applicable to public sector workers and nine states have extended such laws to private employers as

well.

 

California does not have a statewide Ban the Box law yet, but Assembly Bill 1008, if passed, would amend the Fair Employment and Housing Act (FEHA) to ban criminal history inquiries on job applications and require employers to make individualized assessments before denying employment based on past convictions. San Francisco and Los Angeles already have fair chance ordinances on the books for private employers. Employers operating in those cities should review their hiring processes and train managers to ensure compliance. Employers should also keep an eye on Ban the Box legislation at the state and local level, as there are no signs that this trend is abating.

 

Class Arbitration Provisions

The validity of class action waivers in employment arbitration agreements is a hot topic that many employers are tracking, now that the U.S. Supreme Court has granted review to three consolidated cases on this issue. Briefing has already been submitted, and oral argument is expected this fall. The Court's decision to take up the issue follows a circuit split last year, where the Fifth and Eighth Circuits upheld such waivers and the Seventh and Ninth Circuits ruled that they violated the National Labor Relations Act (NLRA). Regardless of the outcome, the Court's decision will have a widespread effect on employers’ use of class action waivers. Until then, employers who use – or wish to use – arbitration agreements with class waivers should be certain to consult with counsel to review or draft such agreements to make sure they are in step with current requirements.

 

Transgender Employees

On the federal level, the Trump administration has rolled back protections for

LGBTQ federal workers this year. On March 27, 2017, for example, the President

signed an Executive Order rescinding the Fair Pay and Safe Workplaces Act, an

Obama-era order that required federal contractors to provide proof of compliance

with federal laws protecting LGBTQ persons in the workplace.

 

In the meantime, California has been expanding rights for transgender workers. The California FEHA has long prohibited discrimination against an applicant or employee based on gender identity, gender expression or sexual orientation. And on July 1, 2017, new FEHA regulations went into effect regarding transgender identity and expression in the workplace. The new regulations require employers to permit employees to use restroom facilities that correspond with the employee’s gender identity and gender expression and to use gender-neutral signage for single occupancy facilities. Employers also are prohibited, in the absence of business necessity, from imposing dress codes that are inconsistent with an employee’s gender identity or expression, and from requiring documentation on sex, gender, gender identity, or gender expression as a condition of employment. California employers should promptly review their employee handbooks and other policies and practices to ensure they are updated to comply with the new regulations.

 

FDCC Insights

Every month on the 10th, we are asked to submit articles or items of interest to the Federation for publication in the FDCC Insights e-newsletter.  Please send your materials to me so that we can get you published!  You can reach me at pmfinamore@nilesbarton.com. 

 

Section Connections

If you are a blogger or have a LinkedIn group that you would like to invite section members to join, please send the information to me so that members know how to access it. 

 

As an example, Robert Lockwood, one of our Section’s Vice Chairs hosts https://employingalabama.com, which provides some great insights not only for Alabama practitioners, but all of us. 

 

I would be happy to highlight your blogs or sites, so please send them along to me.

 

AUGUST 2017

For those unable to make the meeting in Montreux, the Section had an exciting discussion regarding Guns and Weeds, with plenty of audience participation despite the early hour.  Our panelists, Caroline Berdzik, Michelle Stewart, Amy Miletich, and Kay Hodge did a wonderful job leading the discussion regarding the risks that employers face with the new and expanding parking lot laws for gun owners, the legalization of marijuana on the state and local level, and the implications on employers and unions.  Please join me in thanking them for a great job.  If you are interested in the paper, please let us know.

 

On September 17-19, 2017, the Corporate Counsel Symposium will be held at the Hotel Sofitel in Philadelphia.  There will be a few employment presentations at CCS this year, including discussions regarding workplace violence, an update on the regulatory changes on the federal and agency levels, and areas of concern for corporate law departments.  Please sign up and invite your clients.  Remember that CCS is offering complimentary registration to all in-house counsel.


JULY 2017

 

DOL Files Reply Brief: Now What for Employers?

On June 30, 2017, the Department of Labor (DOL) filed its long-awaited reply brief in State of Nevada et al. v. U.S. Department of Labor, No. 16-41606 (5th Cir.), the appeal regarding the overtime regulations that has been pending in the Fifth Circuit since before President Trump’s inauguration.  The reply brief provides insight into DOL’s position on the regulations following the inauguration, a position that was in question until the reply brief was filed.  As a result, employers now have a clear picture of DOL’s position on its ability to promulgate regulations, but remain unclear as to what the salary level will be in the future. 


Background

DOL issued final regulations in May of 2016 that changed the salary level from $455 per week to $913 per week, more than doubling the prior threshold amount to qualify as an exempt executive, administrative and professional employees (EAP).  The regulations were scheduled to take effect on December 1, 2016, which provided employers with time to address and implement the regulations.  While employers scrambled to determine how to implement them and whether to raise salaries to allow employees to continue to qualify for the EAP exemption, on November 22, 2016, U.S. District Judge Mazzant from the Eastern District of Texas issued a nationwide preliminary injunction that precluded DOL from implementing or enforcing the final regulations in State of Nevada v. U.S. Department of Labor, No. 4:16-CV-00731 (E.D. TX 2016). 

In evaluating the extent of DOL’s authority to define or delimit the exemptions, Judge Mazzant noted that the Congressional delegation of authority to DOL was limited by the plain meaning of the statute and by Congressional intent that the EAP exemptions under the Fair Labor Standards Act (“FLSA”) be focused on the bona fide duties that an employee actually performs.  Judge Mazzant held DOL exceeded its authority and ignored the Congressional intent by attempting to limit the EAP exemptions, not based on any bona fide duties, but rather by supplanting the duties test and replacing it with a minimum salary requirement that would automatically determine an employee’s eligibility for overtime without regard to the employee’s actual job duties or responsibilities. 

DOL filed its appeal on December 1, 2016, initially requesting expedited briefing the following day along with a request for ruling from the Fifth Circuit by December 8, 2016.  While the Fifth Circuit did not agree to decide the case by December 8, 2016, it did agree to expedite the appeal, scheduling oral argument on January 31, 2017, only 11 days after the inauguration.  However, following the inauguration, the Department of Labor filed three motions requesting extensions to file its reply brief so that incoming leadership would have sufficient time to consider the issues presented in the appeal.  As a result of the third motion, the brief was due on June 30, 2017.

The Department of Labor’s Reply Brief


In its brief, DOL argued that the court erred in issuing a nationwide preliminary injunction when it held that DOL exceeded its regulatory authority.  DOL noted that it had more than a 75-year history of issuing regulations to define the EAP exemption.  Relying on both Fifth Circuit and Supreme Court holdings, DOL argued that its regulatory activity is supported by the text, purpose and history of the EAP exemptions and is consistent with Congress’ delegation of broad authority to “define and delimit” the exemption.  It seeks to have the Fifth Circuit confirm its authority.

However, DOL chose not to request review of the actual salary level.  Noting that Judge Mazzant’s holding, which addressed the threshold legal issue of DOL’s authority, did not reach whether the salary level of $913 per week was arbitrary or capricious or whether it was supported by the rulemaking record, DOL nonetheless chose to forgo argument on this topic, advising the court that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”  By doing so, DOL has left the salary level open for further discussion

This position is not altogether surprising in that Labor Secretary Acosta has testified that he questioned the need for the salary level to increase to $913 per week, but did not question the need for an increase from $455 per week.  He has suggested that a salary level in the low $30,000 range would be more appropriate.  If successful in its appeal regarding its rulemaking authority, it seems clear that DOL will move to increase the salary level without otherwise addressing the duties test in the FLSA.  By doing so, it will likely take swift action after the request for information process to promulgate new regulations increasing the salary level, likely at or near the level suggested by Secretary Acosta.


Employer Takeaways

For many employers, employee salaries have already been increased to conform to the salary test in the final rule.  It will be difficult under such circumstances to reduce those employee’s salaries, even though DOL chose not to defend its $913 level per week, without alienating employees.  For those employers that chose not to implement the new salary level pending appeal, the risk of failing to do so appears to be diminished or eliminated.  However, it seems clear that a higher salary level is simply a question of time based on DOL’s reply brief.  If successful on appeal, employers should anticipate swift action by DOL to increase the salary level by a few hundred dollars per week.  In the meantime, employers that did not implement the $913 per week salary level should review their existing EAP employees to determine how to implement the changes that are certain in the future.

 

 

 

JUNE 2017

 

DOL Files Reply Brief: Now What for Employers?

 

On June 30, 2017, the Department of Labor (DOL) filed its long-awaited reply brief in State of Nevada et al. v. U.S. Department of Labor, No. 16-41606 (5th Cir.), the appeal regarding the overtime regulations that has been pending in the Fifth Circuit since before President Trump’s inauguration.  The reply brief provides insight into DOL’s position on the regulations following the inauguration, a position that was in question until the reply brief was filed.  As a result, employers now have a clear picture of DOL’s position on its ability to promulgate regulations, but remain unclear as to what the salary level will be in the future. 

 

Background

 DOL issued final regulations in May of 2016 that changed the salary level from $455 per week to $913 per week, more than doubling the prior threshold amount to qualify as an exempt executive, administrative and professional employees (EAP).  The regulations were scheduled to take effect on December 1, 2016, which provided employers with time to address and implement the regulations.  While employers scrambled to determine how to implement them and whether to raise salaries to allow employees to continue to qualify for the EAP exemption, on November 22, 2016, U.S. District Judge Mazzant from the Eastern District of Texas issued a nationwide preliminary injunction that precluded DOL from implementing or enforcing the final regulations in State of Nevada v. U.S. Department of Labor, No. 4:16-CV-00731 (E.D. TX 2016). 

 

In evaluating the extent of DOL’s authority to define or delimit the exemptions, Judge Mazzant noted that the Congressional delegation of authority to DOL was limited by the plain meaning of the statute and by Congressional intent that the EAP exemptions under the Fair Labor Standards Act (“FLSA”) be focused on the bona fide duties that an employee actually performs.  Judge Mazzant held DOL exceeded its authority and ignored the Congressional intent by attempting to limit the EAP exemptions, not based on any bona fide duties, but rather by supplanting the duties test and replacing it with a minimum salary requirement that would automatically determine an employee’s eligibility for overtime without regard to the employee’s actual job duties or responsibilities. 

 

DOL filed its appeal on December 1, 2016, initially requesting expedited briefing the following day along with a request for ruling from the Fifth Circuit by December 8, 2016.  While the Fifth Circuit did not agree to decide the case by December 8, 2016, it did agree to expedite the appeal, scheduling oral argument on January 31, 2017, only 11 days after the inauguration.  However, following the inauguration, the Department of Labor filed three motions requesting extensions to file its reply brief so that incoming leadership would have sufficient time to consider the issues presented in the appeal.  As a result of the third motion, the brief was due on June 30, 2017.

 

The Department of Labor’s Reply Brief

 In its brief, DOL argued that the court erred in issuing a nationwide preliminary injunction when it held that DOL exceeded its regulatory authority.  DOL noted that it had more than a 75-year history of issuing regulations to define the EAP exemption.  Relying on both Fifth Circuit and Supreme Court holdings, DOL argued that its regulatory activity is supported by the text, purpose and history of the EAP exemptions and is consistent with Congress’ delegation of broad authority to “define and delimit” the exemption.  It seeks to have the Fifth Circuit confirm its authority.

 

However, DOL chose not to request review of the actual salary level.  Noting that Judge Mazzant’s holding, which addressed the threshold legal issue of DOL’s authority, did not reach whether the salary level of $913 per week was arbitrary or capricious or whether it was supported by the rulemaking record, DOL nonetheless chose to forgo argument on this topic, advising the court that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”  By doing so, DOL has left the salary level open for further discussion.

 

This position is not altogether surprising in that Labor Secretary Acosta has testified that he questioned the need for the salary level to increase to $913 per week, but did not question the need for an increase from $455 per week.  He has suggested that a salary level in the low $30,000 range would be more appropriate.  If successful in its appeal regarding its rulemaking authority, it seems clear that DOL will move to increase the salary level without otherwise addressing the duties test in the FLSA.  By doing so, it will likely take swift action after the request for information process to promulgate new regulations increasing the salary level, likely at or near the level suggested by Secretary Acosta.

 

Employer Takeaways

 For many employers, employee salaries have already been increased to conform to the salary test in the final rule.  It will be difficult under such circumstances to reduce those employee’s salaries, even though DOL chose not to defend its $913 level per week, without alienating employees.  For those employers that chose not to implement the new salary level pending appeal, the risk of failing to do so appears to be diminished or eliminated.  However, it seems clear that a higher salary level is simply a question of time based on DOL’s reply brief.  If successful on appeal, employers should anticipate swift action by DOL to increase the salary level by a few hundred dollars per week.  In the meantime, employers that did not implement the $913 per week salary level should review their existing EAP employees to determine how to implement the changes that are certain in the future.  

 

 

MAY 2017

 

Ban on Sexual Orientation Discrimination May Affect Arizona Employers

By: Helen Holden, attorney, Sacks Tierney P.A.

 

A federal court has ruled against sexual orientation discrimination in three Midwestern states, and other jurisdictions may follow that court’s lead.

On April 4, the U.S. Seventh Circuit Court of Appeals became the first federal appellate court to rule that discrimination on the basis of sexual orientation is prohibited by existing federal law. By an 8-3 vote in Hively v. Ivy Tech Community College of Indiana, the Court pronounced that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

 

The ruling, which is effective immediately for employers in Illinois, Wisconsin and Indiana, came after a number of federal district and appellate courts had hinted that it was time to revisit decades-old precedent finding that sexual orientation was not a protected class.

 

The Issue

The Hively case involved an openly lesbian woman, Kimberly Hively, who was a part-time teacher at Ivy Tech Community College in South Bend, Indiana. Between 2009 and 2014, she unsuccessfully applied for a number of full-time teaching positions at the school. In 2014, her part-time teaching contract was not renewed.


Believing that the college’s actions were in response to her sexual orientation, Ms. Hively filed a charge of discrimination on that basis with the Equal Employment Opportunity Commission (EEOC) and eventually filed a lawsuit in federal court in Indiana. That court dismissed her case, holding that “sexual orientation” was not among the enumerated protected classifications under Title VII of the Civil Rights Act of 1964.

 

The Appeal

The Seventh Circuit panel that first heard the case affirmed district court’s dismissal, ruling that a circuit court precedent was binding, even while strongly suggesting that that the precedent should be revisited in light of recent developments, including the Supreme Court’s recognition, in Obergefell v. Hodges (135 S. C. 2584), of the right of same-sex couples to marry.

 

The panel pointed to, among other issues, “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” 830 F.3d 698, 714 (7th Cir. 2016). The full Seventh Circuit, including two influential Reagan-appointed circuit court judges, agreed, and ruled in favor of Ms. Hively.

 

Impact on Employers

For now, the Seventh Circuit’s decision does not affect most employers, as the scope of the ruling is limited to employers in Illinois, Wisconsin and Indiana. Other courts have not yet followed suit, and the Supreme Court has been silent on the issue.

However, there are indications that other circuit courts may follow suit. For example, some courts have recognized that employees who are subjected to sex stereotyping, which can be viewed as a form of sexual orientation discrimination, may have certain protections under existing law. Similarly, recent EEOC pronouncements make clear that the Commission views current law as prohibiting discrimination on the basis of sexual orientation. Also, a number of state and local laws (including city ordinances in Phoenix and Tempe) already prohibit discrimination on the basis of sexual orientation. In short, it seems that it is only a matter of time until other courts and local jurisdictions follow the Seventh Circuit’s lead.

 

Employers seeking to be proactive and to avoid cutting-edge legal claims may well want to revisit their policies and ensure that they expressly prohibit discrimination on the basis of sexual orientation.

 

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.



BLOGS

AUGUST BLOGS

California Expands Protections For Transgender Employees

By: Carla J. Hartley, Dillingham & Murphy, LLP, San Francisco, CA

 

The California Fair Employment and Housing Council recently amended its regulations to expand protections for transgender employees. The amendments primarily address access to workplace facilities and when an employer can ask for information about an employee’s sex. The changes were effective July 1, 2017.

 

The amended regulations require employers to provide equal access to comparable, safe and adequate facilities, without regard to an employee’s sex. “Facilities” include restrooms, locker rooms, dressing rooms, dormitories and the like.

 

The definition of "sex" under the California Fair Employment and Housing Act, which already included gender identity and gender expression, now includes a third party's perceptions of these terms.

 

“Gender expression” means a person’s gender-related appearance or behavior and the perception of a person’s appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.

 

“Gender identity” means a person’s internal understanding of their gender, or the perception of their gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the sex assigned at birth, or transgender.

 

The amendments require employers to permit employees to use the facilities that correspond to their gender identity or gender expression, regardless of the employees' sex assigned at birth.

 

To respect employee privacy, employers are required to provide alternatives, such as locking toilet stalls, staggered showering schedules, and shower curtains.

 

Employers with single-occupancy facilities must use gender-neutral signage such as "Restroom," "Unisex," "Gender Neutral, or "All Gender Restroom." This is in addition to a new California law requiring companies that have single-occupancy toilets available for public use to have all-gender signage in place by March 1 of this year.

 

Note that on July 25, 2017, the Fair Employment and Housing Council gave notice of proposed emergency regulations that would permit employers in certain industries to keep non-flushing single-occupancy toilets marked separately for males and females.  This is due to a conflict between the amended FEHC regulations and Cal/OSHA regulations.  The industries in question are construction, general industry, agricultural operations, hazardous waste operations and emergency response.

 

The FEHC amendments generally prohibit an employer from asking about or requiring documentation of an employee's sex, gender, gender identity or gender expression. An employer may ask applicants to voluntarily provide their sex for recordkeeping purposes. An employer can discuss an employee's sex, etc., if the employee initiates the topic in connection with working conditions. An employer may also communicate confidentially with an employee solely for purposes of making sure the employee has access to appropriate multi-user facilities.

 

An employer is required to identify an employee by the employee's preferred name, gender, and pronoun. However, an employer may use the gender or legal name contained in an employee's government-issued identification if necessary to meet a legal obligation. An example of this would be using the name contained in documentation provided by an employee to complete an I-9 form, even if not the employee's preferred name.

 

California employers who have not already done so should evaluate their restrooms and other facilities for required changes, modify forms and policies as necessary, and plan for any issues that may arise in implementing the changes in their organizations. The changes should also be covered in employee harassment training.

 

More Detention For California Employers: New Limits On Rejecting Candidates With Criminal Convictions

By: Carla J. Hartley, Dillingham & Murphy, LLP, San Francisco, CA

 

A new California Fair Employment and Housing Council regulation on considering criminal history in employment decisions became effective July 1, 2017. The regulation draws heavily from the EEOC Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions but, in typical California fashion, is also different. The Enforcement Guidance was based on national statistics showing that African-Americans and Hispanics were more likely to have a criminal history. Based on these statistics, the EEOC concluded that an employment policy excluding individuals with a criminal history could cause a disparate impact based on race, in violation of Title VII.

 

The new regulation requires that, if an employer has a policy of considering criminal history resulting in an adverse impact on a group protected by the Fair Employment and Housing Act, the employer must show that its policy is job-related and meets business necessity, using one of two approaches. Key points of the new regulation are summarized below.

 

Incorporation of Pre-Existing Limits on Considering Criminal History

 

The regulation incorporates pre-existing limitations on employers considering the following types of criminal history:

  • Arrests/detentions not resulting in convictions
  • Referrals to/participation in diversion programs
  • Dismissed, sealed, expunged or eradicated convictions
  • Juvenile offenses
  • Non-felony marijuana possession convictions older than 2 years
  • The regulation also incorporates the governmental entity “ban the box” law, local ordinances, and restrictions in the federal Fair Credit Reporting Act and California Investigative Consumer Reporting Agencies Act.

Applicant/Employee Burden of Proof

 

The applicant or employee must establish that an employer’s policy or practice of considering criminal convictions causes an adverse impact based on a FEHA-protected classification. State or national statistics showing substantial disparities in conviction rates based on, for example, race “presumptively” meet this burden. The employer can rebut this by showing that the outcome would be different based on the specific circumstances, such as specific geographical area in question, types of convictions considered, the job, etc.

 

If a candidate establishes an adverse impact, the employer must then show its policy is job-related and consistent with business necessity (see below).

 

However, even if the employer can successfully prove these defenses, the candidate still has an opportunity to, in effect second guess the employer, by showing that there is a less discriminatory policy that would meet the employer's goals as effectively. An example of this would be a narrower list of convictions resulting in disqualification.

 

Employer Options for Showing Job-Related and Consistent with Business Necessity

 

The employer must demonstrate that its policy bears a relationship to successful job performance and measures a candidate's fitness for a specific position considering, at a minimum:

  • The nature and gravity of the criminal offense or conduct
  • The time that has passed since the conduct or completion of sentence
  • The nature of the job

An employer can do this by using either a "bright line" conviction disqualification (automatically rejecting all candidates with certain types of convictions) or an individualized assessment. An employer using the bright line approach must show:

  • Its policy can properly distinguish between individuals that do/do not pose an unacceptable risk, and
  • The convictions disqualifying a candidate have a direct and specific negative bearing on his/her ability to perform the duties of the position. (Convictions older than seven years generally will not meet this standard unless the employer is legally required to consider older convictions.)

An employer using an individualized assessment must take the following steps with any candidate excluded by the initial screening:

  • Provide notice
  • Give the candidate a chance to show that the exclusion should not be applied, and
  • Consider any additional information provided
  • Notification if Candidate Not Source of Information

If conviction information is obtained from any source other than the candidate, before taking an adverse action, the employer must notify the candidate and give him or her the opportunity to show the information is inaccurate. Note that this is not intended to give the candidate an opportunity to argue that the information is not relevant.

 

Comments and Tips

  • The FEHC has once again created a Hobson's choice for employers: Risk being sued for negligent hiring or risk being sued for employment discrimination.

  • Review existing policies, procedures and forms to determine if they need to be revised to comply with the new regulation.

  • Decide if your organization is going to take a “bright line” or “individualized assessment” approach.

  • A bright line approach is probably more efficient once implemented because it does not require notification and follow up with every candidate excluded by an initial screen. However, this approach will require an analysis to determine which convictions should and should not result in an automatic disqualification. A bright line approach likely cannot be one size fits all for different types of employees. The EEOC Enforcement Guidance makes it clear that excluding convictions for positions that allow access to children or other vulnerable individuals, or involve working with money or private information, may not be defensible for positions such as manual labor.

  • An individualized assessment approach is likely to be more time-consuming. It may also be difficult to control consistency, potentially resulting in disparate treatment claims. However, with appropriate measures to ensure consistency, it is more likely to defeat a disparate impact claim.  

  • Since most employers learn of criminal convictions through background checks, the new regulation may result in additional notice obligations. Background checks are covered by credit reporting laws which require employers to provide notice of an adverse action (for example a decision not to hire) when it is based on information in an investigative consumer report. Those laws generally require that the notice include the contact information for the agency compiling the report. Now, if an employer learns of a criminal conviction through a background check and decides on that basis not to hire the candidate, the employer will need to ensure the candidate is given the notices required by credit reporting laws and notice of the opportunity to prove to the employer that the information is incorrect.

  • Surprisingly, the new regulation does not include a "ban the box" provision (prohibiting employers from asking about criminal convictions in an application or otherwise during the initial application process). However, many municipalities have ban the box ordinances (including San Francisco and Los Angeles). These local ordinances usually include other restrictions so employers with employees in different parts of California will need to ensure their policy complies with multiple overlapping laws.

 

Lactation Accommodation: New San Francisco Lactation Requirements for 2018; Getting Ready

 

San Francisco’s new “Lactation in the Workplace” Ordinance, which takes effect in 2018, is the latest in a series of parent-friendly legislation rolled out by the City over the past few years -- and highlights the broader trend in California, as well as some other states and cities nationwide, towards increasing parental and family protections. 

Here’s an overview of existing lactation accommodation requirements for California employers, and a detailed look at the new San Francisco requirements.

Lactation Accommodation – California and Federal


The California Labor Code already requires employers to provide a reasonable amount of break time to an employee desiring to express milk for the employee’s infant child and to make reasonable efforts to provide the employee with a private room, other than a toilet stall, in close proximity to the employee’s work area. Similarly, the federal Fair Labor Standards Act (50 or more employees) requires employers to provide reasonable break time for an employee to express breast milk for one year following the birth of a child, as well as a private location, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.


San Francisco Lactation in the Workplace Ordinance


San Francisco’s new Ordinance expands lactation accommodation obligations for San Francisco employers and contains detailed policy and record-keeping requirements. 


Lactation Locations


The Ordinance requires employers to provide a lactation location, other than a bathroom, in close proximity to the employee’s work area. The location can even be the employee’s regular work area so long as it meets requirements of the Ordinance. The lactation location must be shielded from view and free from intrusion by others. The area must be safe, clean, and free of toxic and hazardous materials. It must have a place to sit, a surface on which to place a breast pump and other personal items, and access to electricity. Also, the employer must provide, in close proximity to the employee’s work area, access to a refrigerator and sink.


If an area designated as a lactation location is also used for other purposes, employees must be notified that lactation use takes priority over any other uses for the location. Also, in multi-tenant buildings, an employer that does not have a suitable lactation location within its own workspace can satisfy the Ordinance requirements by sharing a location with other employers in that building.

 

Lactation Accommodation Policy and Process


The Ordinance requires that every employer maintain a written lactation accommodation policy. The policy must be distributed to all new hires and to any employee who asks about or requests pregnancy or parental leave, and it must be included in the employee handbook or written policies.


The policy must include the following:
  • A statement of the employee’s right to request a lactation accommodation (breaks and lactation location).
  • A process for requesting an accommodation, including: 

1.     the means by which employees may submit requests;

2.     a statement that the employer will respond to a request within five business days; and

3.     a statement that the employer and employee will engage in an interactive process to determine         the appropriate accommodations.

  • A statement that if the employer does not provide the requested breaks or lactation location, the employer will provide the employee with a written response identifying the basis for the denial.
  •  A statement that retaliation in response to a request is prohibited.

Recordkeeping Obligations

 

Employers must maintain a record of employee requests for lactation accommodations for three years. The record must include the employee’s name, the date of the request, and a description of how the employer addressed the request, including written accommodation denials.

 

Undue Hardship Exemption

 

An employer may be exempt from the Ordinance if its requirements would impose an undue hardship, meaning that the accommodation would significantly impact the employer’s business or bottom line, as opposed to mere inconvenience to the employer. By way of example, the Ordinance suggests that it would be an undue hardship for a restaurant employer to grant a lactation accommodation if it would require the restaurant to remove seating or would require construction to comply.

 

Enforcement

 

The City’s Office of Labor Standards Enforcement (“OLSE”) will be responsible for enforcing the Ordinance. For the first year the Ordinance is in effect, the OLSE will only issue warnings and Notices to Correct. As of January 1, 2019, however, the OLSE may impose administrative penalties of up to $500 per violation, and employers who fail to promptly comply with a Notice to Correct may be liable for up to $50 per day and $50 per employee affected by such a violation. The Ordinance does not expressly provide employees with a private right to sue for violations (employees may nevertheless file a complaint with the OLSE), and it is unclear whether courts will permit such a private right of action.

 

Getting Ready

 

All employers should check to determine whether any states and cities in which they operate have special lactation accommodation requirements.  And, employers with San Francisco-based employees should prepare to be in compliance with the new Ordinance as of January 1, 2018. Here are some recommended steps to get ready:

  • Identify designated lactation areas. 
  • Implement, or update, a written lactation accommodation policy. Include it in employee handbooks and distribute it to new hires and to employees who request or inquire about pregnancy or parental leave.  For a sample San Francisco lactation policy, contact Michele Ballard Miller at mbm@millerlawgroup.com.
  • Train managers and Human Resources staff on the new requirements.
  • Implement an internal process to maintain records of employee requests for lactation accommodations. 
  • Seek advice from counsel before determining that compliance would be an undue hardship. 
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11/9/2017 » 11/10/2017
Insurance Industry Institute

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Melinda S. KollrossDefense Counsel, Clausen Miller PC, Chicago, IL
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