Employment Law Spotlight

Employment Law Spotlight

Providing Developments & Insight on Trending Topics in Employment Law

Transgender Issues in the Law and in the Workplace

Posted in Discrimination

Employment_186440912Visibility of transgender persons has been heightened lately. Caitlyn Jenner received an ESPY award for her bravery in discussing trans issues, there are story lines in popular television shows like “Orange Is the New Black” highlighting transgender persons and their related struggles with civil rights, and the press has reported on boycotts related to gender-appropriate restrooms. Perhaps because of this increased visibility, people are now hotly debating what transgenderism means in the context of civil rights and privacy rights and how those rights affect employers. These are important issues that affect not only transgender persons all over the country but also employers.

On the issue of civil rights, Title VII of the Civil Rights Act (Title VII), the federal law that protects employees from discrimination, specifically names “sex” (typically referred to as one’s biological birth sex) as a category of people that should be protected against discrimination in the workplace, but does not specifically include protection for an individual’s “gender identity” (the sex with which a person identifies rather than the person’s birth sex). However, some courts have held that discrimination based on gender identity is discrimination based on sex stereotyping (which the Supreme Court has recognized as discrimination based on sex), and, thus, it is not permissible under federal law. To date, the First, Sixth, Ninth, and Eleventh Circuits and some district courts in other circuits have used this theory to hold that discrimination against transgender persons is not permissible. Likewise, several agencies, including the Equal Employment Opportunity Commission (EEOC), have issued guidance providing that discrimination based on gender identity is prohibited under the sex classification of Title VII. In addition, 21 states and the District of Columbia prohibit discrimination based on gender identity, and several municipalities have enacted legislation to protect gender identity.

The issue of privacy includes transgender persons’ access to restrooms and locker rooms that are consistent with their gender identity. Proponents of laws or policies that require individuals to use a restroom or changing area that correlates to their birth sex argue that cisgender persons (those whose sense of personal identity corresponds with the gender assigned to them at birth) have an expectation of privacy that requires others using restrooms or changing rooms to be of the same birth sex. Continue Reading

Pokémon – A Wake-up Call to Employers on the Importance of Electronic Use Policies

Posted in Policies

Cell phonesAs my 11-year-old begs to borrow my mobile device to catch a Pokémon, I become one more Generation X member unwittingly joining the millions of millennials participating in an augmented reality game. For employers, Pokémon demonstrated that an app can rapidly gain enormous popularity, resulting in significant portions of the workforce downloading the app on mobile devices before employers know the app’s effect on data privacy or the presence of objective content.

Like the time allotted before a Pokémon despawns, an employer’s reaction time to the next augmented reality game will be limited. Employers, however, should not panic. The electronic use policies for employer-owned devices, and bring your own device (BYOD) policies for employee-owned devices, which have been recommended for years, provide the template for an employer’s response and an employee’s obligations. Employers who have not implemented electronic use and BYOD policies should not wait any longer. Unless the policies are clearly communicated to employees, compliance will be limited. The Pokémon phenomenon is a great opportunity to recirculate your electronic use and BYOD policies, reminding employees about their mobile device restrictions.

An electronic use policy can prohibit all unapproved downloads to employer-owned devices. A BYOD policy can require written authorization from employees that use of their personal device may be limited as long as the device has access to employer networks, including limitations on downloads that are not preapproved by the employer. Technology that allows an employer to remotely disconnect network access or even execute a remote wipe of content on an employee- or employer-owned device, assuming prior written authorization from the employee for this action, also can help protect employers from downloads that compromise company information. Continue Reading

Drawing the Line on Leave Policies for Employees With Disabilities

Posted in EEOC

Employment_186440912Within the past three months, the U.S. Equal Employment Opportunity Commission (EEOC) has secured nearly $9 million from companies that have committed violations of the Americans with Disabilities Act (ADA) by discriminating against and firing employees with disabilities who requested medical leave or exhausted their allotted medical leave to address those disabilities.

For example, on June 17, 2016, the EEOC announced that three integrated Nevada-based car dealerships will pay $50,000 for firing an employee with multiple sclerosis who requested medical leave for the diagnosis and treatment of her disability. According to the EEOC, about three months after Shara Rynearson was hired as a commissioned salesperson, she notified her supervisor of certain symptoms — including sudden vision changes, facial numbness and balance loss — that caused her to go to the emergency room in October 2010. Later, she showed her employer her hospital discharge papers, which included a diagnosis predicting multiple sclerosis. She also advised her employer that she could not work until after a medical appointment scheduled for early November to confirm the diagnosis. Instead of allowing Rynearson to take medical leave for the diagnosis and treatment of her disability, the company allegedly fired her on November 5, 2010.

In a different case, on May 13, 2016, the EEOC entered into an agreement with a home-improvement, appliance and hardware giant to pay $8.6 million for the firing three employees with disabilities and failing to provide reasonable accommodations to them when their medical leaves of absence exceeded the company’s 180-day (and subsequent 240-day) maximum leave policy between 2007 and 2010. The EEOC argued that the company’s automatic termination of employees who exceeded an arbitrary time limit on medical leaves of absence was unreasonable and a violation of the ADA. In fact, federal courts have consistently held that requests for extended leave can be a reasonable accommodation for a disability under the ADA, depending on the circumstances, and that automatic termination policies whereby an employer denies a request for such leave based on the employee having already been out a certain amount of time are unlawful. Continue Reading

Pregnancy Protections Under NYC Law – Not Limited to Just “Pregnancy”

Posted in New York

As most NYC employers have probably heard by now, in May of this year, New York City released guidance that defines violations of pregnancy protections under the NYC Human Rights Law, and provides clear(er) examples of when and how employers should make accommodations for employees based on pregnancy, childbirth or a related medical condition. The new guidance clarifies that employers not only have to accommodate pregnant workers, but also must follow some rather nuanced requirements not limited to just pregnancy.

Some of these requirements include:

  1. Employers must accommodate reasonable requests for things like minor changes in work schedules; adjustments in uniform requirements or dress codes; allowing for drinking, snacking and bathroom breaks; allowing employees to eat at their desks; providing seating; arranging for light duty or desk duty assignment; transferring workers to other available positions that are less strenuous or hazardous; and allowing for unpaid leave to recover from childbirth.
  2. Employees who are breastfeeding are also entitled to reasonable accommodations, such as a clean, sanitary and private space (other than a bathroom) to express milk along with a refrigerator to store the milk.
  3. Employees undergoing fertility treatment are also entitled to reasonable accommodations, such as a more flexible schedule to attend fertility appointments.
  4. Employees who have had abortions or miscarriages are also entitled to reasonable accommodations, such as additional unpaid leave to recover from a procedure.
  5. Employers are required to initiate and engage in a “cooperative dialogue” (as defined by the law) with employees when the employer is on notice that an employee is in need of an accommodation based on pregnancy, childbirth or a related medical condition. The cooperative dialogue is ongoing until (1) a reasonable accommodation is reached or (2) the employer reasonably arrives at the conclusion that (a) there is no accommodation available that will not cause an undue hardship to the employer or (b) no accommodation exists that will allow the employee to perform the essential requisites of the job. Once a conclusion is reached, an employer should promptly notify the employee in writing of the determination. Failure to do so may result in a violation of the law.
  6. Employers may not require an employee to provide medical confirmation of pregnancy, childbirth or related medical condition, except when (1) an employee is requesting time away from work, including for medical appointments, other than the presumptive six-to-eight-week period following childbirth for recovery from childbirth, and may do so only if the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth or related medical condition, or (2) an employee is requesting to work from home, either on an intermittent basis or a longer-term basis.
  7. Employers may not retaliate against employees for requesting reasonable accommodations for pregnancy, childbirth or a related medical condition.

Continue Reading

NLRB Makes Up More New Rules on Joint Employment

Posted in NLRB

Remember that kid in elementary school who, whenever you were winning at some made-up playground game, would change the rules in the middle? “Kids can be so unfair,” your parent might have said, trying to console you. “But when you get older, there are laws and rules, and they’re written down. Everyone knows what the rules are, and everyone has to play by those rules.

Fast-forward to adulthood and the business world. The law is written down. When there are ambiguities, the courts rule. Their decisions can be relied upon. The American economy requires predictability. Businesses know the rules and can operate within the bounds of those rules.

And then there’s labor law. Hahahahaha!

The National Labor Relations Board doesn’t care about your rules and predictability. The NLRB has expressed its frustration with the composition of the modern workforce and the increasing use of staffing agencies and contingent workers. The NLRB believes that these arrangements – a cornerstone of the modern economy – decrease unionization. “But who cares what the NLRB thinks about contingent workers?” you might say. “The rules are the rules, and the 21st-century economy requires the flexibility that a contingent workforce allows.  Continue Reading

Nationwide Preliminary Injunction Bars Implementation of Department of Labor’s “Persuader Rule”

Posted in DOL

On June 27, a federal court in Texas enjoined the United States Department of Labor (“DOL”) from implementing its new interpretation of the “Persuader Rule.” In a sweeping 86-page rebuff to the DOL, the court opined that the DOL’s new interpretation of the “Advice Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act” (“New Rule”) is “defective to its core” and thus preliminarily enjoined implementation of the New Rule nationwide. This decision is critically important to employers because it preserves their right to confidential legal representation, without government interference. Prior to this decision, the DOL’s New Rule and its significant reporting obligations were set to take effect on July 1, 2016.

By way of background, the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA” or “the Act”) has long contained provisions requiring persons engaged in persuading employees concerning the exercise of their rights to organize and engage in collective bargaining pursuant to an agreement or arrangement with the employees’ employer to report the details of those agreements and arrangements. These provisions are known as the Persuader Rule.

Traditionally, a person engaged in reportable persuader activity only if he or she had direct contact with employees. The work of labor consultants, including law firms, who had no direct contact with employees, but assisted employers in advising them on how to run their union avoidance campaigns, was considered exempt from reporting under the “advice exemption” found in Section 203(c) of the LMRDA. Continue Reading

OFCCP Issues New Sex Discrimination Rule

Posted in Discrimination

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

Patricia A. Shiu, OFCCP Director

CheckboxOn June 14, 2016, the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule establishing requirements that federal contractors and subcontractors must meet under Executive Order 11246 to ensure nondiscrimination in employment on the basis of sex. Up until this week, the OFCCP’s sex discrimination guidelines had gone unchanged since the 1970s.

The new rule specifically addresses sex-based employment issues present in today’s workplace, including compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy and related conditions, discrimination on the basis of gender identity and transgender status, family caregiving discrimination, and discrimination based on gender norm stereotypes.

The requirements under the rule are largely in line with Title VII and the Equal Employment Opportunity Commission’s interpretation of Title VII, and therefore requirements for federal contractors and subcontractors are largely unchanged by this rule. The rule is organized into eight sections and concludes with an appendix, which contains nonbinding “best practices” to prevent sex discrimination. These are some highlights of the rule. Continue Reading

NLRB “Quickie Election Rule” Upheld by Fifth Circuit

Posted in NLRB

On June 11, 2016, the United States Court of Appeals for the Fifth Circuit upheld the National Labor Relations Board’s (the “NLRB’s” or the “Board’s”) regulations enacted last year, radically altering the traditional rules governing union elections.

As we have discussed previously, the new regulations, which took effect on April 14, 2015, and are referred to collectively as the “quickie election rule,” dramatically shorten the potential election timeline – and, consequently, shorten the period of time an employer has to respond to and defend against an election petition. Specifically, the new rule permits electronic filing of election petitions; requires employers to file a statement of position outlining all pre-election hearing issues within seven days after the petition is filed or else risk waiving such issues; mandates that pre-election hearings commence within eight days of the filing of an election petition; requires employers to provide the union with voter information (including modern forms of contact information like personal email addresses) within two days of any direction of election; defers resolution of many voter eligibility issues until postelection; and denies parties the opportunity to file a post-hearing brief as an automatic right. Continue Reading

Understanding the New Overtime Regulations

Posted in FLSA

Today, the U.S. Department of Labor (“DOL”) issued the final version of the much-anticipated new Fair Labor Standards Act (“FLSA”) regulations regarding the salary threshold for exempt employees. This post provides employers with insight into how to understand, and ultimately apply, the new regulations, which will affect employers of all sizes in all industries across the country.

I. HISTORY OF THE NEW OVERTIME REGULATIONS

The FLSA provides an exemption from the overtime pay requirement for workers employed as executive, administrative, and professional employees (“exempt white-collar employees”). The FLSA also exempts from overtime pay highly compensated employees (“HCEs”).

To be exempt, an employee must meet three criteria: (a) the employee must be paid on a predetermined “salary basis” (i.e., the employee’s predetermined salary cannot be reduced because of variations in the quality or quantity of work performed); (b) the employee’s salary must meet a minimum salary threshold (currently $455 per week; i.e., $23,660 per year); and (c) the employee must meet the “duties” test of the applicable exemption (i.e., the employee must perform certain white-collar job duties).

On March 13, 2014, President Barack Obama signed a memorandum directing the DOL to update the FLSA’s overtime regulations governing exempt white-collar employees. On July 6, 2015, the DOL announced the much-anticipated proposed regulations, which, among other things, more than doubled the salary threshold required for an employee to qualify as an exempt white-collar employee. In July, we advised that the proposed overtime regulations would have a significant impact on all industries and that employers should analyze their current workforce and anticipate where changes should be made rather than wait for the proposed overtime regulations to be finalized.

The DOL received more than 270,000 comments regarding the proposed overtime regulations, and on March 15, 2016, the DOL sent the proposed overtime regulations to the Office of Management and Budget (“OMB”). Read more >>

Comparing the Defend Trade Secrets Act and the Uniform Trade Secrets Act

Posted in Trade Secrets

trade secrets text - file cabinet label, bronze holder against grunge and scratched wood

As we have previously discussed on the blog, President Obama signed the Defend Trade Secrets Act (DTSA) into law on May 11, 2016. Fortunately, while the law has many new components that businesses need to consider, parts of the DTSA are derived from the Uniform Trade Secrets Act (UTSA). The UTSA has been adopted, in various forms, by 47 states to date. Therefore, there is a large body of state law that has developed on the UTSA that may be applicable to the DTSA. This latest blog entry in our series on the DTSA analyzes some of the differences and similarities between the DTSA and UTSA, specifically the acts’ “trade secrets” and “misappropriations” definitions and their statutes of limitations. Read more >>