By Anthony CalifanoAriel D. CudkowiczJohn Ayers-Mann, and Frederick T. Smith

Seyfarth Synopsis: On May 23, 2017, in Callaghan v. Darlington Fabrics Co., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users.

The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles’ song “With A Little Help From My Friends”: “I get high with a little help from my friends.”  In the 32-page opinion followed this witty opening, the Court held that an employer’s refusal to hire an individual based on her medical marijuana use violated Rhode Island’s medical marijuana statute, and the employer’s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (“RICRA”).

The Plaintiff, Christine Callaghan, applied for a position as an intern with Darlington Fabrics.  During her interviews, she disclosed to the company that she used medical marijuana and would test positive for it in her pre-employment drug test.  The company refused to hire her.  Callaghan filed a complaint alleging disability discrimination under the RICRA and seeking a declaratory judgment that the company’s refusal to hire her based on her medical marijuana use violated the Hawkins-Slater Act–Rhode Island’s medical marijuana statute.  Like its counterparts in numerous other states, the Hawkins-Slater Act prohibits an employer from refusing to employ “a person solely for his or her status as a [medical marijuana] cardholder.”

The Court addressed two primary questions. The first question was whether the Hawkins-Slater Act creates a private right of action that allows an individual to file a lawsuit in court for alleged violations of the statute.  The second question was whether a refusal to hire an applicant based on medical marijuana use could amount to disability discrimination under the RICRA.  The Court answered yes to both questions.

Addressing the private right of action question, the Court acknowledged that the Hawkins-Slater Act does not contain any express language authorizing an individual to sue an employer for violation of the statute.  The Court also acknowledged the general principle against assuming that a private right of action exists when the legislature chose not to create one.  On the other hand, the Court also recognized the legal principle that a court should not attribute to the legislature an intent to enact a meaningless statute.  Ultimately, the Court concluded that the Hawkins-Slater Act would be meaningless if it does not allow a private person to sue an employer for violating the statute.  Thus, the Court held that an implied private right of action exists under the Hawkins-Slater Act, and the employer violated the law by refusing to hire Callaghan because of her medical marijuana use.  In so holding, the Court rejected the notion that there is a meaningful distinction between a medical marijuana “cardholder” and a medical marijuana “user.”  The Hawkins-Slater Act, according to the Court, protects medical marijuana cardholders who use marijuana because a physician has recommended it. The Court therefore granted a declaratory judgment in Callaghan’s favor.

As for Callaghan’s claim of disability discrimination under the RICRA, the employer moved for summary judgment on several grounds.  The company argued, relying on the Americans with Disabilities Act, that active drug use is not a disability. The Court rejected this argument, reasoning that the RICRA defines disability more broadly than the Americans with Disabilities Act.  It also reasoned that an individual must have a “debilitating medical condition” to qualify as a cardholder under the Hawkins-Slater Act.  Accordingly, the employer could have inferred that Callaghan was disabled, and thus, could have discriminated against her on that basis.

The Court also rejected the employer’s argument that Callaghan was not a “qualified individual” with a disability because she engaged in the use of illegal drugs.  The Court concluded that, unlike other disability discrimination laws, the RICRA does not protect only “qualified individuals” with disabilities, but rather all persons with disabilities.  Thus, the Court concluded that the employer’s defense was inapplicable to Callaghan’s claims.

Perhaps most notably, the Court rejected the employer’s argument that the federal Controlled Substances Act (“CSA”), which classifies marijuana as an illegal drug, preempts the Hawkins-Slater Act.  The Court reasoned that the CSA is not intended to preempt state law unless it is in positive conflict with the CSA.  Because the Hawkins-Slater Act does not require the employer to violate the CSA, the Court held that the CSA does not preempt the Hawkins-Slater Act.

In light of its conclusions, the Court denied the employer’s motion for summary judgment on Callaghan’s disability discrimination claim under the RICRA.  Callaghan did not more for summary judgment in her favor on this claim, but the Court observed that “but for [Callaghan’s] disability–which her physician has determined should be treated by medical marijuana–[Callaghan] seemingly would have been hired for the internship position.”

While the Callaghan decision is not binding on any other courts, it is noteworthy.  It goes against the weight of authority from courts in other states in its analysis of the interplay between medical marijuana and anti-discrimination laws.  More importantly, it does so in a way that could require many employers with operations in Rhode Island (and perhaps other states) to change their policies regarding the hiring and continued employment of medical marijuana users.  If appealed, will the decision hold up?  Will other courts in other states issue similar decisions?  Time will tell.

 

By Dawn Reddy Solowey

Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “protected activity” under Title VII.  In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  Employers considering requests  for religious accommodation should, despite this decision, proceed carefully when considering the request.

In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law.  On July 6, 2017, the Court ruled, and agreed with the employer.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675, in the U.S. District for the District of Minnesota.  The EEOC sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist.  On March 15, 2017, the employer moved for summary judgment.  The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.

What Did the Court Rule?

The Court sided with the employer, holding that a religious accommodation request is not protected activity.

The Court noted that as far as the Court and parties were aware, no court in the 8th Circuit had decided whether requesting a religious accommodation is a protected activity under Title VII.  The Court reasoned that it must interpret Title VII according to its plain language.  Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  Applying that plain language, the Court concluded that “requesting a religious accommodation is not a protected activity.”

The Court noted that the plaintiff had not “opposed” any practice, since there was no evidence she communicated to the employer that its denial of her accommodation request was unlawful.  “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” the Court stated.

Similarly, plaintiff had not made any charge, testified, or assisted in any investigation, proceeding or hearing prior to the revocation of her offer.  Thus, “the court is unable to fit [the employee’s] accommodation request within the plain language of the statute.”

The Court declined to extend to Title VII the reasoning of an 8th Circuit case that had held that requesting a disability accommodation was protected activity under the Americans with Disabilities Act (ADA).  In addition to noting that the 8th Circuit ADA case had itself been questioned, the Court noted key differences between the language of ADA and that of Title VII.

The Court also held that the EEOC’s guidelines, which advise that requesting accommodation is protected activity under Title VII, are “unpersuasive.”

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  The Court’s decision in this case cites to federal cases that have held both ways around the country. As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

A more conservative approach should guide an employers’ response to religious accommodation requests.  Employers responding to a religious accommodation request would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law.  Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Sam Schwartz-Fenwick and Michael W. Stevens

Seyfarth Synopisis:  The Texas Supreme Court held that the U.S. Supreme Court’s landmark marriage equality decision, Obergefell v. Hodges, did not dispositively address how far government employers must go in providing benefits to same-sex married couples.

In a provocative opinion, in Pidgeon v. Turner, No. 15-0688, the Texas Supreme Court held that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.

Procedural Background

In 2013, the city of Houston began extending benefits to same-sex spouses of city employees who were lawfully married.  Shortly thereafter, Pidgeon was filed. It alleged that the city’s actions violated Texas and Houston law. The law was enjoined by a state court. In July 2015, the Texas court of appeals reversed the injunction, holding that Obergefell represented a “substantial change in the law regarding same-sex marriage since the temporary injunction was signed,” and that Obergefell forbade states from refusing to recognize lawful same-sex marriages.  The appeals court also remanded to the trial court to issue opinions “consistent with” Obergefell . Plaintiffs then appealed to the Texas Supreme Court.

The Court’s Opinion

The Texas Supreme Court reversed. The Court wrote “The [U.S.] Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons.”  Slip op. at 19 (emphasis added). The Texas Supreme Court remanded the case, so the trial court could decide if the Constitution or Obergefell “requires citizens to support same-sex marriages with their tax dollars.” Id. at 20.

The decision rested on the proposition that Obergefell is “not the end” of the inquiry as to the “reach and ramifications” of the constitutional status of same-sex marriage.  Id. at 23.  Notably, the Texas Supreme Court acknowledged that the U.S. Supreme Court had, in the same week, decided Pavan v. Smith, No. 16-992, which rejected the state of Arkansas’ efforts to limit recognition of same-sex parents on birth certificates.  In Pavan, in a per curiam opinion, the Court held that same-sex couples are entitled to the same “constellation of benefits that the Stat[e] ha[s] linked to marriage.”  2017 WL 2722472, at *2 (citations omitted).

Despite the apparent inconsistency with Pavan, the Texas Supreme Court emphasized the purported uncertainty over the reach of same-sex marital benefits by noting that the U.S. Supreme Court has also granted certiorari in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, a case involving a baker who was sued after he refused to make a wedding cake for a same-sex wedding.

Next Steps

The trial court may now proceed to the merits of the case, and a ruling that is inconsistent with Obergefell and Pavan is a distinct possibility.  Should the case ultimately proceed to the U.S. Supreme Court, in light of Pavan, and assuming the current membership of the Court remains the same, it seems unlikely that a narrow reading of Obergefell, at least as to governmental actors, would be upheld.  Unlike Masterpiece Cakeshop, Ltd., Pidgeon does not raise any questions of freedom of speech or religious liberty.  Rather, as with Pavan and Obergefell, it addresses whether state actors can treat same-sex marriages differently than opposite sex marriage.

While the decision in Pidgeon may ultimately be vacated, that this decision was issued 2-years after a ruling by the Supreme Court legalizing same-sex marriage, underscores that opponents of marriage equality continue to use courts as a vehicle to limit or reverse marriage equality.

As Pidgeon and other challenges to marriage equality make their way through the courts, employers and benefit plans considering modifying their benefit offerings to exclude same-sex spouses should tread very carefully, especially given the EEOC’s position that differential benefit offerings to same-sex spouses violates Title VII of the Civil Rights Act.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment Team.

Voting is open for the American Bar Association’s annual 100 Best Legal Blogs competition, though this year the contest is a “Web 100” and will include websites and social media along with legal blogs. We hope you will cast your vote today to help Seyfarth’s Employment Law Lookout blog get on the ABA’s list for 2017.

The Employment Law Lookout Blog is a resource for employers seeking intelligent discourse and updates on the today’s most pressing workplace issues. Our mission is two-fold: to provide critical, real-time updates on employment law matters to in-house counsel and HR executives, and to keep our audience apprised of new trends and developments on the horizon.

Seyfarth’s bloggers draw upon their own first-hand experiences counseling businesses large and small to provide you with their insights about the most cutting-edge issues on new regulations, guidance, and court decisions.

Help us gain some extra recognition by casting your vote in the ABA’s Web 100 competition!

Click here to vote. Simply provide a short explanation of why you like this blog.

The deadline to nominate the blog is Sunday, July 30, 2017, so don’t delay. Polls are open!

 

By Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.

 

By Hillary J. Massey and Craig B. Simonsen

Seyfarth Synopsis: While employees who have recently taken leave may be terminated for legitimate reasons, establishing a non-retaliatory termination can be challenging. The timing of the termination alone can support causation, and even a well thought out and justified termination may raise issues of fact that would prevent quick resolution in court. The 11th Circuit recently addressed such a case.

In Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017), Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay (Accentia), a long-term-care nursing facility, in Florida state court.  Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family Medical Leave Act (FMLA) and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones’s claims.

FMLA Leave

Jones, who was Activities Director for Accentia until he was fired in 2015, initially was approved for 12 weeks of FMLA leave for shoulder surgery. The day before Jones was scheduled to return to work, his doctor reported that he would not be able to return to work and resume regular physical activity for an additional 7 weeks. The doctor’s report also stated that Jones needed to continue physical therapy.

Jones wished to return to his job and asked his supervisor to allow him to return on light duty. His supervisor, however, refused to reinstate Jones until he submitted an unqualified fitness-for-duty certification.  Thus, Jones did not ask his doctor for a light-duty certification and instead requested additional time off from Accentia.  He was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy.

Facebook Posts

While on non-FMLA medical leave, Jones twice visited Busch Gardens and went on a trip to St. Martin. Jones sent pictures of the trip to colleagues at Accentia and posted some on Facebook, including pictures of himself on the beach and in the ocean.

Jones returned to work two weeks before the date estimated by his doctor and met with his supervisor at the beginning of the day.  During the meeting, Jones presented his supervisor with a fitness-for-duty certification confirming that he could immediately resume his job.  His supervisor responded by showing Jones the photos from his Facebook page.

Termination

The supervisor then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended and given an opportunity to respond to the charges in a letter, but he failed to do so and his employment was terminated.

District Court Judgment

Jones brought suit against Accentia, claiming that Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA.  Jones appealed.

Appeal

The 11th Cir. affirmed the judgment of the district court with respect to Jones’s interference claim, but reversed the judgment with respect to his retaliation claim.

The 11th Cir. concluded there was no interference because Jones “likely” waived his FMLA right to reinstatement by taking an additional 30 days of leave, he should have submitted a fitness-for-duty certification by the end of his FMLA leave and there was no evidence that Accentia did not implement its FMLA certification policy in a uniform fashion.

As to retaliation, the 11th Cir. reversed, ruling that the short amount of time between Jones’ return from leave and his termination created a genuine issue of fact as to causation. The court also concluded there was a factual issue concerning pretext because Accentia offered shifting reasons for the termination.  Jones was told that he was being fired because he engaged in activities that demonstrated he could have returned to work earlier.  However, during litigation, Accentia offered additional and inconsistent reasons for the termination.

Employer Take-Away

Retaliation claims continue to permeate employment litigation, and often are difficult to defeat with a pretrial motion. When employees go out on medical leave, employers often uncover inefficiencies and performance issues that were not obvious before the leave.  Employers facing such circumstances may want to consider:

  • Waiting a period of time after the employee’s return in order to avoid an inference of causation
  • Placing an employee on a performance improvement plan or other interim step before termination
  • When providing reasons for a termination, using broad terms that encompass various issues
  • Documenting the reasons for a termination in an internal document that is not shared with the employee (if you are working with counsel, mark this document privileged)
  • Training managers, HR individuals and other employees who handle leave issues not to make any comments about the timing of a leave or whether a leave will be difficult for the employer to manage.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

 

 

 

By Ming Henderson and Clothilde Verdier

Seyfarth Synopsis: French Employers should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and any reforms may be slow in coming.  As France does not have the equivalent of a US “Presidential Decree,” Macron’s government will need to get the Parliament’s buy in.

On 14 May 2017, French President-elect Emmanuel Macron with a strong 66% majority will officially start his five year mandate. His first duty was to appoint a Prime Minister to form a new government. Following the Parliamentary elections of 11 and 18 June 2017 where Macron’s newly created party obtained a strong majority , the government was reshuffled, and the work can now begin.

Employment and Labour is one of the three key focus areas for President Macron – he has pledged to simplify French laws, reform the labour market and show France is open to business. Macron widely communicated his ambitious programme during his campaign, so as he prepares to move into the Presidential Palace what are the potential reforms multinationals employing staff in France or companies considering opening for business in France should expect? The overview that follows is based on Macron’s official programme, to which we added our comments for background purposes.

Employment Reforms – Mixed Messages to Employers and Employees

Macron has vowed to make French employment laws more business friendly, and this is clearly apparent from the following proposals:

  • Capping damages granted to employees for unfair dismissal claims. By introducing an upper and a lower limit for such damages, the cost of redundancies will be more predictable. Currently damages are uncapped, and the published guidelines can go up to 24 months’ salary on top of notice period and statutory indemnity.
  • Cutting payroll taxes on overtime. A similar measure on voluntary overtime was put in place by Conservative President Sarkozy in 2007 under the slogan “Work More to Earn More”, but removed by François Hollande as soon as he came into power. In practice given the cost of payroll taxes, employees’ net salary was not proportional to the number of hours worked – the reform would hopefully aim to correct this flaw and encourage productivity; and
  • Enabling employers to depart from the mandatory minimum protection under the applicable national collective agreement, by signing a collective agreement at company or workplace level, in areas such as working time, minimum wage, and overtime This was already introduced by the 2016 Macron Law, however employers still need to negotiate with employee representatives or unions, not just introduce new policies.
  • Introduce a two-strike rule so employers who on a single occasion slip up on tax filings or payments are just reminded, not penalised.
  • There are however a number of reforms which will be less pleasing to employers, and are less obvious as to how they will make the French labour market more competitive, such as:
  • Capping the duration of inbound international assignments to France to one year – thereafter, employees will need to be on a local French contract. Macron also intends to renegotiate the EU Posted Workers Directive for France to reduce the number of employees working in France but remaining on their home payroll, and not being fully subject to French labour laws;
  • Taxing employers who frequently use temporary contracts instead of permanent employment contracts through an additional levy at company level ;
  • Publishing on a “shame list” the name of companies who do not comply with equal pay – this will force companies to focus more actively on their data, and may in the short term increase salary costs, red tape and lead to a negative public image, but if properly managed could be positive long term;
  • Encourage a better representation of employees on the Board of companies by creating encouraging measures for such representation at Board level;
  • Reducing payroll taxes for employees on minimum wage (currently 1480 Euros per month), and providing for the payment of a 13th month bonus;
  • Increasing employees’ net salary by lowering the amount of employees’ contributions e.g. an employee currently earning a monthly salary of 2,200 Euros will earn an additional 500 Euros net a year – this measure will not reduce employment costs in France for employers. Typically total payroll taxes in France amount to around 70% of gross salary before income tax (compared with around 16% in the UK for a similar level of pay);
  • Removing the tax credit for research programmes in France, which have in the past proved popular in the Pharmaceutical and Tech industries – this reform is to balance the books with the reduced taxes on low salaries; and
  • Extending unemployment benefits to all ‘workers’ such as independent contractors, entrepreneurs or employees who resign from their job – such measures, which are likely to be very popular, may impact employee retention and ultimately push up the cost of employment for employers, though Macron also announced his intention to restrict both the duration and the conditions under which unemployment benefits are paid out.

What to Expect Next?

Employers and employees alike should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and the reforms may be slow and more modest than as described above. France does not have the equivalent of a US “Presidential Decree” so Macron and his government will need to get the Parliament’s buy in. Though the strong majority achieved in Parliament may not require this, there are broadly two significant tools Macron and his Government may use to push the reforms through in Parliament. Firstly, getting a law voted by Parliament allowing the government to implement employment and labour law reforms by way of Ordinances. Secondly, using the famous “Article 49.3” process which enables a government to agree to step down if the Law does not obtain a majority vote in Parliament, thus avoiding lengthy debates and limiting the amount of amendments made to a bill.

Last but not least, two additional considerations are of significant importance in France: “the power of the street”, i.e. strikes and demonstrations coordinated by unions that can bring France to a halt for weeks or months; and the Constitutional Council, that can annul any law deemed unconstitutional.

 

By: Elizabeth McKeeGabriel Mozes and Jason E. Burritt

Seyfarth Synopsis: The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and requires disclosure of the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visits; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past 5 years.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/OMM061617-LE

 

 

By Dawn Reddy Solowey

Seyfarth Synopsis: In EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a judgment against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.  

On June 12, 2017, in EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a damages award of almost $600,000 against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.

The Facts

Beverly Butcher is a life-long evangelical Christian who worked for 37 years for Consol Energy’s mine in West Virginia. In 2012, Consol installed a biometric hand-scanner system at the mine to improve monitoring of employees’ attendance and work hours.  The system required an employee checking in or out to scan his right hand.  The shape of the employee’s hand was linked to the employee’s personnel number.

Butcher notified the employer that using the scanner would violate his religious beliefs, because he feared that when his hand was scanned, he would be “marked” with the “Mark of the Beast.” Butcher believes, based on the Book of Revelation, that the “Mark of the Beast” brands followers of the Antichrist, and that someone so marked can be manipulated by the Anti-Christ and will be condemned to everlasting punishment.  Butcher believed that use of the hand-scanning system, even if it left no physical or visible mark, would result in being so “marked.”

Consol asked Butcher to submit a letter from his pastor supporting his request for accommodation, which Butcher did, along with his own letter explaining his religious beliefs. Butcher explained that he objected to scanning either his left or right hand.  He offered to punch a time clock, as he had historically, or to check in with a supervisor in lieu of the biometric system.

In response, the company provided assurances that the scanner could neither detect or place any mark — including the Mark of the Beast — on a person’s body. The company also offered its own Biblical interpretation, explaining that the Mark of the Beast is associated with the right hand, and thus that scanning the left hand should pose no religious conflict.

At the same time, the employer granted accommodations to two employees with hand injuries, allowing them to forego the biometric system and instead enter their personnel numbers on a keypad attached to the system.  In an email authorizing this medical accommodation, a company representative wrote, “Let’s make our religious objector use his left hand.”

Faced with the choice of submitting his left hand to the scanner or being disciplined, Butcher rendered his retirement.

The Verdict

The EEOC brought suit alleging that the employer unlawfully failed to accommodate the employee’s religious belief and constructively discharged him in violation of Title VII. A jury returned a verdict in favor of the EEOC, finding that the employee had a sincere religious belief in conflict with a work requirement, that he had informed the employer of the conflict, and that the employer had constructively discharged the employee for refusal to comply with the work rule.  The jury awarded $150,000 in emotional distress damages, to which the District Court added over $426,000 in front and back pay and lost benefits.  The District Court held that punitive damages were not available as a matter of law.

The Appellate Holding

The Fourth Circuit affirmed the judgment against the company. The Court rejected the company’s central argument that there was in fact no conflict between the employee’s religious beliefs and the hand scanner requirement, because the scanner in fact would leave no physical mark.

The Court emphasized that there was ample evidence from which the jury could conclude that the employee sincerely believed that any participation in the scanner system, with or without a physical mark, was a show of allegiance to the Antichrist and therefore violated his religious convictions.  “That is all that is required to establish the requisite conflict between Butcher’s religious beliefs and Consol’s insistence that he use its scanner system,” the Court held.

In the Court’s view, the problem with the employer’s approach to the request for accommodation was its belief that the employee was mistaken in his religious beliefs.  The employer had concluded that there was no religious conflict because the Mark of the Beast would require a physical mark, and only on the right hand.  The employer also noted that the pastor, while affirming that Butcher was religiously devout, did not share the concern about the biometric scanner.  “But all of this, of course, is beside the point,” the Court held, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings.”

Finally, the Court noted that this was not a case where the employer could show that an accommodation was not feasible or would impose undue hardship. To the contrary, the employer had made an accommodation to two other employees for non-religious reasons, and had conceded that that accommodation posed no additional burdens or costs on the company.

The Court also upheld the constructive discharge judgment, holding that there was sufficient evidence that the employer made conditions intolerable by refusing to accommodate the religious objection, such that a reasonable person in Butcher’s position would have retired.

The Court did uphold the lower court’s ruling that this was not a punitive damages case, reasoning that the EEOC had not proven that the employer “subjectively appreciated” that its accommodation efforts were inadequate.

Takeaways for Employers

This opinion suggests several important takeaways for employers.

First, in considering an employee’s stated religious belief, the employer should generally assume the sincerity of the belief. Faced with a request based on an unfamiliar religion or religious practice, some employers may be tempted to take to Google, or to conduct its own inquiries, to try to figure out if a religion is a “real” religion, or whether a particular practice is “really” required by a given religion.  But the law protects all religious practices, not just those of mainstream religions.  Religious beliefs are protected even if they are newly practiced by the employee, or uncommon, or not part of any formal religious church or sect, or practiced by a small number of people.  The fact that an employee’s personal religious practice may differ from that of others in the same religion, or even his own clergy leader, does not mean the employee’s personal religious belief is not sincere.  Questioning the sincerity of the employee’s belief may also backfire by alienating the employee, or subjecting the employer to a claim that the employer had animus toward the employee based on religion.  In the rare case where the employer has specific evidence of insincerity, the employer should enlist assistance of counsel.

Second, while the opinion did not directly address the appropriateness of the employer’s request for a pastor letter, an employer should generally avoid asking for such documentation from a third party. As the Court explained, whether or not the pastor agreed with the employee’s religious practice or objection was not dispositive of the sincerity of the employee’s belief.  Further, the employee need not belong to a formal religion and thus may not even have a clergy member from whom to request a letter.  Absent extenuating circumstances, the fact that the employee himself states a sincere religious belief is sufficient and third-party corroboration is not required.

Third, in evaluating whether a requested accommodation is reasonable or would impose an undue hardship, the employer must be mindful of consistency. As the Fourth Circuit held, the fact that the employer was able to make a relatively simple accommodation for other employees for non-religious reasons without hardship in turn showed that allowing that same accommodation to Butcher would impose no hardship.  Thus, the employer faced with an accommodation request should carefully evaluate its exceptions to the work rule more generally.  What other exceptions are being made to the work rule for non-religious reasons?  What exceptions are being made for other employees’ religious observance?

The case demonstrates the sensitivity required in handling religious accommodation requests and the legal exposure that such requests can present.  When in doubt, employers should seek assistance of counsel with expertise in this specialized area of employment law, and knowledge of the applicable federal, state and local laws that may apply.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

 

 

By Wan Li

Seyfarth Synopsis: A new Work Permit Policy (Policy) is being implemented in China.  The Policy had been initially implemented, from October 2016 to March 2017, through a pilot program in a number of regions including Shanghai, Beijing, Tianjin, and Shenzhen.  Nationwide implementation of the Policy commenced on April 1, 2017.

Policy Features 

The Policy consists of two main features: (1) expats working in China will now be issued a single multipurpose “Work Permit”, and (2) expats will be categorized into three different groups that will now affect how easy it is for them to get a Work Permit.

Multipurpose Work Permit

Expat workers in China were classified previously as either (i) foreign employees eligible for an “Employment Permit,” or (ii) foreign employees eligible for an “Expert Permit.” These two permits are now combined into one “Work Permit” that will be assigned to foreign applicants through the issuance of identification (ID) cards with unique ID numbers. Each ID card will belong to one foreign individual for life. Foreign employees with existing work permits may elect to maintain their existing permits until their expiration dates or may convert them to new Work Permits.

Shanghai, assuming a leading role in the Policy, issued its first Work Permit to a faculty member of the SJTU-ParisTech Elite Institute of Technology at Shanghai Jiaotong University in November 2016.

Since the full implementation of the unified application across the country on April 1, the new multipurpose Work Permit Policy has been well received and instituted in more than ten provinces of China.

3-Tier Classification System

Under the Policy, foreign applicants will be divided into three categories based on a scoring system. Credits will be assigned to applicants for Work Permits based on their education, background, salary level, age, time spent working in China, and Chinese language fluency. Many cities now operating under the Policy have issued local standards for the scoring system.

Category A applies to foreign high-end talent, such as expats selected by China’s talent-import plan, expats with internationally recognized awards, leading figures in the science and technology industry, and successful entrepreneurs.  There is no limit to the number of expats in this category who may receive Work Permits.

Category B applies to foreign professionals. Examples include workers who hold a bachelor’s (or higher) degree and have two years of full time experience related to the work to be performed. The number of expats in this category who may receive Work Permits will vary depending on market demand.

Category C applies to the remaining types of foreign workers, who are typically non-technical or service workers hired on a temporary or seasonal basis. The number of expats in this category who may receive Work Permits is significantly restricted and subject to a quota.

Implications for Multinational Employers

The Policy aims to both streamline current administrative procedures and attract high-end foreign talent to China. Expats whose skills are urgently needed in Chinese labor markets are being encouraged to work in China through the now less restrictive permitting process and easier application protocols.

Multinational employers should note that the Policy is early in the implementation process.  Employers should pay close attention to the changing application rules and procedures, and be mindful that when hiring foreign workers in different parts of China the rules will be different.

If you would like further information, please contact Wan Li at LWan@seyfarth.com, or any member of our International Employment Law Team.