Employment Law Lookout

New OSHA rules on drug-testing, retaliation claims, and accident reporting

Posted in OSHA Compliance, OSHA Litigation

Mark A. Lies, II, Patrick D. Joyce, Adam R. Young

Seyfarth Synopsis: OSHA’s new final rules call into question mandatory post-accident drug screenings and safety incentive programs, open the door to new retaliation citations, and will require employers to post OSHA logs electronically.   

Introduction

On May 12, 2016 the Occupational Safety and Health Administration published new final rules on discrimination and injury and illness reporting.  81 Fed. Reg. 29624.  First, a new anti-discrimination and anti-retaliation rule will come into force on August 10, 2016 for all employers, as discussed below. Employees must be informed about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses by that date.  OSHA’s interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting.  OSHA further explains that incentive programs are retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.  Finally, OSHA uses the rule-making to allow compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.

The regulations further require employers to post workplace recordable injury and illness information electronically.  OSHA will release this employer injury and illness information publicly on its website, believing that its disclosure will “shame” employers into improving workplace safety and health.  The electronic data submission requirement will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The remaining provisions of the final rule, including the electronic reporting provisions, will take effect on January 1, 2017.

Drug Testing

Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness.  OSHA’s Preamble to the Final Rule interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.”  OSHA applies the prohibition to any “blanket post-injury drug testing policies deter proper reporting,” concluding that drug-testing alone constitutes an “adverse employment action.”  OSHA instructs employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”

OSHA’s interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs.  While federal courts may not uphold OSHA’s reasoning that a drug-test, standing alone, is a form of an “adverse employment action,” employers should be mindful of their policies and should consider taking action to ensure compliance with the regulation.  Drug-testing policies should be revisited for compliance by August 10, 2016 since the rule requires that the employer have a compliant anti-retaliation policy by that date.

Incentive Programs

In its Preamble on the Final Rule, OSHA similarly condemns employer safety “incentive programs” as form of retaliation.  This position is consistent with OSHA’s past rulings and guidance on employer incentive programs, but goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program.  The new rules explain that “it is a violation of paragraph (b)(1)(iv) for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program.”  OSHA’s interpretation prohibits all programs in which employees are denied a benefit on the basis of any injury or illness report.  For example, if an entire shift loses a safety bonus due to a single employee being injured.

However, an incentive program may make a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses.  OSHA further encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or ‘‘near misses.’’  Accordingly, employers should consider OSHA’s new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on the reporting of injuries or illnesses.  These types of programs could be adjusted to provide benefits on the basis of compliance with safety rules, or for attending safety trainings or persevering on safety quizzes.

These rules will take effect on August 10, 2016 as part of the required anti-retaliation policy.

New Retaliation Rules

In the Preamble to the anti-retaliation portion of the Final Rule, OSHA takes the position that its compliance officers can issue citations to employers who discipline workers for reporting injuries and illnesses when it believes that no legitimate workplace safety rule has been violated.  Accordingly, OSHA intends to give its compliance officers, who have no formal training in employment discrimination law, the authority to issue citations based on perceived retaliation in the workplace.  OSHA’s interpretation overturns the Agency’s longstanding statutory framework for retaliation complaints under Section 11(c) of the Act, under which employees must report allegations of retaliation, which are then investigated by specialized investigators.  Unlike a Section 11(c) complaint, in which an employee must file a retaliation claim with OSHA within 30 days, a compliance officer has 6 months to issue OSHA citations from the last day that the alleged violation occurred. The employee is not required to file any complaint.  Accordingly, the statute of limitations for retaliation claims could be significantly expanded.  We anticipate that the new interpretation will result in additional unfounded retaliation citations.

In its explanation to the Final Rule, the Agency also posits that employer policies requiring an employee to immediately report an injury or be disciplined may also be retaliatory.  OSHA believes that immediate-reporting policies will chill employees from reporting slow-developing or chronic injuries or illnesses, such as musculoskeletal disorders or poisoning from prolonged lead exposure.  According to OSHA, to be reasonable, a policy must allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury, rather than just immediately following the occurrence of an injury.

These rules also will take effect August 10, 2016.

Electronic Submission of Recordable Injury and Illness Data

Unlike the anti-retaliation provisions in the new Rule, OSHA spends minimal time interpreting the Electronic Submission requirements, which are supposedly the real purpose behind the new Rule.  The Electronic Submission portion of the Final Rule requires individual employer establishments with 250 or more employees to submit information electronically from their 2016 Form 300A by July 1, 2017.  These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Those establishments with 20-249 employees operating in what OSHA designates as “high hazard industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, except information in the columns with employee names, employee addresses, health care professional names, and health care treatment facilities.  The final rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.  The electronic disclosure requirements will also apply to employers located in State Plan States.

Online Posting

OSHA will post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives.  The specifics of its new data disclosure portal are not explained in the regulations.

Conclusion

These new rules require certain employer policies to be reevaluated during the next two months, including the anti-retaliation policy and employee training.  Employers should take steps to ensure that they are in compliance with OSHA and local laws and regulations as quickly as possible.  Proactive steps in the face of this regulatory scrutiny now may allow the employer to avoid costly enforcement and litigation in the future.

Really? Viable Retaliation Claim for MA Employee Terminated For Secretly Searching Company Files

Posted in EEOC, Workplace Policies and Processes

By James M. Hlawek and Ariel Cudkowicz

Seyfarth Synopsis:  An employer terminated an employee for secretly searching for confidential documents on her employer’s computer system to use against the employer as part of a discrimination complaint.  Massachusetts’ highest court found that the termination may be unlawful retaliation.

An employee who has brought a discrimination complaint secretly looks through your company’s files searching for confidential documents to use against the company as part of his or her complaint. Can you discipline the employee?  You may think that the answer is yes.  But the Massachusetts Supreme Judicial Court recently warned employers: “not so fast.”

In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., SJC-11901 (Mass. May 31, 2016), the plaintiff was an attorney who brought a complaint against her law firm for gender discrimination in violation of the Massachusetts anti-discrimination statute, G.L. c. 151B, s. 4.  After she brought her complaint, the plaintiff came across a document discussing issues of gender discrimination at the firm while working on the firm’s computer system .  The plaintiff subsequently searched the firm’s computer systems on several occasions looking for similar documents that might help her complaint.  She found several and forwarded them to her personal email address for possible use against the firm.

The plaintiff showed firm management a portion of one of the documents she had found. The firm decided to review its logs and learned that the plaintiff had conducted multiple searches of the computer system that appeared to be related to her complaint.  The firm then terminated the plaintiff’s employment for cause.  The plaintiff responded by filing a second complaint, this time alleging retaliation.

A trial court dismissed the plaintiff’s claims, finding among other things that the firm had a legitimate reason for terminating her employment. The Supreme Judicial Court, however, reversed, finding  that terminating an employee for the type of “self-help discovery” that the plaintiff engaged in may amount to unlawful retaliation depending on the reasonableness of the plaintiff’s actions.  The court found that the “reasonableness” of an employee’s self-help depends on the following factors:

  • How the employee came to have the documents in question (i.e., did the employee snoop around offices or simply come across the documents while doing other work?);
  • Whether the employee’s use of the documents unduly disrupted the employer’s business;
  • The extent to which the employee could have simply described the documents and requested them as part of the lawsuit rather than secretly taking the documents;
  • Whether the employee shared the documents with somebody who did not need to see them as part of the employee’s complaint;
  • The overall sensitivity of the documents in question;
  • Whether the employer has a clearly identified, routinely enforced privacy or confidentiality policy that the employee violated; and
  • The broad remedial purpose of the Massachusetts anti-discrimination statute, which the Court said should be considered in a “close case.”

While the court did not decide whether the plaintiff’s actions were reasonable (instead stating that the trial court could do so), there are still several noteworthy lessons in the court’s decision for employers:

First, more and more employees are resorting to “self-help discovery,” and decisions like this one show that their actions may be protected. While this decision relates to Massachusetts law, the court described it as a novel issue that very few courts have addressed.  As similar issues arise, other courts may follow this decision in finding that an employee’s self-help actions are protected.

Second, the case serves as yet another reminder of the care that employers should take in disciplining employees who have brought discrimination complaints. In this case, the employee’s complaint may have protected her from the consequences of an otherwise terminable offense.

Third, the court’s “reasonableness” factors show the importance of having a policy prohibiting unauthorized searches of confidential documents, and enforcing that policy when it is violated. To the extent an employee’s self-help actions violate a routinely enforced policy, a court may find those actions unreasonable.

Finally, the case shows the importance of restricting access to confidential documents. The documents in question were apparently stored on the system where all employees could access them.  Obviously, the employee would not have been able to help herself to the documents if they had been stored privately.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.

 

White House Announces Equal Pay Pledge for Private Employers as Part of Its United State of Women Summit

Posted in Uncategorized

shutterstock_267261659By Annette Tyman and Meredith Bailey

The White House announced a new Equal Pay Pledge for private sector companies as part of yesterday’s “United State of Women Summit” in Washington, D.C.  The Pledge is one of several initiatives announced at the Summit intended to tackle “gender-based discrimination” in the workplace.

By signing the voluntary Pledge, companies promise to conduct an annual gender pay analysis and reassess their hiring and promotion processes to ensure “wage fairness for all workers.”  In a statement, the White House said that the Pledge highlights “the critical role that businesses must play in reducing the national gender pay gap.”

The Equal Pay Pledge builds on the Obama administration’s focus on legislation and policies designed to promote fair pay.  The Lilly Ledbetter Fair Pay Act–which extended the limitations period for pay discrimination claims–was the first major bill President Obama signed into law in January 2009. Since then, the White House has championed Federal and state initiatives that further gender equality in the workplace, including equal pay and paid leave.

The Pledge highlights that equitable pay is more than a compliance issue — Companies must ensure fair pay practices to maintain a competitive advantage.

Seyfarth Shaw’s Pay Equity Group (PEG) has over 20 years’ experience counseling employers on best practices related to pay equity audits and fair pay analyses, such as those intended by yesterday’s Equal Pay Pledge.  If you have questions about the Equal Pay Pledge or other pay equity questions, please contact a member of Seyfarth’s PEG:  http://www.seyfarth.com/pay-equity-group.

Invitation – Safeguarding Your Company, Pay Equity Briefing

Posted in Diversity, Retention & Pay Equity, EEOC, Employment Law Lookout

Seyfarth Synopsis: Members of the Pay Equity Group are hosting an in-person discussion June 22nd to help employers stay ahead of this trend.

As you have likely gathered with the plethora of recent media coverage, pay equity presents one of the fastest moving issues in the employment law landscape.

Politicians have added the “Pay Gap” to their arsenal of campaign buzz words.  The EEOC has proposed a major revision to the Employer Information Report requiring all employers with more than 100 employees to annually submit compensation data to the EEOC beginning in 2017.  State legislatures are busy cranking out new and more stringent pay equity laws.  The plaintiffs’ employment bar and state Attorneys’ General are taking steps to expand the scope of existing laws.

Employers that stay ahead of this trend will be in the best position to avoid litigation and enforcement actions.  And Seyfarth’s Pay Equity Group (PEG) is on top of these issues.  Members of Seyfarth’s PEG are providing practical discussions on the pay equity landscape in-person across several of our offices as well as a webinar, which was attended by a record number of employers.  Click here to listen to a recording of this webinar.  If you are able to join us in Chicago on June 22nd, our attorneys, David Baffa, Annette Tyman, and Christine Hendrickson, will be discussing:

  • Recently passed and pending legislation that expands employers’ obligations regarding equal pay for equal (or comparable) work
  • The EEOC’s proposed EEO-1 report
  • Best practices for conducting a pay equity audit and avoiding pay equity claims

For more information or to register, please click here.

If you have questions regarding Pay Equity, please contact a member of the Seyfarth Pay Equity team.

 

Post Haste: EEOC Increases Penalties for Posting Violations

Posted in ADA, EEOC, GINA

By Paul Galligan, Joanna S. Smith, and Meredith-Anne Berger

Seyfarth Synopsis: The EEOC has increased penalties for failure to post notice violations under Title VII, the ADA and GINA by 150%. The increase will go into effect on July 5, 2016.

While an array of well-publicized cases under federal discrimination laws have made employers well aware of the legal costs and ramifications of litigation under Title VII of the Civil Rights Act of 1964 (“Title VII”), the American with Disabilities Act (“ADA”), and/or the Genetic Information Nondiscrimination Act (“GINA”), the cost of failing to post proper notice of these laws may be less apparent, but is no less important.  Under Title VII, as well as the ADA and GINA, which incorporate Title VII’s posting requirements, an employer must post, in a conspicuous and accessible location where notices are customarily maintained, a notice excerpting or summarizing the pertinent provisions of the laws and the employees’ rights thereunder.  Should an employer fail to post such notices, it would be subject to a fine for its violation.

On Thursday, June 2, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”), published its final rule in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “Act”), which adjusted for inflation the civil monetary penalty for a violation of the notice-posting requirements of Title VII, ADA and GINA. 81 Fed. Reg. 35269.  Specifically, the final rule increased penalties for failure to post violations by more than double the previous amount, from $210 to $525 per violation (a 150% increase).  The new rule will go into effect on July 5, 2016 and the adjusted penalty will only apply to those penalties assessed after the adjustment’s effective date.

Further, under the Act, Federal agencies are now required to issue annual regulations “adjusting for inflation” the maximum civil penalty that may be imposed for a violation of a statute enforced by the agency in question. The periodic adjustments to the penalties will be calculated in accordance with the cost-of-living adjustment as detailed in Section 5(b) of the Act.  While in the last ten years only a small percentage of the charges filed under Title VII, GINA and ADA, contained a notice posting violation, with the current increase in penalties and the potential further annual increases under the Act’s cost-of-living adjustment, employers would be well advised to protect themselves against liability.

What next? Employers should review their existing posters, both for placement and content, and update and/or post notices where necessary, to ensure compliance with this rule and reduce the possibility of a posting violation. A proactive approach is recommended to avoid unnecessary penalties.

If you have questions regarding this information, please contact one of the authors or your Seyfarth attorney.

Food Manufacturer Found Liable in Donning and Doffing Case

Posted in FLSA, OSHA Compliance, Workplace Policies and Processes

By Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

iStock_000045960778_MediumSeyfarth Synopsis: Even in the face of a collective bargaining agreement the State of Arkansas reconsiders whether employees should be compensated for time they spend putting on and taking off required protective gear.

A divided Arkansas Supreme Court recently ruled that a food manufacturing company violated Arkansas state law by not paying production workers for time they spent putting on and taking off required protective gear. Gerber Prods. Co. v. Hewitt, et al., 2016 Ark. 222 (May 26, 2016).

We had blogged previously about donning and doffing cases. See If It Looks Like Pants And It Walks Like Pants… Supreme Court Considers Definition of “Clothes” In Section 203(o) Of The FLSA, where the question before the Court was whether the term “clothes” in section 203(o) of the Federal Labor Standards Act — which allows employers to exclude time spent by their employees “changing clothes . . . at the beginning or end of each workday” from compensable time pursuant to the terms of or a custom or practice under a collective bargaining agreement — includes protective clothing. Also, Try This On For Size: Seventh Circuit Rejects Factory Workers’ Donning and Doffing Claims Based On Expansive View Of The “Workday”, where the Seventh Circuit affirmed the dismissal of the workers’ donning and doffing claims, with Judge Posner taking a broad view of the definition of “workday” and the applicability of section 203(o).

Igniting this controversy was DOL Issues New Interpretation of “Clothes” Under FLSA and Expands What Constitutes Compensable Activity, where the DOL’s then new interpretation concluded that the FLSA exception for changing “clothes” did not include protective gear. Specifically, the interpretation states that the definition of “clothes” does not include “the modern-day protective equipment commonly donned and doffed by workers in today’s … industries where protective equipment is required by law, the employer, or the nature of the job.”

In this new state case the employees alleged that the company failed to compensate them for their time spent donning and doffing “clothing and protective gear, sanitizing clothing and equipment, washing their hands, and walking to and from their work stations.” The employees asserted that these activities were “necessary and indispensable” to their principal work, but the employees were not compensated.

In a 4-3 decision, the court affirmed the appellate court decision that the company was liable for approximately $3 million in unpaid overtime and interest to workers at its Arkansas plant.

The company had argued that the FLSA exception excused its failure to pay for donning and doffing time prior to 2013 because the union representing the workers signed collective bargaining agreements that made such time non-compensable. The Court, though, found that Arkansas Minimum Wage Act doesn’t incorporate the FLSA exception. Instead it ruled that the approximately 14 to 20 minutes that the workers spent daily putting on and taking off protective gear is compensable under the state law.

In the dissent, Justice Wood argued that the majority’s opinion will open the floodgates to litigation, and that it “undermines the collective-bargaining process and destroys any confidence employers and employees have in the enforceability of their agreements.” Particularly, the Justice noted that:

For this court to abrogate the collectively bargained agreements between Gerber and its employees, which have customarily and generally excluded donning and doffing from the rate of pay, and afford the employees a windfall, is unjustified, particularly when the agreements do not violate the minimum-wage requirement.

For employers, certainly those in Arkansas, this case indicates that it may be appropriate to re-examine collective bargaining agreements, company safety programs and policies, and corporate employees pay policies.

OSHA To Post Employer Injury Data Online, Will Require Employers to Submit Logs Electronically

Posted in OSHA Compliance, Reporting

By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: New OSHA final rule requires employer to submit data electronically, to be posted on the OSHA website.

On May 12, 2016 the Occupational Safety and Health Administration published the final rules requiring employers to submit injury and illness data electronically. 81 Fed. Reg. 29624.

OSHA will release this information publicly on its website, believing that its disclosure will shame employers into improving workplace safety.   The electronic data submission will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The final rule also includes new anti-retaliation and injury and illness reporting provisions. The final rule will take effect on January 1, 2017.

Electronic Submission of Injury and Illness Data

Employers with 250 or more employees must submit information electronically from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, save for columns with employee names, employee addresses, health care professional names, and health care treatment facilities. The rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.

Also, the electronic disclosure requirements will apply to employers located in State Plan States.

Online Posting

OSHA will then post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives. The specifics of its new data disclosure portal are not explained in the regulations.

Anti-Retaliation and Injury Reporting Procedure

The final rules re-state and enhance protections from retaliation for employees who report work-relate injuries or illnesses. Further, the regulations require that an employer establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

For additional advice on injury and illness reporting, contact your Seyfarth attorney.

Trends In the “Ban the Box” Movement: Recent Developments In City Ordinances

Posted in EEOC, Hiring, Testing & Selection, Workplace Policies and Processes

By Pamela Q. Devata, Robert T. Szyba, Alnisa Bell, and Ephraim J. Pierre

Seyfarth Synopsis: As cities across the nation adopt “ban the box” legislation that regulates private employers’ ability to inquire into applicants’ and employees’ criminal histories, employers face a nuanced gauntlet of compliance issues. This post briefly reviews recent developments in New York City, Philadelphia, Austin, and San Francisco.

 

The Movement For “Ban the Box” Legislation

Since 2000, we have seen a growing movement to adopt so-called “ban the box” legislation, which is shorthand for laws requiring that employers remove from their employment applications checkboxes or questions that ask if an applicant has a criminal record. In 2012, the Equal Employment Opportunity Commission endorsed removing checkboxes or questions regarding criminal convictions from job applications through its Criminal History Guidance.  The President of the United States also endorsed the “ban the box” movement and directed federal agencies to delay inquiries into criminal records.

Presently, eight states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and most recently Vermont—have adopted “ban the box” laws that apply to private employers and have imposed a variety of nuanced requirements targeted at removing the conviction history question on job applications as well as placing other limitations on such inquiries. An additional group of sixteen states have “ban the box” laws aimed at the public sector.

Spreading Through Cities and Municipalities

In addition to state-level legislation, certain cities have enacted ban the box ordinances. To date, the District of Columbia and 26 cities and counties have adopted some form of “ban the box” legislation.  For example, New York City (see our earlier post here), Philadelphia (here), San Francisco (here), and most recently, Austin, Texas (here), have adopted “ban the box” ordinances, each with a host of nuanced requirements.  Below are common compliance questions that employers will encounter under each law.

Who is a Covered Employer?

While each ordinance covers private employers, each ordinance establishes a different employee threshold for coverage. For example, Austin’s ordinance applies to private employees with at least 15 employees whose primary work location is within the city for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.  Philadelphia’s ordinance, in contrast, applies to all private employers with at least one employee in the city.  The New York City ordinance applies to all private employers with at least four employees, while the San Francisco ordinance applies to private employers with 20 or more employees, regardless of location.

What Can be Asked on Job Applications?

Generally, each ordinance contains restrictions that apply to job postings and employment applications. New York City, for example, prohibits “any limitation or specification regarding criminal history” in a job advertisement, application, or at any other stage in the hiring process prior to a conditional offer of employment.  Similarly, employers in Philadelphia are prohibited from making “any inquiry” regarding an applicant’s criminal convictions, and Austin employers cannot “solicit” criminal history information, until after a conditional offer is made.

San Francisco, by contrast, requires that all job advertisements explicitly state that qualified applicants with arrest and conviction records will be considered for the position in accordance with the Fair Chance Ordinance, but prohibits employers from asking about arrest or conviction records on a job application.

Philadelphia and San Francisco also require employers to post conspicuous notices regarding a job applicant’s rights.

When Can You Inquire About A Job Applicant’s Criminal History?

Although employers are not prohibited from inquiring into criminal history, each ordinance is designed to defer the timing of the inquiry into one of the latter stages of the employment process. For example, San Francisco employers must wait to inquire about criminal history until after either they have conducted a live interview with the applicant, or made a conditional offer of employment.  On the other hand, the Austin, New York City, Philadelphia ordinances (and others) permit an employer to ask about an applicant’s criminal history only after extending the conditional offer.

What Is The Minimum Individualized Assessment For Job Applicants?

Generally, employers are prohibited from taking adverse action against job applicants because of criminal history without first conducting an “individualized assessment.” Each ordinance establishes the minimum number of factors that employers are to consider as part of the individualized assessment.  However, each ordinance varies in its approach.

The minimum “individualized assessment” under each ordinance consists of:

Austin Employers must consider: (1) the nature and gravity of any offenses in the individual’s criminal history; (2) the length of time since the offense and completion of the sentence; and (3) the nature and duties of the job for which the individual has applied.
New York City Employers must consider the factors found under New York Corrections Law, Article 23-A. Namely: (1) that New York public policy encourages the licensure and employment of people with criminal records; (2) the specific duties and responsibilities of the prospective job; (3) the bearing, if any, of the person’s conviction history on her or his fitness or ability to perform one or more of the job’s duties or responsibilities; (4) the time that has elapsed since the occurrence of the events that led to the applicant’s criminal conviction, not the time since arrest or conviction; (5) the age of the applicant when the events that led to her or his conviction occurred, not the time since arrest or conviction; (6) the seriousness of the applicant’s conviction history; (7) any information produced by the applicant, or produced on the applicant’s behalf, regarding her or his rehabilitation or good conduct; (8) the legitimate interest of the employer in protecting property and the safety and (9) welfare of specific individuals or the general public.

Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, both of which shall create a presumption of rehabilitation. Employers must also memorize their analysis on a required Fair Chance Act Notice.

Philadelphia Employers must consider: (1) the nature of the offense; (2) the time that has passed since the offense; (3) the applicant’s employment history before and after the offense and any period of incarceration; (4) the particular duties of the job being sought; (5) any character or employment references provided by the applicant; and (6) any evidence of the applicant’s rehabilitation since the conviction.
San Francisco Employers must consider: (1) only directly-related convictions, (2) the time that has elapsed since the conviction or unresolved arrest, and (3) any evidence of inaccuracy or evidence of rehabilitation or other mitigating factors.


What Notice is Required Prior To An Adverse Action?

Each ordinance regulates the how an employer must inform a job applicant of adverse action based on their criminal background check, above and beyond any notice required under the Fair Credit Reporting Act or other applicable laws. Under each ordinance, an employer is required to provide applicants with at least written notice and a copy of the obtained background check. The New York City ordinance is particularly nuanced, however, and requires that employers also provide a copy of Article 23-A of the New York Corrections Law; a copy of the consumer report; and a copy of the employer’s analysis on a Fair Chance Act Notice.

In addition to written notices, employers are also required to provide job applicants a specific amount of time to provide additional evidence or explanation. In particular, New York City requires three days from receipt of the notice; Philadelphia requires ten days; and San Francisco requires seven days.

How will this Ordinance Be Enforced?

Enforcement under each ordinance is largely left to specific equal employment or human rights administrative agencies within each city. Each administrative agency is authorized to collect civil penalties for violations.  The availability of a private right of action varies among the ordinances, however. For example, the Austin ordinance does not provide for a private right of action. San Francisco also does not provide for a private right of action, but the San Francisco Office of Labor Standards Enforcement may refer the matter to the city attorney for civil action.  In contrast, the Philadelphia ordinance establishes an administrative exhaustion requirement before permitting a private right of action.  New York City provides for a private right of action under the New York City Human Rights Law.  Retaliation is generally prohibited under each ordinance as well.

Employer Outlook

Because of the current wave of ban the box ordinances is likely to continue, employers should continue to evaluate their pre-employment and hiring practices and make necessary adjustments. Specifically, affected employers should review their employment applications, advertisements, and postings to ensure that any questions regarding an applicant’s criminal history are legally compliant for each cities and municipalities.  Affected employers should also make sure all hiring/recruiting managers are apprised of the new ordinance requirements through training and revision of policies.  Employers should also be aware of the limitations on requesting and using criminal history information throughout the hiring process.  Finally, employers operating in multiple jurisdictions should pay particular attention to the nuanced requirements of the various applicable ordinances, which at times may impose inconsistent or conflicting requirements.

If you would like further information, please contact the authors, your Seyfarth Shaw LLP attorney, or a member of the Seyfarth Background Screening Compliance & Litigation Team, http://www.seyfarth.com/background-screening-compliance-litigation.

Be-Leave It — New EEOC Guidance Emphasizes Leaves of Absence as Reasonable Accommodations

Posted in Absence Management & Reasonable Accommodation, ADA, EEOC

By Tracy M. Billows and Sara Eber Fowler

Seyfarth Synopsis: The EEOC recently issued “new” guidance for addressing leave as a reasonable accommodation. Employers must remember to consider unpaid leave as an accommodation, when appropriate, even if an employee would not otherwise be entitled to a leave of absence. 

Recently, the EEOC published “new” guidelines about the rights of employees seeking leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”), “Employer-Provided Leave and the Americans with Disabilities Act.”  The publication is intended to guide employers about when and how leave must be granted “to promote voluntary compliance with the ADA.”  While essentially reiterating the EEOC’s long established positions on many facets of leave as an accommodation, the guidance specifically highlights several “trends” observed in recent ADA charges and discusses how the EEOC views such practices.

What’s on the EEOC’s radar?

  • Maximum leave policies — policies limiting the amount of leave an employee can take
  • “100 percent healed” policies — policies that do not allow employees to return to work if they have ongoing medical restrictions
  • Policies that do not consider reassignment as a potential accommodation

At its core, the guidance probably does not tell you anything you did not already know – ADA accommodations are incredibly fact-intensive and employers must engage in the interactive process, address an employee’s needs on a case-by-case basis, and unpaid leave as a possible accommodation.

You have also probably heard that, in the world of the ADA, some rules (aka, policies) are meant to be broken. But just in case the message has not quite sunk in, the EEOC makes their case quite clear: “the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” The guidance also provides examples of how the EEOC views employers’ obligations under various scenarios.

So before you go pointing to Part IV, Section 2.6, subpart (b) of your Employee Handbook and denying an employee’s accommodation request, be sure to consider the following tips from the EEOC.

  • Unpaid Leave. Employers MUST consider unpaid leave as a reasonable accommodation, “if the employee requires it,” and so long as doing so does not create an undue hardship. The EEOC cautions that it does not matter if an employee already exhausted the leave available under company policy or the FMLA, or if the employee is not otherwise eligible for leave.  So, for example, if your leave policy only covers employees who work a minimum amount of hours per week or who have worked for a minimum duration, you still must consider whether unpaid leave is a reasonable accommodation, notwithstanding the employee’s ineligibility.  Per the EEOC, “[t]he ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation.”
  • “Maximum leave policies” may be permissible, but employers must grant exceptions when necessary as an accommodation.  For instance, an employer who grants its employees five absences per year before being subjected to discipline may need to adjust its policy — as applied to absences for a disability — as a reasonable accommodation.
  • “100% healed policies” may easily run afoul of the ADA. Employers cannot prohibit employees from returning to work merely because they have ongoing medical restrictions.  In fact, the EEOC makes its position extremely clear: “An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions” before returning to work where the employee can perform her job with or without a reasonable accommodation, unless undue hardship or a direct threat would result.  In short, where employees seek to return from leave with ongoing medical restrictions, employers must engage in the interactive process and determine whether those restrictions can be accommodated.
  • Reassignment is a potential accommodation. The EEOC’s position is that, if reassignment is required, an employer must (1) place the employee in a vacant position for which he is qualified; and (2) cannot require that the employee compete with other applicants for the open position.  (Note: this does not include promotions or uniform seniority systems.)  This position is not new for the EEOC, but now, there is no mistaking its stance.
  • Undue hardship remains a defense to providing an accommodation. The EEOC lists several factors to consider in assessing whether an accommodation would result in an undue hardship, including (i) the amount and/or length of leave required; (ii) the frequency of the leave; (iii) whether there is any flexibility as to the days the leave is taken; (iv) whether the need for intermittent leave is predictable or unpredictable; (v) the impact of the employee’s absence on coworkers and whether specific job duties are being performed in an appropriate and timely manner; and (vi) the impact on a company’s operations and its ability to serve customers/clients (which also takes into consideration a company’s size).  Generally, the guidance is not clear on when these factors may result in an undue hardship.  But, the EEOC reiterated that indefinite leave — an inability to say when or if an employee will return to work at all — IS an undue hardship and is NOT a reasonable accommodation.

Addressing requests for accommodation are challenging, particularly when they involve leaves of absence. And though these guidelines are not binding, they provide helpful tools when engaging in the interactive process and may help avoid landing on the EEOC’s radar.

For more information about this article, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team. [http://www.seyfarth.com/Absence-Management-and-Accommodations]

 

Maryland Passes One of Nation’s Most Expansive Equal Pay Laws

Posted in Diversity, Retention & Pay Equity

By Annette Tyman, Katherine Mendez, and Christopher W. Kelleher

Seyfarth Synopsis:  Maryland Governor Hogan has signed into law a new pay equity bill that strengthens protection against pay discrimination in the workplace, and prohibits employers from providing less favorable employment opportunities because of sex or gender identity. 

Maryland has joined states such as California and New York by passing one of the country’s most aggressive equal pay laws. Governor Hogan signed Senate Bill 481 (cross- filed with House Bill 1003) on Thursday, May 19, 2016.  The law will go into effect in October.

While federal law has long prohibited pay discrimination for equal work on the “basis of sex” for employees working at the same location and under similar working conditions, Maryland’s updated Equal Pay for Equal Work Act prohibits pay discrimination on the “basis of sex or gender identity,” and covers employees who work for the same employer at workplaces located in the same county of the state and who “perform work of comparable character or work in the same operation, in the same business, or of the same type.” Thus, the new measure drastically expands protections for Marylanders.

The law covers more than just pay disparities. It also prohibits employers from “providing less favorable employment opportunities,” which includes placing employees into “less favorable career tracks” or positions, “failing to provide information about promotions or advancement,” and “limiting or depriving” employees of employment opportunities because of sex or gender identity.  Additionally, employers may not forbid employees from “inquiring about, discussing, or disclosing” their wages or the wages of other employees.

Additionally, Governor Hogan also signed into law House Bill 1004, which established an Equal Pay Commission. The Commission will:

  1. Evaluate wage disparities between individuals of one race, sex, or gender identity and individuals of another race, sex, or gender identity, based on all available data;
  2. Establish a mechanism for the Commissioner to collect data from employers in the state to assist the Commission in its efforts to evaluate the disparities listed in item (1);
  3. Develop a strategy to determine and recommend best practices regarding equal pay for equal work to individuals, employers, and policymakers;
  4. Study and make recommendations regarding whether and to what extent administrative and legal processes and remedies can be streamlined with other anti-discrimination laws;
  5. Develop partnerships with private sector entities to identify:   (a) methods of developing data collection; (b) methods raising employer awareness; and (c) potential fundraising sources;
  6. Share data and findings with the Commissioner to assist in enforcement actions.

With states like Maryland joining efforts on the federal landscape to collect compensation data from employers in an effort to evaluate pay disparities, savvy employers should carefully conduct proactive pay assessments to ensure they understand reasons for pay differences. This may include conducting internal audits, evaluating permitted hiring criteria, and modifying policies.  The Commissioner of Labor and Industry, which is responsible for enforcement of the Act, will consult with the Maryland Commission on Civil Rights to develop educational and training materials to help employers comply with the updated law.