Employment Law Lookout

NLRB Tells Employers to Mind their Own Business

Posted in Social Media, Workplace Arbitration, Workplace Policies and Processes

By Howard Wexler, Esq. and Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

 

Wave of Shootings Puts Workplace Violence Back in the Spotlight

Posted in OSHA Compliance, Workplace Violence

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

 

 

Massachusetts Governor Signs Transgender Public Accommodations Bill Into Law

Posted in EEOC, Workplace Policies and Processes

By Daniel B. Klein and Kelsey P. Montgomery

Seyfarth Synopsis: Massachusetts Governor Charlie Baker recently signed the Transgender Public Accommodations Bill into law. Massachusetts now protects transgender persons from discrimination in places of public accommodation. Specifically, a transgender person now has the right to use the restroom and locker room that matches that person’s gender identity.

On July 8, 2016, Governor Baker signed into law a bill that prohibits discrimination against transgender persons in restaurants, movie theaters, bars, hotels, and other places of public accommodation. This legislation aims to protect persons whose gender identity differs from that typically associated with their sex assigned at birth.

While Massachusetts has prohibited transgender discrimination in housing, education, and employment since 2011, those same protections are now extended to public accommodations. Specifically, this law protects a transgender person’s right to use the restroom and locker room that matches that person’s gender identity.

The House of Representatives and Senate had approved similar versions of this bill in early June and May 2016, respectively. These bills were referred to conference committee where their differences could be reconciled.  On July 6, 2016, the committee issued a compromise bill that kept the House provisions authorizing the Attorney General’s Office to create regulations for law enforcement agencies should anyone invoke gender identity for an “improper purpose” and the Massachusetts Commission Against Discrimination to develop policies and recommendations on when and how a person’s gender identity would be established.  These provisions were key sticking points for some opponents who argued that alleged “predators” could pose as transgender women in order to gain access to women’s restrooms and locker rooms.

The bill will take effect on October 1, 2016, as a result of a second compromise between the House version, which called for a January 1, 2017 implementation, and the Senate version, which would have taken effect immediately.

Although this law protects much more than a transgender person’s right to use the restroom, locker room, or changing room of that person’s choice—this is the issue that concerns retailers and other businesses the most. Generally, best practices suggest offering customers gender-neutral single occupancy restrooms, locker rooms, or changing rooms or providing enhanced privacy in multiple-occupant facilities.

Massachusetts businesses that serve the public, as well as other employers, should also immediately make their employees aware of the rights of transgender persons. Training on sensitivity to gender identity issues and revising non-discrimination policies to include protections for transgender persons are recommended as well.

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

 

 

Pokémon NO: New App Creates Risks For Employers

Posted in Environmental, Safety, & Toxic Tort, Security, Workplace Policies and Processes

By Parnian Vafaeenia and Karla Grossenbacher

Seyfarth Synopsis: Pokémon GO’s popularity is at a fever pitch. However, the game poses several risks for employers including software security, privacy and workplace safety concerns.

Your employees may be on a quest to catch ‘em all. Over 15 million people have downloaded the Pokémon GO game since its release two weeks ago.  In this augmented reality game, players use their mobile devices to catch Pokémon characters in real-life locations captured by the camera in a user’s cellular phone.  Though the game is very popular with Pokémon GO players, employers may not like the game quite so much.

Data And Security Concerns

There are data security concerns that arise from use of the Pokémon GO app.

First, users that want to play Pokémon Go must sign in to the app. There are two ways to do so—through an existing Google account, or through an existing Pokémon Trainer Club Account.  Up until very recently, the Pokémon website did not allow users to sign up for Pokémon Trainer Club Accounts due to overwhelming demand.  Thus, for most people, the only way to play Pokémon GO was by signing in to the app with their Google accounts.  Even though the option to create a Trainer Club Account is now available, doing so requires more time and effort than signing in through an existing Google account.

On Monday July 11, it was discovered that users who signed in through their Google accounts were unwittingly giving Niantic Labs—the developer that created the game—full access to the information in their Google accounts. This included access to email.  The developer insists that it is not actually accessing all of the information in users’ Google accounts and claims that an update that was recently released apparently limited the scope of Niantic’s access.  Nonetheless, for employers who have employees that use Gmail accounts for work purposes, there has been and continues to be risks to information security presented by allowing such employees to play Pokémon GO.

To make matters worse, there is a malicious version of the Pokémon GO program that includes a remote access tool called Droidjack. This tool, which was uploaded to a file sharing service on July 7, can give hackers full control over android users’ phones.  If a Pokémon GO user is playing the game on the phone they use to send work-related communications or on which they store work-related documents, this means that hackers could conceivably access such communications and documents on infected android phones of Pokémon GO users.  This poses risk for employers as well.

Workplace Safety

Employers that have Pokémon GO players in their facilities may also face safety issues. Niantic teamed up with Google Maps to put Pokémon characters in real-life places.  When a Pokémon is nearby, the app informs the player of its location.  Additionally, certain locations such as “gyms” and “poké stops” are hotspots for catching Pokémon.  Certain characters in the game are harder to catch and more highly coveted than others, so finding one of these popular characters nearby often excites players, and they will “hunt” them in a wide variety of physical spaces.

As recent headlines have demonstrated, employees who are focused on the game while walking around work property could be putting themselves in danger of tripping, falling or otherwise injuring themselves while playing. Similarly, employees whose job duties include driving or operating heavy machinery, or whose jobs require them to work in the vicinity of heavy machinery, risk injury to themselves or others if they attempt to play the game during work hours.  Indeed, there may be heightened safety concerns for certain employers in highly regulated environments like healthcare, where patient safety and health could be impacted by a distracted workforce.  Indeed, even employers in the retail industry could suffer if their employees are too distracted to assist customers.

Takeaways

If an employer’s workforce is using company-issued devices, employers can simply disable access to the app on company-owned devices. In fact, some employers have already taken this step.  Though blocking the app on company-owned devices takes care of part of the problem, many employers have BYOD (Bring Your Own Device) programs and will have employees using the same device to perform work and play Pokémon GO. Employers in this situation should consider the following steps:

  • Have employees install encryption software provided by the employer to protect sensitive data and agree to not modify the software;
  • Monitor or prohibit employees from accessing and downloading of external programs, apps and files or specific ones that pose security risks, like Pokémon GO;
  • Review your safety policy to ensure it encompasses activities similar to safety risks associated with Pokémon GO (i.e., limited use of handheld devices in hazardous work areas, etc.);
  • Create guidelines that prohibit employees from playing games such as Pokémon GO during work time (even if it is downtime) and restrict when and where such games can be played on work property during non-work hours.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or OSHA Compliance, Enforcement & Litigation Team.

ATF Final Rule 41F – Background Checks for Responsible Persons

Posted in ATF, Background Screening

By Brent I. Clark, James L. Curtis, Pamela Q. Devata, and Craig B. Simonsen

Seyfarth Synopsis: Going forward, ATF’s new rule on applications by a trust or legal entity to make or transfer NFA firearms, requires that they be submitted on new forms — including background checks.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Final Rule 41F (41F Rule), Machineguns, Destructive Devices, and Certain Other Firearms: Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm, becomes effective on July 13, 2016. 81 Fed. Reg. 2658 (January 15, 2016).

The 41F Rule requires that after July 12, 2016, all applications by a trust or legal entity to make or transfer National Firearms Act (NFA) firearms must be submitted on the new Form 1, Form 4, or Form 5, and a Form 5320.23 must be completed by each responsible person of a trust or legal entity.

Under the 41F Rule, the identification and background check requirements will apply equally to individuals, trusts, and legal entities. The rules clarify that the term ‘‘responsible person’’ for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of a trust.

Examples of who may be considered a “responsible person” of a trust or legal entity include:

  • Settlors/Grantors
  • Trustees
  • Partners
  • Members
  • Officers
  • Board members
  • Owners
  • Beneficiaries – if they have the capability to exercise any of the powers or authorities as listed above.

The ATF has provided a corresponding General 41F Questions and Answers, along with a reference webpage that includes links to copies of required application forms and a Responsible Person Questionnaire.

The ATF indicates that all applications “must be mailed” to: NFA Branch, P.O. Box 530298, Atlanta, GA 30353-0298, (304) 616-4500.

For more information on this or any related topics please contact the authors, your favorite Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team or the OSHA Compliance, Enforcement & Litigation Team.

FTC Raises Maximum Civil Penalties

Posted in EEOC, Fair Credit Reporting Act, FTC

By Pamela Q. Devata and Craig B. Simonsen

Seyfarth Synopsis: The FTC has adjusted its per violation penalties, in some cases by substantial amounts.

In a federal rulemaking published last week, the Federal Trade Commission (FTC) has finalized amendments to Commission Rule 1.98 to adjust the maximum civil penalty dollar amounts for violations of sixteen provisions of law. 81 Fed. Reg. 42476 (June 30, 2016).

The U.S. Congress had mandated the formula for calculating the increases under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which included a catch-up provision for inflation. See related Implementation of the Federal Civil Penalties Inflation Adjustment Act, OMB Memorandum M-16-06 (February 24, 2016).

Based on the FTC’s interim final rule recalculation, violations of final Commission orders issued under section 5(b) of the FTC Act, and violations of certain trade regulation rules and other laws enforced by the FTC with civil penalty provisions, will increase significantly from $16,000 to $40,000.

In addition, specifically under the Fair Credit Reporting Act Section 621(a)(2) (duty to correct and update information) for knowing violations of the Act, the per violation penalty will increase from $3,500 to $3,756.

The adjusted violation amounts will take effect on August 1, 2016.

It is interesting that the FTC suggests that the best way to avoid any penalties is to “comply with the law”.  That sounds simple, when writing it in a blog, but real life may be more complicated. Employers and credit reporting agencies conducting background checks should be sure to evaluate their policies and processes in light of these new penalty provisions, and should also train their Human Resources professionals on these laws — to help “comply with the law”.

For more information on employer responsibilities under the FCRA or on the use of criminal background screening in employment, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Background Screening Compliance & Litigation Team.

SEC To Tighten Enforcement On Companies’ Accountability For The Glass Ceiling

Posted in Diversity, Retention & Pay Equity, SEC

By Kevin A. Fritz and Kyla Miller

Seyfarth Synopsis: SEC announced they are proposing a new rule to elicit more information about the diversity of corporate board members, maintaining that the amount of minority directors at the largest public companies has “stagnated” at 15%.

The Securities and Exchange Commission (SEC), long known as “the disclosure agency” has a strong impact on corporate governance. The SEC can require public companies to provide investors with specific information to inform their investment and voting decisions. Although the SEC cannot determine who will be on the corporate board, they can require disclosure about who is serving and why they were selected.

SEC Chair Mary Jo White, speaking at a conference in San Francisco on June 27th, 2016, shared how the SEC plans to use its authority as a disclosure agency to require more information about the diversity of corporate boards. According to White, “the low level of board diversity in the United States is unacceptable.” “Our lens of board diversity disclosure needs to be re-focused in order to better serve and inform investors.” White would like to see more meaningful board diversity disclosures in companies’ proxy statements. This change follows a rather toothless rule passed by the SEC in 2009 that unintentionally allowed diversity disclosures to remain largely optional.

Startling Statistics

This announcement comes at the heels of a recent study by the Government Accountability Office (GAO). According to the GAO, if women continue to join corporate boards at the current rate, it will take more than 40 years to reach a 50-50 split. Corporate Boards: Strategies to Address Representation of Women Include Federal Disclosure Requirements, GAO-16-30 (December 2015). The report analyzed data from S&P 1500 companies from 1997 to 2014.  By way of example, Catalyst, a diversity nonprofit, reported that in 2009, women held 15.2% of board seats at Fortune 500 companies. Today, that number has only risen to 19.9%. Even more disconcerting is that the percentage of companies with at least one minority director has declined from 90% in 2005 to 86% in 2015.

The 2009 Rule

The SEC’s 2009 rule requires companies to disclose whether and how their nominating committees consider diversity, and if they have a policy, how its effectiveness is assessed. “Proxy Disclosure Enhancements,” 74 Fed. Reg. 68334 (December 23, 2009). The rule was designed to inform investors about investment and voting decisions. Critics have stated that investors are interested in something more – such as racial, ethnic, and gender diversity of boards. As it stands, companies can comply with the rule without disclosing much information. If a company informs the SEC that they have no formal policy, they have met their burden. If that sounds unlikely, keep in mind that only 8% of companies in the S&P 100 reported they had a formal diversity policy for board members.

Inconsistent Definitions of “Diversity”

The 2009 rule also fell short by failing to define diversity. Unclear standards have led to companies defining it in ways that do not include race, ethnicity or gender. Aaron A. Dhir, author of “Challenging Boardroom Homogeneity: Corporate Law, Governance, and Diversity,” compiled and analyzed proxy statements from S&P’s 100 index. He found that between 2010 and 2013, only about half of companies in S&P’s 100 index interpreted diversity to mean gender, race or ethnicity. Most commonly companies cited “diversity of experience” as a deciding factor.

Takeaways

Investors are looking at detailed information about corporate board composition because studies show that diverse boards bring better returns. Diversity helps companies function better, as demonstrated by the strong correlation with company performance. Investors recognize that having a wide range of perspectives in a boardroom is essential to effective corporate governance, and companies should be aware of that desire and disclose appropriately.

Some companies have already provided voluntary disclosures above and beyond what is required under the current rules. According to White, these disclosures demonstrate that requiring more specific information would not be overly burdensome. Even so, it is shown to be both desired and needed by investors.

Although White did not reveal what the new changes will look like, one proposal from public fund fiduciaries in March 2015 encouraged the SEC to disclose all corporate director’s gender, race, and ethnicity alongside their skills and experiences. Time will tell what particular disclosures the new rule will require.

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

 

 

 

 

Workplace Harassment: EEOC Challenges Employers To Step-Up Their Approach

Posted in EEOC, NLRB, Workplace Policies and Processes

By Kevin A. Fritz and Rashal Baz

Seyfarth Synopsis: New EEOC study calls for employers to “reboot” workplace harassment prevention efforts, outlines statistics, risks and administrative recommendations.

On June 20, 2016, two Commissioners of the U.S. Equal Employment Opportunity Commission (“EEOC”) presented their findings of a fourteen month workplace harassment study in Washington, D.C.

The U.S. Supreme Court created a cause of action for workplace harassment under Title VII of the Civil Rights Act of 1964 in Meritor Savings Bank v. Vinson about thirty years ago.  Taken back by the amount of sexual harassment claims, Commissioners Chai R. Feldblum and Victoria A. Lipnic co-chaired a Select Task Force that spent more than a year studying harassment and creating prevention strategies.  The report notes that approximately 31% of ~90,000 charges received by EEOC in fiscal year 2015 included a workplace harassment allegation.

Employer Impact

It goes without saying that eliminating workplace harassment can lead to a happier and more productive work environment. The Select Task Force noted other indirect costs include increased turnover and reputational damage.  Additionally, beyond quality of work life, employers bear direct financial costs of harassment.  According to the study, between 2010 through 2015, harassment allegations cost employers $698.7 million in the pre-litigation EEOC process.  The pre-litigation financial liability is just the tip of the iceberg, when compared to the costs of litigating harassment allegations to completion.

All Charges Alleging Harassment FY 2010 – FY 2015

This table shows charge data for harassment allegations filed under all statutes, including sexual harassment charges. This table has been harmonized with other data on this site and only show charges filed with the EEOC.

  FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Receipts 27,356 27,270 26,777 26,756 26,820 27,893
Resolutions 29,687 31,990 30,501 27,537 25,791 28,642
Resolutions By Type
Settlements 2,853 3,127 2,906 2,656 2,351 2,627
9.6% 9.8% 9.5% 9.6% 9.1% 9.2%
Withdrawals w/Benefits 1,652 1,648 1,652 1,725 1,667 1,860
5.6% 5.2% 5.4% 6.3% 6.5% 6.5%
Administrative Closures 5,607 5,844 5,132 4,777 4,877 5,258
18.9% 18.3% 16.8% 17.3% 18.9% 18.4%
No Reasonable Cause 17,316 19,696 19,331 17,144 15,977 17,866
58.3% 61.6% 63.4% 62.3% 61.9% 62.4%
Reasonable Cause 2,259 1,675 1,480 1,235 919 1,031
7.6% 5.2% 4.9% 4.5% 3.6% 3.6%
Successful Conciliations 523 458 482 488 326 398
1.8% 1.4% 1.6% 1.8% 1.3% 1.4%
Unsuccessful Conciliations 1,736 1,217 998 747 593 633
5.8% 3.8% 3.3% 2.7% 2.3% 2.2%
Merit Resolutions 6,764 6,450 6,038 5,616 4,937 5,518
22.8% 20.2% 19.8% 20.4% 19.1% 19.3%
Monetary Benefits (Millions) $118.7 $118.5 $113.0 $129.1 $93.9 $125.5

The study also identified key risk factors that tend to give rise to workplace harassment claims: (1) homogenous workforces, (2) workplaces where some workers do not conform to workplace norms, (3) cultural and language differences in the workplace, (4) coarsened social disclosure outside the workplace, (5) workforces with many young workers, (6) workplaces with “high value” employees, (7) workplaces with significant power disparities, (8) workplaces that rely on customer service or client satisfaction, (9) workplaces where work is monotonous, (10) isolated workspaces, (11) workplace cultures that tolerate or encourage alcohol consumption, and (12) decentralized workplaces.  Savvy employers would be wise to try and eliminate or mitigate such risks where practicable. While the existence of one risk is not indicative of harassment, it may create a susceptible environment for harassment when coupled with other risks.

Takeaways

The proposed solutions from the EEOC study include a revamping of workplace culture through leadership and accountability, beginning with a top-down approach. The study urges employers to assess their workplaces for the risk factors associated with harassment, conduct intra-office surveys, hold mid-level managers and supervisors accountable for preventing and responding to grievances and actively promote diversity.

Employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Instead, any discipline that might result from such policy violations should be proportionate to the offense.  Zero tolerance policies may contribute to under-reporting of harassment, “particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop.”  The study suggests that avoiding zero tolerance policies will encourage employees to report workplace incidents, thus allowing management the opportunity to  tackle and proactively sculpt future anti-harassment training.

As we have previously published, employers should also consider the rising harassment claims stemming from social media platforms and might want to consider including a social media policy that ties into their anti-harassment policies.  This is not without its own pitfalls, though, as the National Labor Relations Board has released guidelines on drafting and updating social media policies, but the case law in that space is far from settled.

Lastly, the report highlights the importance of compliance training and the components to make such training successful. Training should shift from a legal compliance focused approach to a preventative-driven teaching that is supported at the highest levels and routinely evaluated.  In particular, the report highlights workplace civility training and the less-common “bystander intervention” training.  Workplace civility training focuses on positive interactions and respect in the office that transcends Title VII protected classes; while bystander intervention training empowers the individual to speak up when they witness harassment.  The study suggests an interactive approach to training may be more effective.

For additional thoughts and comments on the study, see what our colleagues in the class action world are saying.  If you have a question on this topic or training practices, please contact the authors or your Seyfarth Shaw attorney.

 

The Chicago Paid Sick Leave Ordinance is Inevitable

Posted in FLSA, FMLA

By Megan P. Toth and Joshua D. Seidman

Seyfarth Synopsis: In case you missed it, on June 22, 2016, Chicago added itself to the growing roster of many major U.S. cities to pass a Paid Sick Leave Ordinance.  

The Council’s Committee on Workforce Development and Audit passed the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSLO”), which amends the Chicago Minimum Wage Ordinance e (2-25-050).

The new ordinance is effective July 1, 2017.  Thus, employers with employees in Chicago must be aware of the major provisions and requirements of the PSLO, which are summarized below and more thoroughly explained by our colleagues here.

Summary of Major Provisions

  • Effective Date: July 1, 2017
  • Covered Employers: Any individual or entity with one or more employee that maintains a business facility within the city of Chicago or that is subject to city licensing requirements.
  • Covered Employees[1]: Employees working 80 hours within any 120-day period.
  • Eligibility: Employees must be eligible to use paid sick leave (“PSL”) no later than 180 days after the first calendar day of their continuous employment, unless the employer sets an earlier date.
  • Accrual: Employees must begin accruing PSL on the first calendar day after the commencement of their employment, or on the effective date of the PSLO (July 1, 2017) if already employed, at a minimum rate of one hour for every 40 hours worked.[2]
  • PSL Caps: Employers may cap accrual and use of PSL at 40 hours per 12-month period, but are free to set a higher limit.
  • Qualifying Usage: An employee may use paid sick leave for the following purposes: (1) employee or a covered family member is ill or injured, or is receiving medical diagnosis, care, or treatment, or preventive medical or health care;(2) absence of employee or the employee’s family member related to domestic violence or “a sex offense”; and (3) closure of employee’s place of business or the employee’s child’s school or place of care by order of a public official due to a public health emergency.
  • Unused PSL: Employees must be permitted to carry over half of any unused accrued PSL from year to year, up to a max of 20 hours. In addition, if the employer is subject to the Family and Medical Leave Act (FMLA), employees can carry over up to 40 hours exclusively for FMLA-eligible purposes. However, if an employee carries over and uses the additional 40 FMLA hours, they cannot use more than an additional 20 hours of PSL in that 12-month period. Employers are not required to pay out unused PSL from year to year or upon termination.
  • Notice to Employer: If an employee’s need for PSL is reasonably foreseeable, an employer may require up to seven days’ notice. If an employee’s need for PSL is not reasonably foreseeable, an employer may only require notice as soon as practicable on the day intended for PSL.
  • Medical Certification: If an employee is absent for more than three consecutive work days, an employer may require certification that the PSL was in fact used for covered purposes.
  • No Retaliation, Discipline or Coverage: Employers cannot retaliate against or discipline employees for use of PSL and cannot require  employees to find coverage for hours missed due to use of PSL.
  • Notice of the PSLO to Employees: Every covered employer must (1) post notice of the PSLO at each facility where covered employees work (with in the City of Chicago) and (2) provide notice advising covered employees of the PSLO with their first paycheck issues after the PSLO is passed.

Takeaway for Employers:

Employers with employees in the City of Chicago must ensure their leave policies are in compliance. We will continue to monitor news related to the ordinance and will provide any updates here. In the meantime, please contact the author or your Seyfarth attorney if you a have any questions regarding the PSLO, or if you would like help reviewing your paid sick leave policies for compliance with state and local laws.

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[1] Specifically excluded employees: (1) certain employees employed in agriculture or aquaculture, (2) outside salesmen, (3) members of a religious corporation or organization, (4) an individual permitted to work “[a]t an accredited Illinois college or university employed by the college or university at which he is a student who is covered under the provisions of the Fair Labor Standards Act,” (5) certain motor carriers, and (6) any employee working in the construction industry who is covered by a bona fide collective bargaining agreement.

[2] Employees who are exempt from overtime requirements are assumed to work 40 hours each week, unless their normal workweek is less than 40 hours, in which case paid sick leave accrues based on the employee’s normal work week.

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

iStock_000060649530_MediumSeyfarth 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.