By Brandon L. Dixon and Erin Dougherty Foley

Seyfarth Synopsis: A recently filed “reverse” discrimination action in an Ohio federal court is reflective of a trend about which we recently cautioned employers. Namely, employers are facing a pushback–often by white, male employees and applicants–on their efforts to address and eradicate persistent race and gender disparities in their workforces. These disparities are often the result of past explicit race and gender discrimination, which organizations may choose to remedy, or may be compelled to remedy via a consent decree, for example. The basic argument, as in Kohler v. City of Cincinnati, is that the employer’s efforts to increase diversity have worked too well. That is, in seeking to address discrimination against minorities in the past, the employer overreached in a manner that resulted in discrimination against white and/or male employees, creating a catch-22 for these well-intentioned employers.

The allegations in Kohler v. City of Cincinnati are simple. The City of Cincinnati was a party to two consent decrees related to its police force. The City first entered an agreement in 1980 with the U.S. government in connection with a lawsuit asserting the police department had engaged in a pattern or practice of employment discrimination on the basis of race and sex with respect to hiring, promotion, assignment, training, and compensation of officers. Among the consent decree’s requirements for the City was hiring, at a minimum, qualified black and women entry-level officers at their rate of representation in the pool of 1980 police recruits, 34% and 25%, respectively. With respect to hiring sergeants, the goal was to fill 25% of the promotions with black and women candidates. Notably, the 1980 consent decree explicitly stated that the City did not have to hire unnecessary personnel to meet its goals, nor “promote a person who his less qualified over a person who is more qualified . . . .” The city also entered a similar consent decree with the State of Ohio in 1987 concerning the promotion of black and women officers to the lieutenant, captain, and assistant chief ranks.

Fast-forward to 2020, and plaintiff Kohler recently brought a lawsuit against the City of Cincinnati, its mayor, and the United States challenging the consent decrees. Citing a “massive shift in demographics” in the police force that has resulted from the City surpassing the targets set out in the consent decrees, plaintiff alleges that the consent decrees have served their purposes, and the city “does not discrimination against women and/or minorities” in its employment practices. But it “does illegally discriminate against white males,” he claims. He brings his claims under the 42 U.S.C. § 1983 on behalf of himself and other white males. For his part, he challenges a promotion decision coming out of a March 2020 officer examination, contending a black officer who scored lower than him (and other white male examinees) was promoted solely as a result of the City’s obligations under 1980 consent decree. He also seeks to represent a proposed class of white males who have applied for employment or promotions within a year of the complaint, and who were denied or delay promotion “due to the race- or sex-based quota systems.” After filing a complaint, he also moved to preliminarily enjoin the enforcement of consent decrees.

At this stage, the Plaintiff appears to be relying on a ruling that is, on its face, favorable his position: Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737 (6th Cir. 2012). That case involved a similar 1975 consent decree involving race discrimination in Cleveland’s fire department. Under its terms, the consent decree in that case require period review and extension.  In 2009, the parties agreed to updated goals guidelines and moved the court to extend the consent decree, but the district court overseeing it declined. It reasoned that the significant and sufficient progress had been made towards increasing the diversity in the fire department, and therefore judicial monitoring was no longer necessary. The Sixth Circuit agreed with that decision, but remanded with direction to the district court to show its work by answering specifically whether the Cleveland still had a “compelling interest” to maintain a classification system based on race to remedy discrimination 30 years after it first entered into the consent decree. Kohler is hoping for a similar outcome.

While this case is in only in the infancy of litigation, employers should keep an eye on how it unfolds. Several factors, including the current political climate in the U.S., may lead to a continued increase of “reverse” discrimination cases in the coming years. And plaintiffs’ success in cases like Kohler will require employers to scrutinize their diversity efforts and be more thoughtful about the impact of facially beneficent diversity initiatives on individuals outside the classes of employees they seek to benefit. Stay tuned, and we will follow up with any noteworthy updates on this and similar matters.

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

Seyfarth Synopsis: The Employment Law Lookout blog is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy (and warm) Thanksgiving holiday. According to CDC traditional Thanksgiving gatherings with family and friends are fun but can increase the chances of getting or spreading COVID-19 or the flu. CDC recommends these tips to make your Thanksgiving holiday safer.

The safest way to celebrate Thanksgiving this year is to celebrate with people in your household. If you do plan to spend Thanksgiving with people outside your household, take steps to make your celebration safer.

Wear a Mask or Face Covering:

  • Wear the mask over your nose and mouth and secure it under your chin.
  • Make sure the mask fits snugly against the sides of your face.

Stay at least 6 feet away from others who do not live with you:

Wash your hands:

  • Wash hands often with soap and water for at least 20 seconds.
  • Keep hand sanitizer with you and use it when you are unable to wash your hands.
  • Use hand sanitizer with at least 60% alcohol.

Thank you, and Happy Holiday.

By: Lisa Lehmann Nichols and Helen McFarland

On November 15, 2020, Washington Governor Jay Inslee again amended his previously issued Proclamation 20-25, which proclaimed a state of emergency associated with the spread of COVID-19.  Proclamation 20-25.8 rolls back county-by-county phased reopenings in response to the dangerous spikes of COVID-19 cases per day in Washington.

How long will this proclamation be in effect?

The proclamation became effective midnight on Monday, November 16, for all counties, and will last until December 14, 2020 at 11:59 PM, unless extended.

Can I still travel?

The proclamation reminds citizens that a previously-issued travel advisory has been issued for all non-essential travel. The guidance cautions citizens to stay home, in their region, and to avoid non-essential travel to other states or countries. It also encouraged travelers to self-quarantine for 14 days after arriving in Washington, limiting interactions with their immediate household.

Is my business impacted by the amended proclamation?

The following non-exhaustive list of businesses face new regulations under this proclamation:

1.    Professional services must mandate employees work from home when possible and close offices to the public if possible. If the office must remain open, occupancy must be limited to 25 percent of indoor occupancy limits.

a.    “Professional services” are office-based occupations that typically serve a client base. Examples include: accountants, attorneys, architects, engineers, financial advisors, information technologists, insurance agents, and tax preparers.

2.    Business meetings at miscellaneous venues are prohibited. Miscellaneous venues include conference centers, hotel meeting spaces, event centers, and similar spaces. Exceptions exist for professional training and testing that “cannot be performed remotely” and all court and judicial branch related proceedings, provided that occupancy of these venues only reaches 25 percent of indoor occupancy limits or 100 people, whichever is fewer.

3.    Long-term care facilities may allow outdoor visits, but not indoor visits. Exceptions exist for an essential support person or end-of-life care.

4.    Personal services (such as hairstylists, manicurists, and tattoo artists) are limited to 25 percent of indoor occupancy.

5.    Restaurants and Bars must close dine-in services. Outdoor dining is limited to five people per table and must follow the Outdoor Dining Guidance.  These restrictions go into effect at 12:01 a.m. November 18, 2020.

6.    Additional businesses closed for indoor operation include fitness facilities, movie theaters, museums, zoos, aquariums, and bowling alleys.

Is my business exempt from the new restrictions?

K-12 schools, higher education, health care and childcare are exempt from new restrictions and should instead follow the current guidelines. These restrictions do not apply to courts and judicial branch proceedings.

What about activities and businesses not addressed by the amended order?

If the activity or business is not listed in the amended order, you should continue to follow the current guidance.

Will there be an additional financial aid package for businesses?

While not addressed in the proclamation, Governor Inslee announced that another $50 million would be made available in federal aid to help mitigate the effect on businesses.

Is there a penalty for violating this order?

Yes, violators of this order may be subject to criminal penalties and be guilty of a gross misdemeanor.  The maximum punishment for a gross misdemeanor is 364 days in county jail and/or a fine of up to $5,000.

By Brent I. Clark, Mark A. Lies, II, Benjamin D. Briggs, James L. Curtis,  A. Scott Hecker, Patrick D. Joyce, and Adam R. Young

Seyfarth Synopsis: As the prospects of a likely Biden administration develop a key question becomes what should employers expect from OSHA under Biden? A COVID-19 Emergency Temporary Standard, aggressive enforcement, and a shift in priorities.

We predict OSHA’s priorities in a Biden administration based on campaign talking points, the Democratic House’s actions in the past two years, and experience from the Obama administration.

COVID-19 Emergency Temporary Standard

Employers can expect OSHA under Biden to direct resources to issuing a COVID-19 Emergency Temporary Standard (ETS). Most OSHA jurisdictions do not have a specific COVID-19 standard. However, some states have promulgated COVID-19 specific standards. State-plan OSHA agencies in Virginia, Oregon, and Michigan have each adopted COVID-19 standards that are likely to provide a good indication of what requirements a federal OSHA ETS might include:

  • developing and implementing a preparedness and response plan;
  • social distancing;
  • screening;
  • practicing proper hygiene and other infection control measures;
  • assessing exposure risks;
  • masking;
  • notifying public health departments about positive employee tests;
  • recordkeeping; and
  • training.

States that have implemented a COVID-19 ETS have mandated that employers provide training, signage, and other types of employee communications in languages common to employee populations, and OSHA could follow suit. Biden appointed a COVID advisory commission on November 9, and a Biden administration OSHA will likely hit the ground running on January 20, 2021 working toward an ETS.

Aggressive Use of Citations and Enforcement

We expect OSHA to push for more egregious cases (i.e., instance-by-instance willful citations resulting in $500,000 or more in penalties), with support from DOL’s Solicitor’s Office in coordinating and pursuing these matters. Even with an enhanced focus on allegedly egregious, high-dollar cases, we anticipate a Biden administration to expand the term “bad actor.”  OSHA might be better served following data to pursue the most problematic employers, but the agency can sometimes lose focus in labeling all employers “bad.” Aligned with this more aggressive enforcement approach, we expect to see:

  • more inspections, more citations, more willful and repeat citations;
  • increased use of the multi-employer citation doctrine;
  • skepticism about employer safety incentive programs; and
  • reduced use of cooperative programs and partnerships with employers (like OSHA’s Voluntary Protection Programs).

We anticipate expanded efforts to encourage whistleblowers to report perceived violations through a streamlined process, supplemented with increased resources. OSHA enforces more than 20 federal whistleblower laws, so its reach in this area goes beyond just the OSH Act.

A Biden administration may also look to wrest federal control from the states that have been active in areas where federal OSHA either has not shown interest or has not gained traction. We expect that OSHA will continue to turn to the General Duty Clause as its enforcement catchall while these more specific standards wind their way through the rulemaking process. We expect aggressive enforcement in the areas of heat illness and infectious disease, for instance.

Recordkeeping and Public Shaming

More stringent recordkeeping requirements and increased use of employer records in enforcement are likely under a Biden OSHA. “Publicity as deterrence” is something Dr. Michaels, the head of OSHA under Obama, talked about often, and the Trump administration’s efforts to limit publication of violations will likely disappear. Biden’s OSHA may reverse course, publicizing citations to shame employers into compliance. Beyond recordkeeping and an ETS, implementation of workplace violence and heat illness standards could be among the Biden administration’s initial regulatory priorities.

Filling Leadership Roles

President Trump governed for his entire administration without a political head of OSHA (Assistant Secretary of Labor), as the Senate never voted on the nomination. Assuming President Biden is able to get an Assistant Secretary nominee confirmed by the Senate, the mere appointment of politically confirmed leadership in OSHA’s Assistant Secretary role will differ from the Trump administration. OSHA’s current Principal Deputy, Loren Sweatt, has been at the controls for years, but given her acting role, she has been circumscribed in implementing her agency vision. OSHA’s Director of Enforcement role has also been filled on an acting basis for an extended period. Finding permanent personnel to execute these roles will likely provide more political heft behind OSHA’s policy-making decisions. Appointing someone aligned with former Assistant Secretary Dr. David Michaels – like Dr. Michaels’ former deputy Jordan Barab – could drastically change OSHA’s enforcement approach. Unions will certainly have more and bigger seats at the table in a Biden OSHA, and with them Union priorities may be increasingly incorporated into OSHA policy.

Budget Dependent?

It is yet to be seen whether OSHA’s budget will be increased. However, it is clear that many significant policy and enforcement decisions will be affected by the budget allotted to OSHA.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: A Biden Administration DOJ will likely bring higher engagement and more aggressive enforcement on ADA Title III issues.

While the current administration may still be unwilling to concede the election, it appears there will indeed be a new administration in charge at the Department of Justice (DOJ) come January 20, 2021.  How will the Biden Administration approach Title III of the ADA and its enforcement?  We think there will be much higher engagement – and likely more aggressive enforcement – on multiple fronts.

Enforcement.  Under the Obama Administration, the DOJ aggressively pursued enforcement actions against businesses regarding the alleged inaccessibility to people with disabilities of technologies businesses use to provide their goods and services to the public – especially websites and mobile apps.  During the Trump Administration, we saw virtually no new investigations about websites or mobile apps that were not accessible to people with disabilities. And, investigations that were pending under the Obama Administration went dormant under the Trump Administration.  We expect the Biden Administration to resume the aggressive approach to enforcement taken by the DOJ during the Obama years on this issue.

As a result of increased enforcement, businesses should expect DOJ to demand higher monetary damages and civil penalties (presently the ADA authorizes maximum penalties of $96,384.00 for a first violation and $192,768 for a subsequent violation) and more onerous remedial terms.

Regulations.  Consistent with its anti-regulation policy, the Trump administration put the kibosh on every ADA Title III rulemaking that was pending.  Granted, many of those saw little progress under the Obama Administration (including, notably, proposed regulations adopting accessibility standards for public accommodations’ websites under Title III), but there is a real chance that some rulemakings will be revived under the Biden Administration.  At  the end of President Obama’s term, there was more rulemaking activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA.  Perhaps the Biden Administration would revive that rulemaking.  Rulemaking efforts that were also in progress at the end of the Obama DOJ’s tenure (and withdrawn by the Trump DOJ), such as on non-fixed equipment and furniture may likewise resurface.  The Obama DOJ squeezed in a final rule on movie captioning audio description on the way out the door in late 2016.

Technical Assistance.  The Trump DOJ put out very few technical assistance documents which historically have been a valuable source of guidance to help businesses understand and comply with the ADA and its implementing regulations.  We anticipate seeing more technical guidance from the DOJ in the coming years.

Intervention in Pending Lawsuits.  The Trump Administration rarely intervened in ADA Title III lawsuits – in contrast to the Obama DOJ (for example, see here and here).  We expect the DOJ to resume its practice of intervening on behalf of plaintiffs in important lawsuits and to push the boundaries of the law in ways that will impose greater obligations on covered entities.

Legislative Reform.  There have been some short-lived attempts at ADA reform in Congress over the past four years, including the ADA Education and Reform Act, the ADA Notification Act, and most recently, the Online Accessibility Act, and even letter writing efforts between members of Congress and the DOJ.  These efforts  have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

***

Given the forthcoming more aggressive enforcement environment, businesses should very seriously consider whether their ADA Title III compliance programs are sufficiently robust, particularly with regard to their digital assets.  How good is our crystal ball?  Pretty clear, based on our November 2016 predictions.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A new report from the National Safety Council (NSC), State of the Response: Employer Actions to Address the Pandemic, provides an overview of how employers have been responding to the COVID-19 pandemic.

The NSC survey sought to understand which COVID-19-related safety practices were being implemented in different organizations across different industries and operations types. The NSC created a list of 23 pandemic-related safety precautions that were recommended through its SAFER effort and included many best practices recommended by the CDC and other public health organizations. The safety practices included cleaning and hygiene-related precautions, testing and tracing precautions, and human resources and communications tools to prevent the spread of the coronavirus in the workplace.  Based on the NSC survey of hundreds of employers, organizations spent $5,208 per employee on various safety practices – from making remote work possible to providing PPE and hand sanitizer. The NSC also provided an infographic for a summary of its findings.

According to the NSC survey, participants indicated whether they had finished implementing, started to implement, planned to implement or did not consider implementing each of the 23 COVID-19 related safety practices. Overall, the most commonly implemented safety practices were “making hand sanitizers available throughout facilities; requiring mandatory face masks, shields, and/or other PPE; and requiring workers to clean and sanitize workstations before and after use (see Report Figure 7 (shown here below) for list of top 10 implemented practices).”

The least implemented COVID-19-related safety practices included increasing pay for frontline workers and instilling coronavirus testing either at home or at the worksite.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Lawrence Z. Lorber, Leon Rodriguez, Samuel P. Sroka, and Scott P. Mallery

Seyfarth Synopsis: This special post-election report is brought to you by Seyfarth’s Policy Matters Newsletter. With so much at stake, we have collected the top-of-mind issues to watch as the election results take shape. 

The Current State

While the nation hoped for a rapid resolution to this year’s election, it is, after all, 2020, and we should have known better. Indeed, as Charlie Sykes of the Bulwark put it: this election will be decided by the Big Ten, not the SEC. Millions of votes are still being counted in battleground states across the Country, but at this juncture, Joe Biden has a clearer path to the White House than the current President, but it is far from over. While it was understood relatively early Tuesday that the House of Representatives would remain in Democratic control — although apparently with a reduced majority — we learned today that in all likelihood the Senate will remain under Republican control. Thus, while final results will have to be certified and we will undoubtedly have to go through a thunderstorm of lawsuits, it appears that we face four more years of divided government, although now the administration will likely be under control of Mr. Biden and the Democrats. In light of Republican continued control of the Senate, we assume that policy changes will primarily be delivered by executive action, through regulation, or through Executive Order rather than legislation. Because of this, changes will be more nuanced and somewhat slower in occurring. Therefore, this piece will attempt to address some scenarios that may be relevant to employers in a Biden administration, with some discussion of what the Trump administration has done, or would likely do, in the somewhat unlikely case that he prevails.

What is going to happen to the Senate?

As it stands as of the publishing of this piece, the Senate is composed of 2 Independents who caucus with Democrats, 45 Democrats and 48 Republicans, with Sara Gideon’s recent concession to Susan Collins. Democrats picked up two seats with the defeats of Cory Gardner in Colorado and apparent defeat of Martha McSally in Arizona; Republicans flipped a seat with the defeat of Doug Jones. Republicans were also able to hold onto seats in Montana, Iowa, Maine, and South Carolina with Steve Daines victory over Steve Bullock, Joni Ernt, Susan Collins, and Lindsey Graham, all Republicans, able to hold on to their seats. Senator Thom Tillis (R., N.C.) has declared victory in his reelection bid against Democrat Cal Cunningham and Gary Peters is leading in his race in Michigan. That leaves the two races in Georgia, where one Senate race will advance to a January runoff between Republican Sen. Kelly Loeffler and Democrat Raphael Warnock; the other race, between incumbent Republican David Perdue and Democrat Jon Osoff remains too close to call. Under Georgia law a candidate must receive 50% of the vote or the top two finishers go into a runoff, now on January 5, 2021. As of now, Senator Perdue is slightly above 50%.

Based on the foregoing, it looks unlikely the democrats regain control of the Senate. Even if the Senate evens to a 50-50 split, and Joe Biden wins, making Kamala Harris the deciding 101st vote, the exceedingly thin margin of power makes it unlikely Joe Biden will be able to press some of his more progressive policy priorities. For example, even in the aforementioned scenario, it would be exceedingly difficult to convince moderate democrats in the mold of, say, Joe Manchin , to vote for example to support the PRO Act as currently drafted. Readers should also be aware of the ever-present filibuster and cloture rules, each of which would necessitate 60 votes and with the Senate in its apparent 2021 configuration, any attempt to abolish the filibuster as it applies to legislation appears to be shelved.

How the makeup of crucial Federal Employment Agencies may look.

While the temporal terms are set for the membership of National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”), which Administration ultimately parks in the White House will have significant influence on the policy direction of those crucial agencies.

Currently, the makeup of the NLRB is as follows:

  • John Ring (Rep), current chair – term ends Dec 16, 2022;
  • Marvin Kaplan (Rep) – term ends Aug 27, 2025;
  • Bill Emanuel (Rep) – term ends Aug 27, 2021;
  • Laura McFerrin (Dem) – term ends Dec 16, 2024;
  • Peter Robb, General Counsel – term Ends  Nov 17, 2021;
  • one democratic seat remains open.

The EEOC is currently comprised as follows:

  • Janet Dhillon (Rep), current chair – term ends July 1, 2022
  • Keith Sonderling (Rep), current Vice Chair – term ends July 1, 2024
  • Andrea Lucas (Rep) – term ends July 1, 2025
  • Charlotte Burrows  (Dem) – term ends July 1, 2023
  • Jocelyn Samuels (Dem) – term ends July 1, 2021
  • Sharon Gustafson, General Counsel – term ends Aug 2023

Interestingly, both the NLRB and the EEOC will remain under Republican control for the initial period of a Biden Administration. A Trump Administration would likely see additional membership pressing policies intended to reduce obligations on business. A Biden administration, conversely, would result in eventual Democratic control on the boards of these crucial agencies, which would likely mean attempted rescission of Trump initiatives and replacement with prior Obama era rules and other initiatives set out in the Biden campaign policy agenda. However, notwithstanding the fact that Biden will appoint one of the Democratic Commissioners as Acting Chair of the EEOC, the Republican majority will undoubtedly stop any new initiatives such as resurrecting the Component 2 compensation data collection requirement.  The NLRB primarily is a case deciding agency. However, the NLRB did issue new election regulations reversing the Obama so-called “Ambush Regulations.” If the Democrats take over the NLRB this summer, it perhaps can be expected that the reconstituted Board will quickly move to rescind or change the regulatory regime established by the Republican Board.  Especially as the Senate results makes enactment of the PRO Act doubtful, expect a Biden board to move as expeditiously as it can to reformulate NLRA processes and procedures to open up union organizing and union bargaining authority.

What About OSHA? The fate of a critical agency during a pandemic.

Throughout the entirety of the Trump Presidency, OSHA has operated with a vacancy in its top leadership post — assistant secretary of labor for occupational safety and health. Last year, the President nominated FedEx’s vice president of safety, sustainability, and vehicle maintenance, Scott Mugno, to the top post, but because there was no progress on his confirmation, he withdrew his nomination, leaving Deputy Assistant Secretary of Labor Loren Sweatt in charge of the agency through the remainder of the Trump first term. OSHA has been criticized for a lack of enforcement during the pandemic. The Democrats have long called for OSHA to issue an Emergency Temporary Standard requiring that Pandemic safety guidance be converted into mandatory safety practices. Such a requirement was included in the so-called Heroes Act  —which we wrote about here — passed by the House in May (it was never taken up in the Senate). So a Biden appointee at the Department of Labor and at OSHA can be expected to move quickly on a pandemic initiative.  Also expect reinstatement of the injury reporting regulations and a more aggressive enforcement posture. Publicity of violations would also likely increase as Dr. Michaels — assistant secretary of OSHA under Obama — has touted the importance of deterrence through publication.

Could Bernie Sanders be named Secretary of Labor?

It has been widely reported that, despite their noted policy disagreements, Bernie Sanders would happily accept a position as Secretary of Labor in a potential Biden Administration, an idea endorsed by a number of left-leaning organizations. While Bernie Sanders and Joe Biden have notable policy differences — particularly when it comes to healthcare policy — the two share a focus on workers, expanding health care, and expanding the social safety net. Since losing the primary, and despite their noted differences, Sen. Sanders has been hard at work to elect Joe Biden and influence the Democratic platform. As astute readers of this newsletter are aware, back scratching is nothing new in presidential politics — really, in politics in general — and Sen. Sanders will likely be looking for a scratch in the form of a secretarial appointment for all of his work on the campaign. Indeed, the DOL is a particularly fitting perch for Sanders to attempt to implement his ambitious labor and employment policy agenda.

The Secretary of Labor holds significant power over policies that affect employers. For example, the Secretary of Labor oversees the enforcement of key laws that require employers to pay workers a minimum hourly wage and overtime, and investigates wage theft and recovery of back wages (between 2009 to 2016 the DOL collected more than $2 Billion in back wages). The secretary can direct the agency to expand or curtail these protections. For example, the Obama Administration took action to raise the wages of low-wage workers by changing overtime rules to raise the salary threshold for workers receiving overtime from $23,660 to $47,476, affecting an estimated 4.2 million additional workers. In 2017, a federal judge in Texas struck down the administration rule, agreeing with 21 states and a coalition of business groups, including the U.S. Chamber of Commerce, that the rule was unlawful and granted their motion for a nationwide injunction. Instead of appealing the ruling, the Department of Labor under the Trump Administration released a final rule lifting the salary limit from $23,000 to about $35,000 and scrapping the cost-of-living increases. Even if it is not Sanders, a Biden administration likely would also come with an aggressive appointment to this key post; if that happens, employers should embrace for An aggressive regulatory enforcement and policy initiative regime.

Of course, if the Senate majority remains Republican, a Biden administration may forego the quixotic adventure of a Sanders DOL nomination. The Democrats may very well need his vote in the Senate.

By Eric Janson and Adam R. Young

Seyfarth Synopsis: While the votes continue to be tallied in the Presidential election, one thing is certain – it was a BIG night for cannabis in America with five new states approving ballot measures to legalize recreational or medical marijuana. 

With these new laws, nearly 110 million Americans (or over 1/3 of the country) will now live in a state where marijuana is legal for adult use.  In New Jersey, by a nearly 2-1 margin, voters passed Public Question No. 1 – a constitutional amendment to legalize the use and possession of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana.  Advocates believe this may now raise the stakes for neighboring states like New York, Connecticut and Pennsylvania to similarly take up legalization bills pending in their state legislatures out of concern for losing tax revenues to what is expected to now be one of the largest marijuana markets in the country.

Meanwhile in Montana, voters narrowly passed Initiative 190 and Initiative 118 which collectively will permit the use, production and sale of marijuana to adults ages 21 or older.  In addition, persons serving marijuana-related sentences that are no longer crimes under these Initiatives may request that their convictions be expunged or may request they be resentenced if they are still incarcerated.

After a failed attempt at adult use legalization in 2016, voters in Arizona finally passed Proposition 207 — also known as the Smart and Safe Act — which permits the possession and use of marijuana for adults ages 21 years or older and permits individuals to grow up to six marijuana plants in their residences.  Importantly for Arizona employers, the new law does not restrict the rights of companies to maintain a drug-free workplace or establish workplace policies restricting the use of marijuana by employees or prospective employees.  See Section 36-2851(1).  Likewise, employers are also not required to allow or accommodate the use, consumption, or possession of marijuana on the job.  See Section 36-2851(2).

South Dakota also became the first state to legalize cannabis for medicinal and adult use purposes on the same day, overwhelming passing Constitutional Amendment A which legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older.  Initiated Measure 26 also establishes a medical marijuana program for individuals with a “debilitating medical condition” which includes those with “a chronic or debilitating disease or medical condition…that includes severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

In Mississippi, voters also overwhelmingly passed Initiative 65 which allows doctors in the state to prescribe medical marijuana for patients with at least one of 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more.  Patients can also possess up to 2.5 ounces of medical marijuana at one time.

Finally, others states took considerable steps in relaxing other drug laws, with voters in Oregon passing ballot measures decriminalizing possession of small amounts of drugs, including cocaine, heroin, methamphetamine and another legalizing the therapeutic use of psilocybin mushrooms (aka “magic mushrooms”).  Washington, D.C., also approved measures aimed at decriminalizing psilocybin mushrooms and other psychedelic plants.

While state governments will now be tasked with establishing the various regulatory frameworks needed to implement these new adult use and medicinal marijuana programs, it is undisputed that proponents of legalized marijuana had a very big Election Day and with these new ballot measures, adult use cannabis is now legal in 15 states (and the District of Columbia) and medicinal use of cannabis is legal in 35 states (and D.C.).

We have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.

While 15 states will soon permit the recreational use of marijuana, employers may maintain a range of restrictions on employee possession, use, and impairment by marijuana, cannabis, and related products. Employers may also continue pursuing drug testing options, particularly for safety-sensitive employees, to address the hazard and ensure that no employees work under the influence of drugs.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.

By Honore N. Hishamunda and Erin Dougherty Foley

Seyfarth Synopsis: Employees can sometimes sour on jobs they transfer to and, this in turn, can create practical and legal risk for employers, particularly where an employee changed jobs in connection with a disability accommodation. A recent decision from the United States Court of Appeals for the Fourth Circuit, however, makes clear that employees cannot base disability discrimination and retaliation solely on their employer’s decision to accept an accommodation they voluntarily requested – including transfers.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs, prohibits employers from discriminating against employees because of their disability, and prohibits employers from retaliating against employees for exercising their rights under the ADA. The ADA does not, however, require employers to provide employees with the reasonable accommodation of their choosing.

What happens, though, when an employer chooses to provide an employee with the accommodation of their choosing?  Does the employer’s choice insulate them from ADA discrimination and retaliation liability?  To the extent it does, will an employee’s subsequent dissatisfaction with the accommodation change the analysis?

The United States Court of Appeals for the Fourth Circuit in its recent decision – Laird v. Fairfax County, Virginia – joined its sister circuits in addressing these questions, and, in doing so, and as shown below, is shining a light on the interaction between employees’ requested accommodations, and the ADA’s prohibitions on discrimination and retaliation.

Viola Laird previously worked in Fairfax County’s Department of Procurement & Material Management.  Ms. Laird, who was diagnosed with multiple sclerosis, asked her supervisor for unscheduled telework as a reasonable accommodation for her disability. Fairfax County initially agreed to this arrangement but, after the County had issues supervising and keeping Ms. Laird busy while teleworking, proposed a modified – twice per week with required in person attendance for meetings – teleworking arrangement as an accommodation. After the County implemented its revised teleworking accommodation, Ms. Laird filed a charge of discrimination with the Equal Employment Opportunity Commission claiming that the County’s decision to retract its initial teleworking accommodation constituted unlawful disability discrimination.

Ms. Laird and the County began settlement discussions with the EEOC. During these discussions, Ms. Laird represented that a lateral transfer could resolve her dispute with the County. The County accepted her offer and transferred her to a different department performing in a similar position with the same pay and opportunity for promotion. Ms. Laird accepted, and began her new job.

The County, after Ms. Laird did not perform well in her new position, offered to transfer her to yet another job that would have had similar pay and opportunities for promotion as her initial position with the County. This time, however, Ms. Laird rejected the County’s offer, and filed a lawsuit against her employer in federal court.

In her suit, Ms. Laird alleged, among other things, that the County discriminated against her because of her disability and retaliated against her for filing an EEOC charge.  Both her disability and retaliation claims relied on the County’s decision to transfer her, both in response to the EEOC settlement discussions, and after her performance in her initial transfer, constituted discriminatory and retaliatory actions. The Fourth Circuit, like the District Court before it, rejected Ms. Laird’s arguments and granted summary judgment for her employer.

The Fourth Circuit held that Ms. Laird could not show that she suffered a so called “adverse action” – typically thought of as — but not limited to — termination or demotion – a key element in both her ADA disability and retaliation claims. In doing so, the Court found that:

  • An employer takes an adverse action for purposes of a discrimination claim if it takes an action that adversely affects employment or alters the conditions of the workplace;
  • An employer takes an adverse action for purposes of a retaliation claim if it takes an action that may dissuade a reasonable worker from making or supporting a charge of discrimination; and
  • An employer does not take an adverse action for purposes of a discrimination or retaliation claim if the action it took does not result in some significant detriment to the employee.

Applying these principles, the Court found that Ms. Laird’s claims “fail[ed] for a simple reason: [i]f an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.”  Further, the Court noted that “a transfer cannot be because of [an ADA unlawful reason] if it occurred as a result of an employee’s own request.”

This decision highlights that an employee’s subsequent dissatisfaction with an accommodation they requested cannot ordinarily form the basis of an ADA disability or retaliation claim.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies And Processes Teams.

By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On November 2, 2020, the EEOC held its first public meeting of its fiscal year, and the first meeting with its three new commissioners. The public meeting was held so that the Commission could consider a proposed memorandum of understanding (“MOU”) between the EEOC, the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) aimed at recommitting to collaboration between the agencies and coordinating efforts to protect civil rights in the workplace. At the conclusion of the meeting, the EEOC voted in favor of entering into the MOU. This is an important development for all employers.

The EEOC held its November 2 meeting remotely and, per the requirements of the Sunshine Act, it was open for the public to call in and listen to the proceedings. EEOC Chair Janet Dhillon, Vice Chair Keith Sonderling, and Commissioners Charlotte Burrows, Jocelyn Samuels, and Andrea Lucas were all present to discuss the content of the draft agreement between these three agencies.  EEOC attorney Andrew Maunz outlined the mechanics of the MOU, which is an updated version of the agreement that has been in place between the EEOC and DOL since 1970.

While the full details of the MOU have not yet been released, four key provisions of the MOU were outlined during the meeting:

  • First, the latest MOU adds the DOJ as a signatory so that all three agencies responsible for enforcing the protections of Title VII are aligned. This is significant, given the disconnect between the DOJ and the EEOC on certain issues such as the application of Title VII to sexual orientation discrimination.
  • Second, the MOU seeks to promote accountability and makes high level officials at each agency responsible for any disclosures of information under the MOU.
  • Third, the MOU strengthens procedures for coordination between the three agencies at the field and headquarters levels, including discussions on enforcement priorities, finding efficiencies and eliminating duplication, and coordinating on issues like religious liberty, conscious protections, and novel or unique issues.
  • Fourth, the MOU seeks to bring greater efficiencies to the investigation process, including allowing the Office of Federal Contract Compliance Programs (“OFCCP”), the part of the DOL responsible for ensuring that employers contracting with the Federal government comply with the laws regarding nondiscrimination, to retain and investigate an individual charge of discrimination without seeking the permission of the EEOC or coordinating investigations between the EEOC and OFCCP, making it less likely that employees or employers need to deal with multiple agencies for the same claim or that multiple agencies reach different conclusions.

During the discussion of the MOU, Commissioners Samuels and Burrows, the two Democratic commissioners in the EEOC leadership, proposed several amendments to the MOU to address operational concerns with the MOU and expressed concerns that the MOU undermines the EEOC’s autonomy in its enforcement of Title VII. However, the outcome of the proposed amendments highlights the politics currently at play at the EEOC, as all 11 of the proposed amendments were voted down by the Republican Commissioners. Ultimately, though Commissioners Samuels and Burrows voted against it, the EEOC voted to approve the interagency MOU.

Implications For Employers

Though the full details of the MOU have yet to be released, the EEOC appears to be taking strides to coordinate with its fellow federal agencies to improve the efficiency and consistency in the enforcement of workplace discrimination laws. The EEOC’s efforts to address issues caused by the investigation of charges by multiple agencies will hopefully streamline the process for employers facing such multiple charges and avoid any inconsistent determinations by separate agencies.

This MOU is the latest in a series of high priority press releases issued by EEOC over the past few months. The ongoing changes at the Commission are a must-watch for employers as the EEOC kicks off its 2021 fiscal year.