By Oluwafunmito (“Funto”) P. Seton and Linda Schoonmaker

Seyfarth Synopsis: In recent years, a body of law has developed surrounding pattern or practice lawsuits brought by the EEOC. This has helped to clarify, for example, when the 300-day filing cutoff applies, or whether the claimant is eligible for damages as opposed to just equitable relief. In a recent decision out of the Western District of Oklahoma, yet another court has expanded the breadth of knowledge surrounding EEOC pattern or practice lawsuits, explaining that the continuing violation exception can toll Section 706’s timely filing requirement.

Case Background

Horizontal Well Drillers (“HWD”), is an oil and gas drilling company. Between January 1, 2012, through June 30, 2014, job applicants to HWD were required to submit information on age, family and personal health history, doctors’ care status, prescription drug use, and other health inquiries. HWD also sought information regarding applicants’ workers’ compensation histories, preferring to hire people with no history of workers’ compensation injuries or claims.

Wilbert Glover (Plaintiff-Intervenor), applied for a drilling position with HWD on January 11, 2013. He passed the rigorous health and background screenings and the HWD doctor who conducted his new hire medical exam concluded that he was medically qualified to perform the job. HWD, however, terminated Mr. Glover’s employment shortly after completing his new hire medical exam because of his high blood pressure.

Mr. Glover filed a charge of discrimination with the EEOC on or around April 1, 2013, alleging that his termination violated the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC requested relevant records from HWD and expanded the scope of the investigation to include all applicants hired and not hired from January 1, 2012 through June 30, 2014. (Notably, June 30, 2014 was also when HWD removed the “Applicant and Family Health, Worker’s Compensation, and Disability Pension history questions” from its application.) After its investigation, the EEOC found reasonable cause to believe that HWD violated the ADA, GINA, Title VII, and the Age Discrimination in Employment Act (“ADEA”).

Consequently, the EEOC (as Plaintiff) filed a class action lawsuit against HWD alleging various claims, including (i) pattern or practice of discriminatory failure to hire in violation of the ADEA; (ii) pattern or practice of discriminatory failure to hire in violation of the ADA; (iii) unlawful disability inquiry in conducting workers’ compensation background checks, in violation of the ADA; and (iv) unlawful post-hire medical exam, in violation of the ADA. Thereafter, Glover intervened as a party, alleging claims under the ADA and GINA.

HWD filed a motion to dismiss on various grounds. Our discussion focuses on HWD’s argument that the 300-day limitations period should bar recovery for putative class members who allege ADA failures to hire before June 5, 2012 and from putative class members who allege ADEA failures to hire before February 7, 2014.

A primer on HWD’s limitations argument

Title VII — 42 U.S.C. § 2000e-5(e)(1) (“Section 706”) (and which the ADA and ADEA follow on this point) — states that a charge of discrimination shall be filed within 300 days after the alleged unlawful employment practice has occurred.

Because Mr. Glover filed his charge with the EEOC on April 1, 2013, HWD argued that to obtain relief, any purported class member must have experienced discrimination within 300 days of that date, i.e. June 5, 2012, at the earliest. According to HWD, any alleged discrimination occurring prior to that date was time-barred and argued a number of other procedural reasons why the EEOC’s claims were not appropriate. The EEOC took the opposite position, arguing that it was alleging a “pattern or practice” of discrimination on behalf of aggrieved individuals. And, because this was a continuing violation, the June 5, 2012 cutoff did not apply. [Recall that if the “continuing violation” doctrine applied, individuals who experienced discrimination prior to the 300-day cutoff could still obtain relief through the EEOC’s claim if part of the violation fell within the 300-day window.]

The Court’s analysis of HWD’s limitations argument

The District Court reached three distinct conclusions – all in favor of the EEOC:

First, the Court held that while Sections 706 and 707 were intended to address different forms of discrimination with unique remedies, the EEOC can use a pattern or practice theory to recover on behalf of aggrieved individuals under both Sections.

Second, the Court agreed with the EEOC that the continuing violation exception can toll Section 706’s timely filing requirement for pattern-or-practice claims.

Finally, although it was too early to determine whether the EEOC met its burden of proving that HWD’s conduct was indeed a continuing violation, the Court determined that the EEOC’s claim survived HWD’s motion to dismiss for two reasons:

  • The subject matter of the discrimination remain unchanged with regard to the ADA claim: the EEOC alleged that HWD used applicants’ workers’ compensation history to perpetuate a pattern or practice of discriminatory failure to hire based on disability. Similarly, the subject matter of the discrimination also remained unchanged with regard to the ADEA claim – the EEOC alleged that HWD subjected applicants to improper hiring practices based on their age (40 and above).
  • The discrimination occurred frequently – the EEOC alleged that HWD routinely performed these background searches on all applicants before the interview and hired applicants with significantly lower workers compensation injury and claims histories. The EEOC also alleged frequency with regard to HWD’s failure to hire applicants who were 40 or older.

It remains to be seen whether the EEOC would meet its burden to demonstrate that there was indeed, a continuing violation. But for now, the Court has denied HWD’s motions to dismiss claims of EEOC class members for ADA failures to hire before June 5, 2012 and for ADEA failures to hire before February 7, 2014.

Takeaways for Employers

This is an important decision for employers, especially those sued in the Tenth Circuit as this could result in a significant increase in the number of aggrieved individuals who claim membership in an EEOC pattern-or-practice class. Employers are also now potentially exposed to a wider range of relief (including compensatory and punitive damages) – not merely equitable relief – for pattern and practice suits brought by the EEOC.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Ariel D. Fenster and Brett C. Bartlett

Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court’s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.

Should we be paying our employees before their shifts start?  The answer is highly fact dependent.  In recent weeks, the Eleventh Circuit affirmed the Middle District of Florida’s decision that the time deputies spent putting on their police gear at home and driving to and from work in their patrol cars was not compensable.  In Llorca v. Sheriff Collier County, Florida,  the Eleventh Circuit analyzed what type of pre-shift activities may qualify for hourly compensation.  The decision provided a deep analysis of the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996.  In relevant part, the act states that an employer does not have to pay its employees for activities that are “preliminary or postliminary” to the “principal activity” of the job.   The U.S. Supreme Court has long interpreted the term “principal activity or activities” to include all activities that are an “integral and indispensable part of the principal activities.”

What Does “Integral and Indispensable” Mean?

In order to determine what activities are integral and indispensable, it is important to understand the definitions of these types of activities.  The United State Supreme Court’s decision in Integrity Staffing provides guidance on the matter and defines the words as follows.  An integral activity “forms an intrinsic portion or element of the principal activities as distinguished from an adjunct or appendage.”  An indispensable activity “means a duty that cannot be dispensed with, remitted, set aside, disregarded, or neglected.”  The test is tied to the productive work an employee is employed to perform.   Thus, the fact that an employer requires or benefits from the activity does not establish it integral and indispensable.   As you can imagine, cases analyzing whether activities are integral and indispensable are highly fact-dependent and there is no bright-line test.  A look at the facts in Llorca helps to illustrate the integral and indispensable test and build off of the Supreme Court’s decision in Integrity Staffing.

Llorca Facts

Plaintiffs are former deputy sheriffs in Florida.  As part of their job, Plaintiffs were required to arrive at work dressed in their uniforms and equipped with a number of protective gear items.  Plaintiffs contend it took them up to thirty minutes at home to get “suited up.”  Plaintiffs also commuted to and from work in marked patrol cars.  During their commute time, they were required to have their radios on and respond to any major calls or emergencies.  They were also told to observe the roads for traffic violations and engage in traffic law enforcement during their commutes.  Of note, Plaintiffs were paid for any time they spent actually responding to emergencies or enforcing traffic violations.  Plaintiffs filed suit alleging they should have been paid for: (1) the time they spent donning their uniform and protective equipment at home and (2) their commute time.

Getting Dressed: Is That Compensable Time?

After analyzing the facts of the case, the court held that uniform and protective gear may arguably be “indispensable,” but it is not “integral.”  The gear is arguably indispensable because the deputies need the items to perform their job.  The court held that the act of donning and doffing the gear, however, is not integral to the job activities.  The court’s reasoning hinged on the fact that the Plaintiffs were allowed to don and doff their protective gear at home and actually did so.  In relying on a DOL opinion, the court explained that dressing in uniform is akin to changing clothes under normal conditions and that time is not compensable.

An important takeaway: where an employee gets dressed matters.  In a slew of other decisions, courts have held that giving the employee the option to change at home is important.  Even if an employee chooses to get dressed at work, the option to change at home lends itself to the time not being compensable.

Commuting To Work: Is That Compensable Time?

With regard to the commute time, the court stated this is the very type of time excluded from the Portal-to-Portal Act.  The general rule is that the time a worker spends driving to and from work is not compensable, and the Federal and Sixth circuits have similarly held that a law enforcement officer’s monitoring of a police radio or observing the roads for emergencies while en route to work do not qualify as exceptions to that general rule.  The court noted, “it would be highly inappropriate for uniformed officers to drive to and from work in marked patrol vehicles without observing the road for traffic violations and other incidents.”  The court explained that while the commute time could be integral to the job, it is not indispensable.  While it would undermine the very essence of law enforcement to ignore traffic law violations during their commute, the deputy sheriffs could fully perform their job without observing the road to and from work.

Lessons Learned

These cases are highly fact-dependent and decided on a case-by-case basis.  Even so, there are still some lessons to be learned from the Eleventh Circuit’s recent decision.

  1. Review any uniform changing policies. If employees have the option of wearing clothes and equipment to and from work, a court is less likely to conclude that those employees are entitled to compensation for time spent donning and doffing such clothes and equipment.
  2. If you do need to require employees to change in and out of clothing or protective gear on your premises, keep track of the actual time each employee spends doing so.
  3. Think about what activities the employees are completing during their commute time. Are the activities indispensable to the position?  For example, think about whether the employee is making stops to and from work to complete job duties.

 

By Benjamin D. Briggs, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a temporary employee’s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.

Nearly two years after the last bulletin, OSHA has just released two new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation. See Temporary Worker Initiative (TWI) Bulletin No. 8 – Respiratory Protection, and Temporary Worker Initiative Bulletin No. 9 – Noise Exposure and hearing Conservation.

We have blogged previously about OSHA’s enforcement activities and guidance documents relating to temporary workers: “OSHA Releases Two More Temporary Worker Guidance Documents,” “New Guidance for ‘Recommended Practices’ to Protect Temporary Workers,” “OSHA Issues Memo to ‘Remind’ its Field Staff about Enforcement Policy on Temporary Workers,” and “OSHRC Reviews Employment Relationships.”

Under TWI Bulletin No. 8, OSHA notes that both the host employer and staffing agency are “jointly responsible to ensure workers wear appropriate respirators when required. While both the host and the staffing agency are responsible to ensure that the employee is properly protected in accordance with the standard, the employers may decide that a division of the responsibility may be appropriate. Neither the host nor the staffing agency can require workers to provide or pay for their own respiratory protection when it is required.”

Under TWI Bulletin No. 9, OSHA notes that both the host employer and staffing agency are jointly responsible for ensuring that “workers receive protection from hazardous noise levels when it is required under OSHA standards. Neither the host nor the staffing agency can require workers to provide or pay for their own hearing protection devices or require workers to purchase such devices as a condition of employment or placement. In addition, employees must be paid for the time spent receiving their audiograms, and the audiograms must be at no cost to the employee.”

Employer Takeaway

It is OSHA’s view that staffing agencies and host employers are jointly responsible for temporary workers’ safety and health. However, as the two newly published bulletin’s make clear, fulfilling the shared responsibility for temporary worker safety requires thoughtful coordination between staffing agencies and host employers. OSHA has previously acknowledged that a host employer may have more knowledge of the specific hazards associated with the host worksite, while the staffing agency has a more generalized safety responsibility to the employees. As a result, OSHA allows host employers and staffing agencies to divide training responsibilities based upon their respective knowledge of the hazards associated with the specific worksite. While host employers will typically have primary responsibility for training and communication regarding site specific hazards, staffing agencies must make reasonable inquiries to verify that the host employer is meeting these requirements.

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 Michael L. DeMarino and Dawn R. Solowey

Seyfarth SynopsisTitle VII requires employers to make “reasonable accommodations” for an employee’s religious practices. But what is “reasonable” has been the subject of much debate and litigation.  The Tenth Circuit’s decision in Christmon v. B&B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable — even if it is not the employee’s preference. What matters is that the employee is allowed to engage in his or her religious practice.

In Christmon v. B&B Airparts, Inc., an employee sued his former employer under Title VII, claiming that his employer failed to accommodate his religious practices by not allowing him to change his overtime shifts from Saturday to Sunday so that he could observe the Saturday Sabbath. On appeal, the Tenth Circuit held that allowing the employee to skip Saturday shifts was a reasonable accommodation and that the employer was not obligated to provide an opportunity for overtime on Sunday.

The Decision

B&B Airparts requires its employees to occasionally work overtime shifts on Saturdays. Id. Jerome Christmon, a Hebrew Israelite, regards Saturday as the Sabbath and consequently requested to work his overtime hours on Sunday. But rather than allow Christmon to work  his overtime hours on Sunday, B&B simply allowed him to skip mandatory Saturday overtime shifts without any disciplinary action.

Christmon sued B&B Airparts in the U.S. District Court for the District Court of Kansas, under Title VII of the Civil Rights Act of 1964, claiming discrimination for failure to accommodate religious practices. Specifically, Christmon claimed that B&B Airparts was required to provide him with overtime hours on Sunday.

The District Court disagreed and granted summary judgment in favor of B&B Airparts, holding that B&B Airparts provided a reasonable accommodation by allowing him to miss his Saturday shifts. On appeal, the Tenth Circuit affirmed.

According to the Tenth Circuit, the undisputed evidence showed that B&B Airparts allowed Christmon to skip mandatory Saturday shifts after he had explained his religious concern. “This relief,” the Tenth Circuit concluded, “constituted a reasonable accommodation . . . .” Id. at *2.

Rejecting Christmon’s arguments, the Tenth Circuit explained that a “reasonable accommodation does not necessarily spare an employee from any resulting cost” and “may be reasonable even though it is not the one that the employee prefers.” Id. Rather, “‘[a]ccomodate . . . means allowing the plaintiff to engage in [his] religious practice despite the employer’s normal rules to the contrary.’” Id. Hence, although Christmon requested an opportunity to make up his overtime hours on Sunday, the Tenth Circuit determined that “Title VII did not require B&B Airparts to offer Mr. Christmon’s preferred accommodation.” Id. at *3.

Important to this conclusion was the Supreme Court’s decision in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). There, the Supreme Court held that an unpaid leave that allows an individual to observe religious holy days is a reasonable accommodation because it avoids the “conflict between employment requirements and religious practices.” Id.

At the end of the day, B&B ‘s accommodation was reasonable because it “allowed Mr. Christmon to avoid the conflict with his religious beliefs even if he lost the opportunity for overtime.” Id.

Implication For Employers

The Tenth Circuit’s decision is a good reminder for employers of the parameters of their obligation under Title VII to provide a reasonable accommodation for religious practices. A reasonable accommodation does not necessarily have to be the employee’s first choice. Nor does it have to be free from any resulting cost to the employee.  A reasonable accommodation, however, should effectively avoid the conflict between the employee’s religious practice and the employer’s requirements.

Of course, the first step in providing an accommodation is recognizing when there is a conflict between an employer’s requirements and an employee’s religious practice. Employers should therefore be sure to provide a mechanism for their employees to express concerns over perceived conflicts or otherwise request a religious accommodation.

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

The Employment Law Lookout 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 Fourth of July holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you soon.

Thank you and Happy Fourth.

By Sara Eber Fowler and Lynn Kappelman

Seyfarth Synopsis: Oregon’s new employee scheduling law – impacting hourly employees at large retail, food service, and hospitality employers – goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees’ schedules.

Friendly Reminder! At the end of this week, on July 1, Oregon will become the first state with a predictable scheduling law in effect. You may recall that predictable scheduling laws – sometimes referred to as fair or flexible scheduling laws – are laws that impose certain financial penalties on covered employers who make changes to employees’ schedules, and may restrict specific scheduling practices (like scheduling on-call shifts) altogether. While stemming from admirable goals, these laws can have the effect of making employee scheduling – already head-splitting! – an even more complicated, and costly, process. Until Oregon’s legislature passed its scheduling law last summer, other predictable scheduling laws had been limited to cities and municipalities (e.g., San Francisco, Emeryville, Seattle, New York City).

Hopefully, if you are a covered employer (retail, hospitality or food service employers with 500 or more employees) with operations in Oregon, you have already developed a plan for compliance with this new scheduling law. (And if you have not – do not panic! – the law will not be enforced until at least January 2019.) Below are some key takeaways and reminders for complying with Oregon’s employee scheduling law:

  1. The law does not apply to salaried employees. Given the law’s purpose to cure inflexible, unpredictable schedules that plague hourly workers, that makes sense. Sorry exempt workers, no predictability pay for you!
  2. The law requires advance notice of schedules at least 7 days before the first day on the schedule – not 7 days’ before a shift. So, if you schedule two weeks at a time, your work schedule covering July 15-28 needs to be posted no later than July 8. And yes, it means that, subject to some exceptions (see below), any changes made to an employee’s schedule after July 8 will require predictability pay – even if the change is made with far more than 7 days’ notice before the actual shift. Plan carefully, if you can!
  3. Premium pay comes in all shapes and sizes. It is not just about changing work schedules after the 7-day notice period – any alterations to employees’ hours worked within that notice period may require additional compensation. That includes adding and subtracting shifts, sending employees home early, asking employees to stay late, and changing start or end times (with or without a loss of hours). The amount of premium pay depends on the degree of schedule change. The law also requires premium pay for any employee scheduled to work without 10 hours’ rest, regardless of whether an employee receives sufficient notice (except split shifts).
  4. But, keep in mind – not every schedule change comes with financial penalties. There are many ways for employers to avoid financial penalties for schedule changes. A few notable exceptions include:
  • Schedule changes of 30 minutes or less;
  • Employees voluntarily trading shifts;
  • Employees who request a schedule change (in writing);
  • Schedule changes for legitimate disciplinary reasons; and
  • Employees on a company’s Voluntary Standby List, who agree to work a shift with less than the required notice.

5.  Speaking of which – use a Voluntary Standby List! It is hard to think of a reason not to have a Voluntary Standby List (“VSL”) if you are covered by Oregon’s scheduling law. Employees may choose to include their names on a VSL, and if additional shifts become available (e.g., unanticipated employee call-offs or customer needs), employers can ask employees on the VSL to fill-in without being required to pay additional compensation. Keep in mind, however, that employees on the VSL can still decline to work any shifts offered, and can take their names off of the list at any time. The law also has specific requirements about the kind of notice employees must receive about the VSL, if employers elect to use one.

With these tips in mind, hopefully navigating Oregon’s employee scheduling law will be a more “predictable” endeavor.

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

 

By Jason Silver and Kevin Fritz

Seyfarth Synopsis: On June 6, 2018, Peter. B. Robb, General Counsel for the National Labor Relations Board (“Board”), provided employers with the first substantive guidance regarding workplace policies since the Board’s Boeing decision. General Counsel Memorandum 18-04 is a victory for employers as the Board seems to be returning to a common sense approach when evaluating workplace policies concerning on the job conduct, confidentiality, defamation, intellectual property, among other things.

Under Boeing, the Board established a new standard focused on the balance between an employees’ ability to exercise their Section 7 rights and the employers’ right to maintain discipline and productivity in the workplace. The Board broke down workplace policies into three categories:

  • Category 1 – Rules that do not prohibit or interfere with the exercise of protected rights, or the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2- Rules that the warrant individual scrutiny on a case-by-case basis and whether any adverse impact on protected conduct is outweighed by legitimate justifications.
  • Category 3 – Rules that that the Board will designate as unlawful to maintain because they would prohibit or limit protected conduct, and the adverse impact on Section 7 rights is not outweighed by justifications associated with the rule. (https://www.employerlaborrelations.com/2017/12/19/the-boards-return-to-civility-and-common-sense-regarding-workplace-rules/)

This latest memorandum adds guidance to the three categories set out in Boeing.

Category 1 Policies that are Lawful to Maintain

  • Civility rules – Rules that require courteousness in the workplace, that prohibit rude or unbusinesslike behavior and that prohibit an employee from disparaging another employee. These types of rules advance substantial employee and employer interests, including an employer’s responsibility to maintain a workplace free of harassment and violence.
  • No photography/no recording rules – Rules that prohibit photography in the workplace and that forbid recording conversations, meetings and phone calls with co-workers, supervisors, and third parties unless such recordings are approved by the Company. These type of rules advance an employer’s interest in limiting recording and photography on Company property. Be advised however, employers still must ensure that a no recording policy passes legal muster under applicable state law.
  • On the job conduct rules – Rules that prohibit insubordination, being uncooperative or otherwise engaging in conduct that does not support the employer’s goals and objectives. These type of rules allow an employer to prevent non-cooperation at work.
  • Disruptive behavior rules – Rules that prohibit boisterous or other disruptive conduct. These type of rules allow an employer to prevent dangerous conduct or bad behavior and ensure safety and productivity.
  • Rules protecting confidential, proprietary and customer information – Rules that prohibit the discussion and dissemination of confidential, proprietary or customer information. These types of rules allow an employer to protect confidential and proprietary information, as well as customer information.
  • Rules against defamation or misrepresentation – Rules that prohibit defamatory messages and misrepresent the employer’s products, services, or employees. These types of also allow an employer to protect themselves, their reputation, and their employees from misrepresentation, defamation and slander.
  • Rules against using an employer’s intellectual property – Rules that prohibit the use of Employer logos, trademark, or graphics without prior written approval.
  • Rules that require authorization to speak for the Company – Rules that prohibit employees to comment on behalf of the employer and to respond to media request only through designated spokespersons. These types of rules allow an employer to designate who should speak on behalf of the employer.
  • Rules banning disloyalty, nepotism, or self-enrichment – Rules that prohibit disloyal conduct, conduct that is damaging to the employer, and conduct that competes with the employer and/or interferes with an employee’s judgment concerning the employer’s best interests. These type of rules allow an employer to prevent a conflict of interest, self-dealing or maintaining a financial interest in a competitor. These type of rules, when reasonably interpreted, have no meaningful impact on Section 7 rights.

Category 2 Policies Warranting Individualized Scrutiny

  • Broad conflict-of-interest rules that do not specifically target self-enrichment and that do not restrict membership in, or voting for, a union.
  • Confidentiality rules that broadly encompass employer business or employee information, versus confidentiality rules specifically regarding customers and/or proprietary information.
  • Rules that disparage or criticize the employer versus civility rules that bar the disparagement of employees.
  • Rules that regulate the use of the employer’s name versus rules that regulate the use of the employer’s intellectual property.
  • Rules that restrict speaking to the media or third parties versus rules that restrict speaking to the media on the employer’s behalf.
  • Rules that ban off-duty conduct that might harm the employer versus rules that ban insubordination and other disruptive conduct while at work.
  • Rules against making false or inaccurate statements versus rules against making defamatory statements.

Category 3 Policies that are Unlawful to Maintain

  • Confidentiality rules about wages, benefits, and working conditions – The ability to freely discuss terms and conditions of employment is a cornerstone of Section 7 rights. There are no legitimate business justifications in banning employees from discussing wages or working conditions.
  • Rules against joining outside organizations or voting on matters concerning the employer – Employees have a right to join outside organizations, specifically unions. While employers have a legitimate and substantial interest in preventing nepotism, fraud, self-dealing, and maintaining a financial interest in a competitor, rules that prohibit membership in outside organizations or from participation in any voting concerning the employer unduly infringe upon Section 7 rights.

While the pendulum could swing back in a new administration, the Board’s return – at least for now – to allow employers to require employees to maintain a reasonable level of civility in the workplace is a refreshing victory for employers. Both the Boeing decision and General Counsel Memorandum 18-04 prove that the Board clearly understands that the prior Board standard laid out in Lutheran Heritage, which prohibited any rule that can reasonably be interpreted as covering Section 7 activity, was unduly burdensome, oppressive, and an operational hindrance.

Now’s a good time for employers to review their handbook policies.  If you have any questions regarding your workplace’s handbook and social media policies or practices, please contact the authors, or another Seyfarth attorney.

 

By Jennifer L. Mora

Seyfarth Synopsis: The Equal Employment Opportunity Commission recently settled lawsuits with two employers it claims violated the Americans with Disabilities Act after rejecting a job applicant and terminating an employee based on their prescription drug use.

The opioid crisis is dominating the news. And, employers have reason to be concerned. According to the Bureau of Labor Statistics, overdoses from the non-medical use of drugs or alcohol while on the job increased from 165 in 2015 to 217 in 2016, a 32-percent increase. That same report showed that overdose fatalities have increased by at least 25 percent annually since 2012. Further, the U.S. Centers for Disease Control recently stated that use of prescription opioids can result in serious issues with addiction and that in 2014, nearly two million Americans either abused or were dependent on prescription opioid pain relievers.

However, employers should tread carefully when addressing any prescription drug use in the workplace. It has long been the case that the Americans with Disabilities Act (ADA) and state disability discrimination laws provide protections to applicants and employees taking prescription medication, including opioids, and regulate the right of an employer to inquire about such use. Two recent settlements with the Equal Employment Opportunity Commission (EEOC) highlight a few common issues facing employers.

The Settlements

In one case, the EEOC brought suit against a pre-school that allegedly terminated an afterschool teacher after he disclosed his prior opioid addiction and his participation in a supervised medication-assisted treatment program. As part of his treatment, he was legally prescribed Suboxone, which is a prescription used to treat adults who are dependent on, or addicted to, opioids. The EEOC claimed the school terminated the teacher 30 minutes into his first work day because of his use of this medication. The EEOC claimed that the failure of the school to conduct an individualized assessment to determine what, if any, impact the drug had on the teacher’s ability to perform his job violated the ADA. As part of the settlement, which required a $5,000 payment to the teacher, the EEOC required the school to, among other things:

  • Amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully-prescribed manner.
  • Create an ADA-compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug, or illegal substance rehabilitation program in order to determine whether the employee can safely perform the essential functions of his or her position with or without reasonable accommodation.

In another case, the EEOC alleged the employer withdrew an applicant’s job offer based on a positive drug test result for prescription medication. The EEOC also alleged the employer maintained an unlawful policy requiring all employees to report if they were taking any prescription and nonprescription medication. Both actions, according to the EEOC, violated the ADA. The parties settled for $45,000, with a requirement that the employer adopt company-wide policies to prevent future hiring issues under the ADA and only require employees to report prescription medications if the employer has a “reasonable suspicion” that the medication may be affecting performance.

Takeaways for Employers

These settlements serve as a reminder that employers should avoid making adverse decisions based on misperceptions or a lack of information about the effect of lawful prescription drug use on their employees’ ability to perform their job duties. In general, employees have a protected right to use prescribed controlled substances and come to work unless such use creates an undue risk of harm or presents a safety issue. Moreover, employers should take precautions before implementing blanket drug-testing policies that do not account for the need under the ADA to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations. Employers also should consider revising any workplace policy that requires employees to disclose their prescription medication use, unless there is reason to believe the medication may impact performance, or otherwise suggests that employees taking such medication will be treated in a certain way without regard to whether their drug use impacts their work.

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

 

By Andrew R. Cockroft

Seyfarth Synopsis: In May 2018, the Illinois General Assembly considered and also passed a series of measures aimed at changing existing employment discrimination law. On May 16, 2018, the Assembly passed House Bill 4572 which amends the Illinois Human Rights Act (IHRA) to allow employers of any size to be liable under the IHRA. On May 18, 2018, an extensive amendment was added to Senate Bill 577, seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment. On May 30, 2018, both chambers of the Assembly unanimously passed Senate Bill 20. SB 20 amends the IHRA to provide new powers to complainants, allow complainants to wait longer to file their claims, and to make the Illinois Human Rights Commission more efficiently address the existing backlog of charges.

The month of May was a busy one for the Illinois General Assembly. Last month, the Assembly passed a series of bills that together greatly expand which employers may be held liable under the Illinois Human Rights Act, reshape the Illinois Human Rights Commission (the “Commission”) and Illinois Department of Human Rights (IDHR) in order to increase transparency and efficiency, and gives employees new powers in exercising their rights under the IHRA.

What’s more, the Illinois Senate is now considering another amendment to the IHRA which expands liability for claims of sexual harassment and further adds new employer reporting and notice requirements when incidents of sexual harassment occur.

House Bill 4572

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. The now passed House Bill 4572 amends the IHRA such that any employer who employs one or more employees for at least 20 weeks during the year may be held liable under the Act.

On May 18, 2018, the measure officially passed both chambers of the Assembly, passing the House 64-37 and the Senate 33-13.

The measure has yet to go before Governor Bruce Rauner, however, and a spokesperson for the Governor declined to comment on whether he would sign it.

With this new development, employers who employ fewer than 15 employees should familiarize themselves with the IHRA as well as Commission and IDHR proceedings.

Senate Bill 20

On May 30, 2018, Senate Bill 20 was unanimously passed by both chambers of the Assembly. The bill contains numerous revisions to the IHRA which greatly expand the powers of employees in litigating their claims:

  • Previously, a complainant could not opt out of an investigation once they initiated it. Under the new bill, a complainant may now opt out of an IDHR investigation within 60 days after filing a charge with IDHR to commence an action in Circuit Court.
  • Previously a complainant had to file their claim with the Commission within 180-days of the incident giving rise to the claim. SB 20 extends the statute of limitations to 300 days to be consistent with federal law and EEOC limits.

The bill also devotes vast, new resources to reshaping the Commission itself and how it handles the existing backlog of claims:

  • The bill decreases the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • The bill also creates training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners will be created to specifically address the backlog of charges and requests for review. The panel also will have one staff attorney to assist them in addressing the backlog.

Finally, SB 20 provides a series of new requirements for how claims are processed, litigated, decided, and ultimately published:

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute will now require that Commission decisions are based on neutral interpretation of the law and the facts.
  • IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • Additionally, the bill mandates that within 120 days of the effective date of SB 20, the Commission must adopt rules for minimum standards for the contents of requests for review including, but not limited to, statements of uncontested facts, proposed statements of the legal issues, and proposed orders.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

The new provisions will hopefully create more transparency in Commission and IDHR proceedings and better allow employers to respond to claims of discrimination. Employers should keep track of any new Commission proposals in the event SB 20 is signed into law.

Senate Bill 577 – Amendment 1

A new proposed amendment to Senate Bill 577 seeks various changes to the IHRA.

First, the amendment expands what workers may bring claims of sexual harassment against an employer, what constitutes sexual harassment, and by when such a claim must be brought.

  • Independent contractors will become entitled to protections against harassment and discrimination under the IHRA.
  • The definition of sexual harassment is expanded to state that harassment on the basis of an individual’s actual or perceived sex or gender is prohibited.
  • Workers who experience harassment or discrimination will have two years to file a charge with the IDHR.

Additionally, the amendment creates new reporting and notice requirements for employers.

  • Public contractors and large employers must annually report to the IDHR on the number of settlements they enter into or adverse judgements against them related to sexual harassment or discrimination. This provision also allows the IDHR to initiate an investigation of repeat violators.
  • Employers will be required to post notice of an employee’s right to a workplace free from sexual harassment as well as the procedure for filing a charge.

The amendment also extends protections from the Victims’ Economic Security and Safety Act (VESSA) to cover claims of sexual harassment. VESSA provides an employee who is a victim of domestic or sexual violence, or an employee who has a family or household member who is a victim of domestic or sexual violence with up to 12 weeks of unpaid leave to address issues arising from domestic or sexual violence. This new amendment would, therefore, require an employer to provide 12 weeks of leave to any employee who makes a claim of sexual harassment.

Finally, the amendment also addresses the issue of non-disclosure agreements in the employment context. Employers would be prohibited from including nondisclosure clauses in settlements of sexual harassment allegations unless the employee alleging harassment chose to include such a provision. Even more, the amendment also prohibits an employer from entering into a nondisclosure agreement with any employee whose earnings do not exceed the federal, State, or local minimum wage law or who do not earn more than $13.00 an hour.

SB 577 has not passed either chamber of the Assembly. However, employers should note the Assembly’s increased focus on employment discrimination law and the myriad ways they seek to change it.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Michael Fleischer, Jean Wilson, and Barry Miller

Synopsis: Massachusetts Attorney General investigates 70 employers (both large and small – across all industries), citing 21 of them for violating the state’s “ban the box” law, which prohibits most businesses from asking about job candidates’ criminal backgrounds on initial employment applications.

Last week, Massachusetts Attorney General Maura Healy announced that her office conducted an investigation into the employment applications of more than 70 Boston-area businesses to determine if they violated the Commonwealth’s “ban the box” law. That law prohibits most employers from asking job applicants about their criminal history on initial applications, subject to limited exceptions. The employers investigated ranged from a restaurant chain to a skin care company to a book store.

The Attorney General entered into agreements with four large employers that have multiple locations in Massachusetts. In conjunction with those agreements, three of the companies were fined $5,000 each, and all were required to alter their application process to comply with the law’s requirements. The Attorney General also sent warning letters to an additional 17 employers, noting that they must take immediate steps to comply with Massachusetts law, and remove questions on their initial job applications that ask questions about applicants’ criminal histories. The improper questions included whether applicants have been convicted of violating the law, whether they had been convicted of a crime or offense other than a minor traffic violation, and if they have ever been convicted of a felony.

The Attorney General’s announcement of this enforcement activity comes on the heels of the Commonwealth’s recent passage of a criminal justice reform bill that becomes effective on October 13, 2018, and further restricts the questions that an employer may ask about an applicant’s criminal history following an initial employment application.

The Attorney General stated that the investigation was part of a larger, ongoing effort by her office to help educate businesses about the law, and to ensure that an individual’s criminal history is not used improperly to deny access to employment. This serves as a reminder to employers to review their hiring-related documents to ensure compliance with evolving legal requirements. Even if applicants do not complain about violations or assert legal claims, the Attorney General is engaged in proactive efforts to make sure that employers in the Commonwealth comply.

If you would like further information, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Background Screening Compliance & Litigation Team.