By Christopher J. DeGroffSarah K. Bauman, and James P. Nasiri

Seyfarth Synopsis: Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership.  With the new leadership regime and structural changes at the EEOC came an uptick in filings from FY 2021, with nearly half of those occurring in the month of September alone.  Despite an anticipated busy year for 2022, this fiscal year closed with a strikingly low number of filings ,and leaves questions as to whether this filing drought will continue.  However, with a Democratic majority inevitably to come, a generous budget increase (reported here), and several new strategic objectives planned for this FY 2023, a busy year may very well lie ahead.

As we previously reported here, FY 2020 experienced a significant downturn in filings as a result of leadership changes and the COVID-19 pandemic.  This left us questioning as to the gravity of the impact this might have on subsequent years.  Nevertheless, the EEOC quickly rebounded in FY 2021 with 114 total filings at year end (see here).  Though this number was still significantly less than previous years (see here), almost half of FY 2021 filings were in the month of September alone, signaling a busy year for FY 2022.  However, with a mere 94 filings at the time of publication of this blog post, FY 2022 did not live up to that case-filing trajectory.  The EEOC has seen budget boosts in the last two years, and has signaled the hiring of numerous field staff, including lawyers.  The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers do not show that.

This could be, in part, because the Commission is still led by a Republican majority, and the EEOC attorneys in the field are waiting for the composition to flip to the Democrats to increase the likelihood cases will receive a green light, or that the authority to file actions will once again be delegated to the field entirely.  The EEOC has been mum on the topic, however.  Recent political sparring may lend some insight.  Notably, representatives have recently cried foul that EEOC attorneys are administratively withdrawing matters that have been voted down by the Commissioners so they may live another day (see here).  Ultimately, there is no statistical or anecdotal suggestion that the EEOC has throttled down on enforcement or is more likely to settle cases.  That suggests there is a queue of potential cases waiting to be filed.

Cases Filed By EEOC Districts

The most noticeable trend of this fiscal year is a return of the usual leaders of the pack: the Chicago Miami, and Los Angeles District Offices, with 12, 8 and 8 filings, respectively.  Chicago experienced a surprising dip in FY 2020 at only 3 filings, shot back up in 2021, but still lagged behind several other districts until this year.  Similarly, the Los Angeles District, which historically has been a leading district for the EEOC, ended the year on top as well.  The Miami District has also been very consistent, lodging at least 8 filings for five years in a row.  Finally, the biggest surprise District in FY 2022 was Charlotte, which filed 10 merit cases this year after accounting for only 4 filings last year and only 1 filing in FY 2020.

Analysis Of The Types Of Lawsuits Filed In FY 2022

Each fiscal year we also analyze the types of lawsuits the EEOC files (i.e., the statutes and theories of discrimination implicated) to hone in on the focus of the EEOC’s current strategic priorities.  Those numbers – when considered on a percentage basis – are in line with the numbers we have seen the last few years.  The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.

When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2021 and 2020. Title VII cases once again made up the majority of cases filed, accounting for 65% of all filings (on par with the 62% in 2021 and 60% in FY 2020).  ADA cases also made up a significant percentage of the EEOC’s filings, totaling 29% this year, a moderate decline from 36% in 2021 and 30% in FY 2020.  Notably, there were 7 age discrimination cases filed this year, a significant increase from last year’s single case.

March 2022 Budget Justification And FY 2021 Performance Report

On March 28, 2022, the EEOC released its third-annual Annual Performance Report (“APR”) for FY 2021, as well as its budget justification for FY 2023.  The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important data points regarding the EEOC’s changing strategic objectives and potential focus for future enforcement activity.  The FY 2023 budget, on the other hand, outlines how the Commission intends to allocate funds in order to effectuate its goals via its proposed FY 2023 budget of $464,650,000.

In the APR, the EEOC declared that FY 2021 was a successful year for the Commission in terms of advancing its strategic objectives.  Indeed, the EEOC secured more than $485 million in monetary relief for over 15,000 alleged victims of employment discrimination.  By comparison, the EEOC recovered $535.5 million in FY 2020, $486 million in FY 2019, and $505 million in FY 2018.

Moving into 2023, the EEOC justifies its $464,650,000 budget request — a whopping $60 million increase from last year — based on advancing the strategic priorities for the fiscal year.  Commissioner Burrows indicated that those priorities correlate with the Biden Administration’s call for a “whole-of-government approach to addressing systemic discrimination and advancing equal opportunity.”  Perhaps this budget is exactly what the EEOC needs for a comeback from last year’s downturn.

Implications For Employers

Despite the EEOC’s relatively quiet FY 2022, employers should continue to keep a close eye on the Commission’s litigation trends. Specifically, given the EEOC’s notable budget increase and looming change in leadership, we still expect filing numbers to ramp up in the near future.  Moreover, with the EEOC set to adopt a new strategic plan for FY 2023, the timing appears right for a new Democratic-led Commission to implement a new set of priorities and emphasize these priorities through litigation.

We will continue to monitor these changes closely and keep readers apprised of developments.  And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate, and share lessons learned from FY 2022 to carry employers through the new year.

By Adam R. Young, James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: With Hurricane Ian drenching the Gulf Coast, Florida, and the Atlantic coastal states, employers are facing daunting emergencies, safety and health risks, property damage, employee disruption, and re-building.  

This blog contains an updated primer on (1) preparing for an emergency; (2) taking action during an emergency; and (3) cleaning up and resuming business after an emergency.

Preparing for an Emergency

29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency. At a minimum, the EAP must include the following elements:

  • Means of reporting emergencies (fires, floods, etc.);
  • Evacuation procedures and assigned exit routes;
  • Procedures to account for all employees following an evacuation;
  • Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;
  • Rescue and/or medical duties for employees who are assigned and trained to perform them; and
  • Names or job titles of people who can be contacted for more information about the plan.

In addition to these required elements, it is recommended that employers also consider including the following in the EAP:

  • Procedures for protecting employees from COVID-19 during the emergency;
  • The location of the nearest hospital or emergency medical center;
  • The type of alarm system used to notify employees of an emergency;
  • Procedures for protecting information including procedures for storing or maintaining critical documents and records;
  • The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.; and
  • The location of televisions or radios for further information during a disaster.

Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan. When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective. Employers also must document the training.

OSHA has posted links and recommendations on its website to help employers prepare for hurricanes. The website includes tips regarding how to create evacuation plans and assemble emergency supply kits. The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website.

Responding to an Emergency

Communication during an emergency is critical to maintain organization and prevent panic and injuries. For example, not all emergencies require an evacuation of the workplace.  In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees. The first questions most people ask during an emergency is “should I stay or should I go?” Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for “evacuate” emergencies than for “stay put” emergencies. Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert. Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.

Employers should have an effective means of communicating with employees about the following during an emergency:

  • Whether to evacuate or stay put;
  • How and where to get information about the emergency itself;
  • What areas of the building to avoid;
  • How and when it is safe to return to the work area; and
  • How and when it is acceptable to contact family members and loved one.

Picking Up the Pieces

Once the proverbial dust settles after an emergency, hazards to employees can still remain. For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes. Hazards are even greater for employees who are tasked with cleaning up after an emergency.

Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:

  • Exposure to COVID-19 hazards,
  • Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;
  • Downed power lines and trees;
  • Heat illness, including the complications of wearing face masks in the muggy August climate;
  • Confined spaces;
  • Blood borne diseases or other contagions;
  • Mosquito borne diseases; and
  • Structural destabilization.

OSHA’s website provides a Hurricane eMatrix for Hurricane Response and Recovery Work, outlining the most commonly performed duties during hurricane response and recovery work, and the hazards employees could face. OSHA has developed specific standards to address many of these hazards.

Recommendations

It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. We recommend that employers consider the following:

  • Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;
  • Be cognizant of hazards employees may face even after the immediate danger has passed;
  • Train employees in evacuation plans and other emergency response procedures;
  • Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work; and
  • Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor’s worker’s compensation history, its OSHA logs, and its history of citations from 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 Danielle Kays and James Nasiri

Seyfarth Synopsis: On September 22, 2022, the Illinois Supreme Court heard oral arguments in an Illinois Biometric Information Privacy Act (“BIPA”) case entitled Tims v. Black Horse Carriers, Inc.  Following an Illinois appellate court’s decision that a one-year limitations period applies to certain sections of the Act while a five-year period applies to other sections, the sole issue on appeal for the Supreme Court is to identify the proper statute of limitations for claims under the BIPA.  Though the Court did not offer any strong indications as to how it will rule on this contentious question, Illinois employers should closely monitor this decision in light of its inevitable effect on BIPA litigation moving forward.

Background on Tims v. Black Horse Carriers

This case originated in March 2019, when plaintiffs Jerome Tims and Isaac Watson filed a class action lawsuit against their employer, logistics company Black Horse Carriers, Inc.  Plaintiffs alleged that the company unlawfully collected, possessed, and disclosed their fingerprints in violation of BIPA when the employees clocked in and out of work using a finger scanning timeclock.  The company moved to dismiss the plaintiffs’ claims as untimely, arguing that, because the BIPA does not contain its own statute of limitations, the court should apply the one-year limitations period for privacy actions set forth in § 5/13-201.  The plaintiffs countered that the five-year “catch-all” limitations period contained in § 5/13-205 was more appropriate for actions under the BIPA.

In a somewhat unique ruling on interlocutory appeal, the Illinois First District Appellate Court effectively “split the baby” by holding that both the one-year and five-year limitations periods applied to different sections of the Act.  Specifically, the Appellate Court reasoned that the one-year period from § 201 applies to BIPA Sections 15(c) and 15(d) because these sections involve “publication” of biometric data, which is a term explicitly used in § 201.  Conversely, since the Appellate Court found that Sections 15(a), (b), and (e) of the BIPA do not involve publication of an individual’s biometric data, it applied the five-year limitations period from § 205 to these sections.  The defendant subsequently appealed this decision to the Illinois Supreme Court.

Highlights from Oral Argument

Black Horse Carriers’ argument primarily centered on statutory interpretation.  Namely, the company focused on the plain language of § 201, which states that “[a]ctions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year . . . .”  By citing the dictionary definition of “for,” the company contended that a plain reading of the phrase “for publication” means “in relation to or concerning” publication.  Because the Supreme Court in West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 183 N.E.3d 47 (Ill. 2021) found that the term “publication” suggests a disclosure to either the masses or to just one individual, like a single BIPA defendant, every section of the BIPA therefore involves some degree of publication.

In response, plaintiffs argued that “publication” is not an essential element of a BIPA claim, citing both the Act’s plain language and case law.  As to BIPA’s statutory language, plaintiffs contended that “publication” necessarily requires that some information be made public, in contrast to “dissemination” or “disclosure” of biometric data from an employer to a third party, which can occur without such data being publicized.  As an example, plaintiffs argued that a thief stealing items from someone’s personal safe would not be deemed a “publication” because nothing was made public.

The Justices asked only a few clarifying questions during oral argument.  In one instance, Justice Overstreet asked plaintiffs to respond to the company’s brief noting that Illinois’ Second District Appellate Court had previously applied the one-year limitations period to the Illinois Right of Publicity Act, and that same analysis should apply to BIPA.  Plaintiffs responded that the Right of Publicity Act concerns data breaches that necessarily involve publication, but on rebuttal, the company countered that the law actually concerns name, image, and likeness standards which are more akin to the governing of biometric data.  Justice Michael Burke also chimed in during plaintiffs’ argument, noting that the Appellate Court’s holding simply seemed “unworkable” in light of the parties’ contrasting positions on the appropriate interpretation of the BIPA.  Finally, Justice Michael Burke interestingly noted that this case is unique because neither party argued that the Appellate Court correctly interpreted the BIPA’s statute of limitations.

Looking Ahead

Given the flood of BIPA class action lawsuits filed against Illinois businesses after the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Ent. Corp., 129 N.E.3d 1197 (Ill. 2019), employers should pay special attention to the decision in Tims.  The Illinois Supreme Court Justices did not suggest that they would rule in a certain way during oral arguments, but one takeaway was evident: the Supreme Court may not uphold the Appellate Court’s decision in its entirety.  Nevertheless, while a decision in Black Horse’s favor would not fully curtail this recent wave of BIPA filings, it would certainly help limit the number of plaintiffs eligible to sue under the BIPA, as well as the potential amount of damages owed to these plaintiffs.

With respect to the expected timing of this decision, the Supreme Court’s FAQ page provides that parties should expect a decision “a few months” after oral arguments.  More specifically, a 2017 analysis by the Illinois Supreme Court Review found that the average time between oral argument and decision at the Illinois Supreme Court was 137.8 days (about 4 1/2 months).  Therefore, a decision in Tims likely will not be issued until early next year.  Finally, it is also important to note that the Illinois Supreme Court is still considering the related question of when a claim accrues under the BIPA, as part of a case entitled Cothron v. White Castle Systems.  For an excellent synopsis of Cothron, see our prior blog on the matter HERE.

By Jennifer L. Mora and Frederick T. Smith

Seyfarth Synopsis As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which amended the New Jersey Constitution to legalize recreational cannabis.

The law allows employers to conduct numerous forms of drug testing for cannabis, but limits an employer’s ability to rely on a positive cannabis test result in making employment decisions. It requires that a drug test include both “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” and a “physical evaluation.” The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of cannabis. The law tasked the Cannabis Regulatory Commission with adopting standards for this “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from cannabis or other intoxicating substances and to assist in the investigation of workplace accidents.

On August 19, 2021, the Commission published its “Personal Use Cannabis Rules,” which said virtually nothing about employer drug testing practices. It did, however, suspend the physical evaluation requirement until the Commission “develops standards” for the WIRE. Although the law has been on the books for 18 months, the Commission has not adopted any standards.

Instead, on September 9, 2022, the Commission released interim Guidance to assist employers with making “workplace impairment” determinations. In the Guidance, the Commission highlights the need for employers to “establish evidence-based protocols for documenting observed behavior and physical signs of impairment to develop reasonable suspicion, and then to utilize a drug test to verify whether or not an individual has used an impairing substance in recent history.”

The Guidance advises that employers can “continue to utilize established protocols for developing reasonable suspicion of impairment and using that documentation, paired with other evidence, like a drug test, to make the determination that an individual violated a drug free workplace policy.” The Guidance goes on to remind employers that they cannot take employment action against an individual “solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.” However, a positive test result can be considered when “combined with evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours.”

Fortunately, the Guidance provides best practices for employers to consider that will help them determine workplace impairment, at least until the Commission issues the WIRE standards, which include:

  1. Designating an interim staff member or a third-party contractor who is trained to determine impairment and qualified to complete the Reasonable Suspicion Observation Report developed by the State.
  1. Establishing a standard operating procedure for the completion of a Reasonable Suspicion Observation Report by an employee’s manager or supervisor or another manager or supervisor, with the assistance of the staff member described above.
  1. Continuing to use their own reasonable suspicion observation reports or checklists.
  1. Using cognitive impairment tests, “a scientifically valid, objective, consistently repeatable, standardized automated test of an employee’s impairment,” and/or an ocular scan. We find this last category to be confusing; we do not know how practical or effective the first and third options are in this context, and in our opinion, the science, while improving, has not led to a testing methodology that meets the second definition.

As more states and localities enact laws prohibiting employers from considering positive cannabis test results absent other evidence of workplace impairment, the need for a robust and defensible reasonable suspicion testing program is critical. While we await the Commission’s WIRE standards, New Jersey employers should consider modifying their drug testing policies and practices, providing training and documentation to managers tasked with making reasonable suspicion determinations, and determining the drug test most appropriate to use in conjunction with workplace impairment determinations. We will provide an update as soon as the new regulations are adopted.

earth-3537401_1920Seyfarth is committed to helping leading employers and in-house counsel adapt to the rapidly changing business landscape and prepare for what may lie ahead. As part of that commitment, since 2017, Seyfarth has carried out a suite of initiatives based on helping clients understand the future of work and empowering them to tackle emerging workplace issues proactively. One such initiative is a two-part webinar series on The Future of the World of Work, which explores the powerful drivers reshaping work in the coming years. If you missed this series, you can read a recap of Part 1 here and Part 2 here

Five years after Seyfarth’s inaugural Future of Work survey, the world and workplaces have changed faster than anyone would have anticipated. Seyfarth has remained steadfast in assisting leading employers to navigate work, business, and the economy as they are continually transformed by emerging technologies and cultural shifts, not to mention the pandemic. Seyfarth’s clients have been working hard to meet the challenges and seize the opportunities created by these changes and our specialist team of lawyers have been working alongside them to make this process as straightforward as possible.

The needs and objectives of major employers are continuing to evolve, particularly given the dramatic, fast paced changes we have experienced in recent years. Seyfarth places a high premium on remaining up-to-date on what matters to employers and, therefore, we are pleased to announce our 2022 Future Employer survey. We invite you to join the conversation by taking our two-minute survey. We look forward to sharing the survey’s outcomes so you can learn what opportunities and challenges are in store.

Take the 2022 Future Employer survey here.

Please Join Us

Best Practices and Considerations for Employee Demand Letters, Charges and Early-Stage Lawsuits

Wednesday, September 28, 2022
8:30 – 9:00 a.m. Breakfast and Registration
9:00 – 10:30 a.m. Program

Seyfarth Shaw LLP
233 S Wacker Drive, Suite 8000
Chicago, IL 60606

In the days leading up to the event, we will email you a COVID-19 Visitor Questionnaire that is required for all visitors to enter our space.

Register Here

About the Progam

Every organization, regardless of size, is likely to receive a demand letter, administrative charge, and/or lawsuit from an employee at some point. How the Company handles the matter, especially in the early stages of litigation, including responding to demand letters and administrative charges, can have significant implications on the overall strength of the Company’s defense and litigation position.

Join our Seyfarth Chicago Labor & Employment attorneys to discuss important considerations for addressing and responding to demand letters, administrative charges, and early-stage lawsuits, including:

·     Do’s and don’ts for responding to a charge/preparing a position statement

·     Best practice for responding to a demand letter

·     Tips and requirements for document preservation and litigation holds

We hope you can join us!

Speakers

Uma Chandrasekaran, Partner, Seyfarth Shaw LLP
Matthew C. Christoff, Associate, Seyfarth Shaw LLP
Michael D. Jacobsen, Partner, Seyfarth Shaw LLP
Danielle M. Kays, Senior Counsel, Seyfarth Shaw LLP

 

By Linda C. Schoonmaker and Eron F. Reid

Seyfarth Synopsis: Baylor Miraca Genetics Laboratories, LLC (“BMGL”) is in the genetic test business. BMGL sells its tests to its “channel partners,” who in return test specimens ordered by physicians. Brandon Perthuis became BMGL’s Vice President of Sales and Marketing in early 2015. The two-page employment agreement drafted by BMGL provided Perthuis with a base salary and commission payments. The commission provision in the employment agreement simply stated “[y]our commission will be 3.5% of your net sales,”–nothing more and  failed to define “net sales” or place any other condition on the commission payment obligations.

In 2015, Perthuis  landed a five-year, minimum-purchase contract with BMGL’s most prominent client. BMGL subsequently paid Perthuis on all sales that resulted from the minimum purchase contract. After the client satisfied its minimum purchase requirement under the contract, BMGL directed Perthuis to negotiate a contract amendment which would substantially increase the client’s minimum purchase requirement. In January 2017, Perthuis was successful in negotiating the contract amendment, making it the largest such contract in BMGL’s history. However on January 23, 2017, the day before the contract amendment was executed, BMGL fired Perthius.

BMGL refused to pay Perthius commissions on any sales that were finalized after his termination, including sales that flowed from the amended contract. In fact, BMGL revised its entire commission and compensation plan for its junior sales team, which expressly stated that commission fees would only “be made to employees if employed at the end of the commission period.” Perthuis sued BMGL for breach of contract, seeking payment of the unpaid commissions resulting from the contract amendment.

At trial, the court gave an instruction to the jury on the “procuring-cause doctrine.” The procuring cause doctrine, articulated by the Texas Supreme Court in Goodwin v. Gunter, is a default rule which applies “only when a valid agreement to pay a commission does not address questions like how a commission is realized or whether the right to a commission extends to sales closed after the brokerage relationship ends.” 109 Tex. 56, 58, 185 S.W. 295 (1916), on reh’g, 109 Tex. 56, 195 S.W. 848 (1917). The function of the procuring-cause doctrine is to credit a salesman or agent for a commission-generating sale produced through the salesman’s efforts. Under the doctrine, the salesman’s entitlement to a commission vests on having procured the sale, not on the actual involvement in the sales execution or continued employment through the final consummation of the sale.

The jury found that Perthuis was in fact the procuring cause of at least some of BMGL’s sales flowing from the  contract amendment. On appeal, however, the judgment entered by the trial court based on the jury verdict was reversed based on the appellate court’s conclusion that the procuring-cause doctrine did not apply in this case and that Perthuis’s employment agreement unambiguously entitled him only to commissions for sales procured during his term of employment.

Wrong, said the Texas Supreme Court. In Perthius v. Baylor Miraca Genetics Laboratories, LLC, 645 S.W.3d 228 (Tex. 2022), the Court held that because the employment agreement between BMGL and Perthius was silent as to any exceptions to the duty to pay sales commissions that Perthius procured, the procuring-cause doctrine did apply and that the “at will” declaration in Perthius’s employment contract did not displace the procuring-cause doctrine.

What is the take-away here? The means to thwart the application of the procuring cause doctrine is simple. Employment agreements with employees receiving any part of their compensation through commission payments should be explicit with respect to the payment of commission post-resignation or termination. Had BMGL simply included a term conditioning commission payments on continued employment, as the Court explained, the default procuring-cause doctrine would not have applied. And, it is too late to make that change post-termination. So, employers should consider reviewing the agreements they currently have in place with commissioned employees based on the Texas Supreme Court’s recent decision now.

By Jennifer L. Mora

Seyfarth Synopsis: On May 25, 2022, Rhode Island Governor Daniel McKee signed “The Rhode Island Cannabis Act,” which grants adults aged 21 and older the right to possess and grow certain amounts of cannabis for recreational use. Retail sales are expected to begin as early as December 1, 2022. The new law, which is effective immediately, joins the growing number of states restricting the ability of employers to conduct pre-employment cannabis testing and act based on their employees’ lawful off-duty use, most recently in District of Columbia and New York.

The Cannabis Act allows employers to maintain and enforce a drug-free workplace policy that prohibits employees from using or possessing cannabis in the workplace and from being under the influence of cannabis while they are performing work, including remote work. The law also does not require employers to accommodate the medical use of cannabis in any workplace. Of course, employers still must be mindful of the employment protections included in the state’s separate medical marijuana law.

Employers cannot, however, terminate or take any disciplinary action against an employee based solely on the employee’s private, lawful use of cannabis outside of the workplace, unless the employer can prove the employee has worked, or is working, under the influence of cannabis. As a positive cannabis test result does not prove impairment, an employer must show other indicia of impairment if it takes action against an employee it believes to be under the influence or impaired while working.

These protections do not apply if:

  • The employer is a federal contractor or otherwise subject to federal law or regulations such that failure to take such action would cause the employer to lose a monetary or licensing-related benefit.
  • The employer and any labor union representing the employees have negotiated a collective bargaining agreement that prohibits off-duty cannabis use.
  • The employee works in a position that is hazardous, dangerous, or essential to public welfare and safety, which includes, but is not limited to: the operation of aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school vehicles, school buses, or public transportation; the use of explosives; public safety first responder jobs; and emergency and surgical medical personnel. If the employee works in such a position, the employer may adopt and implement policies which prohibit the use or consumption of cannabis within the twenty-four (24) hour period prior to a scheduled work shift or assignment. Of course, those working in Department of Transportation-regulated safety-sensitive positions, such as commercial motor vehicle drivers, pilots, and pipeline employees, are subject to mandatory alcohol and drug screening. The DOT has issued separate bulletins reminding DOT-regulated employers and their employees that it “remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” even for medicinal use.

What about job applicants? The Cannabis Act’s limitations on employers refer to employees, with restrictions on the ability of an employer to “fire or take disciplinary action against an employee,” neither of which apply to job applicants. That said, the overall intent of the Cannabis Act’s employment provisions is to protect private off-duty cannabis use at a broad level – any use by a job applicant is necessarily private and off-duty. As such, while job applicants and pre-employment tests are not expressly mentioned in the restrictions on employers, the overall intent of the law suggests that pre-employment cannabis testing in Rhode Island is now prohibited, unless the employer fits within one of the narrow exemptions identified above.

Rhode Island employers should consult experienced employment counsel to determine what modifications to their drug testing policies may be necessary in light of the new law and Rhode Island’s medical marijuana law, which provides broader protections to employees who lawfully use medical marijuana, or to develop a written policy. Employers conducting drug tests in Rhode Island also must ensure their policies and practices comply with the state’s drug testing statute.

If you have questions regarding this article, please contact the author or your Seyfarth attorney.

By Saman Haque and Ellen E. McLaughlin

Seyfarth Synopsis: In a recent ruling, Roberts v. Gestamp (Decided August 15, 2022), the Fourth Circuit reversed, in part, the lower court’s decision to grant the Company’s motion for summary judgment on the grounds that the employee did not follow the Company’s “usual and customary” absence notice procedures as required by the Family and Medical Leave Act (“FMLA”).  Because the terminated employee’s manager accepted previous messages regarding absences via Facebook Messenger, the Company’s position that using Facebook Messenger was not its “usual and customary” notice practice for reporting FMLA absences, was called into question. The Court found that previous utilization of Facebook Messenger to communicate absences raised a question of material fact for a jury to determine if a Facebook Messenger Chat satisfied the FMLA’s notice requirements.

Plaintiff Kasey Roberts worked for the Defendant Gestamp West Virginia LLC. on its assembly line. Gestamp’s written attendance and leave policy required employees to notify their manager through its call-in system at least 30 minutes before the employee’s shift started. Missing three consecutive shifts without calling in constituted job abandonment and grounds for termination.

On July 25, 2019, Plaintiff Roberts notified his Manager, Gary Slater, by Facebook Messenger that he would need an emergency appendectomy and could not report to work. Following his emergency surgery, he messaged Manager Slater he would be absent for two weeks. Plaintiff Roberts followed up by dropping off a doctor’s note to Gestamp’s facilities. This leave was approved. Before his return to work, Plaintiff Roberts was readmitted to the hospital and again used Facebook Messenger to inform Manager Slater of his absence from work. Plaintiff Roberts requested an extension of his leave and asked for the Human Resources fax number. He provided a doctor’s note via fax. Manager Slater and Plaintiff Roberts exchanged communication via Facebook Messenger regarding health updates and Plaintiff Roberts’ return to work estimation. This FMLA approved absence started on July 25, 2019 and ran through August 12, 2019.

Plaintiff Robert’s returned to work on August 12, 2019. He worked for four days. On August 17, 2019, he messaged Manager Slater via Facebook Messenger that he felt pain in his stomach and would be absent. On August 20th, Plaintiff Roberts messaged Manager Slater again via Facebook Messenger explaining he would not be in to work and he was in the hospital dealing with an infection. Manager Slater reported these new absences to Human Resources because Roberts did not adhere to the written call-in procedure. Plaintiff Roberts returned to work September 3, 2019.

Upon returning to work, Gestamp informed Roberts that he was terminated for job abandonment. Roberts then sued Gestamp for FMLA interference, retaliation and wrongful discharge claiming that using Facebook Messenger to report FMLA absences was sufficient notice under the FMLA.

The Company argued that the first leave of absence communicated via Facebook Messenger constituted an exception because Plaintiff Roberts’ emergency appendectomy warranted his inability to follow the usual and customary written notice procedure. The Company also argued that in the past, when Plaintiff Roberts failed to use the call-in line to report an absence, the Company issued discipline.

The lower court accepted the Company’s argument that because Roberts failed to use the Company’s call-in line to report his absence, he failed to follow the Company’s usual and customary practice to report absences and as such, his absences were occurrences under the attendance policy rather than job-protected FMLA absences. The 4th Circuit Court of Appeals reviewed the district court’s decision and took a closer look at whether the Facebook Messenger Chat sent to Roberts’ Manager, Gary Slater, satisfied the FMLA’s “usual and customary” notice requirement. The Fourth Circuit reversed the district court, relying on Sixth Circuit case law and another district court case, both finding that that the plain meaning of “usual and customary”  does not require that an employee must adhere to the notice procedure stated in an official written policy to fulfill the FMLA notice requirements when an unwritten and “typically followed” procedure exists.[1]

Here, based on the facts, the Fourth Circuit determined that a jury could find that Roberts followed usual and customary procedures because usual and customary can mean “any method” that an employer implemented by informal practice or course of dealings that it regularly accepted in addition to  those in the written attendance policy. Because Roberts’ Manager previously accepted other attendance absences via Facebook Messenger, and not the call-in line, it was not unreasonable for Roberts to think he complied with the usual and customary practices of the Company. The Fourth Circuit thus reversed the lower court’s finding of summary judgment on Roberts’  FMLA claim, but affirmed the lower court’s findings on retaliation and wrongful discharge.

Practical Point – Managers should not approve absences that do not comply with a company’s stated call-in procedures

Employers should communicate and train all managers on their attendance and leaves of absence policies and instruct them to not accept an employee’s report of an absence that does not follow the Company’s stated policy. The Gestamp decision is an important reminder that policies must be consistently followed and that any exception allows an employee to argue that other methods of reporting an absence, including absences under the FMLA, were reported according to accepted practices.

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

 

[1] Honeycutt v. Balt. Cnty., Md., No. 06-0958, 2006 U.S. Dist. LEXIS 49315, at *11 (D. Md. July 7, 2006); Festerman v. County of Wayne, 611 F. App’x 310, 316 (6th Cir. 2015).

 

By Emily A. Dorner and Karla Grossenbacher,

Seyfarth Synopsis: Employers need to be aware of the significant changes that are on the horizon when the California Privacy Rights Act (CPRA) becomes operative on January 1, 2023. 

By way of background, in November of 2021, California residents voted to pass the CPRA, which affords California consumers heightened rights and control over their personal information.  California residents already have a number of rights under the California Consumer Privacy Act (CCPA), and the CPRA will provide even more rights to individuals — including employees — in California.

Currently, the only obligations that covered employers have under the CCPA is to provide a notice of collection and to reasonably safeguard personal information due to a partial exemption under CCPA for information collected in the context of employment.  However, this will change on January 1, 2023, when the partial exemption for employers under the CCPA will expire.  Although bills were proposed to extend the exemption for employers until at least January 1, 2026, the last day on which the California legislature could have passed those bills into law was August 31, 2022.

What’s New For Covered Employers In 2023 Under CPRA?

California employees of covered employers will have increased rights as of January 1, 2023, and accordingly, their employers will have increased compliance obligations.  The new rights for California employees will include, among others:

(1) the right to know: the employee’s right to notice regarding the type(s) of personal information that their employer collects, sells, shares, or discloses, as well as the right to make a request that the employer to disclose personal information it has collected about the employee;

(2) the right to rectification: the employee’s right to correct or rectify the personal information that their employer maintains;

(3) the right to deletion: the employee’s right to request that the employer delete the personal information that the employer has collected about them;

(4) the right to data portability: the employee’s right to request that their employer provide them with, or transmit to another entity, a copy of their personal information in a reasonable format;

(5) the right to limit use and disclosure of sensitive personal information: the employee’s right to request that their employer limit the use and disclosure of “sensitive personal information” to certain defined activities.

Employers will need to evaluate employee requests to exercise their rights to determine their obligations under the CPRA, as employers may have certain bases to deny employee rights requests.  For example, should an employee attempt to exercise their right to deletion, the employer could rightfully deny that request to the extent that certain personal information is required to carry out the employment relationship (to process payroll, provide benefits, etc), or because of statutory requirements that dictate the retention of certain employment related information.  Further, the right to rectification can also be significantly limited to certain personal information that can be verified.  However, in the wake of employee requests, covered employers must keep in mind that the CPRA prohibits discrimination against employees for exercising their rights under CPRA.

What Organizations Can Do to Prepare

In the coming months, there are a number of steps that employers can and should take to prepare for their new obligations under the CPRA.  Organizations should consider the following when determining whether their processes and procedures are CPRA ready:

Data Inventory: Employers need to assess the locations of personal information, including employee personal information, and create a data inventory.  Data inventories are helpful when an employer needs to identify the location(s) of employee data in response to an employee request under CPRA.  For example, an employer cannot delete data if it does not know where it is.  Employers should inventory not just their own data, but also data being held by third party service providers and contractors as these are also components of information required to be communicated when responding to access requests.

Records Retention: Employers might also assess their current records retention policies and schedules to ensure that they reflect retention periods appropriate for the states and/or jurisdictions in which they operate.  With privacy principles like data minimization and storage retention continuing to be adapted and grow, the importance of appropriate records retention is growing in parallel.

Review of Existing Practices: Employers should also review their current CCPA notices of collection, as well as current policies and procedures related to privacy and cybersecurity, to determine any changes that should be made under CPRA to address the processing of new or sensitive personal information, the processing of information for new purposes, the length of time the personal information will be maintained, and the categories of third parties that will have employee personal information.

Vendor Assessment: Employers should review any contracts they maintain with any vendor that processes personal information about their employees and ensure that the contracts meet CPRA requirements.

Conclusion

This is a significant change for employers with employees in California; for some it will require a re-assessment of how personal data is handled and maintained, along with changes to current policies and procedures, but for others it will require a complete overhaul of current privacy and cybersecurity activities.  These compliance initiatives cannot be put into place overnight; employers should expect it to take anywhere from three to six months to stand up a compliant privacy and cybersecurity program.  That said, while compliance will not be enforced until July 1, 2023, employers can and should help themselves by beginning to make these changes now.