By Latoya R. Laing and Erin Dougherty Foley

Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.

Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.

Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:

Employee Opt-Out

The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:

  • 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
  • 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
  • 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
  • 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)

Statute of Limitations

Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).

Notice Requirement

The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.

The Illinois Human Rights Commission

The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:

  • Decreasing 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.
  • Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.

Charge Proceedings

In an effort to create more transparency in Commission and IDHR proceedings the statute provides 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 now requires that Commission decisions are based on neutral interpretation of the law and the facts.
  • The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • 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.

775 ILCS 5/7-109.1 – 5/8B-103

Employers Covered under the Act

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.

More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.

Still have Questions?

Consider signing up for the March 14, 2019 “What’s Happening in Illinois” Breakfast Briefing that will be conducted at Seyfarth’s Chicago office.

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

 

By Megan P. Toth and Erin Dougherty Foley

Seyfarth Synopsis: The Washington State Office of the Attorney General has recently published a Guide outlining pregnant employees’ civil rights under the Washington “Healthy Starts Act,” a law which became effective July 23, 2017.

Under the Healthy Starts Act, employers with at least 15 employees in the state of Washington must provide certain accommodations to pregnant works, regardless of a disability, and the Act provides a list of nine accommodations to be considered, including:

  1. Providing more frequent, longer, or flexible restroom breaks;
  2. Modifying a no food or drink policy;
  3. Providing seating or allowing the employee to sit more frequently if her job requires her to stand;  and
  4. Limiting lifting to 17 pounds or less.
  5. Job restructuring, including a part-time or modified work schedule, job reassignment to a vacant position, or providing or modifying equipment, devices, or an employee’s work station;
  6. Providing for a temporary transfer to a less strenuous or less hazardous position;
  7. Providing assistance with manual labor;
  8. Scheduling flexibility for prenatal visits; and
  9. Any further accommodations the employee may request, which an employer must give reasonable consideration, taking into account any Department of Labor & Industries or other medical documents provided by the employee.

The rececently issued Guide outlines employers’ obligations with regard to the above suggested accommodations, and sets forth employer prohibited acts with regard to pregnancy accommodations under the Act. Specifically, the Guide clarifies that employers must provide accommodations 1-4 above and cannot request medical certification from a health care professional for those accommodations, and employers may request written certification from a health care professional regarding the need for the accommodations in 5–8 above, or for restrictions on lifting less than 17 pounds.

The Guide also outlines “prohibited practices” under the Act, which include: (1) Failing or refusing to accommodate a pregnant employee, unless doing so would impose an “undue hardship,” which is defined as “an action requiring significant difficulty or expense.” (2) Retaliating against a pregnant employee who requests a change to their work environment (3) Denying employment opportunities to an otherwise qualified employee because of their needs, or (4) Requiring a pregnant employee to take leave if an alternative solution could be provided.

Finally, the Guide provides information for employees regarding how to report a violation of their rights under the Act.

So what now? The Guide does not actually change or alter employers’ obligations under the Act with regard to pregnancy accommodations, but rather clarifies and outlines what employers should be doing (since the law was enacted in July 2017). Therefore, employers should review their pregnancy accommodation policies and practices in Washington, and ensure they comply with the Act, as outlined in the Guide.

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

By Condon McGlothlen and Colton D. Long

Seyfarth Synopsis: Since 2001, Illinois has required that employers provide unpaid nursing or lactation breaks for working mothers. Effective last week, at least some of those breaks must now be paid.

On August 21, 2018, Governor Rauner signed a bill amending the Illinois Nursing Mothers in the Workplace Act. The amendment took effect immediately, and requires that Illinois employers provide paid breaks to mothers who breastfeed or express milk at work. The Act previously required that Illinois employers provide “reasonable unpaid break time” to nursing/expressing employees. It also said that breaks provided to nursing/expressing employees “must, if possible, run concurrently with any break time already provided to the employee.”  As amended, nursing breaks “may” still run concurrently with other breaks. However, as to the “reasonable” number of additional breaks beyond those regularly provided to all employees, an employer “may not reduce an employee’s compensation for the time used for the purpose of expressing milk or nursing a baby.” In short, nursing employees must now be paid for those extra breaks.

To understand how this works, first determine what the law (or your lawful policy) already provides as regards breaks. The federal Fair Labor Standards Act doesn’t require any rest or meal breaks, but mandates that employees be paid for short breaks ranging from between 5 and 20 minutes. It also says employers can provide an unpaid meal break of at least 30 minutes, so long as the employee is not required to perform any work during that time. Separately, Illinois law mandates that employees who work 7.5 continuous hours or more receive an unpaid meal break of at least 20 minutes. Thus, in order to comply with both federal and state law, many Illinois employers provide an unpaid meal break of at least 30 minutes.

Under the Illinois Nursing Mothers Law as amended, nursing employees can still be required to use that unpaid meal break for nursing or expressing milk (along with any other breaks the employer chooses to provide employees generally). Also like before, nursing mothers are entitled to a “reasonable” number of additional nursing/expressing breaks. Unlike before, however, those extra breaks must now be paid.

In addition, the amendment specifies that the reasonable – now paid – breaks requirement runs only for “for one year after the child’s birth.” Previously, the Act did not limit the time during which working mothers were entitled to additional nursing breaks. Lastly, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” The amendment changed that affirmative defense language; now, in order to be to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship”, a demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act. The amendment thus makes it harder for an employer to argue that business demands or other reasons should relieve it from compliance.

Since the amendment is now in effect, Illinois employers must promptly review their current nursing/lactation policy and see if it complies with the recent amendment. If not, revise it as soon as possible. In the meantime, follow the new law. If a working new mother requests additional breaks for nursing, don’t be afraid to discuss with her appropriate details regarding the number and frequency of those breaks. The Act, both before and as amended, envisions a joint, interactive determination of how many additional breaks are needed. And don’t count on having an affirmative defense for not providing paid nursing breaks, especially if you are a large employer; that uphill climb got even steeper last week.

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

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 Jim Gehring

Seyfarth Synopsis:  The IRS has announced a program that allows employees to donate the value of their vacation, sick time, or other paid time off (“PTO”) for the relief of victims of Hurricane or Tropical Storm Harvey. 

Under IRS Notice 2017-48, issued on September 5, employers may contribute the value of the PTO contributed by their employees as Harvey relief to a non-profit organization and will be entitled to a deduction that may be treated as a business expense, rather than a charitable contribution, as long as the donations are specifically for the relief of Harvey victims and are made by January 1, 2019.

The employees who make the donations will not be entitled to take charitable deductions, but will not be subject to income or social security taxes on the amounts donated.

This differs from a traditional leave donation program, under which employees can donate a portion of their PTO to be used in kind by employees who were affected by a natural disaster such as Harvey. The temporary relief announced by the IRS allows the value of the donated PTO to be converted into cash charitable contributions, making it more widely useful, particularly in the case of employers who do not have employees located in the area affected by Harvey.

This relief is in addition to the IRS announcement last week that it was relaxing the rules governing the documentation of hardship withdrawals and loans from 401(k) plans for employees located in the areas affected by Harvey.  For more information on that relief, see our management alert.

Finally, some clients have expressed an interest is using their affiliated private foundations (as opposed to public charities such as the Red Cross) to make charitable contributions for the relief of Harvey victims, so that the relief can be targeted to their employees located in the affected areas. After opposing this practice in the past, the IRS has changed its position and will now allow a private foundation to give priority to employees of the sponsoring employer in making individual hardship relief grants, as long as certain safeguards are met.

If you any questions about actions that employers can take to help alleviate the hardships caused by Hurricane Harvey, please contact Jim Gehring at (312) 460-5856 or dgehring@seyfarth.com or Kelly Pointer at (713) 238-1841 or kpointer@seyfarth.com.

By Anthony CalifanoAriel D. CudkowiczJohn Ayers-Mann, and Frederick T. Smith

Seyfarth Synopsis: On May 23, 2017, in Callaghan v. Darlington Fabrics Co., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users.

The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles’ song “With A Little Help From My Friends”: “I get high with a little help from my friends.”  In the 32-page opinion followed this witty opening, the Court held that an employer’s refusal to hire an individual based on her medical marijuana use violated Rhode Island’s medical marijuana statute, and the employer’s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (“RICRA”).

The Plaintiff, Christine Callaghan, applied for a position as an intern with Darlington Fabrics.  During her interviews, she disclosed to the company that she used medical marijuana and would test positive for it in her pre-employment drug test.  The company refused to hire her.  Callaghan filed a complaint alleging disability discrimination under the RICRA and seeking a declaratory judgment that the company’s refusal to hire her based on her medical marijuana use violated the Hawkins-Slater Act–Rhode Island’s medical marijuana statute.  Like its counterparts in numerous other states, the Hawkins-Slater Act prohibits an employer from refusing to employ “a person solely for his or her status as a [medical marijuana] cardholder.”

The Court addressed two primary questions. The first question was whether the Hawkins-Slater Act creates a private right of action that allows an individual to file a lawsuit in court for alleged violations of the statute.  The second question was whether a refusal to hire an applicant based on medical marijuana use could amount to disability discrimination under the RICRA.  The Court answered yes to both questions.

Addressing the private right of action question, the Court acknowledged that the Hawkins-Slater Act does not contain any express language authorizing an individual to sue an employer for violation of the statute.  The Court also acknowledged the general principle against assuming that a private right of action exists when the legislature chose not to create one.  On the other hand, the Court also recognized the legal principle that a court should not attribute to the legislature an intent to enact a meaningless statute.  Ultimately, the Court concluded that the Hawkins-Slater Act would be meaningless if it does not allow a private person to sue an employer for violating the statute.  Thus, the Court held that an implied private right of action exists under the Hawkins-Slater Act, and the employer violated the law by refusing to hire Callaghan because of her medical marijuana use.  In so holding, the Court rejected the notion that there is a meaningful distinction between a medical marijuana “cardholder” and a medical marijuana “user.”  The Hawkins-Slater Act, according to the Court, protects medical marijuana cardholders who use marijuana because a physician has recommended it. The Court therefore granted a declaratory judgment in Callaghan’s favor.

As for Callaghan’s claim of disability discrimination under the RICRA, the employer moved for summary judgment on several grounds.  The company argued, relying on the Americans with Disabilities Act, that active drug use is not a disability. The Court rejected this argument, reasoning that the RICRA defines disability more broadly than the Americans with Disabilities Act.  It also reasoned that an individual must have a “debilitating medical condition” to qualify as a cardholder under the Hawkins-Slater Act.  Accordingly, the employer could have inferred that Callaghan was disabled, and thus, could have discriminated against her on that basis.

The Court also rejected the employer’s argument that Callaghan was not a “qualified individual” with a disability because she engaged in the use of illegal drugs.  The Court concluded that, unlike other disability discrimination laws, the RICRA does not protect only “qualified individuals” with disabilities, but rather all persons with disabilities.  Thus, the Court concluded that the employer’s defense was inapplicable to Callaghan’s claims.

Perhaps most notably, the Court rejected the employer’s argument that the federal Controlled Substances Act (“CSA”), which classifies marijuana as an illegal drug, preempts the Hawkins-Slater Act.  The Court reasoned that the CSA is not intended to preempt state law unless it is in positive conflict with the CSA.  Because the Hawkins-Slater Act does not require the employer to violate the CSA, the Court held that the CSA does not preempt the Hawkins-Slater Act.

In light of its conclusions, the Court denied the employer’s motion for summary judgment on Callaghan’s disability discrimination claim under the RICRA.  Callaghan did not more for summary judgment in her favor on this claim, but the Court observed that “but for [Callaghan’s] disability–which her physician has determined should be treated by medical marijuana–[Callaghan] seemingly would have been hired for the internship position.”

While the Callaghan decision is not binding on any other courts, it is noteworthy.  It goes against the weight of authority from courts in other states in its analysis of the interplay between medical marijuana and anti-discrimination laws.  More importantly, it does so in a way that could require many employers with operations in Rhode Island (and perhaps other states) to change their policies regarding the hiring and continued employment of medical marijuana users.  If appealed, will the decision hold up?  Will other courts in other states issue similar decisions?  Time will tell.

 

By Pamela Q. Devata , Robert T. Szyba, and Stacey L. Blecher

Seyfarth Synopsis: On May 4, 2017, New York’s highest court, the Court of Appeals, held that the New York State Human Rights Law (NYSHRL) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.

In Griffin v. Sirva, Inc., the U.S. Court of Appeals for the Second Circuit (Second Circuit) posed three questions to the New York Court of Appeals (Court of Appeals), New York’s highest court, regarding the appropriate interpretation of New York state law, the NYSHRL. Specifically, the Court of Appeals was asked to determine whether (1) Section 296(15) of the NYSHRL, which prohibits discrimination against individuals with prior criminal convictions, is limited to a party’s “employer”; (2) if so, is an “employer” only a “direct employer,” or can the coverage extend to other related entities; and (3) does Section 296(6), which provides for aiding and abetting liability, apply to Section 296(15) to impose liability on out-of-state entities that may have a connection to an in-state employer?

As background, the direct employer in the case was Astro Moving and Storage Co., who was a contractor for Allied Van Lines. Plaintiffs had convictions for sex crimes with minors, which disqualified them from working for Allied, and Astro terminated their employment because they could not perform services for Allied.  Plaintiffs sued Astro, Allied, and Sirva, Inc. (Allied’s parent).  Among other claims, Plaintiffs alleged discrimination due to their criminal conviction histories, as prohibited by Section 296(15) of the NYSHRL.  As is most relevant here, they sued Allied (which was not their direct employer).  Thus, since the interpretation of the NYSHRL had not been resolved on this point, the Second Circuit certified its questions to the Court of Appeals.

In its response, the Court of Appeals held definitively that Section 296(15) of the NYSHRL is limited to direct employers. Although the statutory text states that “any person” is prohibited from discriminating, the Court nevertheless found that this language was contextually designed to target direct employers.

With respect to the second question, the Court of Appeals clarified who the NYSHRL considers an “employer.” To make the determination, the Court of Appeals turned to the common law test for determining the employer-employee relationship, as enunciated by New York’s Appellate Division, Fourth Department, in State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082 (4th Dept. 1985).  The test consists of four factors: “(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct.”  The primary focus on this test, the Court of Appeals quoted the Fourth Department, is the “right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter.”  This pronouncement is noteworthy in that it clarifies the definition of “employer” for NYSHRL claims.

Last, the Court of Appeals turned to the breadth of liability for aiding and abetting, under Section 296(6). The Court noted that one does not need to be a direct employer, or have any employment connection to the plaintiff. The Court pointed out, for example, that in National Org. for Women v. State Div. of Human Rights, 34 N.Y.2d 416 (1974), a newspaper company had no employment relationship with the plaintiff, but was nevertheless found to have aided and abetted discrimination by running two sets of help wanted ads: a separate list of jobs for men, and a separate list of jobs for women, despite the fact that the newspaper did not employ anyone from these ads. The Court also noted that the NYSHRL has an extraterritoriality provision that captures out-of-state actors when their acts have an impact within the state. Thus, an out-of-state entity can be liable for acts that constitute discrimination, or aiding and abetting, that have an impact in New York.  This interpretation is not a change in the lower court’s opinions, but an affirmation that  third party entities should understand that if they have control over hiring decisions, they could be at risk.

Outlook and Potential Ramifications

The Court of Appeals has made certain clarifications that have a potential impact on any employer, as well as any entity who works with another entity that is an employer, where questions surrounding criminal background checks come up that have an impact on employees in New York. Beyond direct employers, who are directly covered by Section 296(15), non-employers, even those outside New York, may nevertheless find themselves ensnared in a claim under the NYSHRL for aiding and abetting. Thus, the ramifications of this decision extend beyond the universe of direct employers, and beyond New York’s state lines. Employers within New York would be well-served to revisit their compliance requirements with Section 296(15). Further, any companies who does business with a New York employer, regardless of whether the company is located in or outside of New York, would likewise be well-served to review their business practices for any “impact in New York” that might run afoul of the NYSHRL.

Those with questions about these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team.

 

By Erin Dougherty FoleyAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Minnesota Supreme Court found that a job applicant need only prove that the employee’s interest in a 12-week maternity leave was the “substantial causative factor” that “actually motivated” the employer’s decision to rescind her job offer and did not need to show anger or hostility about pregnancy under the Minnesota Human Rights Act.

In a recent Minnesota Supreme Court case, LaPoint v Family Orthodontics, P.A., A15-0396 (Apr. 5, 2017), a plaintiff challenged an orthodontist’s decision to rescind her job offer after learning she was pregnant and would take maternity leave.  The plaintiff argued that she had been discriminated against on the basis of her pregnancy because her pregnancy played a role in the employer’s  decision to rescind her job offer.  The district court ruled for the employer at a bench trial!

In setting the standard of proof, the Court relied on Goins v. West Grp., 635 N.W.2d 717 (Minn. 2001) and Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988). Goins required that a plaintiff prove that the pregnancy “actually motivated” the employer’s decision not to hire. Anderson required that plaintiff demonstrate that the pregnancy was “a substantial causative factor” in the employment decision.

The Court rejected the notion that the pregnancy must be a “but-for” cause of the employer’s conduct. As such, the plaintiff need not prove that the employer would have hired her absent unlawful discrimination in order to establish liability, and “proof by the employer that it would have made the same decision absent a discriminatory motive is no defense.”

According to the Court, the employer stated, on three separate occasions, that the plaintiff’s failure to disclose her pregnancy (1) was one of the “two things [that] really kept [her] from sleeping well”; (2) was one of her “concerns”; and (3) left her “confused,” one of “two concerns” that together constituted “[t]he reason why [she] withdrew the job offer.” Further, the plaintiff argued that “rescinding a job offer because a person fails to disclose a pregnancy is illegitimate discrimination on the basis of sex.” More so, the district court found that the defendant “questioned why plaintiff did not bring [her pregnancy] up initially so they could discuss leave of absence issues at that time,” but that “[h]er concern was the [effect of the] length of the leave sought by plaintiff on the practice.”

The Court recited that the defendant “did not demonstrate any animus toward plaintiff because of her pregnancy. Her overriding concern was the disruption a twelve week maternity leave would have on her practice and the impact upon her employees should she deviate from the Clinic’s longstanding policy of six weeks.”

Finally, the Court concluded that it was unable to determine whether the district court, if it had applied the correct law regarding animus, would have made the same findings of fact. Accordingly, the Supreme Court remanded the case.

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

By Christopher W. Kelleher, Tracy M. Billows, and Joshua D. Seidman

Seyfarth Synopsis: The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.

Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.

Under the proposed law (House Bill 2771/Senate Bill 1296), employees would be entitled to a minimum of five “paid sick days” each year to: (1) care for their own physical or mental illness, injury, or health condition, or seek medical diagnosis or care; (2) care for family member for the same reasons; (3) attend a medical appointment for themselves or family members; (4) miss work due to a public health emergency; or (5) miss work because the employee or a family member has experienced domestic violence abuse.

Employees would accrue one hour of paid sick time for every 40 hours worked. This includes FLSA-exempt employees, who would be deemed to work 40 hours each week for accrual purposes in most cases.

There is some potential for tension if and when the new law is passed.

For instance:

  • Employees will be entitled to determine how much sick time they need to use, but employers will be allowed to set a “reasonable minimum increment” which cannot exceed four hours per day;
  • Employers will also be able to ask for “certification” of the illness, injury, or health condition when employees take paid sick leave for three consecutive workdays. However, “[a]ny reasonable documentation” will suffice if it meets certain criteria;
  • Employers must treat the health information of both employees and their family members confidentially, and cannot disclose this information without the employee’s permission;
  • Paid sick days must be provided at the employee’s oral request, but if need for a sick day is foreseeable, the employee must give at least seven days’ notice before leave begins. If need for a sick day is not foreseeable, however, then employees should provide notice “as soon as is practicable”;
  • And finally, while employers must not discriminate or retaliate against employees for using paid sick leave, they may discipline employees for abusing paid sick leave.

The Bill, which has accumulated dozens of co-sponsors in both houses, was presented for a second reading on March 29, 2017. Stay tuned for further developments.

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

 

By Steve Shardonofsky and Brian A. Wadsworth

Texas Law Legal System ConceptSeyfarth Synopsis:  In a decision that is sure to increase the costs and complexity of litigation, the Texas Supreme Court recently held that a former employee’s common law assault claim was not preempted by the state’s anti-discrimination statute. The Court reasoned that if the gravamen of an employee’s claim is that the employer committed assault through a “vice principal”–as opposed to sexual harassment–the employee may pursue the common law claim directly and would not be preempted.

Recently, in B.C. v. Steak N Shake Operations, Inc., the Texas Supreme Court held that an employee could sue her employer for assault where the gravamen of the claim was sexual assault by the employer’s “vice principal”, and not sexual harassment. In doing so, the Court narrowed its previous holding in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) that common law torts predicated on the same or similar facts as a sexual harassment claim are preempted by the Texas Commission on Human Rights Act (“TCHRA”).

In a somewhat bizarre twist of logic, the decision suggests that employees subject to a single, severe instance sexual assault by a “vice principal” may bring a common law claim against the employer; but employees subject to a pattern sexual harassment involving sexually suggestive comments and conduct (including less violent or offensive touching constituting assault) may only bring a claim under the TCHRA (subject to administrative exhaustion requirements and damages caps). Until the courts resolve this open question, employers will likely be forced to defend both types of claims at the same time, while also having to litigate factually-intensive questions regarding who qualifies as a “vice principal” under Texas law.

Plaintiff B.C. worked as a server in the Steak N Shake restaurant in Frisco, Texas. During a shift in October 2010, she claimed that her supervisor assaulted her in the bathroom, pushing her against the wall and sink, groping her, and exposing his genitals. She was able to escape the attack only after the supervisor lost his balance and fell to the ground. Steak N Shake conducted an internal investigation after B.C. reported the incident, but was unable to confirm B.C.’s story. Steak N Shake extended an unqualified offer to B.C. to return to work at any Steak N Shake location of her choosing. B.C. declined the offer and instead resigned. She later sued Steak N Shake for a variety of common law claims, including assault, on the basis that her supervisor was a “vice principal” and therefore Steak N Shake was directly liable for his tortious actions. Steak N Shake moved for summary judgment arguing, in part, that the TCHRA preempted B.C.’s common law claims. The trial court granted summary judgment without explanation and B.C. appealed. The Dallas Court of Appeals, relying on Waffle House decision, affirmed the trial court’s ruling on the grounds that the TCHRA preempted B.C.’s assault claim.

In reversing, the Texas Supreme Court distinguished the facts in Waffle House, noting that the plaintiff in that case (Williams) had asserted a common-law negligent retention and supervision claim based on the employer’s alleged failure to prevent a pattern of sexual harassment by co-workers over six months that included inappropriate comments, suggestive winks, and arguably sexual assault (the employee allegedly held the plaintiff’s arms with his body pressed against hers and rubbed against the plaintiff’s breasts with his arms). Because sexual harassment under the TCHRA based on co-workers harassment is predicated on the employer’s alleged negligence and because it was the employer’s continued negligent supervisor and retention of the harasser that constituted the factual basis of Williams’ claims, the Texas Supreme Court held in Waffle House that the gravamen of the Williams’ complaint was a TCHRA-covered claim and not the negligence claims.

The Court then distinguished its holding in Waffle House from the claim raised by B.C. First, the factual basis for Williams’ common law claim in Waffle House was Waffle House’s continued supervision and retention of the harasser. B.C., on the other hand, only alleged a single instance of violent assault. Second, the Court reasoned that Williams improperly repackaged the assault portions of her sexual harassment claim in terms of negligence. Yet the gravamen of her complaint was sexual harassment by co-workers. Conversely, unlike Williams, B.C. did not allege a pattern or practice of sexual harassment by co-workers. Instead, she alleged that on a single occasion, Steak N Shake, acting through her supervisor, sexually assaulted her. Third, Williams alleged that a co-worker physically harassed her, whereas B.C. alleged that her employer was directly responsible for the alleged assault of a “vice principal” (i.e., her supervisor). Therefore, the Court reasoned, the gravamen of B.C.’s complaint was assault, not sexual harassment under the TCHRA. The Court also noted that there is no indication that the Texas legislature intended for the TCHRA to preempt assault claims against individual assailants (whether a corporate entity or an individual).

The Court’s holding here is likely to cause confusion and lead to strange outcomes. With little guidance, courts will be forced to decide whether the gravamen of a complaint is assault or sexual harassment. Because the Court did not draw a bright line, employees subject to a pattern of non-physical harassment and only one incident of assault may be limited by the TCHRA, whereas employees subject only to sexual assault (but no ongoing harassment) may be free to assert common law claims. Regardless of the final outcome, in the short term employers will likely be forced to defend both claims at the same time, particularly in cases involving sexual harassment by supervisors, managers, or executives. Litigating assault claims and questions about who qualifies as a “vice principal” will also likely increase the costs of litigation in this context.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.