Workplace Policies and Processes

By Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis: On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location. The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment. Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision. The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation. Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause  to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists. It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

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

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: In this case a home-care nurse complained about the quality of care her patient received from the patient’s family members. Subsequent review and inspections by the company found some “serious problems” with the employee’s care-giving — and ultimately led to her termination. The Sixth Circuit Court agreed with the employer’s analysis. Blair v. Maxim Healthcare Services, Inc., No. 17-5025 (6th Cir. Oct. 6, 2017).

The plaintiff, Teresa Blair, was a home-care nurse that provided medical care for a patient with cerebral palsy and mental retardation. Over the course of several years the plaintiff, as directed by her employer, reported numerous incidences of neglect of the home-care patient at the hands of the patient’s family. Blair complained that the patient’s mother was not mentally capable of caring for him.

Blair, though, exhibited her own employment issues on the job. According to the Court, Blair had shown up at a patient’s house when not scheduled to work; made errors on medical charts; failed to take a patient’s vital signs for the doctor; falsely reported that the doctor had ordered a patient quarantined and that Blair alone should care for the patient while he had the flu; and attempted to change her schedule without her supervisor’s permission.

Subsequently, Blair reported upon arriving at her home-care position, finding her patient in distress. After alerting authorities, Blair was told to call an ambulance. After arriving at the hospital, a doctor evaluated the patient and noted “normal vital signs and no clinical signs of illness or distress.” Blair’s supervisor told her to turn her patient’s care over to the hospital staff. Blair however continued to shadow hospital staff until that evening. The patient was released from the hospital the next day.

About a week later, the employer gave Blair a written warning indicating that she had failed to follow her supervisor’s instructions to let the hospital staff take over, among other things.

Then, after Blair’s patient’s release from the hospital, one of Blair’s supervisors and a registered nurse, visited the patient’s home and noted some “serious problems” with Blair’s care-giving. For instance, Blair had not placed a pulse-oximeter probe on the patient’s finger, which was a problem because “the doctor (and Blair’s supervisor) had ordered continuous use of the probe to measure [the patient’s] blood-oxygen saturation level.” Blair had also failed to place an ambu-bag at the patient’s bedside. “This device was supposed to be within arm’s reach so that, in an emergency, Blair could use it to help [the patient] breathe. The device was found in a closet on an upper shelf and the closet door was blocked by a large piece of equipment. “A month before, Blair had been reprimanded for the same mistake.” Blair was fired the next day.

Blair then sued the employer in Kentucky state court, asserting wrongful-discharge claims. The employer then removed the case to federal court under diversity jurisdiction. Blair amended her claims to assert that the healthcare employer had discharged her in violation of Kentucky’s Patient Safety Act. The district court granted summary judgment to the employer on all claims.

In discussion of the law in this case, the Court explained that the Kentucky Patient Safety Act requires that any “employee of a health care facility . . . who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy” to “make an oral or written report of the problem to the health care facility[.]” Citing Ky. Rev. Stat. § 216B.165(1). In addition, the Act also prohibits any “health care facility or service” from retaliating “against any agent or employee who in good faith reports[.]” Citing Ky. Rev. Stat. § 216B.165(3). To prevail on her claim under the Act, Blair needed to show (i) that she engaged in a protected activity under the Act, (ii) that the employer knew about her protected activity, and (iii) that the employer took an adverse employment action against her because of it.

Blair contended that a jury could find causation because in her view the employer falsely accused her of interfering with the Kentucky Protective Services investigation of the December 2013 incident that sent her patient to the hospital. The Court, though, concluded that Blair failed to present a genuine issue as to causation. “The 18 days between her complaint and termination are not enough to allow a reasonable jury to find that one caused the other.”

For employers, and especially healthcare employers, this case illuminates the need for constant vigilance in the company’s oversight of its staff, and the preparation of documentation relating to employee supervision and discipline.

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

 

By Karla Grossenbacher and Christopher W. Kelleher

Seyfarth Synopsis:  A string of recent class action lawsuits regarding businesses’ use of employees’ biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.

As biometric technology has become more advanced and affordable, more employers have begun implementing procedures and systems that rely on employees’ biometric data. “Biometrics” are measurements of individual biological patterns or characteristics such as fingerprints, voiceprints, and eye scans that can be used to quickly and easily identify employees.  However, unlike social security numbers or other personal identifiers, biometrics are biologically unique and, generally speaking, immutable.  Thus, unlike a bank account or a social security number, which can be changed if it is stolen, biometric data, when compromised, cannot be changed or replaced, leaving an affected individual without recourse and at a heightened risk for identity theft.  Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data.  And plaintiffs’ attorneys are taking notice, as the number of class action lawsuits in this area has surged in recent months.

Currently, there are three states that have statutes regulating the collection and storage of biometric data: Illinois, Texas, and Washington.  In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”).  Texas followed suit in 2009, and Washington passed its biometric privacy law in 2017.

Covered Biometric Data. All three laws place restrictions on the collection and storage of “biometric identifiers,” such as eye scans, fingerprints, and voiceprints. However, BIPA and the Washington law also cover data that is converted into some type of code or template.  In addition to biometric identifiers, BIPA applies to “biometric information” which is “any information, regardless of how it is captured, converted, stored, or shared,” that is “based on an individual’s biometric identifier” and is “used to identify an individual.”  The Washington law places restrictions on the “enrollment” of biometric identifiers, which is defined as “capturing” a biometric identifier or “convert[ing] it into a reference template.”  Therefore, in Illinois and Washington, if an employer converts an employee’s biometric identifier into a mathematical code or other template and retains only the code or template and not the underlying biometric data, the employer must still meet the laws’ requirements with respect to the collection and storage of that information.  The Texas law only protects biometric identifiers and does not contain a broader “biometric information” provision.

Notice and Consent. All three laws require employers to provide notice and obtain consent before collecting and storing biometric data. BIPA requires the employer to obtain a “written release,” but the Texas and Washington laws do not specify that consent must be given in writing.  BIPA further specifies that, in the employment context, a written release is one  “executed by an employee as a condition of employment.”  This language is significant for employers who routinely collect and store biometric information of employees and are struggling with what to do if an employee refuses to provide consent.

Washington’s law also contains an exception the others do not: The law’s notice and consent provisions do not apply to biometric data collected and stored by an employer for “security purposes,” which is defined in the statute as biometric data that is stored for “the purpose of preventing shoplifting, fraud, or any other misappropriation or theft of a thing of value.”

Standard of Care. All three laws require that employers exercise reasonable care to protect biometric data: BIPA specifies that employers should use a “reasonable standard of care within the industry, and in a manner that is the same as or more protective than the manner in which the business stores, transmits, and protects other confidential and sensitive information.”  The Texas law similarly requires employers to store, transmit, and protect the data from disclosure using reasonable care and in the same way the company treats other confidential information. Washington’s law requires employers to take reasonable care to guard against unauthorized access to and acquisition of biometric data.

Retention. Each of the laws has requirements concerning when, and in some cases how, the biometric data must be destroyed: BIPA’s requirements are the strictest, dictating that employers must establish a written, publicly available policy that contains a retention schedule for biometric data and guidelines for “permanently” destroying the data.  BIPA has the most stringent retention requirements in that it states the information must be destroyed when the purpose for obtaining such data has been satisfied or within three years of the individual’s last interaction with the employer, whichever occurs first.  The Texas law requires only that employers destroy biometric data “within a reasonable time,” but not later than one year after the biometric data is no longer needed.  In Texas, if biometric data was collected for “security purposes,” the purpose for collecting the data is presumed to expire on termination of the employment relationship.  Finally, Washington’s law requires employers to retain biometric data “no longer than is reasonably necessary” to comply with certain legal requirements and to provide the services for which the biometric data was collected.

Cause of Action. All three laws provide civil penalties for violations, but BIPA is the only one of the three laws that provides a private right of action that allows for plaintiffs to recover liquidated damages and attorneys’ fees. In Texas and Washington, only the state attorney general may bring suit to enforce those laws.  It is this distinction that accounts for the fact that lawsuits filed under the Illinois law have been grabbing headlines as of late.

Biometric Data in the Other 47 States. Several other states (including Alaska, Massachusetts, Montana, and New Hampshire) have introduced similar legislation with varying levels of success. But even in states where no law governing the collection and storage of biometric data exists, employers should still take caution when collecting and storing biometric data because the practice could lead to invasion of privacy or negligence claims.

Best Practices. In addition to obtaining prior written consent from employees for the collection and storage of biometric data, employers should consider doing the following:

  1. Have a written policy in Illinois and distribute to employees along with the written release form. BIPA requires a business in possession of biometric data to have a publicly available, written policy stating the business’s retention schedule for the data and rules governing its destruc­tion — and the business must adhere to such policy. Thus, employers in Illinois need to make sure they have such a policy.
  2. Ensure biometric data is not sold or disclosed. All three laws generally prohibit a business from selling, leasing, or otherwise disclosing biometric data it collects or possesses. Companies should ensure that neither the company nor any vendor storing biometric data on the company’s behalf sells or discloses the data in violation of these laws. The laws contain exceptions to this prohibition on disclosure where the individual consents to the disclosure, the disclosure completes a financial transaction requested by the individual, or the disclosure is permitted by law, order or warrant. Again, outside of Texas, Washington, and Illinois, reasonableness would dictate that an employer should not disclose an employee’s biometric data to others without consent under an invasion of privacy or negligence analysis.
  3. Have protocols for protecting biometric data. Employers should protect biometric data in the same manner as they do with other confidential and sensitive information in their possession. Protocols for protecting biometric data can be covered in a general information security policy or in a specific biometric data policy.
  4. Have appropriate provisions in vendor contracts to protect biometric data. In contracts with vendors who store or collect biometric data on behalf of an employer, employers should require that the vendor comply with applicable laws governing the collection and storage of biometric data and provide the same level or higher level of protection to the data that the employer does. The employer should also retain the right to request information on the vendor’s information security protocols, conduct periodic audits of the vendor’s security protocols, and to be notified in the event of any breach or suspected breach of the biometric data the vendor holds for the company (regardless of whether such notification is required by a breach notification statute).
  5. Comply with applicable data breach notification statutes in the event biometric data is compromised. Biometric data is considered “personal information” under a number of state data breach notification laws, including Illinois, Iowa, Nebraska, New Mexico, North Carolina, Wisconsin and Wyoming. Employers storing biometric data (and their vendors) must follow the requirements of these laws with regard to informing affected individuals of breaches/suspected breaches.

With biometric privacy legislation pending in Massachusetts and New Hampshire, and the passing of a biometric privacy law in Montana in 2018 a virtual certainty, we have only just begun to see the impact of this type of privacy legislation. Stay tuned.

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

By Gena B. Usenheimer and Kaitlyn F. Whiteside

Seyfarth Synopsis: The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (“Second Department”) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client’s home, including sleeping and meal periods.  With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided. 

We previously wrote about the New York appeals court decision in Tokhtaman v. Human Care, LLC, in which the New York State Supreme Court, Appellate Division, First Judicial Department (Manhattan and the Bronx), held that a “non-residential” home healthcare employee must be paid for all hours present at a client’s home, including meal periods and time spent sleeping. The First Department opined that “non-residential” employees are those employees who, like the plaintiff in Tokhtaman, “maintain[] [thei]r own residence, and d[o] not live in the homes of [] client’s.”

On September 13, 2017, the Second Judicial Department (Dutchess, Kings, Nassau, Orange, Putnam, Richmond, Rockland, Suffolk, and Westchester) issued two decisions in line with Tokhtaman, holding that non-residential home healthcare employees must be paid for all 24 hours in a 24-hour shift, regardless of meal and sleep periods.  The Second Department did not provide any further clarity as to what constitutes a “residential” home healthcare employee.

These decisions reflect a departure from the rationale set forth in a 2010 New York Department of Labor (“DOL”) Opinion Letter, which interpreted the DOL Regulation 12 NYCRR § 142-2.1(b) to allow “live-in employees” — whether or not they are residential employees — to be paid for 13 hours for a 24-hour shift so long as the employee was afforded at least 8 hours for sleep (and actually received 5 hours of uninterrupted sleep), and 3 hours for meals.

With both the First and Second Departments in agreement on the issue, however, employers in New York should be aware of these changing and increasingly onerous pay obligations for employees working 24-hour shifts.

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.

By Kelsey P. Montgomery and Dawn Reddy Solowey

Seyfarth Synopsis:  Telling African-American employees “that if they had ‘n—– rigged’ the fence, they would be fired” may be enough, standing alone, to state a hostile work environment claim.  The Third Circuit clarifies that “severe or pervasive” discrimination is the correct standard for hostile work environment claims.   

The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is “pervasive and regular,” but rather whether it is “severe or pervasive.”

The plaintiffs in Castleberry v. STI Group, both African-American men, are pipeline workers who worked for defendants as general laborers on an all-white crew.  In their complaint, they alleged that despite having more experience than their white counterparts, the plaintiffs were assigned to clean around the pipelines, but were not permitted to work directly on them.  Moreover, on multiple occasions, a colleague anonymously wrote “don’t be black on the right of way” on the pipeline workers’ daily sign-in sheets.  The plaintiffs alleged that after working on a fence removal project, a supervisor told them “that if they had ‘n—– rigged’ the fence, they would be fired.”  They reported this final incident, and were terminated two weeks later without explanation.  The complaint alleged that although they were briefly rehired, the defendants’ terminated their employment a second time, claiming a “lack of work.”

The plaintiffs subsequently brought harassment, discrimination, and retaliation claims against the defendants. At the outset of the case, the defendants moved to dismiss on the grounds that a single, isolated incident could not constitute a hostile work environment.  The trial court agreed, dismissing the plaintiffs’ hostile environment claims, holding that a single use of a racial slur was not “pervasive and regular” discrimination.

On appeal, the Third Circuit reversed. After acknowledging inconsistent precedent in the Circuit, the appellate court clarified that “severe or pervasive” was the correct standard for hostile work environment claims – not “pervasive and regular” or even “severe and pervasive.”  The Third Circuit explained:

Indeed, the distinction means that severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.

The Third Circuit relied on U.S. Supreme Court precedent to support the “severe or pervasive” standard.

Having clarified the hostile work environment standard, the Court in Castleberry found that “it is clear that one such instance [of a supervisor using the ‘n-word’] can suffice to state a claim.”  Moreover, as alleged here, the plaintiffs’ supervisor threatened to terminate their employment (and then actually did) at the same time that he used the derogatory racial epithet.  Thus, the Court held that this allegation was sufficiently severe to state a hostile work environment claim.

Notably, the Court also found that the plaintiffs’ allegations could have alternatively satisfied the “pervasive” part of the clarified standard; not only did their supervisor allegedly make the racially derogatory comment, but they were also allegedly exposed to racial hostility when on several occasions their sign-in sheets bore discriminatory comments and because they were relegated to menial tasks while their white colleagues were allowed to perform more complex work.

Few words are more malicious than the “n-word,” but employers should be alert to the fact that the Third Circuit’s reasoning would logically extend to isolated discriminatory remarks about religion, gender, or any other protected classification. It is, therefore, imperative that employers maintain strong anti-discrimination policies, require and encourage employees to report discrimination, and promptly investigate and remediate any alleged discriminatory remark or other conduct, even if the allegation is of a single remark or incident.

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

 

 

 

 

 

Seyfarth Synopsis: Seyfarth’s Chicago Office hosted its Third Quarter Breakfast Briefing — an extremely well attended event. 

On Tuesday, September 12, 2017, five attorneys from our Chicago Labor and Employment team presented to a packed house of guests.  The group offered an overview of, and their insights on, new and pending legislation impacting Illinois employers, generally, and those within the Chicago Metropolitan area, more specifically.  The topics included Kin Care, Amendments to the Illinois Human Rights Act, The Chicago and Cook County Minimum Wage Ordinances; and the Chicago and Cook County Paid Sick Leave Laws, among others.   As you can imagine, the audience had a lot of questions, which made for a very lively discussion.  Our thanks to all who were able to join us at the briefing.

Checkout the slides from the Breakfast Briefing.  Should you have questions on any of these topics, please contact your Seyfarth attorney.

Seyfarth’s next quarterly Breakfast Briefing will be held on Wednesday, December 13, 2017.  Hold the date and be on the lookout for further details.

By Tracy M. Billows and Megan P. Toth

Seyfarth Synopsis:  If your company provides parental leave benefits beyond what is required by law, it is important that the company’s policies and practices ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

On August 30, 2017, the EEOC filed suit against Estée Lauder in the U.S. District Court for the Eastern District of Pennsylvania claiming that the cosmetic company discriminated against male employees by implementing a paid parental leave policy that provides lesser parental leave benefits to male employees than to female employees.  EEOC v. Estée Lauder Companies, Inc., No. 2:17-cv-03897-JP (E.D. PA)

The paid parental leave policy at issue in this case–which was implemented by Estée Lauder in 2013–provides “primary caregivers” six weeks of paid parental leave for child bonding and only offers “secondary caregivers” two weeks of paid leave for child bonding.  In addition, “primary caregivers” are also provided with flexible return-to-work benefits that are not similarly provided to “secondary caregivers.” On its face, this policy does not appear to provide different benefits to new mothers or female employees and new fathers or male employees; however, in practice, the company only allows male employees to receive “secondary caregiver” leave benefits under this policy.

This case arose when a male employee’s request for six weeks of child-bonding leave as the “primary caregiver” was denied and he was only allowed to take two weeks of bonding leave.  According to the lawsuit, the company told him that the “primary caregiver” designation only applied in “surrogacy situations.”  The EEOC claims that the practice of only allowing men to take two weeks of paid leave, while allowing women six weeks and flexible return-to-work benefits violates the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

The EEOC has made it clear that addressing sex-based pay discrimination, including benefits such as paid leave, is a priority.  So it is not surprising that the agency has gone after one of the world’s leading cosmetic companies over this issue and this is probably not the last suit of its kind. With the rising corporate trend of providing generous parental leave benefits to employees, it is important companies who are following this trend to be mindful of their policies and potential claims of disparate treatment and/or disparate impact.

This topic has been on the horizon for some time now and the EEOC is starting to take action. If your company provides parental leave benefits beyond what is required by law, it is important that you review those policies and practices now to ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

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 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 Sara Eber Fowler

Seyfarth Synopsis: Last minute scheduling change?  Want to make sure you have enough employees on stand-by to cover shifts?  In a growing number of areas around the country, that will cost you. 

Fair scheduling laws – sometimes referred to as “predictive” or “predictable” scheduling – are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of “predictability pay” – such as one hour of pay for every four hours of scheduled work – if changes are made to an employee’s schedule on short notice.  These laws also tend to require predictability pay if employees are “on call” but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (“clopenings”).

San Francisco was the first to pass a law of this kind, which went into effect in July 2015. But in the past year, more states and cities have passed – or are considering – similar legislation.  In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).  Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City’s recently passed ordinance will be enforceable as of November 26, 2017.

Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C. (Georgia, on the other hand, has taken the opposite approach, and passed a law that prohibits municipalities from passing a law that would require predictability pay.)

The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees’ ability to plan for caregiving needs, hold second jobs or attend school, and plan their income. Several national retailers have already been forgoing “on-call” scheduling practices, irrespective of any legal mandate.

Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions. Bear in mind that each law varies.  In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are “on-call” but not called to work.  New York City’s law, on the other hand, only requires schedules to be posted with 72 hours’ notice, but bans on-call scheduling altogether.

Many of the proposed and enacted laws also create an “interactive process” obligation – similar to the Americans with Disabilities Act – whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason. They also generally prohibit retaliation against employees who request changes to their schedules.

Each statute also contains its own unique exceptions. Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.  Oregon’s law calls for the creation of a “voluntary standby list” of employees who may be called upon to work unexpected hours without receiving additional compensation.

Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes. For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary “standby” lists may be helpful to comply with these varying laws with minimal interruption to business operations.

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

By Christopher Im and Sharisse R. Deal

Seyfarth Synopsis: Private employers can face competing obligations when it comes to responding to employees’ expressive conduct. Employee rights may collide with employer obligations to maintain a safe and harassment-free work environment, not to mention the employer’s interest in maintaining productivity and avoiding adverse publicity. Here are some guiding principles.

“How’s work?” A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker’s cherished political hero or ideals.

And what of the employee who attends a political rally—either as a protester or counter-protester—or does not attend, but merely posts or tweets an incendiary opinion about the event?

What is an employer’s recourse when such communications cross the line? Where is the line?

As a general rule, unless the employee is using company-owned equipment or systems, employers cannot police their employees’ expression. Various California statutes protect employees’ rights to engage in lawful, off-duty conduct (Lab. Code §§ 96, 98.6) and political activity (Lab. Code §§ 1102, 1103), to say nothing of the California constitutional right to privacy, which applies in both the public and private sectors. Meanwhile, the federal National Labor Relations Act prohibits employers from chilling employee participation in concerted activity with respect to their terms and conditions of employment.

Generally, as long as controversial comments and ideas are lawfully expressed, do not implicate a protected class (such as race, religion, gender), do not name or implicate the employer, and remain out of the workplace, they are none of the employer’s business.

The trouble starts when a controversial comment is not lawfully expressed, implicates a protected class, implicates the employer, or has a deleterious effect in the workplace. Competing against the employee rights set out above are the employer’s duties to prevent and correct harassment in the workplace and to provide a safe workplace. Failure to do so can lead to hostile work environment or retaliation claims, regardless of whether the harassment comes from a supervisor or a co-worker.

Not all offensive remarks will be cause for concern: to get from “how’s work?” to a hostile work environment claim, an employee’s comments must relate to a protected status and be sufficiently severe or pervasive to alter working conditions. But in todays’ highly charged political environment, many people look to their places of employment as the last bastion of civility and stability. Discussion of events, images, symbols, or social media memes concerning topics as varied as immigration, same-sex marriage, transgender rights, and the history of American slavery and its aftermath may, depending on the communication’s content and context, be freighted with racial or gender connotations.

For most people, perception is reality. Remarks or conduct that several years ago would not have raised an eyebrow may now lead to multiple disgruntled people in the HR office, seeking action. And while California employees are guaranteed privacy, the privacy right does not prevent an appropriate reaction from an employer in response to a public online posting, text message, or comment. As someone once said: “Freedom of speech does not mean freedom from consequences.”

There is no magic bullet to making sure your employees play nice. But there are several steps you can take to ensure that they know what will and will not be tolerated. You can set employee expectations by implementing or reminding them of your anti-harassment and anti-retaliation policy, your code of conduct, your “zero tolerance” policy regarding violence, your social media policy, and your rules concerning use of company internet and other electronic communication systems. We recommend that employers articulate a strong business purpose to justify any occasions when they must intrude on an employee’s privacy, and never intrude more than is necessary to serve that business purpose.

Interpretation of the laws around employee workplace rights and the intersection with employer duties to comply with anti-harassment and OSHA laws are constantly evolving, particularly with the ever-increasing use of social media. To help stay current, don’t hesitate to contact your favorite Seyfarth attorney.