By Kayla King-Heyer and Dawn Reddy Solowey

Seyfarth Synopsis: We may be past the height of the COVID-19 pandemic, but decisions from COVID-19 vaccine litigation have the potential to affect far more than pandemic-specific employment practices.  The Massachusetts Supreme Judicial Court recently issued an opinion affirming the City of Boston’s power to impose certain health and safety policies on public workers without bargaining.

Factual Background

In August 2021, the City of Boston announced a policy that generally required all city employees, including public safety personnel, either to be vaccinated against COVID-19 or to provide weekly negative COVID-19 test results.   The City and local firefighter unions memorialized the policy with a Memorandum of Agreement.

During the fall and winter of 2021, the Omicron variant of COVID-19 was spreading rapidly through the Commonwealth and sparked public health concerns nationwide.  In December 2021, in response to advice from public health experts, the City and Mayor of Boston unilaterally amended the vaccine policy to remove the weekly testing option and require proof of vaccination as a condition of employment.  All city employees were required to have at least one dose of a COVID-19 vaccine by January 15, 2022, and to be fully vaccinated by February 15, 2022.  City employees who failed to verify their vaccination status would be subject to progressive discipline, ranging from unpaid leave to termination. 

The Lawsuit

In response, Boston Firefighter and Police unions filed a complaint in Massachusetts Superior Court and sought a preliminary injunction.  The Superior Court judge denied their request for injunctive relief, and plaintiffs appealed. 

A Single Justice of the Massachusetts Appeals Court reversed and enjoined the City from implementing the amended policy pending final resolution of the matter, reasoning that the City’s unilateral decision to amend the COVID-19 policy without bargaining with the plaintiffs was sufficient to demonstrate a likelihood of success on the merits, that the plaintiffs had sufficiently demonstrated irreparable harm, and that the balance of the harm favored the plaintiffs.  The defendants appealed from the order of the Appeals Court justice, and the Massachusetts Supreme Judicial Court (“SJC”) transferred the case sua sponte. 

The SJC Decision

On March 30, 2023, the SJC reversed the Appeals Court Single Justice’s decision and vacated the preliminary injunction.  The Court held that the City was not required to bargain over the decision to amend the COVID-19 policy because “[c]ertain managerial decisions are exempted from collective bargaining obligations when such decisions, as a matter of public policy, must be reserved to the public employer’s discretion.”  The decision to remove weekly testing as an alternative to vaccination was such a core managerial prerogative, in light of the unique circumstances presented by the pandemic, particularly during the late-2021 surge in infection rates.  The SJC reached this decision without inquiring into the “wisdom” of such a policy choice.  The SJC held that the plaintiffs had failed to demonstrate a likelihood of success on the merits of their claim that the City had violated its bargaining obligations with respect to the policy change.

When the City made the decision to unilaterally amend the COVID-19 policy, the Omicron variant was causing a surge in COVID-19 infections in the Commonwealth.  Public health officials, including the executive director of Boston’s Public Health Commission, stated that testing as an alternative to vaccination would not be sufficient to contain the spread of the new variant.  The SJC reasoned that the policy decision was justifiable given the “concerns not only for the health of their employees, but also for the residents of the city, for whom the defendants were obligated to provide continued access to public safety services.”

First, the SJC held that there was no likelihood of success on the merits with respect to the City’s decision to amend the policy.  The SJC held that the Memorandum of Agreement between the parties did not expressly require collective bargaining on the decision to amend the COVID-19 policy to remove the option for weekly testing.  Further, the SJC held that even if the City had agreed to mandatory collective bargaining on an issue of public health and safety, the emergency presented by the Omicron variant would have likely rendered such an agreement unenforceable because the City has a nondelegable authority and responsibility to act in the interest of public health, safety, and welfare. 

Next, the SJC held that the plaintiffs did not demonstrate irreparable harm.  Purely economic harm is insufficient to warrant a preliminary injunction.  The Single Justice of the Appeals Court had held that mandating a COVID-19 vaccine as a condition of employment constituted a “genuinely extraordinary situation” that implicated issues of “bodily integrity and self-determination,” and therefore involved more than purely economic damages.  The SJC disagreed, and held that the harm the plaintiffs would be facing—loss of employment—was purely economic, and thus the plaintiffs would not suffer irreparable harm without injunctive relief. 

Finally, the SJC held that granting a preliminary injunction would not be in the public interest, and the potential harm to the public clearly outweighed the economic harm to the plaintiffs.  The Court acknowledged the danger to public safety posed by the Omicron variant.  Moreover, it noted that the vaccination requirement protected the health of city residents who would come into contact with the plaintiffs as well as the City’s ability to maintain a healthy workforce, which was required to continue providing public safety services like policing and firefighting.  The SJC ultimately concluded that awarding injunctive relief did not promote the public interest, and the potential harm to Boston and the public from COVID-19 “clearly outweighed the economic harm to the employees.”

Takeaways

This decision is good news for employers.  Although the SJC reached its conclusion in part because of the acute public health crisis posed by the Omicron variant and the public-facing and urgent nature of the plaintiff employees’ roles, a key takeaway is that in certain circumstances, some employers may be permitted to act unilaterally on issues that would normally be subject to collective bargaining.  This decision also reinforces that termination of employment leads to purely economic harm, even in the context of vaccine mandates, making preliminary injunctions inappropriate.

Seyfarth has advised employers throughout the pandemic as to best practices around COVID-19 protocols and vaccination policy, and has a robust COVID-19 Resource Center to assist in pandemic response and related strategy. The Seyfarth team is representing employers in some of the highest-profile, complex vaccine-related litigation in the nation, and has developed a COVID-19 Litigation Toolkit with resources on some of the most common litigation issues employers are facing. Seyfarth’s new Health Emergency and Infectious Diseases Task Force also stands ready to help employers tackle questions about COVID-19 and other emerging public health threats. If you have questions about vaccine or COVID-19 policies, or about a threatened or filed litigation, contact your Seyfarth attorney or the authors of this post.

By: Christy Kiely and Annette Tyman

On April 17, 2023, the Office of Federal Contract Compliance Programs (“OFCCP”) released the EEO-1 data of 19,277 federal contractors to a reporter named Will Evans with the Center for Investigative Reporting (“CIR”). The disclosure responds to a Freedom of Information Act (“FOIA”) request filed by Evans in June of 2022, where Evans and the CIR sought public access to the Type 2 EEO-1 Reports of all federal contractors for years 2016-2020. The “Type 2” is the “Consolidated” EEO-1 Report: a one-page document that lists all employees within a corporate organization (parents, subsidiaries, and affiliates together), by race, ethnicity, and gender, within ten occupational categories (from executives to service workers).  EEO-1 Reports are not publicly available outside the FOIA process, and many companies view the staffing and DEI data they contain to be confidential.  The CIR has also sued the OFCCP in federal court in California, over the Agency’s alleged failure to timely respond to its FOIA request. 

We have been closely monitoring this situation since August of last year, when the OFCCP first attempted to inform the contractor community about the FOIA request. The Agency published a notice in the Federal Register, advising contractors that their Type 2 EEO-1 Reports form 2016-2020 were subject to a FOIA request for public disclosure. OFCCP gave contractors until September 19, 2022 to object to the release of their data.  Thousands of contractors objected, but many did not see the publication, and missed the objection deadline.  OFCCP then granted a series of extensions and attempted additional forms of notice to impacted employers.  The final objection deadline was March 31, 2023.

On March 2, 2023, OFCCP released the EEO-1 data of twenty-one (21) federal contractors who had voluntarily agreed to disclosure of their information.  The Agency made its second release to the CIR on April 17, 2023, providing data from more than 50,000 EEO-1 reports from years 2016-2020.  The CIR is already reporting on the released information and what the data ostensibly reflects about diversity in American employment.

It is estimated that more than 4,000 federal contractors have objected to the release of their EEO-1 data.  OFCCP has not decided on those objections to date.  It will likely take several more months for the Agency to complete its assessment.

By Dawn Reddy Solowey

Seyfarth Synopsis: Yesterday the Supreme Court held oral argument in Groff v. DeJoy, a case in which the Court is considering whether to overturn decades of precedent established by the seminal religious accommodation case, Trans World Airlines Inc., v. Hardison.  Decided in 1977, Hardison is the seminal case establishing that an employer is not obligated to accommodate an employee’s religion if the accommodation would create more than a “de minimis” burden on the employer’s operations.  While it is never wise to make predictions from oral argument, the argument featured a search for “common ground” among the Justices as to an undue hardship standard, and a window into how they might apply that test to common accommodation request scenarios. 

Background

Gerald Groff was a carrier for the United States Postal Service, but his religious beliefs prohibited him from working on Sundays in observation of the Sabbath.  USPS offered to find employees to cover Groff’s shifts, but on more than twenty Sundays, no coworker was available to swap with him.  When Groff refused to work on Sundays, USPS disciplined him.  Groff resigned and sued USPS under Title VII, alleging failure reasonably to accommodate his religion.

Title VII makes it unlawful to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment because of that individual’s religion.  Under Title VII, the term “religion” includes all aspects of religious observance, practice, or belief, unless an employer demonstrates that it is unable reasonably to accommodate an employee’s religious observance or practice without undue hardship on the employer’s business. 

In the decision below in Groff v. USPS, the Third Circuit relied on precedent stating that an employer is not required to accommodate an employee’s religious practices if such accommodation would create more than a de minimis burden on the employer’s business.  The Supreme Court established the “de minimis” standard in TWA v. Hardison in 1977.  The Hardison decision also referred, in a footnote, to “substantial costs” to the employer imposing an undue hardship.

Issues Before the Supreme Court

There are two issues presented: (1) Whether the court should disapprove the more-than-de-minimis-cost test for refusing religious accommodations under Title VII stated in Hardison; and (2) whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.

The Oral Argument

The Parties’ Arguments

Petitioner’s counsel argued that Hardison’s de minimis standard “violates [Title VII’s] promise that employees should not be forced to choose between their faith and their job,” and “makes a mockery of the English language,” on the grounds that it cannot be squared with the term “undue hardship.”  He argued that the standard should be replaced by the ADA’s “significant difficulty or expense” test. 

The Solicitor General argued that Hardison, in defining undue hardship, used the term “de minimis” interchangeably with “substantial cost,” and needed to be understood in the context of the facts of that case.  She argued that the Court should uphold Hardison so as not to disrupt almost 50 years of decisions and EEOC guidance, on which employers and courts have relied.  

The Search for “Common Ground”

Some of the conservative Justices openly searched for a compromise as to how to define “undue hardship.”  Justice Gorsuch repeatedly tried to find “common ground,” noting that both sides agree that the undue hardship inquiry is context-dependent, based on factors including the size of the employer, the nature of the request, and what reasonable options are available to the employer.  And, he noted, both parties agreed that a de minimis standard should not be the test in isolation, because it inaccurately suggested that a mere “trifling” could be considered an undue hardship.

Justice Kavanaugh seemed open to the notion of leaning into Hardison’s reference to “substantial cost,” but noted that “the hard thing is going to be how to apply it.”  Justice Kavanaugh asked the Solicitor General whether – if the Court says that “substantial cost” is the same as “de minimis” – would that destabilize precedent?  The Solicitor General indicated that it would not, as long as decisions are context- based and the Court were to uphold Hardison on its facts.

Discussion as to Whether the Case Law Since Hardison Is Adequately Protective of Employees’ Religious Rights

Justice Alito pointed to amicus briefs from minority religions who complained that under Hardison, their religious liberties have been violated.  The Solicitor General responded that “they’re not accurately portraying how Hardison has actually played out in the lower courts and the substantial zone of protection for religious exercise that lower courts have recognized in light of Hardison.”

In attempting to reassure the Court that the existing case law and guidance under Hardison is adequately protective, the Solicitor General pointed to “three buckets” where workplace accommodations are frequently granted and undue hardship defenses rejected:  scheduling (such as Sabbath observance); religious dress or grooming; and religious expression.  Multiple Justices said that they found the framing of these buckets to be helpful.  But the liberal Justices elicited clarification from the Solicitor General that these three buckets are not categorically required accommodations, as each is still context-specific.

Skepticism about the ADA Standard

Multiple Justices expressed skepticism about the notion of importing the ADA disability accommodation standard into the Title VII religious accommodation context.

Justice Roberts expressed concern that while the ADA addresses a “discrete category of individuals,” Title VII has a broader scope since there are many more religious employees.  Justice Barrett expressed similar concerns, noting that in the ADA context, there may be fewer accommodation requests.  Justice Jackson elicited from the Solicitor General an argument that it is not legally or practically workable to import the ADA standard into the Title VII context. 

Both Justice Sotomayor and Justice Kagan asked Petitioner why the Supreme Court should adopt the “significant difficulty or expense” standard used in other statutes when Congress has declined to do so.

And Petitioner conceded that he would be “fine with an opinion that doesn’t say anything about the ADA” but that interprets the “plain text” of undue hardship – seemingly providing more potential common ground.

Premium Pay, Collective Bargaining, and Effect on Coworkers

Much of the argument focused on application of whatever “undue hardship” standard is adopted to three particular issues addressed in Hardison: (1) whether and when premium pay (such as to entice a coworker to swap for an undesirable shift) presents an undue hardship; (2) whether and when an accommodation that would require violation of a Collective Bargaining Agreement or Memorandum of Understanding is an undue hardship; and (3) whether and when impact of an accommodation on the requestor’s coworkers is an undue hardship.  The Justices probed both counsel as to the legal and practical implications of setting parameters around these issues.    

In particular, the Justices had many questions for both parties about when impact on coworkers rises to the level of undue hardship.  When Petitioner argued that impact on coworkers can only create an undue hardship when those impacts affect the business as a whole, Justice Kagan pushed back, asking whether impact on coworkers isn’t always disruptive to the business as a whole.  Justice Barrett asked a line of questions as to when impact on morale would be sufficient to constitute undue hardship – would an employee need to quit to rise to that level?  Or would bad morale be enough?   Justice Sotomayor observed that Amazon employees delivering in the holidays are visibly exhausted – to emphasize that costs of undesirable or additional shifts may not always be monetary.  Justice Kavanaugh commented, “I mean, anyone running a business in America knows that morale of the employees is critical to the success of the operation.”  And Justice Barrett questioned whether the Petitioner’s position was that the employer “has to wait until morale is so bad that [] employees actually quit?”

A decision is expected in the summer.

Practical Takeaways for Employers

If the Supreme Court changes the standard as to what constitutes an “undue hardship” under Title VII, employers will have to adjust their approach to employee requests for religious accommodation.  This should be done in consultation with a counsel with specific experience with religious accommodation requests. 

Employers should make sure promptly to provide training about the new standard to those who review and make decisions on accommodation requests. 

Employers are encouraged to reassess their employee handbook policies to ensure that they contain a policy addressing religious accommodations that complies with any new standard. 

Employers should closely review job descriptions to ensure that the descriptions include all essential job functions that may factor into religious accommodations. 

Employers who have threatened or pending Title VII cases will need to review whether the new standard will affect their cases, including what the Court says (if anything) about whether a new standard would apply retroactively to Title VII cases currently pending in the courts.

For advice on how to prepare your business now for the likely change in the religious accommodation landscape, contact Dawn Solowey or your favorite Seyfarth attorney.

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

Seyfarth Synopsis: On April 14, 2023, we attended a webinar presented by U.S. DOL Solicitor Seema Nanda, DOL Wage and Hour Division Principal Deputy Jessica Looman, DOL Occupational Safety and Health Administration Assistant Secretary Doug Parker, National Labor Relations Board General Counsel Jennifer Abruzzo, and U.S. Equal Employment Opportunity Commission Chair Charlotte Burrows.  The webinar addressed 1) what retaliation is and how each agency addresses it, 2) best practices for prevention, 3) best practices to respond to instances of retaliation, and 4) available resources.

Solicitor Nanda explained, despite nuances among the laws and standards enforced by the participating agencies, retaliation generally encompasses an employee’s engaging in protected activity, which results in an adverse action.  Adverse actions can include termination, confiscating immigration documents, threats, shift changes, reducing hours or responsibilities, blacklisting, demotion, isolation, and ostracizing – effectively any action dissuading an employee from raising a concern about a possible violation or engaging in other protected activity.  Protected activity may involve filing a complaint, planning or joining a lawsuit, complaining to a supervisor, or refusing to work.  Solicitor Nanda also represented that the Solicitor’s Office aims to engage with its agencies early in retaliation claims to seek, e.g., temporary restraining orders and to ensure every worker can exercise rights and participate in investigations.

Each participant described the laws they enforce and the circumstances they encounter when working through retaliation claims.  Specifically, OSHA’s Doug Parker explained the agency’s whistleblower program covers not only the OSH Act, but also 24 other laws covering product and food safety, fraud and financial issues, and transportation.

Solicitor Nanda labeled addressing retaliation in the workplace as a win-win.  Because it is illegal, it is a critical part of employer compliance, and by instituting anti-retaliation programs, employers can help employers avoid increased penalties and bad publicity.  Addressing retaliation can also improve the work environment, as employers who take retaliation prevention and response seriously can identify shortcomings and encourage employee engagement by reducing or eliminating fear of retribution for reporting issues.  The government takes retaliation so seriously because without employee participation in the enforcement process, agencies cannot effectively execute their missions.  Indeed, these agencies’ view retaliation as:

one of the greatest threats to workers being able to exercise the rights guaranteed to them under the law, and to the ability of agencies to protect the exercise of those rights and ensure compliance with our laws. As a result, preventing and addressing retaliation is a top priority across agencies

The presenters next shared recommendations for employers to implement best practices concerning prevention and response to retaliation.  They represented the recommendations are general, not mandatory, and do not interpret or create legal obligations.  But many derived from the work of the Whistleblower Protection Advisory Committee.

Assistant Secretary Parker kicked off a discussion concerning developing anti-retaliation programs and policies, identifying components of effective protocols to both prevent and respond to retaliation.

To prevent retaliation, employers should:

  • Provide training in plain, comprehensible language that employees can understand on: relevant laws and regulations; types of retaliatory acts; employees’ rights and obligations; and elements of the employer’s retaliation program.  Managers and supervisors should understand – and be provided examples of – what constitutes retaliation; how to deal with reports of retaliation and harassment; strengthen skills regarding de-escalation, conflict resolution, effective communication, and problem solving; and the consequences of retaliation.
  • Ensure accountability by having management take a leadership role in preventing and addressing retaliation.  Managers should set the tone, lead by example, hold themselves accountable, and empower workers.
  • Develop a complaint process that provides avenues for employees to raise concerns.  The process should provide for transparent evaluation, as well as fair, effective, and timely resolution of complaints.  Assistant Secretary Parker suggested employers should want robust anti-retaliation prevention and response programs in place because these policies are closely intertwined with substantive compliance with applicable laws and regulations.  Put another way, employees’ sharing concerns may facilitate employers’ ability to address potential safety and health shortcomings in their workplaces.
  • Maintain program oversight through ongoing monitoring of, e.g., the efficacy of anti-retaliation training, trends in complaints and subsequent resolutions, compliance with anti-retaliation policies, and numbers of worker reports to evaluate whether employees are coming forward with concerns.  Internal audits can be beneficial as well.
  • Evaluate policy and culture, including transparency surrounding working conditions and pay; potential chilling effects of safety incentive programs and employee monitoring; communications regarding the value of employees’ raising concerns; and no retaliation for employees who report alleged violations to the government.

To address incidents of retaliation, employers should

  • Implement a system, which workers trust, to receive and address complaints. 
  • Authorize appropriate personnel to respond to complaints, including providing remedies to employees. 
  • Establish independent reporting channels and ensure the confidentiality of reports to the extent practical, but do not impede government investigations or prevent employees from seeking other support or assistance
  • Investigate reports of retaliation promptly and thoroughly, ensuring reports are taken seriously and investigations are not tainted by preconceptions
  • Make sure the investigatory process is clear and is explained to the reporting employee.  Both the employee and management should be kept informed throughout investigation. 
  • Close the investigation respectfully and properly
  • Follow up, as needed, to maintain continued anti-retaliation protection for reporting employees.

When providing remedies to employees who report workplace concerns, employers should consider how to make employees whole, e.g., through reinstatement, by providing lost wages or other damages, and through disciplining supervisors who failed to follow retaliation policies.

All the participating government entities represented additional resources are available on their respective websites.  OSHA’s Assistant Secretary Parker referenced not only www.whisteblowers.gov, but also the agency’s materials on health and safety management programs and its safe and sound campaigns.

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 Darien C. Harris, Dawn Reddy Solowey, and Lynn A. Kappelman

Seyfarth Synopsis: A Third Circuit ruling against a former United States Postal Service employee’s Title VII religious discrimination claim is under review at the Supreme Court in Groff v. DeJoy. Petitioner’s brief urged the Court to overturn decades of precedent established by the seminal case, Trans World Airlines Inc., v. Hardison.  The Postal Service has now filed its response to the petitioner’s brief.  Nine amicus curiae have also thrown down the gauntlet in support of the Postal Service, including several postal worker unions and a coalition of 11 Democratic state attorneys general.

Case Background

In February, Seyfarth Shaw wrote about how Hardison established the legal framework for analyzing employees’ requests for religious accommodations in the workplace, and how the Groff case invited SCOTUS to revisit that precedent.  Last month, Seyfarth Shaw followed up with a post explaining that Republican elected officials and several religious coalitions filed amicus briefs in support of overturning Hardison.  Specifically, the GOP lawmakers contended that the Court should adopt the American with Disabilities Act’s definition of “undue hardship,” replacing Hardison’s “more than a de minimis cost” standard with the “significant difficulty and expense” standard.  The Republican state attorneys general, on the other hand, sought to soothe economic concerns that overturning Hardison would be financially burdensome for employers.

The U.S. Postal Service’s Arguments

The U.S. Postal Service has now responded with its arguments in favor of preserving Hardison.  The Postal Service argues that rather than throw out Hardison altogether, the Court should simply clarify that Hardison affords substantial protection for religious observance – an interpretation favored by the EEOC.  Despite admitting that some lower courts have misapplied Hardison’s de minimis standard, the Postal Service contends that the Petitioner has failed to show that Hardison is so unworkable that it should be overturned.  

The Postal Service also asserts that the Third Circuit correctly held that burdens on other employees may inform Hardison’s undue-hardship analysis.  “Some of the most critical aspects of managing and directing a business are supervising the individuals who compose the workforce, coordinating the distribution of labor, and overseeing the conduct of the workplace.”  The Postal Service notes that the EEOC recognizes that undue hardship can exist where a requested accommodation “infringes on other employees’ job rights or benefits,” or “causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”

Lastly, Postal Service concludes that the Supreme Court should affirm the Third Circuit because granting Petitioner’s accommodation request would have imposed an undue hardship on the conduct of the Postal Service’s business under any reasonable understanding of the statute.

Amicus Brief by 11 Democratic AGs

A coalition of 11 Democratic state attorneys general filed an amicus brief in support of the Postal Service, advocating for the Court to exercise restraint given that Hardison has been precedent for nearly 50 years.  

First, the AGs reminds readers that states are large employers in their own right and have relied on Hardison for decades.  The AGs emphasize that Hardison has been applied by every circuit to address Title VII’s undue hardship standard for religious accommodations, Congress has consistently rejected proposals to amend Title VII, and courts have had little difficulty in applying the Hardison standard. 

Second, the AGs insist that “Petitioner’s arguments are more appropriately directed to Congress,” but like the Postal Service, the AGs argue that the Court should clarify, rather than overturn Hardison.  According to the AGs, the Court should clarify that it is the employer’s burden to establish undue hardship, that employers must show actual hardship that is not merely speculative or hypothetical, and that whether a cost is more than de minimis is fact-specific because “one employer’s undue hardship can be another employer’s de minimis cost.”  

Last, the AGs contend that Hardison allows states to explore the most effective methods to protect religious freedoms, noting that states can “adopt additional standards tailored to the realities of certain industries, or to certain types of more-frequent accommodation requests, allowing state legislatures to fine-tune religious protections in the context of a wide variety of competing policy interests.”

AFL-CIO Weighs In

Another supporter of the Postal Service is the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”), a federation of 60 national and international labor organizations with a membership of over 12.5 million workers.  

In its brief, the AFL-CIO focused on the question  regarding the proper treatment of burdens on co-workers in the accommodation analysis.  The AFL-CIO takes issue with Petitioner’s argument that considerations of other employees’ rights and interests are relevant to showing undue hardship only to the extent that they harm the business as a whole.  As a rebuttal, the AFL-CIO points to the strong federal policy in favor of collective bargaining agreements and cites Supreme Court precedent holding that interference with employee expectations of fair, uniform treatment is relevant when considering accommodations under similar provisions of the Americans with Disabilities Act.

The AFL-CIO concludes that Petitioner’s proposed accommodation would impose an undue hardship on the conduct of the Postal Service’s business under any proposed reformulation of the undue hardship standard for three reasons. 

First, the statutory language of Section 701(j) of Title VII requires a demonstration of an “undue hardship on the conduct of the employer’s business” not on the employer or the business itself.  Here, the AFL-CIO defers to Webster’s New World Dictionary which defines conduct as the “process or way of managing or directing.”  

Second, a proper interpretation of Title VII and the federal policy in favor of enforcing CBAs embodied in the National Labor Relations Act and Labor Management Relations Act requires that courts give considerable weight to the fact that a proposed accommodation would violate a CBA. 

Last, the AFL-CIO argues that the Petitioner’s position that an employer cannot meet Title VII’s undue hardship standard by showing that the accommodation burdens the employee’s coworkers is at odds with the Supreme Court’s jurisprudence under the ADA.  Alternatively, the AFL-CIO invites the Court to remand that question to the Third Circuit for further reconsideration.

TAKEAWAYS While there are strong arguments for the Court to reaffirm and clarify Hardison, the question remains whether such arguments will overcome the current makeup of the Court and its renewed interest in what was once settled law. Seyfarth Shaw recognizes the gravity of such potential changes to the legal landscape for employers and will continue provide updates as this case develops.

By Ashley N. Ehman, Nicolas A. Lussier, Grayson Moronta, and Kimberly Altschul Straker

Please join us on Wednesday, Apr 18, 2023, for this webinar on Specific Employment Law Updates and Trends in New York and New Jersey. There will be discussion on the following recent trends and updates:

1.         Audit trends with respect to the New York City Earned Safe and Sick Time Act, and best practices for avoiding and handling such audits.

2.         New York posting requirements and notices for new hires.

3.         Potential updates to NY employers’ sexual harassment policies.

4.         New Jersey’s sweeping new law that fundamentally changes the way employers may use temporary staffing agencies for particular job categories.

REGISTER HERE

11:00 a.m. to 12:00 p.m. Eastern
10:00 a.m. to 11:00 a.m. Central
9:00 a.m. to 10:00 a.m. Mountain
8:00 a.m. to 9:00 a.m. Pacific

Note: Immediately following the program, speakers will stay on for 15 minutes of virtual “office hours”, where attendees will have the opportunity to interact with them directly and ask additional questions. 

By Seyfarth Global Privacy & Security Team

Seyfarth Synopsis: It’s been no doubt a week of mixed emotions at the California Privacy Protection Agency (“CPPA”) which last week had its final CCPA regulations (“Regulations”) approved and filed with the California Secretary of State by the Office of Administrative Law. The final regulations have been stated to be “effective immediately”. The result is that California employers are now going to have a significant burden around compliance with California privacy law which they didn’t have previously.

Taken on its face, “effective immediately” would mean that enforcement of the regulations would be available (if not acted upon) immediately. However, as with much about the CCPA, this may not be definitive.

First, the California Administrative Procedure Act (“APA”) provides that regulations become effective on one of four quarterly dates based on when the final regulations are filed with the Secretary of State. Under the APA the enforcement date would still be July 1, because the regulation was filed between March 1 and May 31. See Cal. Gov. Code §11343.4(a)(3).

Second, Proposition 24 (the actual amendment to the CCPA) itself provides timing of enforcement of the new provisions of the CCPA. Specifically, Cal. Civ. Code §1798.185(d) states “Notwithstanding any other law, civil and administrative enforcement of the provisions of law added or amended by this act shall not commence until July 1, 2023.”

To complicate matters further, on March 30, 2023, the day after the new regulations were announced as finalized by the CPPA, the California Chamber of Commerce filed suit against the Agency seeking declaratory and injunctive relief to delay enforcement. The lawsuit seeks the delay of enforcement until one year after the regulations were finalized. The original CPRA mandated Regulations be adopted by July 2022, with enforcement to begin July, 2023.  The Chamber’s suit makes many claims, including that the new Regulations are incomplete and rushed upon business because of the CPPA’s own internal delays, and the elimination of the safe harbor for enforcement combined with the shortened period between regulation and enforcement causes undue hardship. Their argument concerning the enforcement data is essentially that because the CPPA missed the regulation adoption date by approximately eight months, the enforcement data should also be shifted forward the same period of time.  Whether this lawsuit will succeed or not is difficult to ascertain at this time.

All of this is to say, while the press release of the CPPA may be technically correct, the practical application of the law to businesses still seems to have some breathing room. That said, despite the continuing lack of certainty around this legislation, it is important to continue to shore up any compliance efforts businesses have underway. This is particularly important in the HR/workplace context, where businesses have had broadened obligations to job applicants, employees, owners, directors, officers and contractors.

There are some immediate actions covered businesses will need to take in any eventuality:

  1. Figure out what HR-related data is subject to the CCPA and what isn’t.
    • Review exemptions under Cal. Civ. Code §§1798.145 and 1798.146. For example, background reports on employees from consumer reporting agencies under the Fair Credit Reporting Act likely exempt.
    • Review Federal laws that expressly preempt state law. For example, ERISA generally preempts state law and has certain record-keeping requirements that will affect how employers respond to request for deletion, for example.
  2. Review the new regulations for required notices and disclosures.
    • Draft an HR-related data privacy policy for employees and applicants. This is a separate requirement from the earlier “privacy notice” that was required under Cal. Civ. Code §1798.100 as all the requirements of §1798.130 are also implicated. Additionally, the regulations have distinctive requirements around “privacy policies” (under 11 Cal. Code Reg. §7011) and “privacy notices” (under 11 Cal. Code Reg. §7012).
    • “Sensitive Personal Information” now has to be specifically discussed in policies and notices. This can impact EEOC reporting data.
  3. Develop a “Service Provider Addendum” for all vendors that touch covered data.
  • The regulations require “magic language” to keep a vendor a “service provider”. If a vendor isn’t classified as a either service provider or contractor, then they are a “third party” and businesses lose the “safe harbor” around joint liability if the vendor violates the CCPA or the regulations.

Clearly, there is much more for a full compliance program to be developed and deployed but working through the above considerations will keep most businesses on course for compliance (almost) no matter what.

Seyfarth Synopsis: Annette Tyman, Chair of Seyfarth’s People Analytics practice, will join a panel discussion on “Turning Diversity, Equity, and Inclusion Data into Sustainable Change and Action” at the Society for Industrial and Organizational Psychology (SIOP) Annual Conference, April 19-23, 2023.

The panel discussion will focus on increasing an understanding of considerations and recommended approaches relating to the practice of analyzing data for Diversity, Equity, and Inclusion (DEI) purposes. In recent years, there has been an increase in both data accessibility for these analyses and the demand for such analyses. This panel will examine specific considerations to inform a framework for setting up a DEI analytic effort and will present case studies to illustrate how various considerations, methodologies, and specific data analyses informed DEI initiatives in different organizations and industries.

Annette will be joined on the panel by Daniel Ellerman, MBA, SPHR, SHRM-SCP, Global Diversity, Equity, and Inclusion leader at Amazon Web Services (AWS); Victoria Mattingly, Ph.D., diversity, equity, and inclusion (DEI) and learning & development (L&D) consultant; Kristen Pryor, M.S., Principal Consultant at DCI Consulting; and Wilson, M.A., Director of Workforce Equity, Principal Consultant at DCI Consulting.

For more information and registration, click here.

By Danielle Kays, and Danny Riley, Law Clerk

Seyfarth Synopsis: On March 23, 2023, the Illinois Supreme Court unanimously affirmed the appellate court’s decision in Walton v. Roosevelt University, ruling that the Labor Management Relations Act (“LMRA”) preempts the Illinois Biometric Privacy Information Act (“BIPA”). Following recent BIPA decisions that have ramped up the risk of liability for employers (see more information on Tims and White Castle), the decision in Walton helps to curb BIPA exposure for employers with broad management rights clauses in their collective bargaining agreements.

Background on Walton v. Roosevelt University

The case involves a dispute over the enrollment of employees’ hand geometry scans in a timekeeping system used by Roosevelt University. In March 2019, the plaintiffs filed a class-action complaint against Roosevelt, alleging that the University’s collection, use, storage, and disclosure of the biometric information was in violation of several sections of BIPA Sections  (a), (b), (d). In response, Roosevelt moved to dismiss, arguing that the BIPA claims were preempted by Section 301 of the Labor Management Relations Act, 1947 (“LMRA”) (29 U.S.C. § 185 (2018)). Because Walton was a member of a union during his employment, he had agreed to and was bound by the collective bargaining agreement (“CBA”) between his union and the University. Accordingly, the University argued that the manner by which employees clock in and out is covered by a broad management-rights clause and required grievance procedures under the CBA. 

In support of its motion to dismiss, the University cited the Seventh Circuit’s decision in Miller v. Southwest Airlines Co., 926 F.3d 898, 903 (7th Cir. 2019), which held that federal labor law preempts BIPA claims when the claims require interpretation or administration of a CBA. However, in May 2020, the circuit court denied the University’s motion to dismiss, finding Miller to be distinguishable from the facts at issue in this case. The court’s opinion noted that a preemption argument is not relevant here because a BIPA claim “is not intertwined with or dependent substantially upon consideration of terms of [a] collective bargaining agreement” where a “person’s rights under [BIPA] exist independently of both employment and any given CBA.” Following the circuit court’s opinion, it certified the following question for interlocutory appeal, which was answered in the affirmative by the appellate court:

“Does Section 301 of the Labor Management Relations Act (29 U.S.C.[ ] § 185) preempt [BIPA] claims  asserted by bargaining unit employees covered by a collective bargaining agreement?”

In its holding, the appellate court found that “that [BIPA] claims asserted by bargaining unit employees covered by a collective bargaining agreement are preempted under federal law.” The appellate court noted that the BIPA “contemplates the role of a collective bargaining unit acting as an intermediary on issues concerning an employee’s biometric information,” because BIPA prohibits private entities from obtaining biometric information without obtaining consent from either the subject or, notably, the subject’s legally authorized representative.”  Although biometric information was not expressly discussed in the CBA, the court found that the CBA contained a broad management-rights clause. Thus, “[t]he timekeeping procedures for workers are a topic for negotiation that is clearly covered by the collective bargaining agreement and requires the interpretation or administration of the agreement.”

The Illinois Supreme Court’s Decision

The Illinois Supreme Court unanimously affirmed the appellate court decision, and held that the LMRA does indeed preempt BIPA in this case. The Supreme Court reasoned that BIPA’s regulation of the collection and use of biometric information creates a significant obstacle to the objectives of the LMRA, which seeks to promote labor-management cooperation and protect collective bargaining agreements. The Supreme Court further noted that allowing BIPA claims to proceed could interfere with the bargaining process and lead to inconsistent outcomes across different collective bargaining agreements.

Implications For Employers

This decision is a welcome win after recent plaintiff-friendly Illinois Supreme Court BIPA decisions.  While this decision does not prohibit employees from pursuing claims though grievance procedures in their collective bargaining agreements, it does shield employers from liability in court class actions or that might be sought through frivolous BIPA claims.  Therefore, this case is a reminder to carefully negotiate and review collective bargaining agreements. 

For more information about the Illinois Biometric Information Privacy Act, and how this verdict may affect your business, contact the authors, your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.

By Janine E. Raduechel and Josh A. Rodine

Seyfarth Synopsis: A California Court of Appeal ruled that both the Fair Employment and Housing ACT (FEHA) and California’s Pregnancy Disability Leave law (PDL) require a plaintiff to prove that the plaintiff had a condition related to pregnancy and, with a reasonable accommodation, the plaintiff could have performed the essential functions of the job. Lopez v. La Casa de las Madres.

The Facts

Gabriela Lopez worked for La Casa de las Madres (La Casa) at various times between 2002 and 2017, most recently as a shelter m­­anager at La Casa’s residential shelter for domestic violence victims.

In April 2016, Lopez notified La Casa of her pregnancy and her expected due date. She was placed on modified work duty a few months before her due date, and several weeks before her due date she was placed on a leave of absence due to symptoms relating to her pregnancy.

After giving birth, Lopez experienced complications, and provided La Casa with periodic certifications to extend her leave. Lopez alleged that during this period La Casa failed to engage in an interactive process to determine if Lopez’s disability could be accommodated, and refused to provide two “modest” accommodations suggested by Lopez’s healthcare provider: (1) time off to allow Lopez to continue mental health treatment; and (2) flexible/shortened workdays if Lopez found work to be overwhelming and triggered severe anxiety/depressive symptoms. Lopez’s healthcare provider said that it was “unknown” for how long these accommodations would be necessary.

La Casa made a determination that it could provide time off for therapy, but could not function indefinitely without someone in Lopez’s position. Nor could Lopez’s job be “performed without making significant decisions and facing stressful situations at unpredictable times.” La Casa offered Lopez an extended leave and an alternative assignment as a Data Entry specialist.

Lopez claimed she was ultimately forced out of her job “due to normal complications experienced after her pregnancy.”

The Trial Court Decision

A bench trial was conducted. The trial court found that Lopez failed to carry her burden of proving, by a preponderance of the evidence, one or more elements of each claim she pursued at trial.

Although Lopez brought most of her claims under the basic discrimination and disability accommodation provisions of FEHA, she also presented evidence at trial that La Casa engaged in discrimination—and the failure to prevent discrimination—under PDL.

The Court of Appeal Decision

On appeal, Lopez contended that the trial court misapplied provisions of FEHA that require an employer to provide reasonable accommodations for a pregnancy-related condition. She argued that the trial court committed an error of law by placing the burden on Lopez to prove that (1) she had a condition related to pregnancy, and (2) she could otherwise perform the essential functions of the shelter-manager position.

The Court of Appeal affirmed the judgment in favor of La Casa and iterated the elements of a pregnancy discrimination claim under PDL. Drawing from the statutory language and applicable regulatory law, as well as pertinent FEHA case law, the Court concluded that causes of action under PDL, as well as FEHA, require proof that:

(1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition;

(2) the plaintiff requested accommodation of this condition, with the advice of her health care provider;

(3) the plaintiff’s employer refused to provide a reasonable accommodation; and

(4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job.

The Court explained that, consistent with Lopez’s argument, the protections afforded by PDL must be construed, in some ways, “more broadly and differently than [FEHA]” (e.g., PDL provides for up to four months of pregnancy-disability leave). Thus, PDL affords protections to employees affected by pregnancy, over and above the protections of FEHA.

However, none of these provisions entitles an employee to a job the employee cannot perform.

What Lopez Means for Employers

This decision suggests a refreshingly common sense approach by a California Court of Appeal to hold plaintiffs to their burden of proof in showing that the plaintiff had a pregnancy related disability and, with a reasonable accommodation, could have performed the essential functions of the job at issue.

While this is a positive decision for employers, they should still bear in mind the extensive requirements under FEHA (and PDL) to engage in the interactive process and provide reasonable accommodations to disabled individuals, including those effected by pregnancy.