By Christine Hendrickson and Annette Tyman

Synopsis: On Equal Pay Day 2020, Seyfarth’s Pay Equity Group is pleased to release two reference guides: its Fourth Annual 50-State Pay Equity Desktop Reference and 2020 Developments in Pay Litigation Report.

Equal Pay Day is always a day of deep reflection and connection for our Pay Equity Group. The day is filled with webinars, phone calls and interviews, flights, in-person meetings and hallway greetings.  This year, instead of flying around the country, we are working from homes, preparing final materials in make-shift home offices between “homeschooling” sessions. At least one of our planning calls was interrupted by a new “co-worker” roller-skating down the hallway.

But putting the final touches on our communications in the quiet of the morning, we reflect on the way the global pandemic has had a way of clarifying and crystalizing the core of what is important.  As Kori Carew, Seyfarth’s Chief Inclusion & Diversity Officer, wisely stated that “Our need for connection and belonging likely hasn’t been greater for most of our lifetimes.” So even though we have made the decision to move our webinar until later in the year, we wanted to share these reference materials.  We are grateful that we can support the efforts of so many employers who are proactively working to ensure equal pay on a daily basis.  As we offer these resources to you today, we plan to hold a substantive webinar in the summer when we can collectively focus on the legal issues, trends and practices that propel our combined work and focus on ensuring equal pay for all.

As we look back at 2019 and forward to the new world that 2020 and beyond presents, we see three key trends:

  • The Continued Passage of Pay Laws: Since the beginning of 2019, we saw new pay laws enacted or strengthened in eleven states.  Alabama, which was one of only two states without any state pay equity laws, passed an equal pay law and also enacted a quasi-salary history ban.  Colorado passed a law that will require employers, beginning in January 2021 to include the pay scale on job postings.  Nebraska passed a wage transparency law. There are new or amended salary history bans in Illinois, Maine, New Jersey, New York, and Washington state.  There are also new equal pay laws or increased penalties for violations of equal pay laws in Illinois, Maryland, Nevada, New York, and Wyoming.  The Fourth Annual 50-State Pay Equity Desktop Reference outlines many of these changes at the state-level.
  • Increased Pay Litigation: Over the years, we have seen an increase in litigation under the federal Equal Pay Act and analogous state laws with noticeable focus on state law claims. With over 300 pure “pay” cases filed in the last two years, we see a concentration of cases in California, Florida, and Texas. Those cases are already generating new and intriguing legal issues that have the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The 2020 edition of the Developments in Pay Litigation Report, authored by our colleague Matt Gagnon, outlines these cases and trends.
  • A Global Focus on Pay Equity: In 2019, we saw employers continue to focus on global pay equity issues, to be more transparent about pay along with an increased appetite for additional data and metrics. As our global workforces are impacted by COVID-19, we believe that the desire to connect, to demonstrate belonging will be even more important in 2020.

All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2020.  We stand with you to support these efforts.

Christine Hendrickson and Annette Tyman co-chair the Seyfarth’s Pay Equity Group.

By Jennifer L. Mora

On Monday, March 23, 2020, the United States Department of Transportation issued guidance for DOT-regulated employers, employees, and their service agents that might be facing challenges in meeting the department’s drug and alcohol testing requirements due to the pandemic. The guidance, which can be found here, serves to “provid[e] maximum flexibility to allow transportation industries to conduct their operations safely and efficiently during this period of national emergency.”

According to the guidance:

  • DOT-regulated employers remain obligated to comply with applicable DOT training and testing requirements. However, recognizing that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO), and Substance Abuse Professionals (SAP), the guidance advises regulated employers to “make a reasonable effort to locate the necessary resources.” DOT states that as “a best practice at this time,” employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available. DOT, however, reminds employers that “point-of-collection testing or instant tests are not authorized in DOT drug testing.”
  • If a DOT-regulated employer is unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, it must continue to comply with existing applicable DOT requirements to document why the test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), employers must do so in accordance with applicable modal regulations.
  • If an employers is unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), the employer cannot hire the individual.
  • Recognizing the concern about potential public health risks associated with the collection and testing process in the current environment, the guidance advises employers to review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
  • The guidance reminds employers that it is their responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 C.F.R. § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, the DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. It also asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
  • Finally, the guidance advises employers to revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and an alternate/back-up MRO, as these may have changed as a result of the national emergency. DOT also advises employers to have regular communications with service agents regarding the service agent’s availability and capability to support the employer’s DOT drug and alcohol testing program.

Many employers with drug and alcohol testing programs, whether regulated or not, are finding it difficult to administer their programs in light of the pandemic. Employers that are not subject to DOT or any other federal or state-mandated drug testing requirements still must consider any applicable state and local drug and alcohol testing laws before making any modifications to their drug and alcohol testing programs. Employers that need to revisit their current testing programs during this uncertain time should consider working with counsel experienced in drug and alcohol testing laws and policies. We will continue to monitor these issues as they develop at the federal, state, and local level.

 

By Steve Shardonofsky, Linda C. Schoonmaker, Vanessa Rogers, and Joshua D. Seidman

Seyfarth Synopsis:  Last April, the Dallas City Council passed an ordinance requiring employers to provide employees who work within the City of Dallas with 48 or 64 hours of paid sick leave per year, depending on size.  Despite pending lawsuits challenging the legality of the ordinance, the ordinance took effect August 1, 2019. Since that time, the City of Dallas has limited its enforcement to violations that constitute unlawful retaliation. On April 1, 2020, full enforcement will begin. 

As enforcement draws near, employers  should take a close look at the ordinance, regulations and administrative guidance and their respective policies to ensure compliance, to the extent they have not already done so.  This article provides a recap of the paid sick leave requirements in Dallas and outlines the penalties facing employers who do not comply.

Effective August 1, 2019, pursuant to Dallas’ Earned Paid Sick Time ordinance (the “Dallas Sick Time Ordinance”), employers with more than five employees at any time in the preceding 12 months are required to provide their employees with paid sick leave.  Businesses with five or fewer employees in the preceding 12 months have until August 2021 to comply.

Below is a summary of the Dallas Sick Time Ordinance:

  • Definition of Covered Employees: Eligible employees include individuals who perform at least 80 hours of work for pay in Dallas in a year for an employer, including work performed through the services of a temporary employment agency. The Dallas Sick Time Ordinance, however, excludes independent contractors, as defined by the Texas Administrative Code, and unpaid interns from the definition of employee.
  • Definition of Covered Employers: Employers are defined broadly to include any person, company, corporation, firm, partnership labor organization, non-profit organization, or association that pays an employee to perform work for an employer and exercises control over the employee’s wages, hours, and working conditions. Covered employers do not include the United States, State of Texas, and City of Dallas governments and any agency that cannot be regulated by city ordinance.
  • Accrual Rate and Cap: Employees accrue one hour of earned paid sick time for every 30 hours worked in the City of Dallas, up to 64 hours of earned paid sick time per year for medium or large employers (defined as an employer with more than 15 employees at any time in the preceding 12 months, excluding the employer’s family members) and 48 hours per year for small employers (i.e., employers with 15 or fewer employees).[1]
  • Leave Usage: Once accrued, employees are entitled to use available earned paid sick time immediately.  However, employers (1) may deny or restrict leave usage during the employee’s first 60 days of employment if the employee’s term of employment is at least one year, and (2) may limit leave usage to no more than eight calendar days a year.[2]
  • Permitted Reasons for Use: Eligible employees may use available earned paid sick time for the following reasons: (1) the employee’s physical or mental illness, physical injury, preventive medical or health care, or health condition; (2) the employee’s need to care for their family member’s physical or mental illness, physical injury, preventative medical or health care, or health condition; and (3) certain safe time reasons relating to the employee’s or their family members’ status as a victim of domestic abuse, sexual assault, or stalking.
  • Covered Family Member: Under the Dallas Sick Time Ordinance, family member includes the following: (1) spouse; (2) child; (3) parent, and (4)  any other individual related by blood, or any other individual whose close association to an employee is the equivalent of a family relationship. The Dallas Sick Time Rules further added that family member includes step-parents, step-siblings, step-children, step-grandparents, step-grandchildren, anyone who can be claimed as a dependent, and anyone who can claim someone as a dependent.
  • Verification: Employers can ask for reasonable verification of the reason for leave of more than 3 consecutive days, but not require details about the nature of the condition or situation requiring leave. Employers must allow an employee a reasonable amount of time to provide the verification.
  • Payment of Sick Time: Employees must be paid an amount equal to what the employee would have earned if the employee had worked the scheduled work time, exclusive of any overtime premium, tips, or commissions, but no less than the state minimum wage.  An employer must pay an employee for his/her use of paid sick time on the payday for the pay period in which paid sick time was used by the employee.  If an employer requires verification of the use of paid sick time of more than three consecutive days, an employer shall pay sick time to an employee no later than the payday for the pay period during which verification is provided to the employer.
  • Year-End Carryover: Employers must generally permit employees to carry over all available earned paid sick time up to the applicable yearly cap. However, employers who frontload 64 or 48 hours of earned paid sick time (whichever is applicable) to employees at the beginning of the year are not required to permit year-end carryover of unused time.
  • Notifying Employees: Employers must provide the following notifications to employees working in Dallas: (1) display a sign describing the requirements of the Dallas Sick Time Ordinance, (2) include a notice to employees of their rights and remedies under the Dallas Sick Time Ordinance in an employee handbook, if the employer provides employees with handbooks, and (3) provide a written statement to each employee, at least monthly, of their balance of available paid sick time hours, including, among other things, the name of the employee, the name of the employer, the statement’s date, the statement period, the amount of sick time used during the statement period, the amount of the employee’s available paid sick time, and either the number of hours worked within the boundaries of the City and amount of paid sick time accrued during the statement period (for employers using the accrual method) or the paid sick time hours made available during the beginning of the year (for employers using the front-loading method).  The City of Dallas has created model Dallas sick leave posters in various languages and sample language for employee handbooks, available here and here.
  • Anti-Retaliation: Employers may not transfer, demote, discharge, suspend, reduce hours, or directly threaten such actions against an employee because the employee requested or used earned paid sick time, reported a violation of the Dallas Sick Time Ordinance, or participated or attempts to participate in an investigation under the Dallas Sick Time Ordinance.

While the Dallas Sick Time Ordinance took effect August 1, 2019, the City will not begin actual enforcement (except for violations of the anti-retaliation provision which are already being enforced) until April 1, 2020.   Notably, there is no private right of action under the Dallas Sick Time Ordinance. But employers may be subject to civil fines of up to $500 for each violation, if the employer does not voluntarily comply within 10 days of notice of violation.

For employers who have not already revised or rewritten policies, including paid sick leave, call-in procedures, attendance, record keeping, anti-retaliation, and disciplinary policies to comport with the Dallas Sick Time Ordinance — now is the time.  Enforcement begins in a few short days.

For additional information about Dallas’ Paid Sick Leave Ordinance check out our previous blogs, click here, here,  here, and here.  To access a list of Frequently Asked Questions published by the City of Dallas, click here.

As the paid leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with specific PSL and paid time off laws and on PSL requirements generally. To stay up-to-date on paid leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.

[1] The Dallas Sick Time Ordinance is silent on how employers should calculate whether they qualify as  medium or large employers. However, the City’s corresponding FAQs provide the following nonbinding guidance – An employer should count the number of employees who have done at least 80 hours of compensable work for an employer within the geographic boundaries of the City of Dallas within the last 12 months, excluding family members but including owners. If the number of employees employed at any one time has varied over the last 12 months, the employer should use the highest number at any one time. An employer should count part-time employees as one employee rather than a fraction of an employee.

[2] While the Dallas Sick Time Ordinance is silent on a definition of benefit year, the Ordinance does note that an employer who, as a matter of company policy, uses a 12-consecutive-month period other than a calendar year for the purpose of determining an employee’s eligibility for and accrual of paid sick time must provide its employees with written notice of the policy at the commencement of employment.

By Gerald L. Maatman, Jr. and Matthew Gagnon

Seyfarth Synopsis: In the past 24 hours, the EEOC released a statement: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which gives employers some guidance on how they can navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability discrimination laws. The EEOC was careful to explain that although those laws are still very much in effect, they do not interfere or prevent employers from following the guidelines or suggestions made by the CDC or state and local public health authorities regarding COVID-19. The Commission’s statement is a must read for corporate counsel.

The EEOC’s statement builds on its earlier guidance, issued during the H1N1 pandemic, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. That publication, which is far more in depth than what was just released, provides important guidance for employers trying to navigate the disability discrimination laws during a pandemic, including: how much and what kinds of information an employer may request from an employee who calls in sick, when employers may take the temperature of employees, when the ADA allows employers to require employees to stay home from work, and what employers can require in terms of doctors’ notes or other certifications of fitness for duty.

Those issues are also addressed briefly in the EEOC’s recent statement. These are the key points that the EEOC wants all employers to keep in mind:

  • During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • The EEOC reminded employers that measuring an employee’s body temperature is a medical examination. But because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
  • The CDC has stated that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC wants employers to know that the ADA does not and should not interfere with that advice.
  • The ADA allows employers to require doctors’ notes certifying fitness for duty because such notes would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA’s standards for disability-related inquiries of employees. The EEOC also acknowledges that doctors and other health care professionals may be too busy to provide such documentation and that new approaches may be necessary, such as a form, a stamp, or an email to certify that an individual does not have the pandemic virus.

Implications For Employers

This is an incredibly fast-moving situation and no single set of guidelines can possibly cover all of the diverse situations that employers are likely to face with unprecedented urgency over the next days, weeks, and months. But the new guidelines issued today, and especially the more detailed document that was issued in 2009, are a good place to start for employers who are looking for quick, practical guidance as they start crafting and implementing critical workplace policies on the fly.

We encourage all employers to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. The Resource Center was designed to provide employers up-to-the-minute guidance on the diverse and growing list of legal considerations and risks employers are facing. Seyfarth Shaw also has a response team standing by to assist however we can.

Readers can also find this post on our EEOC Countdown blog here.

By Katherine F. Mendez and Samantha L. Brooks

Seyfarth Synopsis: In our fifth installment on the presidential candidates’ stances on future of work issues, we provide an update from the campaign trail and Capitol Hill.

In our fourth installment in our “where the presidential candidates stand” series, we discussed the candidates’ and the President’s positions on preparing and training employees for a highly technical workplace, and how they plan to invest in the workforce.  A common theme among the candidates is the importance and value of apprenticeships.  On March 4, a subcommittee of the House Education and Labor Committee heard testimony regarding the importance and future of apprenticeships at a hearing titled “Reauthorizing the National Apprenticeship Act: Strengthening and Growing Apprenticeships for the 21st Century.”  Rep. Susan Davis noted in her opening statement that apprenticeship programs “combine business needs with labor demands” — a theme that has been echoed by the candidates.

Since our fourth installment, Michael Bloomberg and Sen. Elizabeth Warren dropped out of the Democratic candidate race, leaving only Former Vice President Joe Biden, Sen. Tulsi Gabbard, and Sen. Bernie Sanders.

At the debate on March 15, which featured Former Vice President Biden and Sen. Sanders (Sen. Gabbard was not invited to the debate because she has not won enough delegates), COVID-19 and health care understandably took center stage, though Biden and Sanders briefly discussed their positions on raising the minimum wage to $15 per hour (we covered the candidates’ positions on minimum wage in our third installment of this series).  We hope that as the race for the White House progresses, and as the COVID-19 pandemic slows over the coming weeks and months, the candidates will give some much-deserved attention to future of work issues, including those issues discussed in our series. We will continue to update you as election season grinds on, and as the candidates discuss issues important to employers and employees alike.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Christine Hendrickson and Nolan R.Theurer

Seyfarth Synopsis: The Ninth Circuit, in an en banc decision following remand from the Supreme Court, held that employers cannot justify pay disparities under the federal Equal Pay Act by showing that those disparities are based on employees’ past earnings. We hope you will join Seyfarth’s Pay Equity Group for an Equal Pay Day 2020 webinar on March 31, 2020, to discuss this case and more about the current state of pay equity law. You can register for the webinar here.

On Thursday, February 27, 2020, the Ninth Circuit, sitting en banc, issued a decision in Rizo v. Yovino, holding the prior salary cannot be used as a “factor other than sex” to justify pay differences under the federal Equal Pay Act. The ruling tracks the earlier Ninth Circuit opinion written by late U.S. Circuit Judge Stephen Reinhardt, which was discarded by the U.S. Supreme Court because Judge Reinhardt died before the decision was published. With the February 27th ruling, the Ninth Circuit joined the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes employers from relying solely on prior salary to justify pay differences. This is in contrast to decisions in the Seventh and Eighth Circuits, which held that such reliance does not by itself violate the Equal Pay Act.

The Facts Underlying The Ninth Circuit Case

The original Ninth Circuit case, Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps. New math consultants were placed into Level 1, which contained ten salary steps with compensation ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates’ most recent prior salary and added 5% to assign the starting salary step within Level 1.

Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County’s practices, Rizo was to receive a 5% increase over her prior salary. However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants. The County addressed the issue by setting Rizo’s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.

Several years later, Rizo learned that at least one of her male colleague’s starting salary was set at the Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid. After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act.

The Trial Court Decision

The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary, a legally-permissible “factor other than sex.” The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one’s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.

The Court of Appeals’ Original Decisions

The Ninth Circuit Court of Appeals initially reversed the District Court, relying on its prior decision in Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor “reasonably in light of the employer’s stated purpose as well as its other practices.” The Ninth Circuit held similar reasoning applied to Title VII claims as well.

However, the Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.” Rizo v. Yovino, 887 F.3d 453, 459 (2018) (en banc). On April 9, 2018, the Ninth Circuit, sitting en banc, overruled Kouba, holding that prior salary cannot be the sole justification to explain a pay differential between a man and woman under the federal Equal Pay Act. Writing for the majority, Judge Reinhardt wrote that a worker’s salary history can never be a non-sex factor because women have historically earned less than men. He opined that if the law lets employers point to women’s past salaries to justify paying them less, it would “perpetuate that gap ad infinitum.”

The Appeal to The U.S. Supreme Court

Defendant Fresno County Superintendent of Schools Jim Yovino appealed the Ninth Circuit’s ruling to the U.S. Supreme Court, arguing that the en banc opinion relied on Judge Reinhardt’s vote, and should be vacated due to Judge Reinhardt’s death eleven days prior to the date the opinion issued. Agreeing with the Appellant and noting that judges are “appointed for life, not for eternity,” the Supreme Court vacated the Ninth Circuit opinion. Yovino v. Rizo, 139 S.Ct. 706 (2019).

The February 27, 2020 Court of Appeals Decision

This Thursday, the en banc Ninth Circuit echoed Judge Reinhardt’s April 2018 opinion, holding that past salary is not a “factor other than sex” and reviving Rizo’s suit under the Equal Pay Act. Writing for the majority, Judge Morgan Christen wrote that “setting wages based on prior pay risks perpetuating the history of sex-based wage discrimination.” Rizo v. Yovino, No. 16-15372, 2020 WL 946053 (9th Cir. 2020).

“The express purpose of the act was to eradicate the practice of paying women less simply because they are women,” Judge Christen wrote for the majority. Id. at *1. “Allowing employers to escape liability by relying on employees’ prior pay would defeat the purpose of the act and perpetuate the very discrimination the EPA aims to eliminate.” Id.

In concurring opinions, two judges said their colleagues should have taken the more moderate approach of some other circuits.

In her concurrence, Judge Margaret McKeown said Fresno Schools’ policy did not justify the disparity between Rizo’s pay and that of her male coworkers, but salary history “may provide a lawful benchmark” for setting pay if considered alongside other factors such as education and training. Judge McKeown’s concurrence was joined by Judges Richard Tallman and Mary Murguia. Id. at 14.

Judge Consuelo Callahan also concurred, joined by Judges Tallman and Carlos Bea. She stated that an employer should be permitted to use past salary as a factor in setting pay, as long as its use “does not reflect, perpetuate, or in any way encourage gender discrimination.” Id. at 19.

Implications For Employers

As a result of Thursday’s ruling, there is a clear Circuit court split regarding the use of prior salary to explain pay disparities. Employers should be aware of the split and approach this area with caution. Following this decision, the Ninth, Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act. Id. at 19.

Employers should also be aware of numerous salary history bans that prohibit employers from seeking and, in some cases, relying on prior pay in setting starting wages.

Careful evaluation of your policies and practices around the use of prior salary is encouraged. Given the maze of federal, state, and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.

Seyfarth’s Pay Equity Group continues to track these developments closely. We hope you will join us for a webinar on March 31, 2020, Equal Pay Day 2020, to hear more about the current state of pay equity law. You can register for the webinar here.

By Andrew J. Sherman, Chantelle C. Egan, Anne R. Dana, and Patrick D. Joyce

Seyfarth Synopsis: As restaurant and hospitality consumers rethink their dining experiences, increased concerns are coming from food service providers about how to ensure food safety, reassure patrons, and address issues arising when workers get sick. The good news is that the food industry is already well-positioned because of its strict food safety standards.

Business owners and chefs need to consider how their business plans and business models need to shift, with a focus on delivery, catering, special events, and in-store promotions to keep facilities packed and tables turning. Restaurants and food service providers should also consider the below steps to help them prepare for Coronavirus-related issues.

Planning Ahead

One of the most important things for any employer is putting a plan in place for how to address these new concerns.

  • Open communication with employees and patrons
    • Provide detailed information to employees about Coronavirus, including the symptoms, where they can go if they believe they are sick, what steps the restaurant is taking to ensure the safety of workers’ and patrons—as well as provide regular updates as the situation evolves. Information is one of the best ways to calm frayed nerves.
    • Post signage upon entering restaurants and open letters on websites, and send emails to patrons of enhanced cleaning and personal hygiene procedures and measures. If your restaurant offers paid sick leave and/or health insurance, use this as an opportunity to toot your own horn, while also assuring patrons that you have stressed the importance to employees to stay home if feeling sick.
  • Develop a response plan
    • Reduced staff availability. An increased number of your staff may be staying home, whether because they or a loved one is ill, or due to preventative measures such as school closures.  Cross-training for various positions could ease the burden of reduced staff availability.
    • Reduction in demand. With individuals adopting new behaviors to curb the spread of Coronavirus (e.g., working remotely, not gathering in large groups), restaurants may experience a downturn in consumer demand.  Create strategies for alternative revenue sources. For example, offer delivery or catering.  Review contracts to determine how to handle cancellations for large parties or changing set delivery orders.
    • Supply chain. Access to ingredients, supplies, and other vital materials may be restricted as supply chains adjust to virus concerns. Research alternative sources of necessary supplies.
    • The need to close or reduce hours of operations may come on suddenly. Take measures to ensure that you can swiftly communicate with your employees and patrons. Also establish a plan for how to quickly undertake sanitation efforts.
    • Publicity. Get ahead of possible press coverage if there is a Coronavirus exposure by preparing a draft public response for the media, so you aren’t left scrambling.

Increase Sanitation Efforts

Using federal, state and local food safety laws and guidance as a starting point, now is the time to take your already rigorous cleaning routine to the next level.

  • Wash, rinse, repeat
    • Enhance frequency of cleaning, focusing on disinfecting high-touch public areas, such as door handles, tabletops, chairs, and counters, as well as credit card machines or other highly trafficked surfaces. Ensure that cleaning supplies comply with the EPA’s list of approved disinfectants for SARS-CoV-2 (which can be found here).
    • Consider additional sanitizing measures such as “deep cleans” at regular intervals and with increased frequency.
    • Increase handwashing requirements for employees, including instituting a schedule (such as every 30 or 60 minutes), as well as whenever employees touch their face, sneeze, cough, or use the restroom. Remind employees to wash their hands for at least 20 seconds using plenty of soap.
    • Provide hand sanitizer or personal disinfecting wipes for patrons as they enter the facility, demonstrating publicly your commitment to sanitation.
  • Limit hotspots for potential contamination
    • Remove self-serve condiment and utensil stations. Instead, have patrons ask for these items from gloved employees.
    • Suspend reusable cup options—whether for free refills or for patrons who bring their own.
    • Consider shifting to take-out options and evaluate best practices for providing patrons with food to go.

Sick Leave and Reporting Illness

Employers also need to quickly address what to do when employees are sick.

  • Review policies for how to handle employees who call out
    • Employers should review their sick leave policies, Family Medical Leave Act policies, and other relevant policies to determine what kind of leave must be provided to employees and under what situations.
    • Where feasible, some larger restaurants and chains have temporarily amended sick leave policies, including adding paid sick leave or “catastrophe pay” for up to 14 days for employees who have to be quarantined.
  • Pay attention to proposed new laws
  • Paid time off
    • Review any pay issues that may arise if employees are unable to come to work. Unless there is a contract or a collective bargaining agreement at issue, hourly employees typically work at-will and are not guaranteed wages or hours.  In other words, these employees do not need to be paid.  However, employers should ensure there are no local or state laws that require further consideration if schedules are suddenly changed.
    • For example, New York’s Fair Workweek law, which governs fast food restaurants, contains exceptions to the schedule change premium, and one such exception is a state of emergency declared by the governor of the State of New York or mayor of the city, which is currently the case in New York. Likewise, San Francisco’s Formula Retail Employee Rights Ordinances, which govern chain restaurants with at least 40 locations worldwide, provides a similar exception when “operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.”
  • Communicate expectations for employees to report potential exposure and/or diagnosis
    • Employers should remind employees about sick leave policies and strongly encourage employees who are not feeling well to stay home.
    • Employers should also implement requirements for reporting any possible exposure to or diagnosis of Coronavirus infection. This includes notifying other employees and/or patrons who may have been exposed.
  • Clarify expectations to managers for addressing employee and/or patrons displaying symptoms
    • Communicate with managers about how to address concerns with employees who appear sick and instructions on sending employees home. Put a policy in place with respect to what is required to return to work, such as a doctor’s note or a documented negative  Coronavirus test result.
    • Communicate with managers about what to do if a patron appears sick and is displaying symptoms associate with Coronavirus, which may include providing hand sanitizer and tissues, asking the patron to leave in extreme circumstances, and being sure to properly disinfect the area where the patron was after they leave.

The situation with Coronavirus, and how best to respond, is evolving rapidly.  Planning ahead, while remaining flexible, is key to navigating the changing norms and the impact of Coronavirus on your business.

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) or Workplace Counseling & Solutions Teams.

By Robert A. Fisher and John Ayers-Mann

Seyfarth Synopsis: On January 24, 2020, the Massachusetts Commission Against Discrimination issued significant changes to its regulations regarding the processing of cases. The new procedural regulations are a mixed bag for employers. While some changes are helpful, other changes, such as expanded post-determination discovery and procedures for bringing charges on a class-wide basis, create new burdens on employers.

On January 24, 2020, the Massachusetts Commission Against Discrimination issued significant revisions to its procedural regulations. The procedural regulations govern the Commission’s investigation of a charge of discrimination and the litigation of claims after a probable cause determination. The revisions represent the first change to the procedural rules in 21 years. Overall, the new regulations are mixed bag for employers. While some of the changes will promote efficient case processing, other changes are more burdensome, including enhanced post-determination discovery and procedures to allow claims to proceed as class actions before the Commission.

Among the more welcome changes, the regulations allow employers to move for reconsideration of the Commission’s probable cause determination at any time prior to the certification conference. Under the old rules, once the Commission had made a probable cause determination, an employer did not have a mechanism to avoid a public hearing. The new reconsideration rule enables an employer to move to dismiss the case after engaging in post-determination discovery. The rule is akin to a summary judgment motion in court in that an employer can obtain reconsideration if there is an absence of a genuine dispute of material fact. Once a respondent moves for reconsideration, the Investigating Commissioner may grant the motion and issue an order reversing or modifying the probable cause determination. This new mechanism will be an invaluable tool for employers seeking to dispose of claims without undergoing a public hearing.

The new regulations also grant the Commission the authority to conduct Commission-sponsored mediation overseen by the Investigating Commissioner. However, this may be problematic in some instances. In a typical mediation, parties are able to freely share information without the concern that the information will be used in the litigation, if mediation is unsuccessful. This safeguard does not exist under the new rules. In Commission-sponsored mediation, the Investigating Commissioner serves as the mediator, but should mediation be unsuccessful, the Investigating Commissioner would resume his or her role as the factfinder. Thus, any employer considering mediation before the Commission should carefully consider the information that it shares during the process.

The Commission’s new regulations also significantly expand the discovery mechanisms available to employees at the administrative level. Previously, complainants could take depositions of individuals, such as supervisors or human resources professionals, but could not notice depositions of organizations themselves. The new regulations allow complainants to notice and depose organizations through use of a Rule 30(b)(6)-style deposition. In traditional court litigation, 30(b)(6) depositions are particularly onerous because in many instances employers may need to prepare multiple witnesses on numerous matters in order to appropriately respond. Thus, the Commission now permits complainants to demand that employers present witnesses who can testify on behalf of the organization on multiple topics. In addition to allowing depositions of organizations, the regulations afford parties the opportunity to propound thirty interrogatories—more than a litigant is entitled to in state court. Accordingly, the Commission’s new regulation threatens to impose significant litigation costs on respondent organizations.

Perhaps most notably for employers, the new rules authorize the Commission to preside over a class action or initiate such class actions sua sponte. The regulation requires the Commission to make findings similar to those required to maintain a class action under the Federal Rules of Civil Procedure and allows parties to appeal orders of the Investigating Commissioner to the Full Commission. While the authority of the Commission to oversee class action adjudications has been questioned by the courts in the past, the Commission’s decision to include class action mechanisms in its new procedural regulations may indicate that the Commission has a renewed interest in presiding over and even initiating class actions at the agency level.

On balance, the Commission’s revisions to the procedural regulations increase the burden that employers are likely to experience at the agency level. Although it is unclear whether the rules will encourage Complainants to keep their claims at the agency level, rather than removing them to superior court, the new regulations show that the Commission is poised to import more aspects of formal litigation into agency proceedings.

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

 

By Christopher W. Kelleher, Emily J. Miller, and Erin Dougherty Foley

Seyfarth Synopsis: The Eighth Circuit Court of Appeals ruled that a manager’s behavior toward an employee was “reprehensible and improper,” but did not rise to the level of a hostile work environment under Title VII, and affirmed summary judgment for defendants.

In Paskert v. Kemna-ASA Auto Plaza, Inc., et al., a former sales associate brought suit against Auto Smart alleging hostile work environment sexual harassment in violation of Title VII.  The U.S. District Court for the Northern District of Iowa granted Auto Smart’s motion for summary judgment, and plaintiff appealed the decision to the Eighth Circuit Court of Appeals.

The summary judgment record reflected that plaintiff’s supervisor’s conduct was volatile, and that his “treatment toward women was demeaning, sexually suggestive, and improper.”  The supervisor bragged about his purported sexual conquests, and on one occasion, he attempted to rub plaintiff’s shoulders and said he was going to give her a hug.  On another occasion, the supervisor told plaintiff: “I could have you . . . You could be mine[.]”  Plaintiff reported these incidents to Auto Smart’s Director and Supervising Manager.  In November 2015, Auto Smart terminated plaintiff’s employment for insubordination.

To survive summary judgment on a hostile work environment claim under Title VII, a plaintiff must show that the employer’s conduct was “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.”  On appeal, the Court noted that Eighth Circuit precedent sets a high bar for conduct to be sufficiently severe or pervasive under Title VII.  In light of its precedents, the Court found that the behavior at issue, “while certainly reprehensible and improper,” did not constitute severe or pervasive conduct so as to alter the conditions of plaintiff’s employment.  The Court noted that plaintiff only alleged one instance of unwelcome contact, and a handful of offensive remarks by her supervisor.

Paskert highlights the difference between inappropriate supervisor conduct and conduct that rises to the level of actionable hostile work environment sexual harassment under Title VII.  Employers should note, however, that federal courts across the country may interpret Title VII differently than the Eighth Circuit does and certainly based on the facts of each case.  Also, courts interpret differently the identity of the alleged harasser and that individual’s role and/or position relative to the alleged victim can also play a role in a court’s analysis.  In order to avoid (or mitigate) liability, employers should develop and implement comprehensive anti-harassment and anti-discrimination policies, and be sure to take steps to train employees on proper workplace conduct.

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

By Adam H. Laughton, Mark A.Lies, II, and Daniel R. Birnbaum

Seyfarth Synopsis: With coronavirus infections continuing to spread both in the US and abroad, fears of a pandemic with serious disruptions to the economy and everyday life continue to grow. Concerns are compounded for healthcare providers and facilities, who are not only employers but are also in the front lines of the response. An outbreak among healthcare professionals and those who work with providers and facilities not only impacts their finances, but can cascade into a larger healthcare crisis. Below we present a series of recommendations and other guidance focused on helping healthcare providers and facilities to prepare for a potential pandemic.

Recent CMS and CDC Guidance

Since the beginning of February 2020, as concerns about coronavirus reaching the US began to grow, both the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) have published guidance specifically for healthcare providers and facilities. The CDC’s guidance appears in three documents, (1)  Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease 2019 (COVID-19) (“Interim Guidance”), (2) Interim Infection Prevention and Control Recommendations for Patients with Confirmed Coronavirus Disease 2019 (COVID-19) or Persons Under Investigation for COVID-19 in Healthcare Settings (“Infection Control Guidance”); and (3) Coronavirus Disease 2019 (COVID-19) Hospital Preparedness Assessment Tool (the “Assessment Tool”). The Interim Guidance contains a rubric for categorizing personnel based on their risk of exposure, as well as recommendations for monitoring and work restrictions (even for asymptomatic individuals). The Infection Control Guidance sets forth specific recommendations aimed at healthcare facilities and providers focused on the following areas: minimizing exposure, training, use of personal protective equipment (PPE), visitation and access, engineering controls, personnel management, environmental controls and reporting. The Assessment Tool is a useful checklist of elements to be assessed and actions taken by professionals and facility personnel to prepare for a pandemic.

The CMS guidance, Information for Healthcare Facilities Concerning 2019 Novel Coronavirus Illness (2019-nCoV) (Ref: QSO 20-09-ALL) (“CMS Guidance”) references the CDC guidance above and adds that infectious diseases should be addressed in a provider’s emergency preparedness plans and policies, which are required under recent regulations. CMS also adds a warning that state and federal facility surveyors (i.e. inspectors) are being trained and advised to closely observe facility staff hand hygiene practices, violations of which could lead to sanctions, penalties or other disruptions in licensure or Medicare/Medicaid program participation.

Advice for Healthcare Providers and Facilities as Employers

Healthcare providers and facilities not only have obligations to their patients and the public at large, but also to their own employees. All employers in the US have a “general duty” under the Occupational Safety and Health Act to provide a “safe and healthful workplace.”  Where there is a “recognized hazard” (such as a pandemic), employers must develop plans to protect employees. Importantly, in healthcare facilities, this obligation extends to employees or contractors of other entities who perform work at the hospital (e.g. members of the hospital medical staff). Other potential areas of intersection with employer liabilities include: worker’s compensation programs, disability benefits, Family and Medical Leave Act benefits, the American with Disabilities Act, and general premises liability (which may be mitigated via insurance). Additional detail on the above can be found in our Legal Update on Coronavirus: Employer Liability Issues. Note also that the materials form our comprehensive webinar are available. See the Coronavirus webinar presentation slides and the presentation recording.

HIPAA

While managing high-risk and high stakes patients and medical conditions such as coronavirus, providers and facilities must also keep in mind their HIPAA obligations to keep patient health information private and secure. The Department of Health and Human Services Office of Civil Rights (OCR) recently issued a bulletin to remind healthcare providers and facilities of their obligations under HIPAA. The OCR reiterated that “covered entities” (and in some cases, their business associates) may use or disclose patient information for treatment purposes, to public health authorities (CDC, local or state health department), and (with a patient’s permission) to family members  and others involved in the patient’s care. In limited circumstances, a covered entity can disclose information  to others as necessary to prevent a serious and imminent threat, but this disclosure is only permitted to those in a position to prevent or mitigate the threat. Importantly, health care providers and facilities may not release information about a particular identifiable patient to the media without the patient’s consent or other limited and specific circumstances. A pandemic outbreak does not excuse a facility from observing the required HIPAA security safeguards.

Other Recommendations

Following the CMS and CDC guidance and other prudent advice, it is recommended that all healthcare providers and facilities do the following:

  • Review infection control and prevention policies and procedures;
  • Additional training for all personnel, management and leadership on infection control, hand hygiene and other aspects of pandemic response;
  • Review and update, as necessary, emergency preparedness plans to include contingencies for pandemic outbreaks;
  • Review inventory of PPE (including masks and gloves for patients and others in waiting areas);
  • Planning and additional training for public relations and media personnel regarding disclosure or release of information about infected or potentially infected patients;
  • Evaluate telemedicine capabilities and capacity to continue to operate if key personnel are infected or quarantined, as well as circumstances when locations need to be closed;
  • Assess telephone and receptionist scripts to assure uniform response and presentation to patients;
  • Assess workforce for risk factors and exposure, as well as regular monitoring and observation of employees and other personnel, particularly those with identified risk factors;
  • Evaluate the need to adjust and space scheduling of patients to minimize contact; and
  • Discuss pandemic preparation with ancillary service providers and recipients of referrals (e.g. labs, imaging, etc.).

All levels of leadership and management of healthcare providers and facilities (up to and including its governing body) should be regularly and actively engaged in planning, reporting and responding to potential coronavirus infections and precautions within that organization.

Many thanks to Clifford C. Dacso, M.D. of Baylor College of Medicine, for his assistance in preparing this article.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Health Care, Life Sciences & Pharmaceuticals, Workplace Safety and Health (OSHA/MSHA), or the Workplace Counseling & Solutions Teams.