By Nila Merola and Cameron A. Smith

Seyfarth Synopsis: Both houses of the New York State Legislature passed the Gender Expression Non-Discrimination Act, which prohibits discrimination on the basis of gender identity or expression and adds offenses motivated by gender identity or expression to the hate crimes statute.

On January 15, 2019, both the New York State Senate and Assembly passed the Gender Expression Non-Discrimination Act (“GENDA” or the “Act”). Governor Cuomo is expected to sign the Act into law. GENDA’s effective date will be thirty days after Governor Cuomo signs the Act into law (except for the provisions amending the Penal Law and Criminal Procedure Law, which will not be effective until November 1, 2019).

GENDA adds Subdivision 35 to Section 292 to the Executive Law, which defines “gender identity or expression” to mean “a person’s actual or perceived identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The Act also amends the State Executive Law, Civil Rights Law, and Education Law to prohibit discrimination in employment, housing, education, and public accommodations, among others, based on gender identity or expression. GENDA also amends the State penal law and criminal procedure law to include certain offenses regarding gender identity or expression within the list of offenses subject to treatment as hate crimes.

Since 2008, GENDA has passed the Assembly 10 times, but has consistently failed in the Senate. In 2016, the New York State Division of Human Rights adopted new regulations that ban discrimination and harassment on the basis of gender identity, gender dysphoria, and transgender status, but GENDA now writes those regulations into law. With GENDA’s passage, New York State joins at least nineteen other states, the District of Columbia, and 157 cities and counties in the United States, including New York City, that have already passed gender-inclusive legislation.

This is a good time for all employers to review their existing anti-harassment and anti-discrimination policies to ensure that they comply with both the New York City Human Rights Law and GENDA. Employers should also ensure that they incorporate gender identity, gender expression, and the status of being transgender into their anti-harassment and anti-discrimination trainings, and clarify that discrimination or harassment on those bases is unlawful.

The attorneys at Seyfarth Shaw LLP are available to provide any assistance with ensuring that you have robust anti-harassment and anti-discrimination policies in place. We can also provide interactive anti-harassment training tailored to your company’s specific business and needs.

The Employment Law Lookout blog is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

As a reminder for employers we have previously posted these blogs on holiday safety topics and behaviors: Have Yourself a Safe, Undistracted, and Accident Free Holiday, Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties , and Ring in the New Year, But Don’t Invite the Constable.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy (and warm) Thanksgiving holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you as we move into the year end and into 2019.

Thank you and Happy Holiday.

By Brent I. ClarkJames L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: This week at the 2018 National Safety Council (NSC) Congress the speakers on this Executive Forum noted that “automation, wearables, augmented reality, virtual reality, drones, big data, machine learning, the Internet of Things – emerging technologies are now almost too numerous to keep track of.”  This Executive Forum offered an in-depth look at the tools and trends that organizations are beginning to adopt and provided some practical comments for EHS professionals who need to prepare themselves for a changing safety environment.  The session was presented by Michelle Garner-Janna, CSP, CPE, Executive Director – Corporate Health & Safety, at Cummins, and Lydia Boyd Campbell, MD, MPH, Chief Medical Officer, at IBM.

In her presentation Garner-Janna noted that Cummins is a global power leader with 60,000 employees spread around the world in 190 countries.  The company has worked to develop its health and safety programs for what she deemed “Industry 4.0”, advanced systems which incorporate (1) a secure network; (2) standard safety core systems; (3) Internet of Things (IoT) connectivity; (4) advanced technology mobile virtual reality (VR)/augmented reality (AR); and (5) big data advanced analytical systems.  An example of the Industry 4.0 at work is the company’s Powered Industrial Vehicle Positioning System, known as Essensium.  The Essensium System is an automated and augmented reality system used to move unmanned powered industrial trucks through warehouses in materials handling and storage functions.

Garner-Janna explained the Industry 4.0 systems being explored are exoskeletons and wearable technology.  The company is also currently trying out a VR system to provide health and safety training at a facility in China.

Campbell indicated that IBM has 380,000 employees.  Health and Safety personnel represent less than 6% of those employees onsite, and there is one H&S employee for every 1000 employees.  To compensate for reduced safety staffing, IBM’s H&S services group has been developing an integrated artificial intelligence system based on its “Watson” application.  With this system, the company has set-up a World-wide H&S call center in India that receives telephone calls and emails relating to safety and health concerns, translates the many languages, and routes the issues to “the right people” to work on resolution.  The Watson based system is also analysing the “tone” of callers’ voices to make sure that potentially high level of stress or problems are escalated appropriately.  The system is also now being reprogrammed to flag and handle personally sensitive data that employees may try to submit.

The emerging technologies and issues raised by speakers from Cummins and IBM demonstrate the changing nature of the safety environment and opportunities for safety professionals and employers to incorporate changing technology and big data into their approaches to protect employees.  These developments should be closely monitored by employers.

We have previously blogged on automation and issues related to the future of safety technology, including Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry, A Global Perspective on the Future of Wearable Technology, An Aging America and the Future of Paid Family Leave, and Robotics, Automation, and Employee Safety for the Future Employer.

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 Policies and Handbooks Teams.

By Samantha L. Brooks

Seyfarth Synopsis: Mandatory vaccines and flu shots present challenges to employers attempting to accommodate the sincerely held religious beliefs of employees.  In this case, a hospital worker claimed that he was terminated for failing to get a flu shot due to his religious beliefs.  In affirming the District Court’s decision granting the employer’s motion to dismiss, the Third Circuit held that the worker’s anti-vaccination beliefs were not religious and that, as a result, he was not entitled to the protections of Title VII.  Fallon v. Mercy Catholic Med. Ctr. of S. Pa., No. 16-3573 (3rd Cir. Dec. 14, 2017).

The plaintiff, Paul Fallon, was a Psychiatric Crisis Intake Worker.  In 2012, Fallon’s employer, defendant Mercy Catholic Medical Center of Southeastern Pennsylvania, began requiring employees to obtain a yearly flu vaccine, or submit an exemption form to obtain a medical or religious exemption.  Any employee granted an exemption was required to wear a mask as an accommodation.

Although Fallon did not belong to any organized religious organization, he held strong personal and medical beliefs opposing the flu vaccine.  As alleged in his complaint, Fallon believed that he “should not harm” his own body and that the flu vaccine “may do more harm than good.”  In 2012 and 2013, Fallon sought and obtained exemptions based on his personal beliefs, which he explained in a lengthy essay attached to his requests for exemption.  In 2014, Fallon again requested an exemption and again attached the essay to his request; however, his request was denied, and his employer explained that its standards for granting exemptions had changed.  His employer requested a letter from a clergy member to support his request.  Fallon could not provide one.  He was suspended and ultimately terminated for failure to comply with the flu vaccine requirements.

Fallon filed a complaint in federal District Court in Pennsylvania wherein he alleged disparate-treatment religious discrimination and failure to accommodate his religion in violation of Title VII.  The District Court granted the employer’s motion to dismiss because Fallon’s beliefs, while sincere and strongly held, were not religious in nature and, therefore, were not protected by Title VII.  The dismissal was with prejudice because the District Court concluded that an amendment to Fallon’s complaint would be futile.  Fallon appealed.

In its opinion affirming the judgment of the District Court, the Third Circuit analyzed whether Fallon’s beliefs were, in fact, religious.  Specifically, pursuant to Supreme Court and Third Circuit precedent, the Court analyzed:

  • Whether Fallon’s beliefs were, in the context of Fallon’s life, religious;
  • Whether Fallon’s beliefs occupied a place in Fallon’s life parallel to that filled by God in a traditionally religious person;
  • Whether Fallon’s beliefs addressed “fundamental and ultimate questions having to do with deep and imponderable matters”;
  • Whether Fallon’s beliefs were a “belief-system”; and
  • Whether there were any formal and external signs of Fallon’s beliefs.

After identifying and analyzing these factors, the Court held that Fallon’s beliefs were not religious because they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Rather, Fallon “simply worr[ied] about the health effects of the flu vaccine, disbelieve[d] the scientifically accepted view that it is harmless to most people, and wish[ed] to avoid this vaccine.”  In sum, the Court held that Fallon’s belief–although sincerely held–was medical, rather than religious, and did not occupy a place in Fallon’s life similar to that of a more traditional religion or faith.

Since Fallon’s objection to the flu vaccine was not religious, it was not protected by Title VII.  Importantly, the Court noted that anti-vaccination beliefs can be part of a broader religious faith and that, in those circumstances, they are protected.  In fact, in a footnote, the Court pointed out that Christian Scientists regularly qualify for exemptions from mandatory vaccination requirements.

Employer Takeaways Regarding Religious Accommodation Generally

For employers, and especially healthcare employers, this case reiterates the well-established standards for what constitutes a sincerely held religious belief–rather than a secular personal or medical belief — to warrant an accommodation.

Once an employer determines that an employee has a “sincerely held” religious belief, Title VII requires the employer to reasonably accommodate the employee’s religious belief, unless the employer can demonstrate that it is unable to reasonably accommodate “without undue hardship on the conduct of the employer’s business.”  Importantly, if the employer denies the requested religious accommodation, the employer has the burden to prove the hardship.

The Fallon case also serves to remind employers that what is “religious” is a situational, case-by-case inquiry, especially when considering that one person may engage in a practice for religious reasons, but another person may engage in the very same practice for purely secular, non-religious reasons.

It is good practice for employers, in the interactive process, to ask the employee about the nature of the beliefs, in a sensitive, non-prying manner that respects the employee’s beliefs and privacy.  In doing so, the employer may help elicit what is religious versus what is personal preference.  Before doing so, employers should seek advice of counsel with expertise in this area because the distinction between religious and non-religious beliefs is tricky and highly fact-specific.

It is, however, not a best practice for an employer to request a letter from a clergy member to support an employee’s claim of a religious belief.  It is well-established that an employee’s belief need not be part of an organized, established religion, and it need not be approved by a clergy member.  The Court in Fallon, in a footnote, reiterated that “[a] letter from a clergy member is not the only way to demonstrate that one holds a religious belief.”  The Court further stated that Fallon’s employer mistakenly believed that it could not discriminate on the basis of religion if it terminated an employee who could not produce a letter from a clergy member.  (Nevertheless, the Court held that because Fallon’s beliefs were not religious, terminating him for acting on his beliefs did not constitute religious discrimination.)

The Legal Landscape Regarding Mandatory Vaccines and Religious Accommodation

Employers should be mindful that mandatory flu vaccine policies, particularly for healthcare employers, is a hotly contested issue that can be very jurisdictionally dependent.  Healthcare employers are in the unique position of balancing two equally important priorities: employee requests for religious accommodations, and patient health and safety.

Since 2016, the EEOC has brought several lawsuits against hospitals and healthcare providers in connection with mandatory flu vaccine programs.

In the recent case of EEOC v. Baystate Medical Center, Inc., No. 16-30086 (D. Ma.), the EEOC claimed the employer violated Title VII when it suspended and later terminated an employee after she refused to get the flu vaccine.  The EEOC claimed the employer violated Title VII when the only accommodation it allegedly offered to the employee who sought a religious exemption to the flu vaccine–wearing a face mask at all times while at work–did not allow the employee to effectively perform her job.  Although Baystate Medical Center, Inc. is still pending, both that case and Fallon reiterate the duty of healthcare employers to consider accommodations under Title VII based on the specific facts and circumstances of the situation.

Particularly in light of the EEOC’s recent activity on this issue, an employer must explore what reasonable accommodations can be offered to an employee (preferably with advice of counsel with expertise in this area) and, if the employer is going to deny the request for accommodation, it must document the justifications for the denial.

Employers, their human resources departments and counsel must also be aware of developments in federal, state, and local discrimination laws, which can vary from jurisdiction to jurisdiction.

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

By Wan Li

Seyfarth Synopsis: A new Work Permit Policy (Policy) is being implemented in China.  The Policy had been initially implemented, from October 2016 to March 2017, through a pilot program in a number of regions including Shanghai, Beijing, Tianjin, and Shenzhen.  Nationwide implementation of the Policy commenced on April 1, 2017.

Policy Features 

The Policy consists of two main features: (1) expats working in China will now be issued a single multipurpose “Work Permit”, and (2) expats will be categorized into three different groups that will now affect how easy it is for them to get a Work Permit.

Multipurpose Work Permit

Expat workers in China were classified previously as either (i) foreign employees eligible for an “Employment Permit,” or (ii) foreign employees eligible for an “Expert Permit.” These two permits are now combined into one “Work Permit” that will be assigned to foreign applicants through the issuance of identification (ID) cards with unique ID numbers. Each ID card will belong to one foreign individual for life. Foreign employees with existing work permits may elect to maintain their existing permits until their expiration dates or may convert them to new Work Permits.

Shanghai, assuming a leading role in the Policy, issued its first Work Permit to a faculty member of the SJTU-ParisTech Elite Institute of Technology at Shanghai Jiaotong University in November 2016.

Since the full implementation of the unified application across the country on April 1, the new multipurpose Work Permit Policy has been well received and instituted in more than ten provinces of China.

3-Tier Classification System

Under the Policy, foreign applicants will be divided into three categories based on a scoring system. Credits will be assigned to applicants for Work Permits based on their education, background, salary level, age, time spent working in China, and Chinese language fluency. Many cities now operating under the Policy have issued local standards for the scoring system.

Category A applies to foreign high-end talent, such as expats selected by China’s talent-import plan, expats with internationally recognized awards, leading figures in the science and technology industry, and successful entrepreneurs.  There is no limit to the number of expats in this category who may receive Work Permits.

Category B applies to foreign professionals. Examples include workers who hold a bachelor’s (or higher) degree and have two years of full time experience related to the work to be performed. The number of expats in this category who may receive Work Permits will vary depending on market demand.

Category C applies to the remaining types of foreign workers, who are typically non-technical or service workers hired on a temporary or seasonal basis. The number of expats in this category who may receive Work Permits is significantly restricted and subject to a quota.

Implications for Multinational Employers

The Policy aims to both streamline current administrative procedures and attract high-end foreign talent to China. Expats whose skills are urgently needed in Chinese labor markets are being encouraged to work in China through the now less restrictive permitting process and easier application protocols.

Multinational employers should note that the Policy is early in the implementation process.  Employers should pay close attention to the changing application rules and procedures, and be mindful that when hiring foreign workers in different parts of China the rules will be different.

If you would like further information, please contact Wan Li at LWan@seyfarth.com, or any member of our International Employment Law Team.

 

By Wan Li and Darren G. Gardner

Seyfarth Synopsis: With these new measures applied to employers, it’s recommended that enterprises conduct self-evaluations of their employment law compliance, and remediate any problems as soon as possible.

The Chinese Ministry of Human Resources and Social Security (MHRSS) has launched a new nationwide grading system to evaluate employers’ employment law compliance. This system has been put in place via the Measures for the Grading of Enterprises’ Employment Law Compliance (the “Grading Measures”) and is effective January 1, 2017.

Prior to 2017, 24 Chinese provinces and cities each had individual schemes to evaluate employment law compliance. These schemes varied widely and were not compatible with counterpart government schemes, e.g., those administered by the State Tax Bureau (taxpayer credit evaluation system ), the Administration of Industry and Commerce (business credit evaluation system ) and the People’s Bank of China (enterprise credit evaluation system).

The Grading Measures will standardize the disparate evaluation systems and may become a key determinant of an employer’s compliance status.

Grading Scope and Criteria

Employers will now receive an annual grade (A, B or C) for employment law compliance in any given year based on (i) the local authority’s routine and random inspection, (ii) review of employment records and (iii) investigations of filed complaints.

The criteria for assessing compliance include reviews of:

  • the availability of internal employment policies and regulations within the employer;
  • proper enrollment and participation in statutory social security insurance programs;
  • compliance with key employment laws and regulations, especially regarding salary payment;
  • female employee protection; and
  • working hours.

Employers with perfect compliance during the year will receive an “A”. Employers that have been disciplined for “non-serious” violations (as enumerated in the Grading Measures) by the local labor authority will receive a “B”.  Employers with “serious” violations will receive a “C”.

Impact on Employers

Grade A employers will be subject to fewer routine checks by the local authority in the following calendar year, while Grade C employers will be monitored more closely, meaning more frequent routine and random inspections.

A different regulation provides that a labor authority may publish on its website the serious violations leading to a designation of Grade C. This could of course adversely impact the reputation and good standing of the employer.

Recommendations for Employers

It is recommended that all enterprises conduct a self-evaluation of their employment law compliance, especially the key issues highlighted by the Grading Measures, and remediate any problems as soon as possible.

Detailed implementation rules and launch schedules for the Grading Measures are not yet available. We will keep an eye on further developments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the International Employment Law Team,

By Marshall B. Babson, Katherine Mendez, and Bryan Bienias

Seyfarth Synopsis: Several organizations are planning nationwide strikes and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees’ rights before responding.

Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.

Thursday, February 16: A Day Without Immigrants. The first action, “A Day Without Immigrants,” is currently scheduled for this Thursday, February 16.  The campaign, promoted in Spanish and English, has been spread through Facebook, fliers, and word of mouth and calls on immigrants and their supporters “not to go to work, open businesses, shop, eat in restaurants, buy gas, go to classes, or send children to school.” While the campaign originally focused on the Washington D.C. area, the campaign is expected to spread nationwide. A similar action in Milwaukee, Wisconsin this past Monday, February 13 drew thousands of protesters.

Friday, February 17: National General Strike. Then, on Friday, February 17, a group called Strike4Democracy has called for a national general strike and plans on “over 100 strike actions across the United States, and beyond.” The campaign calls for participants to forgo work on Friday and, instead “plan or take part in an event in your community” and “occupy public space with positive messages of resistance and solidarity.”

The organizers do not plan on stopping there. They intend to use Friday’s national general strike to “build towards a series of mass strikes,” with another mass strike planned on March 8, 2017, another on May 1, 2017 (May Day), and “a heightening resistance throughout the summer.”

So, what does this mean for employers?

While these general strikes and those planned for the future could wreak havoc on an employer’s operations — as employees fail to report to work or leave shifts early — the National Labor Relations Act provides protection for employees who engage in political advocacy that relates specifically to job concerns and to other workplace issues.

Employers have the right to enforce “neutrally applied work rules” to restrict employees from leaving work for political activities unrelated to workplace concerns. As discussed above, whether an employee’s actions are protected or unprotected turns on whether the employee’s absence relates to activity directed at “terms and conditions of employment” which the employer controls or to workplace concerns that affect all employees. If the absence is due to political activity totally unrelated to workplace concerns, employees could be subject to discipline, although discipline is not necessarily the prudent course to take.

Given the myriad issues to be addressed in these strikes, from immigration reform to minimum wage laws to worker’s rights, employers may be hard pressed to show that employees who participate in these strikes in lieu of working have engaged in unprotected activity. Employers could find themselves in further “hot water” with the NLRB if they discipline employees for absenteeism or tardiness related to the employees’ political activities.

If your company is affected by any of the strike activity this week or in the months ahead, contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

By Paul Whinder and Tessa Cranfield

Seyfarth Synopsis: The trend of increased regulation of the financial services industry continues apace in the UK with the recent introduction of mandatory rules on whistleblowing governance. .

New rules on whistleblowing have come into effect which impact certain Financial Conduct Authority (FCA) and Prudential Regulatory Authority (PRA) regulated financial services firms. The aim of these rules is to promote a change in workplace culture to encourage workers to raise concerns and challenge poor practices or behaviours.

These new rules came into effect on September 7, 2016. The changes are recapped below.

Which firms are obliged to implement these new rules?

The new rules apply to firms which are UK entities and which:

  • Take deposits and have assets of £250 million or more (including banks, building societies and credit unions);
  • Are PRA-designated investment firms; or
  • Are insurance and reinsurance firms within the scope of the Solvency II Directive, the Society of Lloyds and managing agents.

Although the rules are not mandatory for other FCA and PRA regulated firms, they have non-binding guidance status and may be taken into account in the event of a regulator investigation compliance or governance issues.

What are firms required to do?

Relevant firms must create and maintain an independent whistleblowing channel, i.e. a means through which disclosures can be made and are then effectively assessed and dealt with. The channel must permit anonymous and confidential disclosures and cannot be limited to matters which the firm believes would amount to ‘whistleblowing’. It must also be open to everyone, including the public. Complaints that would not amount to whistleblowing (for example employee grievances or customer complaints) can however be identified and then dealt with outside the firm’s whistleblowing regime. Whilst there is an obligation to promote the availability of the whistleblowing channel to the firm’s workforce, there is no equivalent obligation to promote its availability to the wider public.

Firms are also now obliged to make employees aware of the FCA and PRA’s services as an alternative to their own process. They can no longer instruct employees to raise matters internally before contacting the regulators, although they can still encourage them to do so.

However, importantly, these rules do not introduce a regulatory obligation on the firm’s staff to blow the whistle.

What are the obligations regarding staff training in respect of these new rules?

The workforce must receive bespoke training as follows:

  • UK based employees must receive training that includes the following:
    • A statement that the firm takes the making of reportable concerns seriously;
    • A reference to the ability to report reportable concerns to the firm and the methods for doing so;
    • Examples of events that might prompt the making of a reportable concern;
    • Examples of action that might be taken by the firm after receiving a reportable concern by a whistleblower, including measures to protect the whistleblower’s confidentiality; and
    • Information about sources of external support such as whistleblowing charities.
  • Managers of UK based employees must receive training that includes the following:
    • How to recognise when there has been a disclosure of a reportable concern by a whistleblower;
    • How to protect whistleblowers and ensure their confidentiality is preserved;
    • How to provide feedback to a whistleblower, where appropriate;
    • Steps to ensure fair treatment of any person accused of wrongdoing by a whistleblower; and
    • Sources of internal and external advice and support on the matters referred to above.

Note that this requirement applies, even if the managers are not based in the UK.

  • Employees with responsibility for operating the firm’s internal whistleblowing arrangements must receive training that includes how to:
    • Protect a whistleblower’s confidentiality;
    • Assess and grade the significance of information provided by whistleblowers; and
    • Assist the whistleblowers’ champion when required.

How do these rules fit in with the Senior Manager/Certificate Regime?

  • Whistleblowers’ Champion. As we previously reported, relevant firms also need to appoint a whistleblowers’ ‘champion’ (ordinarily a non-executive director, but otherwise a “senior manager” within the FCA or PRA regimes). The designated “Champion” is tasked with oversight of the whistleblowing policies and procedure and filing an annual report to the Board, to be made available to the FCA or PRA on request.
  • Settlement agreements. A statement must now be included in settlement agreements stating that the agreement does not prevent the individual from making a protected disclosure. This will likely already be familiar to clients operating in the US financial services sector. Further, the agreement must not contain any promise from the employee that they have not made a protected disclosure or know of any information which could lead to such a disclosure being made.
  • Tribunal claims. If the firm loses a “whistleblower” claim (i.e. an employment tribunal claim that a member of staff was subjected to a detriment or unfairly dismissed for “blowing the whistle”) then this must be reported to the FCA/PRA, as appropriate.

Comment

In practice, many firms will already have robust whistleblowing procedures in place, in particular where they are subject to Sarbanes Oxley. Firms should however review their current procedures to check they do comply with the specifics of these new rules – in particular, the fact the whistleblowing channel should be open to the public and the new staff training obligations that may include some non-UK managers. Adequate systems will need to be put in place to identify those UK and non UK employees who will need to be trained (and flag up where employees, such as US managers, move into roles where training is required) and to keep a record what has been delivered. Finally, as noted above, even if certain FCA/PRA regulated firms are not obliged to implement these new rules, they must still be treated as non-binding guidance meaning that they may in fact start to become the norm in the financial services sector.

For more information on this or any related topic please contact the authors, our Seyfarth Partner in London, Ming Henderson, your Seyfarth attorney, or any member of the Whistleblower Team, the International Employment Law Team, or the White Collar, Internal Investigations, and False Claims Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

 

 

By Kylie Byron, Abigail Cahak, Mary Kay Klimesh, and Sam Schwartz-Fenwick

Seyfarth Synopsis: The Fourth Circuit in a case of first impression held that Title IX entitles transgender students to use the bathroom that matches their gender identity. Though that ruling only discusses Title IX, the Court’s language and reasoning may have implications for Title VII jurisprudence.

The Fourth Circuit has become the first Federal Circuit to weigh in on bathroom access for transgender students. In G.G. v. Gloucester County School Board, Case No. 15-2056 the court deferred to the U.S. Department of Education’s guidance that Title IX, which permits segregation of toilet, locker room, and shower facilities on the basis of “sex,” prohibits restriction of restrooms on the basis of “gender identity” as well as assigned sex. This ruling not only places the Circuit at odds with state “bathroom bills”, but also has potential implications for the Circuit’s interpretation of Title VII.

In G.G., plaintiff, a transgender boy, was prevented from using the men’s restroom at his high school due to a policy enacted by the school board specifically in response to his gender transition. G.G. sued for gender discrimination under Title IX and the Equal Protection Clause and requested a preliminary injunction allowing him to use the bathroom aligning with his gender identity.  The District Court for the Eastern District of Virginia dismissed G.G.’s Title IX claim holding that Title IX prohibits discrimination on the basis of sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation.

The Fourth Circuit reversed the District Court’s dismissal of G.G.’s Title IX claim. The Court held that Auer deference required the Court to defer to the Department of Education’s interpretation of Title IX regulations, which indicated that transgender students could use hygienic facilities (such as restrooms) consistent with their gender identity regardless of the sex assigned at birth. The Court further found the Department of Education’s position regarding access to restrooms for transgender individuals consistent with the position of other federal agencies, including the Equal Employment Opportunity Commission.

G.G. is an important decision for employers. While the lawsuit arose under Title IX not Title VII, the reasoning of the Court readily applies to Title VII given the similar verbiage of the statutes and the regular practice of courts to look to case law under both statutes.  It is expected that Title VII litigants going forward will increasingly cite G.G, to bolster their argument that courts should defer to the EEOC’s position that Title VII’s prohibition on sex-discrimination encompasses gender identity. Indeed, as we have blogged previously, a case, ACLU v. McCrory, has already been filed challenging North Carolina’s “bathroom bill”, alleging harm under Titles IX and VII and under the Equal Protection Clause of the Constitution.

While the reasoning of G.G. is unlikely to be universally adopted by courts analyzing gender identity claims under Title VII or Title IX, the decision adds voice to the growing chorus of support for the argument that claims of gender identity discrimination are actionable under current Federal law. Employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye toward gender identity claims.