Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

EEOC’s revised pregnancy guidance: Now, just barely more flexible!

Posted in Pregnancy
David Spade.flickrCC.Dodge Challenger1

Channeling David Spade today.

Hey, EEOC, there’s this newfangled technique known as “track changes.” Look into it!

Last Thursday, the Equal Employment Opportunity Commission issued its amended guidance on pregnancy discrimination and accommodation in light of the U.S. Supreme Court decision in Young v. UPS, issued in March 2015. The EEOC’s original guidance was issued in July 2014, but now the new version of the EEOC Guidance is the only one that is available on line. My blog posts from last July and this past April, as well as the blog posts I could find by other lawyers, all linked to the online version of the EEOC document, which means that those older blog posts are linking to the new guidance now. (Grrr.)

The EEOC did not post a “comparison” of the old and new versions, as the U.S. Department of Labor has helpfully done with changes to the Family and Medical Leave Act regulations, and as state legislatures have done for — forever.

Fortunately, I found a hard copy of the 2014 guidance in my paper files, and so I’ve been able to compare the 2014 Guidance with the new Guidance issued last week. If you click on to the next page of this post, you’ll see that I’ve posted the actual verbatim deletions and additions made by the EEOC (not including footnotes), just in case you ever need it for reference.

Before and After Man.FlickrCC.CristianoBetta

Before and after: SO DIFFERENT!!!

Based on my reading, the EEOC hasn’t really changed its position on pregnancy accommodation, but it seems to be taking a softer, somewhat-more-flexible line in light of the squishy soft and flexible guidance provided by the Supreme Court majority in Young. In 2014, the EEOC’s position was that employers had to accommodate employees with pregnancy-related conditions if they accommodated employees with similar limitations resulting from disabilities or work-related injuries. The new guidance says pretty much the same thing, but in gentler language: an employer will still be found to be in violation if a refusal to accommodate places a “significant burden” on pregnant employees without a “sufficiently strong justification.”

What that really means is anybody’s guess.

Luke Wilson Idiocracy.flickrCC.JoeWolf

“I’m just Not Sure.”

Because most employers don’t want to be “test cases,” I’d suggest accommodating pregnant employees as much as possible and providing light duty for pregnant employees on roughly the same basis on which you provide it for employees with work-related injuries. The EEOC’s more-flexible stance may give you some leeway if a mistake is made and you’re having to defend yourself in court. But from a preventive standpoint (in other words, before any damage is done), I think accommodation is the way to go.

I would love to hear what others think about this. And, don’t forget, the verbatim changes to the Guidance are below the jump.

. . . AND ALSO OF INTEREST . . . 

Tony McGrath of our Madison Office has a great summary of the U.S. Department of Labor proposed rule on overtime exemptions.

And the always-fascinating David Phippen from Metro D.C. is back with the May-June edition of the Executive Labor Summary. His discussion of the impact of King v. Burwell on labor relations is worth the price of admission in itself. (Which, by the way, is free, so get on over there.)

Image Credits: Flickr, Creative Commons license: David Spade by dodge challenger1, Before-After by Cristiano Betta, Idiocracy DVD cover by Joe Wolf.

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What does SCOTUS same-sex marriage decision mean for employers?

Posted in Same-sex marriage

Maybe not that much, depending on where you are and how “proactive” you’ve already been before now.

Seriously, I don’t think Friday’s Supreme Court decision in Obergefell v. Hodges will be that big a deal for most employers. The Supreme Court already decided in 2013 that the federal definition of “spouse” included same-sex spouses (assuming the marriage was legally valid where entered). The U.S. Department of Labor issued regulations earlier this year taking the same position with respect to the definition of “spouse” in the Family and Medical Leave Act.

(That FMLA rule was enjoined by a federal judge in Texas, but the Obergefell decision would allow the DOL rule to go into effect.)

Even in states that did not recognize same-sex unions, many employers were recognizing them as a matter of policy.

If you haven’t done so, you’ll want to ensure that your benefits plans (health, life insurance, etc.) define “spouse” in accordance with the Court’s ruling. But even if you don’t, your benefits providers are probably all over it.

You may also want to develop a strategy for dealing with “sensitivity” and harassment issues among your employees, if you haven’t already been covering sexual orientation, gender identity, and related issues in your training. Employees should understand that they are to treat each other with courtesy and respect, and to avoid harassing or discriminatory behavior on any basis. On the other hand, you shouldn’t go so far as to require employees to “affirm” a particular mode of living. Some employees may object based on sincerely held religious beliefs, which are also legally protected, as Justice Kennedy made clear in his majority opinion.

Really, pretty easy, huh?

BREAKING: Same-sex marriage is the law of the land, SCOTUS says

Posted in Same-sex marriage

The decision in Obergefell v. Hodges, hot off the press, is 103 pages long, but here it is. Some instant analysis:

*The due process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution compel states to recognize same-sex marriages.

*The First Amendment will continue to protect those who object to same-sex marriage for religious reasons.

The decision was 5-4, majority opinion by Justice Kennedy, joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor. There were lots of dissenting opinions, and the dissenters were Chief Justice Roberts, and Justices Alito, Scalia, and Thomas.

I’ll have something more in-depth on the implications for employers after I’ve had a chance to analyze the decision.

Employers, you’ll never pooh-pooh the GINA again.

Posted in Genetic Information Non-Discrimination Act, GINA

The following is a scatological post, so grab a stool, have a seat, and listen up! (Or get a magazine.)

Corn CobsOn Monday, a federal jury in Atlanta awarded two hourly warehouse workers $2.2 million in a lawsuit brought under the Genetic Information Nondiscrimination Act.

The controversy started when Atlas Logistics Group Retail Services, a grocery distributor, had a problem with someone who was going to the bathroom in the warehouse.

Except he or she was not precisely going to the “bathroom.” Not literally. He or she was “going” right there in the warehouse, where product was waiting to be shipped. To go to supermarkets. Where we would buy it and eat it. Ewww.

Atlas assumed, not unreasonably, that the pooping perp was a disgruntled employee.

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Thanks a LOT, Mr. President!

Posted in Harassment

As you know, I strongly disapprove of use of the “N” word in the workplace. I don’t think African-Americans should say it, and I really, really don’t think people who aren’t African-American should use it.

Obama

“What?”

Well, this weekend President Obama used the “N” word, and he didn’t say “the ‘N’ word.” In a podcast interview with comedian Marc Maron, the President was quoted as saying,

Racism, we are not cured of it. And it’s not just a matter of it not being polite to say ‘nigger’ in public. That’s not the measure of whether racism still exists or not. It’s not just a matter of overt discrimination. Societies don’t, overnight, completely erase everything that happened 200 to 300 years prior.

OK, I get his point, and the overall message was a good one. But now, how am I supposed to tell employees in harassment training that they can’t use the word?

Here is my new rule, effective June 22, 2015 (the date that the Obama podcast was released):

It is all right to use the “N” word at work if, and only if, (1) you are African-American, and (2) you are the President of the United States.

Everybody else, please refrain.

(Here’s a link in case you’d like to listen to the whole interview.)

Image Credit: Flickr, Creative Commons license, photo by Steve Jurvetson.

Affordable Care Act is a go, says Supreme Court

Posted in Affordable Care Act

I haven’t had a chance to analyze yesterday’s Supreme Court decision in King v. Burwell, so meanwhile here is a link to a “plain English” summary of the decision, and here is a link to the decision. Both from the outstanding SCOTUSblog.

We will have more on this in the not-too-distant future. Don’t go away!

Harassment “must-have” no. 5: No retaliation!

Posted in Harassment, Retaliation

We have reached the fifth and final of our five harassment “must-haves”: No retaliation.

Joe Louis Fist.Detroit.flickrCC.KaleidicoDigitalMarketingIt should be easy to avoid retaliation, right? Because retaliatory conduct is intentional – you can’t “accidentally” retaliate against someone. You can’t “negligently” seek payback.

To retaliate, you have to work at it.

Of course, that would make life way too simple. Employers can negligently or accidentally do things that will cause them to be accused of retaliation. Here are four common “gut reactions” to a harassment complaint, as well as to any other employee protected activity, that can get an employer in trouble even though the employer doesn’t have a true retaliatory intent.

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Harassment “must-have” no. 4: The Determination

Posted in Harassment

It’s the moment of truth! (Dum-dum-DUM!)

Two weeks ago, we talked about harassment “must-haves” 1 and 2: a good, plain-language policy, and training. Last week, we talked about “must-have” 3: the investigation.Scream.flickrCC.Venturist

Now it’s time to talk about “must-have” 4: a fair, legally defensible determination of what happened and what action to take.

During the investigation phase, you wanted to be as open-minded as possible. But now you get to be judgmental. At the “determination” stage, you need to ask three questions:

*What happened?

*How bad was it?

*What should be done about it?

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“Must-haves” for your harassment investigation

Posted in Harassment

Last week, I posted about harassment “must-haves” for employers, and talked in detail about the first two: a good policy, and training. This week I’d like to talk about “must-have” no. 3 – a prompt, thorough, and fair investigation.

PROMPT. “Prompt,” in the context of a harassment investigation, means that you act as soon as you reasonably can, and if you have to delay, you have a very good excuse and take whatever “stopgap” measures are necessary to prevent further harm from occurring in the meantime.

Man on Trike.flickrcc.woodleywonderworks

“Think fast!”

The general expectation is that if an employee makes a complaint of harassment, you begin the investigative process almost immediately. This doesn’t mean that you determine guilt or innocence immediately, and certainly not that you necessarily fire anybody immediately (or ever), but it does mean that you get the process started immediately. (Yes, I know I’ve used the word “immediately” three times in this paragraph – make that four – and that is deliberate.)

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