Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Happy Turkey Day from the OFCCP! (not)

Posted in Affirmative Action

This post is by Cara Crotty, co-chair of Constangy’s Strategic Affirmative Action Practice Group.

 

Once again, the Office of Federal Contract Compliance Programs will ruin the holidays for thousands of federal contractors. The OFCCP announced last week that it plans to issue Courtesy Scheduling Announcement Letters, or CSALs, to 2,500 federal contractor establishments.Cara-Crotty.322.jpeg

CSALs advise contractors that specific establishments may be selected for a compliance review during the next scheduling cycle. In the past, the OFCCP has issued the actual Scheduling Letters at about the same time as the CSALs, and the agency has frequently mailed Scheduling Letters right before Thanksgiving or Christmas. (Ho! Ho! Ho!)

If you have questions about the CSAL process, the OFCCP has posted some FAQs. In addition, contractors wishing to confirm whether one or their establishments was sent a CSAL may fax a written request on company letterhead to the OFCCP at 202-693-1305.

If you are not familiar with the OFCCP’s recent changes to the Scheduling Letter & Itemized Listing, check out our Affirmative Action Alert to get up to speed.

In other OFCCP news, Sam Maiden has been named the new Regional Director for the Southeast Region, starting December 14. The position has been open for some time after the unannounced departure of Evelyn Teague.

Mr. Maiden has served in a variety roles at the OFCCP, including Compliance Officer, Assistant District Director, Director of Regional Operations, and Deputy Northeast Regional Director. Congratulations to Mr. Maiden, and we look forward to working with him (again) in the Southeast!

Planning your workplace holiday party? Read this first!

Posted in Discrimination, Harassment, Safety, Sexual Torts, Uncategorized, Violence, Wage-Hour

Yeah, yeah – I know it isn’t even Thanksgiving yet, but you are planning your holiday party now, and you want answers to your burning questions while you still have time to do something about it.

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“It’s not even Black Friday, Charlie Brown!”

And, as luck would have it, I presented a webinar on Wednesday with David Weisenfeld of XpertHR on “How to Make Your Workplace Holiday Party Sparkle — With No Legal Hangovers,” and got some great questions from the attendees. If you weren’t there and would still like to hear it, please do. Meanwhile, here’s a little seasonal Q&A.

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Medical marijuana and the workplace — another lawsuit filed

Posted in Drug Testing

As of this week, we have a new challenge to an employer based on medical marijuana – this time, in Rhode Island.

The state chapter of the American Civil Liberties Union filed suit alleging that Darlington Fabrics Corporation discriminated against a candidate for a paid intern position because the candidate, Christine Callaghan, disclosed that she used medical marijuana for her migraine headaches.

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The suit alleges that Ms. Callaghan had all but a formal offer when she disclosed her marijuana use, and that she promised not to use marijuana at work and not to come to work under the influence. She contends that, after consulting with legal counsel, Darlington told her that she would not get the position because of her current use of marijuana.

Ms. Callaghan is not alleging violation of the Americans with Disabilities Act but the Rhode Island Hawkins and Slater Medical Marijuana Act, which prohibits employment discrimination based on the individual’s status as holder of a medical marijuana card. States with similar protections include Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, and New York.

Late last month, the Michigan Court of Appeals held that the use of medical marijuana did not preclude ex-employees from receiving unemployment compensation, provided that marijuana use was the only reason for the termination. (Although medical marijuana use no longer disqualifies Michigan employees from receiving unemployment, it is still legal in the state to terminate employees for marijuana use, including medical marijuana.)

We will keep you informed as the issue of legal marijuana – both medical and recreational – continues to develop.

Will SCOTUS review same-sex marriage now?

Posted in Same-sex marriage

You may recall that in early October the U.S. Supreme Court declined to review decisions from U.S. Courts of Appeals for the Fourth, Seventh, and Tenth circuits* that struck down same-sex marriage bans.

At that time, every federal appellate court facing the issue — in addition to these three, the Ninth Circuit — had found that same-sex marriage bans were unconstitutional.Gay-wedding.512px-Gay_wedding_a_by_Stefano_Bologni.JPG

Until yesterday.

Yesterday, two judges on a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld bans on same-sex marriage in DeBoer v. Snyder. The Sixth Circuit hears appeals from federal courts in the states of Kentucky, Michigan, Ohio, and Tennessee.

I am hoping we’ll hear from my friend Jon Hyman over at the Ohio Employer’s Law Blog on this new decision. Meanwhile, there is an excellent summary of the decision and its implications on the SCOTUS blog, and also good discussion on The Volokh Conspiracy here and here.

A split in the circuits is one of the reasons that the Supreme Court will agree to review a case, so it’s possible that the split created by the Sixth Circuit decision will get us a review and some clarity and finality.

*The federal circuits and their states:

The Fourth Circuit hears appeals from federal courts in Maryland, the Carolinas, Virginia, and West Virginia.

The Seventh Circuit hears appeals from federal courts in Illinois, Indiana, and Wisconsin.

The Ninth Circuit hears appeals from federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington state, and Guam and the Northern Mariana Islands.

The Tenth Circuit hears appeals from federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Tuesday’s GOP “shellacking” may not change much for employers

Posted in Affordable Care Act, Wage-Hour

Employers can hope, but that doesn’t necessarily mean change.

Tuesday night’s Republican rout in the midterm elections was big news, but is it much ado about nothing from an employer’s standpoint? Here are a few reasons not to become too giddy (if you were happy about the outcome) or too depressed (if you weren’t):

1. Although the GOP will have control of the Senate, it does not have the 60 senators needed to override a presidential veto. So, even though House Speaker John Boehner (R-Ohio) and Sen. Mitch McConnell (R-Ky.), presumably the next Senate majority leader, are saying they’ll work to repeal or partially roll back the Affordable Care Act, expect to see an actual vote that is largely symbolic. The President is expected to veto any but the most incremental legislation, and the Republicans won’t be able to do anything about it unless they can find six moderate Democrats to join them. Are there any moderate Democrats left after Tuesday?

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The GOP on Tuesday night. “Par-TAAAAAAAAAY!”

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Wal-mart, EEOC reach accord in drug test “accommodation” lawsuit

Posted in Americans with Disabilities Act, Drug Testing, Transportation Industry

Laura Jones was offered a sales job at the Wal-Mart store in Cockeysville, Maryland, and was told that she would have to take a drug test. According to the U.S. Equal Employment Opportunity Commission, Ms. Jones told an assistant store manager that she had end stage renal cancer, which prevented her from taking a urine test. The EEOC says that Jones then went to the drug testing collection center and requested that an another type of test be performed, which the center said could be done if Wal-Mart ordered it. She then allegedly took that information back to the store, but was allegedly told that “corporate” would not allow an alternate test.

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A Wal-Mart store in Charlotte, NC.

Wal-Mart’s offer was withdrawn after Ms. Jones failed to be tested within 24 hours of the company’s request, and the EEOC sued Wal-Mart for violation of the Americans with Disabilities Act. Wal-Mart filed an answer denying the EEOC’s key allegations, but the denials are general, so it is difficult to determine the company’s side of the story.

In any event, on October 21 Wal-Mart and the EEOC entered into a consent decree in which Wal-Mart will pay Jones $72,500. The company also agreed to provide notice to applicants of alternative specimen testing for those persons “whose physical condition prevents them from producing urine” and who request accommodations in the pre-employment drug screening process. The consent decree provides for use of blood tests when urinalysis is not possible.

Wal-Mart also agreed to provide 90 minutes of hiring manager training on the accommodation process and to post a notice to all store employees. The EEOC says it has filed similar lawsuits against Kmart (also in Maryland) and against the Fort Worth (Texas) Center of Rehabilitation. In all cases, the applicants had end-stage renal disease.

These EEOC lawsuits are a good reminder that the ADA reasonable accommodation obligation applies at the application and hiring stages as well as during employment. Employers are required to make reasonable accommodations that will allow individuals with disabilities to apply and be considered for jobs. This would obviously include accommodations in connection with the pre-employment drug testing process.

Transportation employers should already be familiar with the regulations of the U.S. Department of Transportation (found at 49 CFR Parts 193 and 195) pertaining to “shy bladder.” Of course, DOT regulations do not apply to retail sales clerks or workers in a rehabilitation center. But the DOT also requires that accommodations be made if the applicant has a legitimate medical reason for not being able to provide a urine sample.

Image credit: flickr, by Mike Kalasnik, Creative Commons license.

Racial talk at work? Beware of reverse discrimination.

Posted in Discrimination, Harassment
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“What’s good for the goose . . .”

When I do harassment training, I ask my audiences whether they think employers should ban the “N” word even when it’s used by African-Americans among themselves. In my experience, the African-Americans in the audience have been the most vocal advocates for treating everyone equally in this regard. In other words, they argue, the word should be banned for everybody — not banned for some and allowed for others.

I agree, for two reasons: (1) it’s a revolting word and likely to be offensive to others even if the people using it are African-American, and (2) without fail, somebody who is not African-American will hear it and think it’s ok to start saying it. And, at that point, we have an employment disaster.

Now we have two more reasons to support equal treatment: (3) Tom Burlington, ex-weekend anchor for Fox 29 TV in Philadelphia, and (4) Craig Hecht, ex-elementary school teacher at Linden Charter Academy in Flint Township, Michigan.

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BREAKING: EEOC seeks court order to halt Honeywell’s biometric testing

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act

UPDATED 10/29/14 and 11/7/14 (see below). Thanks to Kate Bischoff of The Employment Law Navigator for bringing this to our attention.

The Equal Employment Opportunity Commission filed a petition yesterday in federal court in Minnesota to stop Honeywell International, Inc., from requiring that employees (and spouses, if the employees have family health insurance coverage) either get biometric testing, or face the loss of employer contributions to Health Savings Accounts and incur other charges.

The EEOC is seeking a temporary restraining order and a preliminary injunction to stop the testing, which was scheduled to take place October 22 through the end of this week.

According to the EEOC’s petition, the testing requires a blood draw, and blood samples will be checked for cholesterol and glucose. Participants’ blood pressure and waist circumference will also be measured, and they’ll be checked for use of nicotine and cotitine. The EEOC contends that the testing violates the Americans with Disabilities Act as applied to employees, and the Genetic Information Nondiscrimination Act as applied to employees’  spouses.

According to the EEOC, the penalties for non-participation can cost as much as $4,000 per employee for the 2015 plan year.

UPDATE (10/29/14): Honeywell has issued the following statement: 

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace and with the core intent of the Affordable Care Act, or ACA, to provide expanded access and improved healthcare to all Americans. The incentives in our wellness programs are pro consumer and have delivered demonstrably better healthcare outcomes for employees and their families. The incentives we provide are specifically sanctioned by two separate Federal statutes – the Health Insurance Portability and Accountability Act, or HIPAA, and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs. Biometric testing provides valuable private information to each employee about potentially life threatening issues. Honeywell wants its employees to be well informed about their health status not only because it promotes their wellbeing, but also because we don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not. Biometric information will help all employees make healthier decisions. Over 60% of Honeywell biometrics participants have reduced at least one health risk, and encouraging more participation is the right thing to do. For employees with single coverage who voluntarily decide to take a biometric screening, their monthly premiums will be $125 lower than the employees who decide not to take a biometric screening. Biometric results are strictly confidential and not shared with the company. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

(Thanks to Law360 and theflyonthewall.)

Updated again (11/7/14): The court has denied the EEOC’s petition.

I’ve written about the EEOC’s position on the “coercive” aspects of wellness programs here, here, here, here, here, and here. The latest will definitely be a case to watch.

LGBT charges are rolling in, EEOC Commissioner says

Posted in Discrimination, Gender Identity Discrimination

Chai Feldblum, a Commissioner of the U.S. Equal Employment Opportunity Commission, recently presented an update on the EEOC’s handling of charges alleging sexual orientation and gender identity discrimination.

At the meeting, reported this week in Bloomberg BNA, Commissioner Feldblum said that the EEOC is now tracking the intake and resolution of these charges, which I’ll refer to collectively as “LGBT charges.”

From January 1 through June 30 of this year, Feldblum said, the agency had received 459 sexual orientation charges and 81 gender identity charges. In calendar year 2013, the agency received 834 sexual orientation and 199 gender identity charges.

Chai Feldblum

EEOC Commissioner Chai Feldblum

As of September 18, 2014, 614 LGBT charges had been resolved: Eleven with “cause determinations,” 68 settlements, three conciliations, and 18 withdrawals “with benefits to the charging party.” If my math is correct, that means the EEOC issued dismissals and notices of rights in most of the resolutions this year (514 of 614).

As most employers know, until recently the EEOC refused to accept LGBT charges against private employers because federal law does not explicitly address this type of discrimination. However, the agency has recently changed its practice, primarily because of court decisions interpreting Title VII to treat “sexual stereotyping” as an unlawful form of sex discrimination.

The statistics cited by Commissioner Feldblum don’t appear to be available on the EEOC’s website, but you can read about the agency’s enforcement position on gender identity discrimination here. And the EEOC recently filed a brief in a case pending before the U.S. Court of Appeals for the Seventh Circuit contending that even discrimination based on sexual orientation was a form of unlawful sex stereotyping. (The Seventh Circuit hears appeals from federal district courts in the states of Illinois, Indiana, and Wisconsin.)

Commissioner Feldblum spoke at PLI’s Employment Law Institute on Monday.

Halloween in the workplace? Bah! Humbug!

Posted in Discrimination, Harassment

When it comes to Halloween in the workplace, just call me Scrooge.

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Halloween costumes at work? Bah! Humbug!

A reader writes,

Hi, Robin. I dread the prospect of employees coming to work in inappropriate Halloween costumes. I’ve seen costumes that are sexually provocative, or that reflect racial or ethnic stereotypes. Some people even say that employers shouldn’t have Halloween parties because some employees have religious objections. Can you write about this before Halloween?

Sure, and thank you for suggesting such a great topic for this time of year! There is very little from the courts on “Halloween in the workplace,” and for that we can all be grateful because it probably means that it doesn’t get litigated too often. I did find one case from a federal court in Pennsylvania in which a woman claimed that she was discriminated against for refusing to attend a “mandatory” employer Halloween party. The woman was a Jehovah’s Witness, and believed that Halloween parties were sinful. (The court dismissed her claim because she hadn’t raised it in her EEOC charge.)

Even though there isn’t much court guidance, here is my question: Why let employees wear Halloween costumes to work at all? The costumes become more indecent by the minute, increasing the risk that someone will either be sexually harassed because of a costume, or will be considered to be sexually harassing co-workers because of a costume. Even costumes that are not meant to be sexually provocative may still be very inappropriate for the workplace . . . for example, a ballerina costume (too much bare leg, shoulder, and arm), or a “superhero” costume (waaaaaaay too much like underwear).

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This prima ballerina is showing too much skin for the office.

In addition to being provocative, as my reader points out, many Halloween costumes may be considered inappropriate for racial, ethnic, or religious reasons. Or they may be too gory, violent, and disgusting for work. (I’m thinking of the classic axe-in-the-head mask.)

In addition to that, Halloween costumes may present safety issues. (What if that pointy witch’s hat gets caught on some machinery?) They may make it harder for employees to get their work done. (You’ll get that green ghoul makeup all over your keyboard! And do you know how hard it is to take a business call while you’re wearing a Tor Johnson mask?)

You’ll shoot your eye out, kid! Get off my lawn! Bah! Humbug!

And why on earth would an employer ever require an employee to attend a Halloween party, especially if the employee’s reason for not attending was a religious one?

OK, OK, I admit – I really do like Halloween. Even at work. I owned a pair of skeleton earrings that I wore to the office every Halloween until they broke a couple of years ago. I don’t see any harm in putting out a bowl of candy corn in the break room, or even in throwing a little party as long as “conscientious objectors” are excused with no penalty. But that’s about it for me, for the reasons stated above.

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“Aw, gee, Maw — that underwear looks just like a superhero costume!”

Now, what about employees who may be offended by any celebration of Halloween? This can include some evangelical Christians, Jehovah’s Witnesses, and possibly others. Don’t feel like you have to ban the festivities, but don’t mandate participation, either. If employees can opt out without penalty, that should be accommodation enough.

Are we all ready for next Friday now?

Speaking of parties, I’ll be doing a webinar on November 12 for XpertHR on “How to Make Your Workplace Holiday Party Sparkle – With No Legal Hangovers.” Please join us as we talk about that other big holiday that causes employer headaches. (Ho! Ho! Ho!)

Image credits: All from flickr, Creative Commons license. Ebenezer Scrooge by forwardstl, ballerina by Chris Millett, 1960s Hanes Underwear ad rephotographed by SinseiAlan.