NLRB Clarifies Standard for Reviewing Workplace Policies, Finds Confidentiality and Media Contact Policies Lawful

By Christopher J. Eby on November 4, 2019 Posted in Employee Handbooks & Policies, Labor Relations

Applying its new standard for determining whether employer policies violate the National Labor Relations Act (NLRA), a divided National Labor Relations Board (Board) upheld policies prohibiting employee disclosure of client and vendor information and contact with the media. The Board’s decision provides additional guidance about their new, employer-friendly standard of review.

Section 7 of the NLRA guarantees employees the right to organize, to form, join, or assist labor unions, and to engage in “concerted activity” to improve their work conditions. The Act prohibits employers from interfering with these rights. Among other things, the Board reviews select employer policies and rules to ensure that they do not unlawfully interfere with employees’ Section 7 rights.

In 2017, the Board significantly revised its standard for reviewing these policies. Previously, the Board had looked to whether a policy could hypothetically interfere with employees’ Section 7 rights. The Board’s new test, adopted in Boeing Co., 365 NLRB No. 154, is more deferential to employer business justifications, seeking review from the perspective of a reasonable employee aware of their legal rights. In Boeing, the Board adopted a three tier classification for rules and policies under review: Category 1 rules are lawful, Category 2 rules require individualized scrutiny, and Category 3 rules are unlawful to maintain.

Halloween Parties Can Leave Employers “Haunted” By Discrimination

By Cecilia Ehresman on October 28, 2019 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

The last week of October can result in “double, double toil, and trouble” for employers. While workplace Halloween festivities may boost employee morale, they can also result in employer liability for discrimination and harassment in the workplace in violation of Title VII of the Civil Rights Act of 1964 and applicable state and local laws. To protect against this potential exposure to liability, employers must put the right ingredients into the caldron before they allow employees to cast a spell.

Hot Tip: End May Be Near for 80/20 Rule!

By Ana C. Dowell on October 14, 2019 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation, Wage & Hour

Employers in the hospitality and restaurant industry are poised for celebration: the Department of Labor (DOL) has proposed eliminating a rule that requires tracking the time tipped employees devote to non-tip producing activities when counting employees’ tips toward the employer’s minimum wage obligations. The DOL has taken the position that employers cannot claim a tip credit if a tipped employee spends more than 20% of his or her time “performing preparation work or maintenance,” a standard in the agency’s Field Operations Handbook known as the “80/20 Rule.” Last week, the DOL published a Notice of Proposed Rulemaking (NPRM) proposing to eliminate the 80/20 Rule.

Does the ADA Protect Employees from Discrimination Based on Potential Future Disabilities?

By Brittany Buccellato on October 8, 2019 Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

The Americans with Disabilities Act (ADA) does not protect employees from discrimination based on potential future disabilities, according to a recent ruling by the 11^th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama. However, employers in other parts of the country should be more cautious. For example, federal courts in Illinois reached the opposite conclusion holding that an employee may be protected from discrimination based on potential disabilities. Additionally, recent amendments to the Illinois Human Rights Act protect employees from discrimination based on “perceived” disabilities.

Department of Labor Final Rule Increases Salary Threshold for Exempt Employees

By Melissa L. Cizmorris on September 30, 2019 Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Wage & Hour

The U.S. Department of Labor (DOL) issued its long-awaited Final Rule stating that all employees who make less than $684 a week, or $35,568 per year, must earn overtime pay. This new requirement replaces the current threshold of $465 per week, or $23,660 per year, set in 2004. This increase in the standard salary level requires an immediate review of all positions previously classified as exempt where the employee earns less than $35,568 per year. The new rule takes effect on January 1, 2020, providing employers only a few months to comply.

The Fair Labor Standards Act (FLSA) generally requires covered employers to pay employees a minimum wage of $7.25 for each hour worked up to 40 hours a week, and 1.5 times that amount for any hours over 40 in a week. The FLSA exempts “any employee employed in a bona fide executive, administrative, or professional capacity.” To qualify for an exemption from minimum wage and overtime requirements, an employee: (1) must be paid a predetermined and fixed salary that is not subject to reduction due to any variation in the quantity or quality of the work performed (the “salary basis test”); (2) must earn a minimum specified salary (the “salary level test”); and (3) must have job duties that primarily involve “executive, administrative, or professional duties” as defined by the FLSA (the “duties test”). Continue Reading

Is this the End of Independent Contractors in California?

By Jeffrey S. Horton Thomas on September 23, 2019 Posted in Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Employment Litigation

Employers classifying workers in California as independent contractors face grave new concerns based on Assembly Bill 5, signed into law by Governor Newsom on Wednesday, September 18. In its breadth and the risk to which it subjects employers, AB 5 easily eclipses last year’s state Supreme Court decision in Dynamex. AB 5 goes into effect in only slightly more than three months, on January 1, 2020. Given the magnitude of the new law, employers must now begin to understand AB 5, evaluate their risk and take appropriate compliance and self-protective action.

Who are Considered Employees under AB 5?

Aside from a list of workers specifically excluded from AB 5, as of January 1, the law defines all workers as employees for Labor Code and Unemployment Insurance Code purposes unless the employer can prove all three of the following factors (the ABC Test), that the worker:

A. is “free from control of the hiring entity” in the performance of his or her work;

B. performs “work that is outside the usual course of the hiring entity’s business”; and

C. is engaged in an independently established trade, occupation or business. Continue Reading

The Human Touch of Web Accessibility

By Shayla N. Waldon on September 18, 2019 Posted in Disability, Employment Counseling & Workplace Claims Prevention

Automation is the way of the future . . . or so we thought. Make no mistake, the technology at our fingertips is powerful. As we increasingly rely on it, we lose human interaction and that presents its own risks. Even in the completely digital world of web accessibility, the human touch is essential. Companies should consider utilizing vendors who perform manual (as well as automated) testing to ensure their websites comply with the American with Disabilities Act (ADA). Although courts are still wrestling with the applicability of the ADA to websites and whether a website even qualifies as a “place of public accommodation,” companies can avoid compliance headaches and potential litigation by using the human touch offered by some vendors.

Web accessibility testing often involves an automated process to test the coding of a website to ensure that it is perceivable, operable, understandable, and robust—each of which are hallmarks of accessibility. When compared to manual human testing, automated testing programs handle information much more quickly than a human can process it. However, an automated program works only as well as the person who creates it. Some estimate that automated testing alone captures only about 17-25% of accessibility errors and overlooks important website elements. For example, while automated testing can identify issues with missing alternative text for photos, only a human can assess whether the alternative text actually belongs to a specific image on the page. And, while automated captioning may conveniently allow a hearing-impaired individual to understand the spoken content of a video, the accuracy of the captioning may be compromised if one chooses to bypass human evaluation. Continue Reading

“When Do You Plan On Having A Baby?” And Other Questions Not To Ask

By Melissa Torres on September 9, 2019 Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers interviewing women of child-bearing age may be tempted to ask about plans for having a baby, but doing so poses risks. While an employer might be concerned about staffing coverage, the Pregnancy Discrimination Act prohibits employers with 15 or more employees from discriminating against a woman based on her potential or capacity to become pregnant. Taking adverse action against a pregnant employee because of her pregnancy is equally unlawful.

Nonetheless, a New York Times article in February this year bore the striking headline: “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies.” The article indicated that, notwithstanding the law, many pregnant women were either passed over for promotions or fired when they complained.

Yet another NYT headline focused on the failure of employers to provide light duty to pregnant women: “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination.” Continue Reading

Minimizing Risks of BYOD Use For Work

By Zoe Bekas on August 29, 2019 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Labor Relations

Employees seem permanently attached to their smart phones today, but allowing employees to use their personal devices to make work calls, and send and receive work emails can carry substantial risks. Before allowing employees to use their personal cell phones or other devices for work purposes, make sure you have strong electronic communications and Bring Your Own Device policies in place that cover not only the use of your company email and phone systems, but also the use of personal cell phones, tablets and laptops for work. Among the issues to be addressed: Continue Reading

Discrimination Based on Hair and Hairstyles: Protected or Knot?

By Ashleigh C. McKenzie on August 19, 2019 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Cornrows or locs may not fit your corporate image, but be careful: state and local legislation prohibiting workplace grooming and appearance policies that adversely impact employees of color have begun popping up around the country. And the new laws have some teeth: employers who discriminate based on hair texture or style could face penalties of up to $250,000 under one and unlimited damages under another.

New York City was the first to prohibit workplace policies that ban hairstyles associated with Black communities. The New York City Commission on Human Rights, the agency that enforces New York City’s Human Rights Law, issued guidelines in February 2019 stating that employers can impose work-appropriate appearance requirements but cannot have grooming policies that prohibit locs, cornrows, Bantu knots and other such hairstyles. The guidelines state: “Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with [B]lack communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns,” according to the guidelines. “An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.” The New York City Commission can issue a penalty of up to $250,000 and there is no cap on damages.

Next came California, the first to enact statewide legislation. California’s law is popularly known as the CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair.” The Act expands the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The remedies for violation can include backpay, reinstatement, front pay; injunctive relief, attorney’s fees and costs, compensatory damages, and punitive damages (if an employer is found to have acted with malice or reckless indifference).

Just last month, New York State joined the trend, amending its Dignity Act to expand the definition of race to include natural hair and hairstyles. The Act protects “natural hair, treated or untreated hairstyles,” which includes, but is not limited to, locs, cornrows, braids, afros, and “the right to keep hair in an uncut or untrimmed state.”

Similarly, New Jersey has also introduced legislation (Senate Bill 3945) which would expand the New Jersey Law Against Discrimination to include “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles,” such as like braids, locs and twists.

What Does This Mean For Employers?

The Equal Employment Opportunity Commission has taken the position that “race” is not limited to the color of one’s skin and includes other physical and cultural characteristics associated race. Therefore, according to the EEOC, a particular hairstyle, or the texture of an employee’s hair, has no correlation to any bona fide occupational qualification.

However, some courts have rejected the EEOC’s position. For example, in U.S. Equal Employment Opportunity Commission v. Catastrophe Management Solutions, the United States Court of Appeals for the Eleventh Circuit, which serves Alabama, Florida, and Georgia, held that Title VII, the federal anti-discrimination law, does not prohibit discrimination on the basis of hairstyle, such as locs, which the court considers a “mutable characteristic.” The court distinguished discrimination based on race from discrimination based on hairstyles, stating that hairstyles only have a cultural link to race or blackness, rather than being an immutable trait of one’s race. Last year, the United States Supreme Court declined to review the decision.

Likewise, in Ewing v. United Parcel Service Inc., a federal district court last year in Kansas found that an employee who was terminated for wearing bright colored hair was not terminated from employment on the basis of race but rather for violating the employer’s personal-appearance guidelines. The court found that the employer had consistently applied and enforced its guidelines, which mandated that “hairstyles and hair color should be worn in a businesslike manner,” prohibited hair colors such pink, purple, crimson, and burgundy.

These cases show that employers still may implement dress code and grooming policies, but should take steps to ensure that the policies and their enforcement do not disproportionately impact persons of color, particularly in New York, California, and New Jersey.

Best Practice Tips

Employers in states like New York, California, New Jersey should immediately review their grooming policies to provide protection for natural hair and hairstyles historically associated with the Black community. Employers in other states should also review their grooming policies and to ensure the policies are race-neutral and uniformly enforced. Along those same lines, employers should always be mindful of other physical characteristics that can be associated with an employee’s race, and develop and enforce policies accordingly. Employers also should ensure that they uniformly apply any rules that require employees to secure their hair for bona fide security, safety, and hygienic reasons.

Employers should ensure that their anti-discrimination training for managers and supervisors covers discrimination based on traits that are historically associated with race.

If you have any questions about these new laws and their impact on your company, contact your Akerman Labor and Employment attorney.