Can Employers Refuse to Hire Smokers?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Are smokers in a protected class? Can a company refuse to hire them? After all, studies have repeatedly shown that smokers have higher absenteeism, are less productive and carry higher healthcare costs than non-smokers.

Not so fast. While smokers are not a protected class under federal anti-discrimination laws, statutes in more than half the states and the District of Columbia would potentially prohibit implementation of a policy against hiring smokers.

Bans on workplace smoking are nothing new. In 1986 two studies linked exposure to second-hand smoke to lung cancer and respiratory illnesses.  At that point, complete bans on workplace smoking were rare, but by 2010, dozens of laws prohibited smoking in indoor workplaces. By 2012, a number of hospitals, universities and other businesses had taken the next step and instituted no-nicotine hiring policies. Continue Reading

Job References in the #MeToo Era: Employers In Some States Now Have Privilege to Say #HimToo

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Employers seeking to avoid liability often stick to dates of employment and position held when responding to reference requests. But there is a new trend in legislation offering protection to employers who disclose to prospective employers that the candidate was the subject of a sexual harassment investigation.

For example, effective January 1, 2019, California employers will be protected by an additional privilege when providing job references. AB 2770, signed into law last month by California Governor Jerry Brown, amends California law regarding the common interest privilege and specifically protects employers from defamation and tortious interference claims if they advise a prospective employer that the applicant was the subject of a sexual harassment investigation based on credible evidence. California law already protects employers’ communications regarding an applicant’s job performance and employee misconduct, but AB 2770 makes clear that sexual harassment investigations are included in the privilege. For the privilege to apply, such references must also be provided without malice. The new law also permits California employers to disclose whether or not they would rehire the applicant. Continue Reading

Employing Anyone in New York? New Anti-Harassment Laws Taking Effect

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Investigations & Audits, Employment Litigation

All employers with even a single employee working in New York City or New York State will be required to meet requirements designed to address sexual harassment under new city and state laws.  Employers with an employee working in New York City must post a formal notice regarding harassment in a conspicuous location on their premises and distribute a harassment fact sheet to newly hired employees beginning September 6, 2018, and implement new training programs next April under a new city ordinance.  Employers with an employee working in New York State must implement new harassment training effective October 9, 2018, under a new state law. Continue Reading

One Visit and Vague Plans to Return Not Sufficient to Allow ADA Access Claim

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Litigation

Businesses might see a ray of hope in a recent federal appellate court decision that rejected the ability of a wheelchair-bound patron and “tester” to pursue her claim against a property owner and shop in Cocoa Beach, Florida.

There is a veritable cottage industry of plaintiffs who bring claims against businesses, even those they have never visited. In an effort to stem the tide of such “drive by” claims, some states have enacted laws requiring businesses be given the opportunities to correct technical violations first, and a bill remains pending before Congress that is designed to achieve the same result.  And now, a recent decision from the 11th Circuit Court of Appeals (covering Florida, Georgia and Alabama), offers some additional support. Continue Reading

NLRB G.C. Issues Guidance on Handbook Rules

Posted in Employee Handbooks & Policies

Standard employer workplace policies may once again pass muster, following a Memorandum issued this summer by the NLRB Office of General Counsel.

Although Memorandum GC 18-04 is addressed to NLRB personnel, its guidance for how to analyze charges alleging that workplace policies violate the NLRA offers some clarity and reassurance to employers.

Employers may recall that beginning in 2004, the NLRB took issue with a variety of common provisions in employee handbooks, including rules regarding confidentiality, non-disparagement, social media, disruptive conduct toward supervisors and coworkers, and communications with the media and other third parties. The NLRB, in a series of decisions, found that facially neutral policies – even in non-unionized workplaces — would violate employees’ rights to engage in “protected concerted activity.” Such activity would include when two or more employees take action for their mutual aid or protection, including discussing terms and conditions of employment. Continue Reading

Must An Employer Grant a Request for Indefinite Leave?

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

What do you do when an employee wants leave for a medical condition, but has already exhausted or is not eligible for leave under the Family and Medical Leave Act? Tread carefully.

Maybe you’re not a covered employer under the FMLA. Maybe the employee is not eligible for FMLA leave, or has already exhausted all leave available under the FMLA. Or maybe you have a policy that says the maximum amount of leave any employee can take is 12 weeks, and the employee has already exceeded that limit.

Before terminating an employee in such a circumstance, employers with 15 or more employees must analyze the request further under the Americans with Disabilities Act. Although employers are allowed to have leave policies that establish a maximum amount of leave, they may have to make exceptions for employees who require more leave because of a disability.

The EEOC takes the position that “no-fault” maximum leave policies (under which employees are automatically terminated after they have been on leave for a certain amount of time) are unlawful. That is, an employer may not automatically terminate an employee after a certain amount of leave has been exhausted. The EEOC states that the employer must provide additional leave time under the ADA after FMLA leave is exhausted, unless: (1) granting the leave would result in undue hardship, or (2) there is another effective accommodation that would enable the employee to perform the essential functions of his or her position.  Moreover, according to the EEOC, in evaluating what constitutes an undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to the new position. Continue Reading

DOL Eases Standards for Unpaid Internships

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention

With summer internships in full swing, it’s high time to revisit the Department of Labor’s recently-revised guidance on unpaid internships.  Guidelines issued in January abandoned the Department’s prior test – which required employers to meet each of six factors — in favor of a seven-factor test granting employers more flexibility to implement unpaid internship programs.

Under the new “primary beneficiary test,” whether the internship is paid ultimately turns on whether the intern or the employee is the “primary beneficiary” of the internship. When the intern is the primary beneficiary, the internship need not be paid. In contrast, when an internship primarily benefits the employer, it must be paid.

While acknowledging that the test is “flexible,” guidance from the Wage and Hour Division sets out seven factors for the primary beneficiary test: Continue Reading

A Shield or a Sword? The Role of Performance Evaluations in Employment Litigation

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Investigations & Audits, Employment Litigation

Performance reviews are intended to provide feedback and identify opportunities for growth. They can also help an employee understand how well the employee is meeting the employer’s expectations. But make no mistake – the significance of performance reviews does not always cease at the time of termination. If the employment relationship goes south, performance reviews can develop a second life in subsequent litigation.

After an employee is terminated, it is not uncommon for an employee to claim that the employer’s proffered reason for termination was pretext, and the real reason for the termination was unlawful discrimination or retaliation. This argument—that the employer’s stated reason for termination is a cover up for an unlawful motive—carries significantly less weight when the employer can point to the employee’s negative performance evaluations in support of the termination. Performance evaluations are particularly effective in legitimatizing the employer’s stated reason for termination if the evaluations showed a decline in performance over time and culminated in termination. Continue Reading

Supreme Court Slams Public Sector Union Rights

Posted in Employment Litigation, Labor Relations

The Supreme Court has declared that mandatory union dues for public employees are unlawful, overturning 40 years of precedent. In Janus v. American Federation of State, County, and Municipal Employees, the Court ruled that requiring public sector employees who are not union members to pay “fair share” or “agency fees” to unions that represent them in collective bargaining violates the First Amendment.

In so doing, it overturned its 1977 decision in Abood v. Detroit Board of Education, which held that such fees were constitutional, and which withstood four prior challenges in as many decades.

The case was brought by Mark Janus, an Illinois state child support specialist whose unit is represented by the American Federation of State, County, and Municipal Employees. Mr. Janus, however, did not join the union because he does not agree with many of its positions. Specifically, he believes that many of the union’s policies were bankrupting the state. Under Illinois law, non-union members whose unit is in a union may be required to pay “agency fees” — partial dues to cover the union’s cost of negotiations and other functions. In 1977, the Supreme Court drew a distinction between such mandatory agency fees and other voluntary union dues, which could be used for lobbying or other political activities. The Supreme Court, then led by Warren Burger, found that the government’s interest in helping unions prevent employees from taking advantage of the benefits offered by unions without having to pay their fair share of the costs outweighed the employees’ free speech rights.

Mr. Janus challenged this law, claiming that paying these fees violates the First Amendment by forcing him to fund policies he opposes.

In finding that mandatory agency fees violate the First Amendment, the Supreme Court rejected the rationale in Abood that: (i) the fees promote labor peace by avoiding the disruption that would result if employees in the same unit were represented by more than one union and (ii) the fees avoid the risk of free riders. The Court found that the fears regarding labor peace were unfounded and the benefits to a union of being the exclusive representative outweigh any extra burden of representing non-members.

This ruling only applies to public sector employees and, as a result, it does not have a direct impact on unions in the private sector. The effect in the public sector, however, may be significant.  Twenty-two states have fair share laws permitting agency fees like those required of Mr. Janus. The Janus decision effectively means that public employees must consent prior to paying union fees – to opt in, rather than having to opt out. The other 28 states are “right to work” states, where state laws prohibit unions from charging nonmembers these sorts of fees.

The Janus decision will have an obvious financial impact on unions in the public sector in those states as employees cease paying agency fees and unions lose a secure source of financial support.  Moreover, it may lead to public employees opting out of union membership altogether, and unions in the public sector needing to work harder to retain current members and gain new ones.

States may also step in to protect unions in the public sector in the wake of this decision.  For example, in anticipation of the decision in Janus, New York passed legislation providing that a union’s duty of fair representation to a public employee whose unit is in a union but who is not a union member is limited to the negotiation and enforcement of the collective bargaining agreement.  The union is not required, for example, to represent a non-union member in the grievance and arbitration process.  Other states may decide to follow New York’s example.

Akerman Labor and Employment attorneys will continue to monitor the impact of the Janus decision.

Congress and the Trump Administration Cannonballs into the Tip Pool

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Buried in the 2,232 page omnibus budget bill recently signed by President Trump was an important change regarding the use of tip pools. Employers who do not take a tip credit are not required to police their employees to determine if their tip pool includes “back of the house” employees, which would have previously been unlawful. However,  an employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.

This amendment to the Fair Labor Standard Act represents a significant change. Prior to the amendment, restaurants were required to ensure that the only employees who participate in a tip pool – an arrangement where the waiters, bartenders, and other employees who receive tips directly from the customers “pool” their tips with other employees at the restaurant – were those who “customarily and regularly” provide customer service and receive at least $30 per month in tips (e.g., wait-staff, bartenders, hosts, bussers, bar-backs, runners, etc.).  Due to a 2011 regulation during the Obama administration, this was true regardless of whether the employer took a “tip credit” towards the minimum wage for the employees who received tips (federal law permits employers in certain industries to pay employees as much as $5.12/hour below minimum wage so long as they receive tips in excess of that amount to cover the difference), as well as employers who do not take the tip credit. In other words, under the Obama-era regulations, even those employers who did not take a tip credit were required to ensure that tip pooling arrangements at their restaurants did not include employees outside of the chain of employees who provide direct customer service. In practice terms, this means that tip pooling arrangements that included cooks, dishwashers or other “back of the house” employees would be deemed to violate the FLSA even if the employer was not taking the tip credit for any of its employees. Continue Reading

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