A “Smoky” Legal Issue for 2018 – Medical/Recreational Marijuana In the “Workplace”

Marijuana remains illegal under federal law. However, there are many states, and a few cities, which have legalized medical and recreational marijuana – creating challenges for employers, as these laws “sprout up” (pun intended) across the country.

Also, prior to now, the caselaw was quite clear – an employer could discipline an employee for lawful use of marijuana. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). But the law appears to be changing, as recent cases indicate that courts are beginning to recognize that employees who are lawful users of marijuana are entitled to some protection.

It is a trend that employers need to watch. Continue Reading

A New Headache – New York’s Paid Family Leave

With the end of the calendar year in sight, employers must shift focus to ensure compliance with the New York State’s new Paid Family Leave (“PFL”) law, which goes into effect on January 1, 2018.

The Good News – The PFL, which applies to all employers (of any size) does not require employers to pay salary during a family leave. Generally, employees on family leave will get limited salary coverage paid through an employer’s insurance policy, much like the current State Disability benefits program.

The Bad News – The law now gives employees some salary continuation during certain FMLA – leave periods (including leave to care for a family member), which prior to this law were usually unpaid leaves. As many employers know, FMLA leave is a very popular benefit, even when it is unpaid. Family leave will most surely become an even more popular benefit, now that some salary will be covered.

COVERAGE

What Employers Are Covered? The new PFL law applies to any employer, of any size, including out-of-state employers who have employees working in New York State. The State intends for the PFL program to provide benefits to any eligible employee who works in New York, regardless of the employer’s headquarters or the employee’s place of residence.

What Employees Are Covered? Any employee who regularly works 20 or more hours per week and has worked at least 26 consecutive work weeks, preceding the first day of their PFL leave, is eligible for the PFL benefits.
Employees who work fewer than 20 hours per week will be eligible for PFL benefits after working 175 “working days” (not calendar days) in their position. Continue Reading

WHERE’S YOUR HARVEY? How To Keep Your Company Out of the Headlines

Over the past year, we have all watched the garish spectacle of various sexual harassment scandals take down powerful men in media, Silicon Valley, and most recently Hollywood, where allegations of Harvey Weinstein’s lurid conduct have engulfed the industry.

And we have read a lot of typical advice from law firms in the wake of all this: make sure you have the right policies in place, train your managers and staff, have a robust complaint procedure, and investigate all claims and respond promptly when harassment is reported.

Here’s the rub: pretty much every organization languishing under sexual harassment allegations in the past year had all that. You can bet that every company ensnared in these scandals had the right polices and procedures in place, had done sexual harassment training, had an HR department that was ready to respond. And all that preparation avoided . . . absolutely nothing. So your human resources people and legal professionals may be thinking, “We’ve got policies and complaint response procedures in place, so we’re set, right?”

Wrong.

Where is the disconnect? Why do these things keep happening? And with the orgy (pun intended) of recent publicity, what do you do to keep your company from being the next media pariah?

Continue Reading

The Rise Of Employee Religious Discrimination Claims

Title VII of the Civil Rights Act prohibits discrimination based on race, color, sex, national origin and religion. While the first four categories often dominate the news headlines and court dockets, the fifth category — religion — should not be underestimated.

Possibly due to the U.S. Supreme Court’s June 2015 Abercrombie decision — a religious accommodation case — or the increasing focus on immigration laws and the challenges faced by people of different religions and ethnicities seeking to assimilate into the U.S., many employers are seeing an increase in requests for religious accommodations, as well as a rise in the number of different religious practices that need to be accommodated.[1] Further, employees who are rebuffed — told “no, we cannot accommodate you” — seem to be increasingly willing to file a charge or seek out a lawyer to challenge that decision.

In a separate phenomenon, clergy are also getting involved. An employer will often see the local imam or pastor writing a letter on an employee’s behalf to explain the need for the accommodation and then supporting the employee before a court or agency. In addition, religious discrimination claims are often combined with retaliation claims, forcing employers to fight two battles at once.

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Lessons From Equifax – Trends on Data Breach of Employee Information

The recent Equifax breach data and public missteps in handling the breach has companies revisiting their cybersecurity measures and refreshing their breach response plans.  Although not every company has consumer data likely to be targeted by hackers, employment files may be compromised, such as when breaches of U.S. government databases exposed the personally identifiable information (PII) of 22.1 million people, including not only federal employees and contractors but their families and friends.  Breach incidents have a panoply of repercussions for businesses that suffer them, including reputational damage, loss of business, and legal repercussions.  All states except Alabama and South Dakota require notification when information commonly maintained by employers, such as Social Security numbers and driver’s license numbers, is compromised.

Liability for breaches will vary by state law.  In 2017, two Pennsylvania courts shined some light on this issue.  In both cases, which involved large-scale data breaches affecting thousands of employees, the courts absolved the employers of any potential liability because either (1) they owed no duty in tort to their employees to protect PII against data breaches or (2) the employer had no express or implied contractual obligation to protect the PII. See Enslin v. Coca-Cola Co. (E.D. Pa. Mar. 31, 2017); Dittman v. UPMC (Pa. Sup. Ct. Jan. 12, 2017), reargument denied Mar. 20, 2017.  It’s important to remember these laws are in their infancy and results will vary by state.

In 2016, Illinois expanded its employer data breach notification with the passage of the Personal Information Protection Act (effective January 1, 2017).  See 815 ILCS 530/10(a)(2).  The updates include the following:

  • Illinois eliminated the ability to avoid notification because the compromised personal information was encrypted or redacted.  Under the amended law, if encrypted or redacted personal information is breached, notification is still required if information needed to unencrypt or unredact the personal information is acquired with the encrypted personal information.
  • “Personal information” was expanded to include, among other things, an individual’s SSN, driver’s license number, health insurance information, unique biometric data (“fingerprint, retina, or iris image, or other unique physical representation or digital representation of biometric data”), and an individual’s user name or e-mail address, in combination with a password or security question and answer that would permit access to an online account (i.e. log-in credentials).  Now, obtaining any of this information triggers reporting requirements.
  • Illinois employers are required to notice the Illinois Attorney General of any data breach that affects more than 250 Illinois residents.  This notice must be provided within the sooner of 45 day of the discovery of the breach, or when the notification of breach is sent to Illinois residents.

As demonstrated by Illinois’s recent amendments, data breach notification laws continue to evolve and expand in their attempt to adapt to heightened risks associated with increasingly sophisticated hacks and scams to gather personal information.  While this post focuses on Illinois, employers should monitor the laws in the states where their employees reside for new developments.

In addition to monitoring the laws, employers should consider implementing the following:

  • Take cybersecurity seriously and take steps to minimize the risk of data breaches, including exercising reasonable care in the management of personally identifiable information about employees;
  • Review policies and codes of conduct related to the handling of data to ensure they are compliant with legislative changes (reach out to privacy or employment counsel for assistance monitoring legislative changes);
  • Respond swiftly to suspected data breaches and other events – like the theft of computers – that could result in data breaches;
  • When breaches occur, or are suspected, consider affirmative steps, such as paying for credit monitoring or identity theft protection, to address employees’ fears; and
  • Consider designating a security incident response team that conducts drills and/or simulations to test the effectiveness of the incident response plan.

The Salary Scare – The City’s Salary Ban Law Takes Effect

Happy Halloween New York City Employers!

 

Just in time to scare even large employers, beginning October 31, 2017, it will be against the law for employers in New York City to ask about, rely on, or verify a job applicant’s salary history during the hiring process. As discussed in detail in our prior posts, this new legislation also permits disgruntled applicants to pursue claims against an employer for violations of the law either with the New York City Commission on Human Rights or directly in court.

With only a few weeks left before the law goes into effect, employers in New York City should take care in reviewing their hiring policies and practices to ensure compliance with the law.

The New Law

First, this law applies to all employers, regardless of size, in New York City.

The new law prohibits employers from:

(1) “Inquiring about” an applicant’s salary history throughout the entire employment process; and/or

(2) “Relying” on the salary history of a job applicant, when determining an applicant’s salary amount at any stage in the employment process, including when negotiating a contract.

The law defines “salary history” broadly to encompass not just wages but also benefits and any other form of compensation.

It also bans employers from searching publicly available records to obtain an applicant’s salary history.

There are limited exceptions to the ban:

  • First, an employer may consider an employee’s salary history if the applicant voluntarily disclosed his or her salary history “without prompting.
  • Second, an employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.
  • Third, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.

Continue Reading

Trump Plays Ball (To Knee or Not To Knee)

President Trump likes to mix it up.  Mix everything up, like the National Football League and the First Amendment.

Wait. What?

Whether you think the President defies convention strategically or blunderingly, Trump is more a force of nature than a familiar political type, unabashedly tweeting on topics that are at least arguably Presidential (we will “totally destroy” North Korea) to just plain weird for a President to tweet about (Nordstrom has been unfair to his daughter), even assuming that a tweeting President is itself normal.

So what to make of his speech last week at a rally in Huntsville, Alabama, about the NFL? In case you were in cryogenic hibernation and missed it, President Trump attributed the NFL’s decrease in ratings to player protests and called for the firing of NFL players who call attention to racial injustice by kneeling during the national anthem. Not satisfied that just firing players engaged in social protest would be enough, President Trump also called for football fans to boycott NFL games unless the league fires or suspends players who refuse to stand for the national anthem. President Trump tweeted that players “must stop disrespecting our flag and country.”

Now back to the “force of nature” comment. It is possible that we’ve become so accustomed to the unaccustomed with President Trump that we miss what, at least from a Constitutional perspective, was happening there:  the President, speaking as the President (in other words, a high-level mouthpiece of the federal government) was: 1) demanding that private employers fire employees on the basis of political expression; 2) urging citizens to boycott private businesses who do not fire employees who engage in political expression; and 3) undoubtedly impacting the professional viability for those employees who have chosen to engage in government-condemned political expression.

“Ok,” you might say, but (as we’ve heard ad nauseam), “this was just Trump being Trump,” which really means nothing, as if saying that an elected official was just acting out of whatever momentary impulses he had is all the analysis we need.  So let us put the question to you more clearly:  when the President, not purporting to speak as a private individual (even if he could do that), tells private employers to fire employees because he thinks they are unpatriotic; tells customers to damage the businesses that do not fire employees as demanded; and makes statements that may hurt the professional careers of the people he wants fired, do the private citizens and businesses have claims against the government? Continue Reading

No Summer Breaks for the EEOC

As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes. Continue Reading

Racism in Your Spare Time: What Are The Legal Limits for Employers?

On Saturday, August 12, as the nation watched, protests in Charlottesville, Virginia regarding the anticipated removal of a statue of Confederate general Robert E. Lee turned deadly. In the days and weeks after, both the small city and the country wrestled to make sense of the events. In the aftermath, employers too were forced to make decisions and judgment calls as the online community identified specific individuals as white supremacists.

We suspect that most of our readers, like us, don’t like white supremacists. But even apart from the moral implications of Charlottesville, the public acts of employees can impact the public goodwill, brand and reputation of an employer—that is, the most valuable things a company has. So when an employee associated with a particular employer engages in distasteful, or hateful, or outrageous public conduct, what can an employer do? Should the employees be terminated? Disciplined? Allowed to do and say whatever they want while not at work?

Background

Soon after August 12, Twitter accounts, including one called @YesYoureRacist, began attempts to identify rally participants, requesting the following of Twitter users: “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous.” The viral and fast-moving world of social media helped the YesYoureRacist Twitter account and similar accounts identify rally participants, both with names and pictures.

The identifications resulted in one father’s public open letter response to his son’s participation, informing the public that the family “loudly repudiate[d] my son’s vile, hateful and racist rhetoric and actions” via a North Dakota newspaper. But the disclosures had workplace ramifications as well.

Following the identification of Cole White as a protester involved in the torch-lit march on Friday, August 11, the hot-dog restaurant in Berkley, California where White worked, Top Dog, reportedly displayed a sign on the restaurant’s exterior stating “Effective Saturday 12th August, Cole White no longer works at Top Dog. The actions of those in Charlottesville are not supported by Top Dog. We believe in individual freedom and voluntary association for everyone.” According to a statement issued by Top Dog to the Washington Post, White “voluntarily resigned” from his employment. The statement went on to note, “We do respect our employees’ right to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.”

On the opposite coast, a cook at Uno Pizzeria and Grill in Vermont was reportedly terminated after his participation in the protests. Unlike Top Dog, the pizza chain’s Chief Marketing Office, Skip Weldon, issued a statement to the Burlington Free Press that “Ryan Roy has been terminated…We are committed to the fair treatment of all people and the safety of our guests and employees at our restaurants.”

News outlets similarly reported the termination of a welder and mechanic based in Charleston, South Carolina after he was photographed in Charlottesville beside the individual accused of killing one person and injuring others with his vehicle. Other rally-related terminations were reported. Continue Reading

Legal Update: Trump’s One-offs to Labor Regulations Change the Big Picture

When Trump was a brand-new President (or force of nature, depending on how you look at it), we observed that the dawn of his administration would not necessarily augur wholesale changes to the overall landscape of legal concerns for employers.  Why?  Because, as with so many things in Trumpworld, there didn’t appear to be a coherent labor policy, or (given the inexperience of some of his closest team members) even policy competence.

In fairness, however, marauding Huns didn’t have to be particularly artful or finessed about the way they sacked whole cities, right?  In a transformative conquest, a blunt hammer probably works as well as a rapier with pinpoint accuracy.

And so it is with Trump.  With just about eight months of activity, we have seen the Presidential administration do what Trump is best at:  take direct aim at what Obama did and do the opposite.  Incremental changes to labor and employment law and regulation under Trump (and some related developments in the courts) have, one by one, almost entirely reversed course on many of the pet labor and employment initiatives the Obama administration championed, among them:

    • Limitations on class action waivers, which made it more difficult for large groups of plaintiffs to sue companies.
    • “Joint employer” standards that gave labor unions ammunition to argue that multiple franchisees (think McDonald’s), which in the past were treated as separate employers, are in fact joint employers.  Those standards, now reversed, gave unions one big fish for organizing instead of many little ones.
    • A DOL focus on policing the misclassification of employees as independent contractors by employers—a move sometimes made by employers to reduce tax and employee benefits liabilities.
    • Limitations on OSHA drug testing rules covering employees.
    • “Blacklisting” regulations that would require federal contractors to publish claims brought against them alleging labor and employment law violations.
    • Providing additional fiscal resources to the EEOC and OFCCP, instead merging these employment-related agencies into a single entity.
    • Expansions of the so-called “persuader rule,” which required employers to disclose paid relationships with individuals or firms helping employers fight union organizing campaigns.
    • New FLSA overtime regulations, which would have raised the “salary threshold” under which overtime must always be paid and expanded overtime pay entitlement to as many as four million American workers.
    • A National Labor Relations Board stocked with progressives who increased burdens on employers and decreased burdens on unions, in favor of an NLRB much more likely to roll back Obama-era changes.

Continue Reading

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