The Importance of Record-Keeping: Lessons from an Exotic Dancer and Truck Driver

On Monday May 6, 2019, a Florida federal judge denied a strip club’s bid for sanctions against an exotic dancer and her lawyer who filed a so-called “cookie-cutter” Fair Labor Standards Act lawsuit, depriving the strip club of the chance to recoup.

The next day, on Tuesday, May 7, 2019, a Texas state jury awarded a plaintiff $80 million – of which $75,000,000 was in punitive damages – to a truck driver who fell asleep and crashed behind the wheel, when his supervisors forced him to alter his log book and drive without the required amount of rest.

What could these two cases possibly have in common? Both impart the same basic lesson: adherence to good record-keeping practices can save employers money.

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Going It Alone: The Supreme Court Continues to Limit Class Arbitration for Employees

If you’re waiting for a reversal of the trend at the Supreme Court to limit employers’ ability to insist on arbitration instead of litigation, or of the trend limiting class claims, keep waiting.

The Supreme Court continues to limit the ability of employees to pursue class arbitration against their employers. The latest salvo—the Court’s decision in Lamps Plus, Inc. v. Varela—comes on the heels of last year’s Epic Systems Corp. v. Lewis, which found that class action waivers in individual arbitration agreements between employers and employees are enforceable. Taking the next natural step in limiting class actions, Lamps Plus now requires arbitration agreements to specifically permit class claims; if an arbitration agreement leaves the issue unaddressed, no class claim is available at all.

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*UPDATE* EEO-1 Reporting Requirements: Upcoming Deadlines

This is an update to our March 28th post – EEO-1 Reporting Requirements Become More Onerous . . . Maybe.

Employers with 100 or more employees, and federal contractors with 50 or more employees, have until September 30, 2019 to file EEO-1 Component 2 pay data for calendar years 2017 and 2018 with the Equal Employment Opportunity Commission (“EEOC”). Component 1 demographic data, which includes identification of the number of employees by race, ethnicity, and sex, is still due to the EEOC on May 31, 2019. Employers may request a two week extension to submit Component 1 data.

In her Order, Judge Chutkan ordered the EEOC to notify filers via its website that the 2018 calendar year pay data collection must be submitted no later than September 30, 2019. The Court also gave the EEOC the option to either 1) collect Component 2 EEO-1 pay data for calendar year 2017, or 2) collect Component 2 EEO-1 data for 2019 during the 2020 EEOC reporting period. On May 2, 2019, the EEOC stated that it will collect both 2017 and 2018 pay data from employers. Both calendar years of data must be submitted to the EEOC by September 30, 2019. The EEOC stated that it expects to begin collecting 2017 and 2018 Component 2 data in mid-July, 2019, though it did not specify the exact date.

Judge Chutkan’s Order, as well as the EEOC’s update, resolves any ambiguity regarding the reporting deadlines. The EEOC has always required employers with 100 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These reports are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit.

Coming Soon: No Pre-Employment Marijuana Testing in New York City

Following its usual approach of lifting employment restrictions in the five boroughs, on April 9, 2019 the New York City Council approved legislation that will prevent employers from conducting pre-employment screens for tetrahydrocannabinols, commonly known as THC, the active ingredient in marijuana. The bill was sent to Mayor Bill de Blasio, who is expected to sign it into law.

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Employers Should Look for Litigation Threats That Cross the Line Highlighted by Michael Avenatti’s Indictment

The fact-pattern is familiar to employers who have been on the receiving end of attorney litigation threats. A plaintiff’s lawyer calls, or writes a letter, outlining a potential claim by a client, makes a demand for damages, then perhaps throws in mention of the harm the company will suffer if the allegations become “public.” Just another run-of-the-mill litigation threat from a plaintiff’s attorney. Nothing to make a “federal case” out of it, right? Nothing criminal, right?

Well, maybe it is criminal. The recent charges filed by the United States Attorneys’ Office in the Southern District of New York against celebrity attorney Michael Avenatti highlight the lines that both management and plaintiff’s attorneys need to be aware of during communications involving threats of litigation.

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EEO-1 Reporting Requirements Become More Onerous . . . Maybe.

The Equal Opportunity Employment Commission (“EEOC”) has always required employers with 50 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These report are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit. The requirement has yo-yoed back and forth from being much more onerous over the past several years, with recent developments casting a shadow of uncertainty over the current EEO-1 obligations.

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Harassment – It’s Not Just About Sex

Harassment claims continue to dominate the legal news, but the Second Circuit recently reminded us that workplace harassment extends far beyond sex and gender.

The Circuit recently joined several sister circuits recognizing that a plaintiff can pursue a claim for harassment based on disability under the Americans with Disabilities Act (“ADA”), clearing up any doubt regarding the Circuit’s position on the matter.  Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019).  The Circuit also made such claim easier to prove, finding that a plaintiff is not required to set forth the exact number of times actionable comments or conduct occur to demonstrate that the alleged harassment was “severe and pervasive.”  Continue Reading

The Rumor Mill Is Now Your Problem? Yes, According to the Fourth Circuit

In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).

So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment. Continue Reading

Hairdos and Don’ts

The New York City Human Rights Law prohibits employers, housing providers, and providers of public accommodations from discriminating against an individual on the basis of race. The New York City Commission on Human Rights (the “Commission”) issued guidance banning discrimination based on an individual’s hair, specifically the hair and hairstyles traditionally worn by Black people.

Last year, the Supreme Court refused to hear a case filed by a Black woman whose job offer was rescinded when she refused to cut off her dreadlocks. The company had a hairstyle policy that banned dreadlocks and said that an employee’s “hairstyle should reflect a business/professional image” and that prohibited “excessive hairstyles.” New York City has now stepped up and taken a stand against these grooming policies.

The Commission has found that bans or restrictions on hair or hairstyles “are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.” Although grooming policies impact many communities, the Commission’s guidance focuses on hairstyles commonly associated with Black people and the race discrimination they suffer as a result of biased appearance policies.

“There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.”

The Commission has added Black hairstyles to the list of protected racial characteristics. Employers covered by the NYC Human Rights Law that “enact groom or appearance policies that ban or require the alternation of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fads, and/or locs may face liability . . . because these policies subject Black employees to disparate treatment.” Grooming policies may not be implemented “to promote a certain corporate image, because of customer preference, or under the guise of speculative health or safety concerns.” Similarly, schools and other places of public accommodation in New York City may not treat Black people differently or harass them because of their hair or hairstyles.

The Commission’s guidelines are an attempt to lessen the physical and psychological harm to Black individuals who are forced to choose because their careers and their personal and cultural identity through their hairstyle.

Employers in New York City with grooming or appearance policies should consider alternative options to addressing any legitimate safety or health concerns besides a complete ban on certain hairstyles. Policies should be inclusive of all “racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.” Grooming policies prohibiting hairstyles or requiring employees to alter their hair, requiring only Black employees to cut or alter their hair in order to keep their jobs, refusing to hire Black applicants with a hairstyle that “does not fit the ‘image’” of the employer, or requiring Black employees to hide their hairstyles would all be violations under the Commission’s new guidance.

Employers outside of New York City should also consider revising any grooming policies they may have should other cities and state follow the Commission’s lead. Hair discrimination may be the next area where state and local laws set stricter standards while federal guidance remains silent.

2019 – “The Year Of the Woman” in Employment Law

As we enter the 3rd year of the #MeToo movement, all signs point towards another year of heightened legal activities in the area of gender discrimination and gender equality. Sexual harassment claims will continue to garner news headlines, but there are bigger threats for employers. For many employers, 2019 will be less about whether their female employees are being harassed, and more about whether they are being treated fairly and equally.

What’s the difference you ask? The answer is everything else outside of harassment, including pay equity, opportunity equality, and fair treatment for employees who are pregnant and new parents.

There is no greater indication of this heightened focus on equality than the 116th Congress, which has a record number of women serving. Naturally, legislation aimed to combat gender inequality will be at the forefront. In this post, we identify the legislative and legal trends employers should pay attention to in 2019 as we declare it “The Year of the Woman.” Continue Reading

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