Wednesday, July 01, 2009

EEOC Votes to Amend ADA Regulations

As reported here, the ADA was significantly amended effective January 1, 2009.

The amendment emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The amendment made changes to the definition of the term “disability,” making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

On June 17, 2009, the Commission voted to begin the process of drafting new ADA regulations, updated to match the statutory amendment. The EEOC did not specify when the proposed regulations will be published for review and comment. Expect to wait several months.

Expect the new regulations to better define to what extent a physical or mental condition must limit the ability to engage in major life activities in order to qualify as an ADA disability.

The EEOC notice can be found here.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Monday, June 08, 2009

California Appellate Court Adds New Dimension To Tip Pooling Rules

In a case titled Chau v. Starbucks, a California appellate court has added a new dimension to rules regarding tip pooling in California.

Tip pooling is the practice of sharing customer tips among staff. It is a common practice in restaurants. California’s Labor Code has a specific rule that precludes managers or supervisors from taking part in the tip pool distribution.

General Rules For Tip Sharing

Labor Code Section 351 states: “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron . . . . Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.”

Courts and the California Division of Labor Standards Enforcement (DLSE) have interpreted Section 351 to permit tip pooling. However, owners, managers and supervisors may not share in the pool.

Moreover, according to the DLSE, in the context of table service, only employees providing direct table service may share. Such employees could conceivably include waiters and waitresses, busboys, bartenders, host/hostesses and maitre d’s. Employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patron’s table, in which case the chef may participate in the tip pool. But this interpretation has been recently abrogated by an appellate court case titled Budrow v. Dave & Buster’s California. In that case, the court ruled that the “direct table service” rule was not California law, and that it was proper for bartenders to share in the tip pool.

The Budrow court wrote: “Ultimately, the decision about which employees are to participate in the tip pool must be based on a reasonable assessment of the patrons’ intentions. It is, in the final analysis, the patron who decides to whom the tip is to be ‘paid, given to or left for.’ It is those intentions that must be anticipated in deciding which employees are to participate in the tip pool.” Unfortunately for employers, this is not a bright-line rule.

Section 351 also prohibits employers from requiring wage deductions based on received tips and protects an employee’s rights to tips paid on credit cards.

Through these provisions, the Legislature sought to “prevent fraud upon the public”, and “ensure that employees, not employers, receive the full benefit of gratuities
that patrons intend for the sole benefit of those employees who serve them.”

What About The Tip Jar?

The rule seems clear enough in the context of table service at a restaurant. But what about the collective tip jar often seen near the cash register at Starbucks? Can shift supervisors participate in the tip pool distribution, or does such a practice violate the Labor Code?

In the Chau v. Starbucks case, the question was of great monetary significance. At trial in this class action, the employees prevailed. The court determined that shift supervisors improperly shared in the tip pool. The trial court awarded an estimated $105 million in damages. (See a summary of the case here: Starbucks Tip Case.)

On appeal, the court reversed this award. The appellate court determined that the Labor Code prohibition did not apply to Starbuck’s collective tip jars.

The court reasoned that tips left in the jars were meant for all Starbucks employees who provide the service. The trial record reflected that the shift supervisors spent 95% of their time performing the same tasks as the other workers, and did not have the power to hire, promote or terminate. Moreover, the tip pool was divided weekly among store employees proportionate to the number of hours worked. Also, while shift supervisors shared in the pool, store managers and assistant managers did not.

The court of appeal wrote:

Because—as plaintiffs concede—section 351 does not prohibit a shift supervisor from keeping gratuities given to him or her for his or her customer services, there is no logical basis for concluding that section 351 prohibits an employer from allowing the shift supervisor to retain his or her portion of a collective tip that was intended for the entire team of service employees, including the shift supervisor. In this situation, the shift supervisor keeps only his or her earned portion of the gratuity and does not “take” any portion of the tip intended for services by the barista or baristas. If—as is undisputed here—the tips were left in the collective tip boxes for the baristas and shift supervisors, and it was permissible for Starbucks to require an equitable division of the tips according to the number of hours worked by each employee, it is not a violation of section 351 for the employer to maintain a policy ensuring those service employees benefit from a portion of those tips. Because a shift supervisor performs virtually the same service work as a barista and the employees work as a “team,” Starbucks did not violate section 351 by requiring an equitable distribution of tips specifically left in a collective tip box for all of these employees.

Employers should not simply assume that supervisors can share in the division of tip jars. This decision was fact-dependent. However, where the facts are analogous to the Starbucks case, shift leads or supervisors may properly share in the tip pool. But before implementing a new policy, monitor this case. There have been a number of California appellate cases on the topic of tips, and the issue may be headed for the California Supreme Court.

For more information on tips, see this FAQ.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, June 05, 2009

Employee Handbook Red Flags For Multi-State Employers

Employee Handbook Red Flags For Multi-State Employers

Many employers are not aware that when they draft their employee handbook there are many policies that need to be different based upon the state in which the employer is operating.  This can be a real nightmare for HR.  The best thing to do is make a list of all the states in which you operate.  Remember that this includes states in which even just one employee may be working remotely.  You would need to comply with the local laws and regulations for that state as well. 

Let’s assume that you operate in 10 different states.  You should prepare a checklist to mark all the policies in which you will need to check the state laws to ensure that you are in compliance.  The best practice is usually to create an employee handbook that is in compliance based on federal laws.  You should then create a local practices section of the handbook and in this section have local and state laws in each of the 10 states in which you operate that may be different from the main employee handbook. 

What are some of the policies that could cause you problems that you should include in this checklist? 

FMLA

The first is of course FMLA.  Many, although not all, states have their own FMLA laws that sometimes require more leave than what is required under the federal FMLA.  For instance, Connecticut requires that employers provide eligible employees with 16 workweeks of leave in any 24-month period.  In addition, in Connecticut, an eligible employee only has to have worked for 1000 hours in the 12-month period immediately preceding the leave rather than the 1,250 hours required by federal law.  Also under the Connecticut family leave law an eligible employee can take leave to serve as an organ or bone marrow donor.  New Jersey requires that employers provide 12 weeks of leave in a 24 month period but it is only for the serious health condition of a parent, child or spouse or the birth or placement for adoption or foster care of a child.  There is no New Jersey FMLA for your own serious health condition.  Moreover, this New Jersey family leave law applies to employers with 50 employees anywhere in the country as long as one of the employees is employed in New Jersey.  In addition, to be an eligible employee under New Jersey law as we saw was the case in Connecticut, the employee need have only worked 1,000 hours in the 12 months immediately preceding the leave.  Also, the definition of family member in New Jersey includes leave to care for an in-law or step-parent.  New York does not have its own state family leave law.  Be sure that you check your state’s laws to determine if (1) there is a state family leave law and (2) if it provides something different than does the federal FMLA. 

Jury Duty Leave

Another policy that will have local implications is your jury duty leave policy.  Some states such as New York require that the employee be paid $40 for the first three days of leave.  Massachusetts requires that for employees that were scheduled to work for three months preceding the jury duty leave, that they be paid their regular wages for the first three days of jury duty leave. 

Access to Personnel Files

Another area that is dictated by local state practice would be access to personnel records.  Different states have different laws about whether employees have the right to see or copy their personnel file.  You should make sure that you know the law of each of the states in which you operate and insert all relevant information into the local practices section of your employee handbook.

Vacation and Wage Deductions

Vacation and wage deductions is another big area of concern.  Many times employers allow employees to borrow PTO or vacation time when they have not yet accrued such time.  Then if the employee is terminated prior to accruing the time, the employer requires that the employee pay back the time and sets forth that this will be done by deducting the amount from the employee’s last pay check.  This is unlawful in many states.  Make sure that you check each of the state laws in the states in which you operate to find out what the laws for wage deductions are in that particular state.  In addition, each state has specific laws about an employee’s final paycheck when the employee has been terminated or has voluntarily terminated their employment.  It is important that you are familiar with these state laws so that you can ensure that the employee receives their final paycheck within the time limits specified by the law in your particular jurisdiction. 

Short-Term Disability Benefits

In addition, some states such as New York require that employers provide short-term disability benefits.  Make sure that you know the law in your state regarding whether you will need to provide your employees with short-term disability benefits. 

Other State Laws

States also have a variety of other laws that employers need to be aware of.  These laws can change and/or become law quickly so it is important for you to be aware of new laws in each of the states in which you, as a multi-state employer, operate.  For instance, many states have laws regarding women’s rights to express breast milk in the workplace (i.e. New York recently passed this law); leave to donate blood or be a bone marrow donor and domestic violence leave laws.  Another area that is being regulated by states and local municipalities is cell phone and texting laws.  Be sure to keep abreast of local laws in all the areas in which you operate. 

Conclusion

These local state laws can get employers in deep trouble.  Employers should be proactive and keep abreast of all the relevant state laws in the states in which they operate.  Employers should ensure that their employee handbooks set forth in a local practices section information to ensure that they are in compliance with each state’s laws.

Submitted by:  Melissa Fleischer, Esq.
              President
              HR Learning Center LLC
              http://www.hrlearningcenter.com
              melissa.fleischer@hrlearningcenter.com

Thursday, May 14, 2009

More EEOC Commentary on Swine Flu: “ADA-Compliant Employer Preparedness For the H1N1 Flu Virus”

There is an additional web page on the EEOC’s website addressing ADA issues related to employer preparedness for epidemics such as swine flu:

ADA-Compliant Employer Preparedness For the H1N1 Flu Virus

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Tuesday, May 12, 2009

EEOC Says: Avoid Swine Flu Discrimination Like The Plague

The EEOC has warned employers to avoid swine flu discrimination. Really? Swine flu discrimination? Did the EEOC sneak in a new protected class?

Well, not exactly. On May 11th the EEOC published on its website a short comment titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu).” The EEOC suggests that employers should refrain from national origin discrimination against Mexicans.

In other words, employers should refrain from making employment decisions based merely on the fact that an individual hails from Mexico. For example, refusing to hire individuals of Mexican origin because of a belief that Mexicans may be ill with swine flu could run afoul of Title VII, not because of swine flu, but because of the nationality factor.

Presumably a neutral swine flu policy would pass muster. A neutral policy that requires any infected individuals, regardless of national origin, to take a leave of absence would probably not violate Title VII. The EEOC’s website would be more helpful to employers if it addressed appropriate neutral policies.

On the swine flu web page, the EEOC also cites the Americans With Disabilities Act (ADA). The EEOC does not expressly state, however, that swine flu would qualify as a disability under the ADA. Again, perhaps the EEOC could help employers by elucidating on this issue.

In most cases a temporary sickness such as the flu will not qualify as a disability. Nevertheless, the EEOC points to its publications addressing disability-related inquiries and medical examinations, as will as pre-hire questions and medical exams.

It is conceivable that employers could delve into medical issues in connection with victims of swine flu, say, perhaps, in connection with an FMLA or other leave of absence. As may be the case whenever employers address medical concerns, medical inquiries associated with swine flu cases should be handled with care. Keep the inquiries narrowly tailored to focus job-related issues. Avoid deviating into a general fitness for duty examination that might inappropriately evaluate disabilities. Avoid singling out protected classes. Maintain confidentiality.

As the nation’s attention is fixed on this topic of public health, the EEOC has appropriately suggested that EEO practices may be implicated. The substance of the comments are a little thin, doubtless due to the spontaneity of the outbreak. Perhaps the EEOC will develop guidelines in preparation for future outbreaks.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Wednesday, April 22, 2009

Why Do Employers Need to Document Their Reasons for Terminations when Employment is At-Will?

One question that managers often have is why they need to worry about documentation when terminating employees since everyone is an employee-at-will.  The answer requires a short summary of employment law 101.  Although employment in every state in the country other than Montana is employment-at-will, the answer lies in what most employees do once they have been terminated.  First of all, what is employment-at-will? Employment-at-will means that you can hire or fire an employee for any reason or no reason at all.  However, there is a little exception at the end of that sentence that states that this is so “as long as the reason is not unlawful”.  Herein lies the problem.  Many employees who have been terminated will claim that their termination was unlawful because it was discriminatory based upon their protected class.  As everyone knows, under Title VII of the Civil Rights Acts of 1964 and 1991 there are only 5 protected classes, to wit, sex, color, race, national origin and religion.  If President Obama has his way there may soon be a sixth which will be sexual orientation.  But currently there are five protected classes under Title VII as well as age under the Age Discrimination in Employment Act, disability under the Americans with Disabilities Act, military status under USERRA and genetic information under the Genetic Information Nondiscrimination Act (“GINA”).  In addition, each state usually has a larger number of protected classes than under federal law such as citizenship, marital status, sexual orientation, etc.  So what most terminated employees do is claim that the reason they were terminated was discriminatory based upon one or more of these protected classes such as race, age, disability, etc. 

How then can an employer protect its self against such claims?  The answer is documentation.  Document, Document, Document!  So the employer must be prepared to show, prior to the termination of the employee, that the real reason for the termination was that this was a terrible employee with poor performance or that his attendance was abysmal.  The best way for an employer to demonstrate this is with disciplinary warning letters stating that the employee is a poor performer or has terrible attendance.  Courts have an expectation of fairness, meaning that if an employers is really terminating the employer for poor performance or attendance, the employer who terminates an employee should provide the employee with the reason that they are doing poorly and what they can do to improve.  All of this should be in the disciplinary warning.  The employer should then provide the employee with an opportunity to improve as well as with a warning that a failure to improve his/her performance will lead to further discipline, up to and including termination.  If they fail to improve, provide another warning and another until it is clear that you have given the employee every opportunity to improve and they refuse to change.  Then, when you terminate the employee, it will be clear to a court and/or jury who hears the discrimination case that yes, in fact, the employee’s performance and not discrimination was the actual motive for the termination. 

So this is the reason that although employees are employees-at-will, employers still have to document the reasons that the employees are being terminated.  It is necessary so that employers protect themselves from any future claims that the termination was, in fact, discriminatory.

Submitted by: Melissa Fleischer, Esq.
President
HR Learning Center LLC
http://www.hrlearningcenter.com
melissa.fleischer@hrlearningcenter.com

Monday, April 20, 2009

Indian Reservation Business Subject to Federal Wage Law

A Ninth Circuit court of appeal has concluded that the overtime provisions of the Fair Labor Standards Act (“FLSA”) applies to a business located on an Indian reservation and owned by Indian tribal members. The court also ruled that the United States Department of Labor has the authority to enter the Indian reservation to inspect the books of that business for enforcement purposes.

The case, titled Solis v. Matheson, pitted the Department of Labor against a retail store known as Baby Zack’s Smoke Shop, located on trust land within the Puyallup Indian Reservation in the State of Washington. 

The court acknowledged that Indian tribes generally operate under the legal shelter of “sovereign immunity.” The court wrote: “Indian tribes have a special status as sovereigns with limited powers. Indian tribes are dependent on, and subordinate to the federal government, yet retain powers of self government.”

Sovereign immunity is a bit of a misnomer, because tribes are not invulnerable to litigation. As the court wrote, “those powers may be limited, modified, or eliminated by Congress.”

Finding the FLSA to be a “statute of general applicability” designed to “achieve certain minimum labor standards with respect to industries engaged in commerce,” the court determined that Baby Zack’s Smoke Shop was regulated by the statute.

The court noted that some of the goods sold by Baby Zack’s have been shipped in from locations outside the State of Washington. Though located on tribal land and operated by a member of the tribe, “Baby Zack’s is a purely commercial enterprise engaged in interstate commerce selling out-of-state goods to non-Indians and employing non-Indians.”

Regulating this commercial enterprise, concluded the court, would not impinge upon matters of tribal self-government. The court added that the tribe had not enacted comparable labor laws, nor did it contend that such laws would preempt federal law.

Although law in the area of Indian sovereign immunity has been slow to evolve in relation to the rapid growth of tribal commercial enterprises, the Ninth Circuit’s decision can be characterized as part of a trend towards regulating labor relations of Indian tribes, particularly where the rights of a non-Indian workforce are at stake.

In 2007, as reported in our Legal Update here (page 2), in 2007 a court found that the National Labor Relations Act (NLRA) applied to an Indian tribe operating a casino. (San Manuel Indian Bingo and Casino v. National Labor Relations Board (D.C. Circuit, February 9, 2007).

The Ninth Circuit in Matheson also noted cases where courts had applied federal labor laws to Indian tribes, including cases where OSHA applied to a tribal farm employing non-Indians and ERISA applied to an Indian-owned saw mill. There are also a number of reported cases where courts have declined to apply federal labor laws to Indian tribal matters.

It is reasonable to expect labor law litigation against Indian tribes to increase, and, further, that the U.S. Supreme Court will sooner or later offer clarification due to conflicting lower court rulings.

Read the Ninth Circuit opinion (pdf)

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Thursday, April 16, 2009

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

The Genetic Information Nondiscrimination Act (“GINA”), which becomes effective on November 21, 2009 prohibits employers from acquiring genetic information about its employees, with certain exceptions. (Follow this link for a summary: Summary of GINA.)

The law will require employers to change their current practices regarding the acquisition of medical information. Practices that have been permissible under the ADA will no longer be permissible on account of GINA. The EEOC’s recently published proposed regulations make this challenge apparent.

GINA includes a broad definition of “genetic information.” It includes not only the results of genetic testing, but also information regarding the manifestation of disease in family members. Family medical histories are often found in medical records. It is lawful, under the ADA, to acquire medical information regarding employees, post-hire. Such information may also be acquired in the context of the reasonable accommodation process, or a fitness for duty process.

The EEOC’s proposed regulations state that genetic information inadvertently obtained as part of an ADA accommodation does not violate GINA. “An individual provides genetic information as part of documentation to support a request for reasonable accommodation under Federal, State, or local law, as long as the covered entity’s request for such documentation is lawful.”

Unless the information is truly provided inadvertently, the employer will violate GINA. According to commentary for proposed regulations, an employer “that asks for family medical history or other genetic information as part of an inquiry or medical examination related to an applicant’s or employee’s manifested disease, disorder, or pathological condition will not be considered to have acquired such information inadvertently.”

GINA and the proposed regulations will prohibit practices previously allowed under the ADA. The comments to the proposed regulations state: “Thus, even though the ADA allows an employer to require a medical examination of all employees to whom it has offered a particular job, for example, to determine whether they have heart disease that would affect their ability to perform a physically demanding job, GINA would prohibit inquiries about family medical history of heart disease as part of such an examination. Such a limitation will not affect an employer’s ability to use a post-offer medical examination for the limited purpose of determining an applicant’s current ability to perform a job.”

The commentary continues: “[Employers] should ensure that any medical inquiries they make or any medical examinations they require are modified so as to comply with the requirements of GINA. In particular, we note that at present, the ADA permits employers to obtain medical information, including genetic information, from post-offer job applicants. As we interpret GINA, this will change on the November 21, 2009 effective date of Title II of GINA: Employers no longer will be permitted to obtain any genetic information, including family medical history, from post-offer applicants. Employers will likewise be prohibited from obtaining this type of information through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.”

The comment period for the EEOC’s proposed regulations ends on May 21, 2009. The proposed regulations can be found at this link: EEOC Proposed GINA Regulations

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Thursday, March 19, 2009

Department of Labor Publishes Model Notice Forms For Amended COBRA / ARRA Premiums Subsidy

Employers’ obligations under COBRA have been significantly increased by the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.

In a nutshell, ARRA entitles employees terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months. The remaining 65% is paid by employers, who may deduct the cost from federal payroll taxes. Employers must immediately comply with the law by providing notice to eligible individuals, collecting 35% of the premiums from the employees, paying 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount.

ARRA mandates that plans notify certain current and former participants and beneficiaries about the premium reduction. Employers should send notices to employees who are involuntarily terminated between September 1, 2008 and December 31, 2009.

The Department created model notices to help plans and individuals comply with these requirements. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions. The forms were posted on the DOL website on March 19, 2009.

The model forms can be found by following this link.

For more information about the new COBRA / ARRA entitlements, follow this link for an article posted on my law firm’s website.

To join a complimentary webinar scheduled for March 23, 2009, follow this link: https://www2.gotomeeting.com/register/219649398

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, March 13, 2009

Does An Employee Qualify For ARRA/COBRA Subsidy After Reduction In Hours Or Resignation?

Employers are scrambling to understand and implement the COBRA provisions in the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.

In a nutshell, ARRA entitles employees involuntarily terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months. The remaining 65% is paid by employers, who may deduct the cost from federal payroll taxes. Employers must immediately comply with the law by providing notice to eligible individuals, collecting 35% of the premiums from the employees, paying 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount. See my summary here.

Question: Under “regular” COBRA, a reduction in hours such that the employee loses eligibility for benefits will trigger COBRA. What about ARRA? If a company reduces an employee’s hours to part time, must (or may) the employer offer the ARRA premium subsidy?

The text of ARRA specifies that the premium is paid as a result of an “involuntary termination.” A reduction in hours is not a termination, and therefore it would seem that ARRA does not apply.

I called a representative at the Department of Labor’s Employee Benefits Security Administration, and he stated that ARRA would not apply in such circumstances.

Certainly it would be nice if the government put this interpretation in writing. So far as I know, to date this has not happened.

Question: What if the employee quits after receiving a reduction in hours. Does she then qualify for ARRA?

Again, the ARRA premium subsidy applies where there has been an involuntary termination. Resigning would not seem to be an involuntary termination. The same EBSA representative referenced above opined that in such circumstances, ARRA would not apply. Again, no official written interpretation has been published at this time.

While I would agree with the EBSA representative, I also think about state unemployment benefits. Although in California, for example, one is generally disqualified from receiving benefits in the event of a resignation, there are exceptions where the employee had no choice but to quit (e.g., illegal treatment in the workplace, and other such unforgivable sins). So far, I am not aware of any similarly broad interpretation of the phrase “involuntary termination” when it comes to ARRA.

If you hear differently, please let me know!

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Wednesday, March 11, 2009

What Your Company Should Do If The Employment Non-Discrimination Act Becomes Law

One of the major employment law changes that is likely to come about early in the Obama Administration is the passage of the Employment Non-Discrimination Act. This bill would amend Title VII to prohibit discrimination based upon sexual orientation. Prior versions of this bill included gender identity as well as sexual orientation. However, the current version of the bill know as HR 3685 that was introduced by Representative Frank only includes sexual orientation as a protected class.

Title VII currently does not include sexual orientation a protected class. However, President Obama has indicated that he would like the law to prohibit both sexual orientation as well as gender identity discrimination. Whether gender identity is ultimately included will be something to watch for. Although federal law does not currently include sexual orientation or gender identity as a protected class, many state laws do provide that sexual orientation, gender identity or both are protected classes. Currently, there are 13 states and Washington, D.C. that protect against both sexual orientation and gender identity. These states are California, Colorado,Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. In addition there are currently 7 states that protect against sexual orientation but not gender identity. These states are Hawaii, Maryland, Massachusetts, Nevade, New Hampshire, New York and Wisconsin.
For employers located in a state where neither sexual orientation nor gender identity are currently protected classes under state law, how will this new federal law affect your company? An employer would need, at the very least, to do the following:

• Amend their EEO Policy to add sexual orientation as a protected class; and

• Amend their Anti-Harassment Policy to add sexual orientation as a protected class; and

• Amend their Employment Application EEO paragraph to prohibit sexual orientation discrimination; and

• provide training for their managers and employees so that they understand what sexual orientation discrimination and harassment look like to help to prevent it.

Even if ENDA does not include gender identity as a protected class, a recent landmark case has added some protection for those who claim discrimination and/or harassment based upon gender identity. In the case of Schroer v. Billington, David Schroer applied for a position and was hired by the US Library of Congress. Mr. Schroer met with his boss prior to the commencement of employment. At this meeting he told his soon to be boss that he would be “transitioning” to a female and would be a female when he started the job. He told his soon to be boss that his name would be Diane Schroer on his first day of employment and that he would look like a woman. The very next day Mr. Schroer received a telephone call advising him that the Library of Congress was rescinding the offer of employment because he was “not a good fit for the position”.

Diane Schroer commenced a lawsuit under Title VII against the Library of Congress claiming that the decision to revoke the offer of employment was discrimination based on sex under Title VII. Remember that Title VII does not yet and did not when she brought this lawsuit prohibit discrimination based on gender identity. However, Diane Schroer’s attorney claimed that by rescinding the offer based upon Diane’s transitioning to look like a woman, the Library of Congress had discriminated against her based on her sex.
This was a landmark decision because the Library of Congress had alleged at trial in federal district court in Washington, D.C. that it had no liability because transgender people are not covered under Title VII. However, the Court held that the decision to rescind the offer after learning of the employee’s decision to transition from a male to a female, essentially changing genders, was discrimination based upon “sex” under Title VII.

Of course this won’t be an issue if ENDA ultimately prohibits discrimination based upon gender identity as well as sexual orientation. However, if ENDA limits the prohibition to sexual orientation then this is an important landmark decision because it creates precedent that transgender employees might be protected from gender identity discrimination and/or harassment by Title VII in its current version based on Title VII’s prohibition on sex and gender discrimination and harassment.

Submitted by: Melissa Fleischer, Esq.
President
HR Learning Center LLC
http://www.hrlearningcenter.com
melissa.fleischer@hrlearningcenter.com

Tuesday, February 24, 2009

Won’t you be my neighbor?  Allegations of Non-employee sexual harassment.

An employee complains to HR about being sexually harassed at work by a non-employee.  Can the employer face liability for a non-employee’s behavior?  The short answer yes, under Title VII the employer must investigate and take action to end the harassment.

My company has 83 cell phone stores across the country.  Two of these stores are within about 20 miles of each other in Tennessee. Both of these stores happen to be next to military recruiting offices and the same Recruiter works at both stores.  Recently this Recruiter has begun visiting female associates in our stores and making inappropriate sexual comments.  I had not heard anything about this situation until a few days ago, when the Recruiter’s wife stomped into one of the stores and told the female associates on duty to “stay away from her man.”  It was then that the associates reported to their manager that there has been ongoing inappropriate behavior by the Recruiter.  My little employment lawyer brain buzzed with questions.  What do you do when a non-employee is sexually harassing your employee?  Is there liability?  I had a vague recollection of a case involving a delivery man who repeatedly harassed the secretary at a client company who signed for the packages, the employer knew about the harassment, but, since the delivery man was a non-employee, did nothing to stop it.  In this case, however, the Recruiter is not an employee, a customer or a vendor – he is just a neighbor.  Neighbor or not, under Title VII of the Civil Rights Act of 1964 we may be held liable for sexual harassment by a person not employed by the company.  If one of our employees complains about being harassed by a non-employee, like a customer or a salesman, we can be held liable for failing to investigate and take action to end the harassment.  The bottom line is that the EEOC has taken the position that an employer may be held responsible for sexual harassment by non-employees if the employer knew about the harassment and failed to take immediate action. 

When I hear allegations of harassment, I think C.I.A.:

  Complaint         Investigate             Action

If an employee complains about harassment by a non-employee, you should immediately investigate the complaint.  Like the investigations you are familiar with in employee-on-employee harassment situations, you will need to interview the complaining employee and find out the who, what, when, where, and how the alleged harassment occurred.  Be sure to assure the employee that you will not take any negative actions against the employee for complaining (there will be no retaliation for making the complaint).  At a minimum, ask these questions:

i. Who harassed the employee?  (Because the alleged harasser is a non-employee, you will need to get as much information as possible.)
ii. What happened? (Ask for specific details.)
iii. Where and when did the harassment take place?
iv. Has the employee been harassed by this person before?
v. Are there any other witnesses?  If there are:
          a.  Interview the witnesses
          b.  Tell them that the investigation is to be kept confidential. 
          c.  Assure them that no negative job actions will be taken against them based on any information they provide. 
          d.  Ask them the who, what, when, where, and how.

Take thorough notes during your interviews and ask the employee to read them over and sign them to verify their accuracy. If you find that the complaint is valid, you will need to take action to end the harassment.  This might be problematic, because it is impossible to directly discipline a non-employee.  However, whatever corrective action you take should be focused on protecting the employee against future harassment by the non-employee. 

In this situation, my next step will be to write a letter to the Recruiter’s superior officer explaining the situation and asking for his or her help in preventing any further harassment from occurring.  I am hopeful that this will put an end to our neighbor’s unwanted visits to our stores. 

Mr. Rogers would be disappointed.  I guess this is really a case of “Don’t you be my neighbor.”

Friday, February 06, 2009

California EDD Overwhelmed, Short of Funds As Unemployment Reaches 9.3%

As the unemployment rate in California increased to 9.3% statewide in December 2008, the state agency responsible for administering unemployment benefits, the Economic Development Department (EDD) is overwhelmed. It has a significant case backlog and has drained the unemployment insurance fund.

As reported in the L.A. Times, “the state is paying out $30 million to $34 million a day in benefits. During the week of Jan. 5, its balance fell from about $500 million to $270 million.”

In December, reports the Times, California issued $1.1 billion in assistance checks to 429,000 claimants. Unemployed workers are eligible for payments of as much as $450 a week for up to 59 weeks.

According to the EDD, the UI Fund is projected to be in a deficit of $2.4 billion by the end of 2009. The UI Fund is projected to be in a deficit of $4.9 billion by the end of 2010 if changes are not made to the financing structure. The governor and legislature have been discussing increasing employers’ payroll tax contributions. This of course would not be good news for businesses already hit hard by the recession.

When the fund is depleted, the state will be forced to turn to the federal government for loans.

Meanwhile the EDD is overwhelmed by the volume of claims. “Millions of calls to state unemployment insurance processing centers continue to go unanswered,” reports the L.A. Times. “A 30-year-old computer system is overloaded, and stressed clerks are swamped by backlogged applications.”

The backlog is becoming a crisis, reports the L.A. Times. “Although the Unemployment Insurance Appeals Board is supposed to decide within 30 days whether the state wrongly denied an individual’s jobless benefits, less than 4% of complaints are finished by then, the U.S. Department of Labor says.”

In all, a record 68,135 appeals filed by out-of-work people and employers were awaiting action by the board as of Jan. 23.

“California takes longer to resolve unemployment appeals than any other state except Virginia, according to Labor Department data, and the federal government has demanded that the state come up with a plan to fix the mess this month.”

Governor Schwarzenegger’s plan to require state workers to take a two day work furlough each month is expected to exacerbate the problem.

Despite the backlog, employers should continue to promptly review employee claims to determine whether an application should be challenged, and if necessary, an award appealed. An employer has the right to appeal EDD’s decision to pay a claimant. An appeal must be submitted within 20 calendar days of the mailing date of the EDD’s Notice of Determination and/or Ruling.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Saturday, January 31, 2009

California Division of Occupational Safety and Health Reminds California Employers to Post Form 300A

The Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH) has issued a press release reminding California employers to post at their place of business a summary of work-related injuries and illnesses during 2008.

The Form 300A requires employers to report the number of injuries each year, even if no work-related injuries occurred. Vital information must also include the nature of the injury or illness that the employee suffered, the severity of the work-related incidents and the number of days the employee missed work due to the injury.

The deadline is upon us. According to Cal/OSHA, the summary must be displayed in a visible area from Feb. 1 through April 30 for employee review.  The posting period helps improve safety, according to state officials. “The summary is designed to create safety awareness in the workplace for employers and employees so similar injuries can be prevented in the future,” notes DIR Director John. C Duncan

Which employers must post Form 300a? Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, services, finance and real estate sectors. For information about whether your company is an excepted establishment, follow this link to the Cal/OSHA website: List of exempt establishments.

Covered employers must display the totals from the Summary of Work-Related Injuries and Illnesses (CAL/OSHA form 300A) wherever employee notices are usually posted. Cal/OSHA also requires employers to mail or provide the annual summary to employees who do not report at least weekly to a location where the annual summary for their workplace is posted.
If there is more than one business establishment, a separate log and summary must be posted in each physical location that is expected to be in operation for one year or longer.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, January 30, 2009

It’s A Dirty Job…...

We’ve all had the unenviable task of doing it.  We’ve all had to go ahead and bite the bullet and “get ‘er done”.  We’ve probably all had to take a moment to ourselves to regain our composure after we’re done doing it.  But is there ever a GOOD way of making it happen?  Is there a more efficient way of doing it while decreasing the chance of drama? 

What am I talking about, you ask?

TERMINATIONS!!!!  ***Que the high-pitched screams of horror***

It’s almost natural for a person to want to defend himself when he is confronted with some type of misconduct that causes for his employment to be terminated.  Especially when the misconduct is not “gross” in nature (assault, theft, violence, work-refusal, etc.).  So do you allow for the employee to state his case even when you know that the decision is final?  If so, how long do you allow for it to happen without it turning into a remake of “The Great Debators”? 

One thing I was taught by my old boss (I like to refer to her as the Yoda of HR) was that if you find that it’s been over 5 mins and you are STILL TALKING during a termination, you probably are going to end up saying something that you will regret (aka something that the termed employee can use against the company to dispute the termination).  You know, something like “I’m so sorry” or “I wish this didn’t happen to you” or “I wish it was someone other than you”.  So as a rule, it’s best to keep things within a 5 minute time limit in order to void out any opportunity for something out of line being said.

So with all of that said, how do you balance keeping things short and sweet while also making sure that the termed employee doesn’t feel like the company poured salt into his wound by treating him like a total stranger who hasn’t been working for the company for “umpteen” years?

So please do me a favor and let me know some of your experiences when it came to terminating an employee?  Is there a GOOD way to do it?  What kinds of methods have you used and how well did they work (or not work)?

Once again….....

DON’T TALK ABOUT IT…..BLOG ABOUT IT!!!