The Harvey Weinstein/Bill O’Reilly/Matt Lauer Effect

What to Expect from Women – And Men – And What To Do About It Thanks to the Harvey Weinsteins, the Bill O’Reillys, the Matt Lauers (the Charlie Roses, the Al Frankens…) of the world, we are in the midst of sexual harassment culture shift, and the effect on the workplace will be complicated, confusing, and risky. What To Expect: More Bona Fide Claims… And a Bandwagon Effect Recent surveys have revealed the plethora of women who have experienced sexual harassment in the workplace – by some accounts, 40% or more. In the past, fear of retaliation, shame, and the risk of stigmatization has dissuaded many, some say most women from speaking up. But as more and more women in high-profile cases have come forward, had their claims validated, and been lauded for their courage, women in workplaces everywhere have been encouraged and emboldened to break their silence. The inevitable result, which is already evident, is that many employers will face a growing wave of sexual harassment claims – some arising from past conduct, some arising from present conduct. Past is usually prologue and, based on history, that wave will not peak for some time: when the media begins to publicize the fact that people who sue for X (an automobile defect, a pharmaceutical side effect … ) are obtaining substantial damage awards, lots of other people will want to jump on that bandwagon and sue for X as well. Some will bring real claims, some will bring questionable claims, and, inevitably, some will bring bogus claims in the hope of obtaining a nuisance settlement. How Employers Must Prepare...

Making employment law great again…?

Michael G. Trachtman Powell Trachtman Logan Carrle & Lombardo, P.C. MEA General Counsel mtrachtman@powelltrachtman.com We are well into the Trump administration, and despite the well-publicized paucity of Congressional legislation, there have been, and will be, significant changes in the laws that define the employer/employee relationship. Employers would be well-advised to make the appropriate adjustments now, while there is time to plan, and not just react. To assist in that effort, here is a summary of where we are, and where we are going. (I discussed much of this at the MEA HR & Employment Law Conference in September. Contact MEA if you are interested in receiving a copy of my PowerPoint presentation.). The Republican Majority in Congress While the Republican majority in the House and Senate has not resulted in the enactment of meaningful legislation, it portends some very significant employment law changes that may reverberate through the workplace for years, and in some instances decades. It is too early in the game to be specific, but particularly because of key personnel changes, it is fair to predict a more restrictive view and interpretation of employee rights for the foreseeable future, with some notable exceptions, like pay equity and parental leave, explained below. Congressional committees are now chaired by Republicans, not Democrats. That will change the nation’s legislative agenda on everything from unionization rights, to healthcare, to harassment and discrimination laws, to environmental restrictions … and much more. There is a perception that the Obama administration swung the employment law pendulum too far to the left, and that it is time to swing it somewhat back to the right....

LGBT rights in the workplace

Does Anyone Know the Rules … and What About Religion? On the question of LGBT rights (actually, LGBTQQIAAP rights … you can look it up), federal law, the EEOC, some courts, other courts, state laws, local laws, Trump, and the military cannot seem to get on the same page. As an employer, particularly in view of the potential liabilities, what page should you be on? Discrimination: How Can You Follow the Law if No One Knows What it Is? Here is a summary of the discrimination legal landscape, rife with minefields and alligators … but at the same time, some things are coming into focus. Federal law (mainly, the comprehensive statute known as Title VII) prohibits discrimination on the basis or because of sex, but it does not specifically prohibit discrimination on the basis of sexual orientation, or discrimination against transgender individuals, or discrimination on the basis of gender identity or expression. However, the clear trend (with some hold-outs) is to interpret discrimination on the basis of “sex” to include discrimination based on sexual orientation and transgender status.  For example, a Federal Court in western Pennsylvania ruled that an employer unlawfully discriminated on the basis of sex by terminating an employee, a male, for presenting at work as a female, and for terminating an employee based on sexual orientation. The EEOC, the federal government’s primary enforcement arm, takes the position that discrimination on the basis of sexual orientation, discrimination against transgender individuals, and discrimination based on gender identity or gender expression is In practice, that means that, today, the EEOC will initiate an action against an employer who, for...

Work Requirements v. Employee Religious Beliefs

Michael G. Trachtman Powell Trachtman Logan Carrle & Lombardo, P.C. MEA General Counsel mtrachtman@powelltrachtman.com Still Another Example of How Common Sense Can Get You in Legal Trouble For lawyers who try to practice “preventive law” – that is, preventing claims, and not just litigating claims – employment law presents a daunting challenge.  I can tell a client what to do, but, too often, my employment law advice seems counterintuitive, even nonsensical, and the client defaults to a common sense approach … right up to the time they get served with the lawsuit.  Consider, for example, the problematic intersection between workplace requirements and religious beliefs. The “Sincerely Held Belief” Rule In 1975, Beverly Butcher began working as a coal miner for Consol Energy.  In 2012, Consol implemented a high-tech system to better monitor employee work hours and attendance: at the beginning and end of each shift, each employee was required to place his hand on a scanner which would identify the employee by the shape of his hand, and clock the employee in or out. Butcher was a devout, evangelical Christian and ordained minister.  Based on his own interpretation of the Book of Revelations, he believed that using the hand scanner would result in his being marked with the “Mark of the Beast,” which brands followers of the Antichrist.  Butcher offered to report into his shift supervisor or punch in on a time clock instead of using the scanner. Consol provided Butcher with a letter from the scanner’s manufacturer, unequivocally stating that the scanner cannot detect or place a mark, including the Mark of the Beast.  In addition, since the...

Summer Interns: No Good Deed Goes Unpunished

Michael G. TrachtmanPowell Trachtman Logan Carrle & Lombardo, P.C.MEA General Counselmtrachtman@powelltrachtman.com Most of us have been there: a fresh-faced student asks – even begs – for the opportunity to do odd jobs in your workplace, for free, just to get some real-world experience. You don’t need anyone (and, in fact, the student will probably get in the way) but, perhaps remembering your own student days, you agree. And, for sure, it feels good to have helped an ambitious young person make their way in the world … right up until the time you get sued for violating the Fair Labor Standards Act. There have been a slew of high-profile cases involving unpaid interns, and the effect of those cases has been an ever-increasing proliferation of less-publicized but very expensive cases against smaller companies. Some of the recent headline-grabbers (against companies with monumental legal staffs who should have known better) include: Conde Nast (publisher of high-end magazines like Vogue and Vanity Fair), agreed to a $5.8 million settlement in a class action lawsuit brought on behalf of approximately 7,500 unpaid/underpaid interns. Two Fox companies settled a lawsuit on behalf of 139 unpaid interns who worked on a movie, The Black Swan, for two weeks. Viacom settled a lawsuit brought on behalf of 1,311 unpaid interns for $1.6 million. Charlie Rose settled a lawsuit brought by unpaid interns who worked on the “The Charlie Rose Show”. And so on … similar suits have been filed against Atlantic Records, W Magazine, the website Gawker, Fox Soccer Channel, among others. In July 2015, the Guardian reported that, as is typical in political campaigns,...

New AnswersNow is coming!

AnswersNow has been updated with added functionality and a smoother user experience! You still have terrific content written and organized by the expert Wolters Kluwer team of employment law editors – along with a variety of business tools to help comply with all of your federal and state requirements. AnswersNow is needed by all size businesses – whether you are a small business owner or a global HR VP – AnswersNow is the single resource that provides expert analysis that’s also easy to use. AnswersNow covers all HR compliance issues – onboarding, compensation, employee development & employee relations, safety and HR strategy. AnswersNow includes HR best practices – many times taken from interviews with the top HR business professionals – your peers – along with sample policies, forms. It’s all here and easy to access whether you are searching or browsing. AnswersNow has a superb State Employment Law Summaries database! This truly unique resource is indispensable for making informed HR decisions. Importantly, the detailed summaries include a “What the Employer Must Do” section in every state summary! This is the most complete and detailed resource for state employment laws. AnswersNow also has a lookup/comparison charting tool called State Employment Law Compare! This innovative tool allows the user to quickly lookup most employment topics for either a single state or multiple states to perform a comparison. The charting tool is easy to use, allows you to save, email and print results! It’s dynamic so always up-to-date on each use. Finally, AnswersNow includes daily news and user-friendly email alerts; users can also customize news alerts with just the topics they want...

Making Molehills Out Of Mountains: Avoiding The $1 Million Harassment Claim

Michael G. Trachtman Powell Trachtman Logan Carrle & Lombardo, P.C. MEA General Counsel mtrachtman@powelltrachtman.com Sooner or later, almost all companies will face claims by employees who assert that they were unlawfully harassed.  There are many reasons for this, among them the fact that the legal basis for harassment claims have expanded (especially at the state level), and the political climate has led to a definitive spike in harassment claims based on nationality and religion.  In some companies, these claims lead to six, even seven-figure judgments; in other companies, the typical outcomes are much more favorable.  There’s a reason for this disparity, and the failure to understand that reason can decimate a bottom line. Death By Cross-Examination Consider this scenario…  An employee files a harassment claim, and you (the director of HR, the department head, perhaps the CEO) are called to testify by the employee’s attorney. The attorney begins by asking you if you care about worker safety.  Yes, you answer.  He asks if you have written safety procedures.  Yes, you do.  He asks if, in addition, you train workers on the proper use of machinery and materials in order to avoid workplace injuries. Yes, of course, you answer.  And that’s because you understand that it takes training, not just words in a manual, to make sure that important workplace policies are understood and respected, right?  Yes, training is important, you admit. He then asks if you think it’s important to protect workers from unlawful harassment. Of course, you tell him. He asks if you would agree that unlawful harassment can cause significant damage to an employee – humiliation, loss...

The Power of Job Descriptions: Do Them, and Review Them

Michael G. Trachtman Powell Trachtman Logan Carrle & Lombardo, P.C. MEA General Counsel mtrachtman@poweltrachtman.com Job descriptions are the Rodney Dangerfields of the workplace – they don’t get no respect.  In fact, however, a properly drafted job description can be a legal life-preserver that can save tens, even hundreds of thousands of dollars in potential liabilities and legal fees.  Consider these two, very common scenarios. The ADA Scenario Suppose you have a loading dock supervisor, Isaiah Hertz (think about it …) who suffers a permanent back injury and cannot lift more than 20 pounds.  Your obligation under the ADA is to determine if there is any reasonable accommodation that will allow Hertz to perform the essential functions of his job – if there is, you must provide the accommodation, but if there is not, you may replace him.  Remember that the ADA does not require you to change the essential functions of the job to suit his disability. You know that 50% of Hertz’s job entails loading and off-loading boxes from trucks, most of which weigh over 20 pounds.  There is no possible reasonable accommodation – this is a central aspect of his job, and he can either do the job, or not.  You offer Hertz a different, lower paying position.  He refuses.  You terminate him.  A week later, you get notice that he filed an ADA claim against you. Hertz claims that the ability to lift 20 pounds is just a tangential part of his job, and not one of the essential functions, all of which he can still perform.  As proof, he submits your offer letter, sent two...

Final Rule Eases the Way for Certain Immigrant and Nonimmigrant Workers and Their Employers

The Department of Homeland Security has amended its regulations on certain employment-based immigrant and nonimmigrant visa programs. The final rule provides various benefits to program participants, including improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; greater stability and job flexibility for those workers; and increased transparency and consistency in the application of DHS policy related to affected classifications. The final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, was published in the Federal Register November 18, 2016. DHS said that many of the changes made by the final rule are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. At the same time, changes to the final rule increase the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options. U.S. Citizenship and Immigration Services said the regulations were amended, among other reasons, to: Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication. Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting...

Obama Administration Moves Forward on Federal “Ban-The-Box” Efforts

In conjunction with a November 30 convening on criminal justice reform, the White House focused on a series of measures aimed at criminal justice reform and helping justice-involved individuals get their lives back on track. Among those measures was the release of an Office of Personnel Management final “ban-the-box” rule and an update on the previously launched Fair Chance Business Pledge calling on private-sector employers to eliminate unnecessary hiring barriers facing applicants with criminal records. Final rule. The Office of Personnel Management has slated for publication in the Federal Register December 1 a final rule intended to ensure that applicants with criminal histories will get a fair shot at competing for federal jobs. The final regulation effectively “bans the box” for a significant number of federal positions by prohibiting federal agencies from inquiring about an applicant’s criminal history until a conditional offer of employment has been made. This change prevents candidates from being eliminated before they have had an opportunity to demonstrate their qualifications. Given that there are legitimate, job/position-related reasons why a hiring agency may need to determine suitability at an earlier stage in the employment process, the final rule permits agencies to request an exception from the OPM to accommodate those circumstances. Requests for an exception must be submitted to the OPM by the agency’s Chief Human Capital Officer—or equivalent—at the agency headquarters level. In order to give federal agencies sufficient time to request exceptions where appropriate, the compliance date for the final rule is set at 120 days from date of publication in the Federal Register. In a fact sheet, the White House said that as...

Employer Must Show Workers’ Comp Board That Undocumented Worker Could Find Suitable Work

A claimant’s status as an undocumented worker was relevant in deciding whether she was entitled to continue receiving workers’ comp benefits on the ground that she was a displaced or “odd lot” worker, held the Delaware Supreme Court. Where an injured undocumented worker seeks to show she is a displaced worker, her undocumented status is a factor to be considered in deciding whether suitable employment is available for her and thus whether she can return to work. While the employer decried its unrealistic burden of having to show the undocumented worker could find suitable work, the state high court was unsympathetic, noting that the employer had “hired an undocumented worker in the first place.” (Roos Foods v. Guardado, November 29, 2016, Vaughn, J.). Limited use of hand. The claimant, who was from El Salvador and did not speak English, permanently injured her left wrist in a serious work-related accident while working for a cheese manufacturer. She began receiving workers’ comp benefits for a total disability. Four years later, her employer petitioned the Industrial Accident Board to terminate her benefits on the ground that she was no longer disabled and could return to work. The Board found that the employee, who could use her left hand only as an “assistance hand,” was a “displaced worker”—often referred to in workers’ compensation law as an “odd lot” worker. In reaching this conclusion, the Board emphasized she would have great difficulty finding suitable employment because she was undocumented and therefore unable to work legally in the United States. Concluding that she was a prima facie displaced worker, the Board denied the employer’s petition...

The Trump Triumph: A Fearless Forecast for the Workplace

Michael G. Trachtman Powell Trachtman Logan Carrle & Lombardo, P.C. MEA General Counsel mtrachtman@powelltrachtman.com In the July Workplace Advisor article, I took a shot at broadly analyzing what a Clinton or Trump administration would mean for workplaces.  Much of what I said then continues to hold true, particularly in respect to the Supreme Court, but in the aftermath of the election, and despite the fact that Trump has put forth few specifics respecting workplace policies or programs, some of the key issues and indicators are now coming into sharper focus. Surprises and uncertainties are the bane of any business, and I offer the below, a kind of workplace prognosis, in the spirit of helping businesses, particularly closely held businesses, prepare for future.  Hopefully, I will do better than the pollsters… Trump will be reluctant to bite the hands that fed him. The demographics of the Trump victory turned party politics inside out.  Trump, the Republican, was elected by what has been a bastion of Democratic support – middle class working people seeking to get their fair share of the pie.  Union leaders may have supported Clinton, but union members supported Trump. While Trump most certainly seeks to favor businesses, he will remember how he got where he is, and that will influence his policies. Expect some inconsistencies as Trump attempts to serve two masters. A wildcard:  will he support the existing enforcement push on ADA and FMLA violations, improperly classifying independent contractors, and payment of overtime for “off the clock” hours?  These are all policies favored by working people and despised by businesses.  It will be interesting to see...

Employers Expect Overtime Rules to Decrease Workplace Flexibility Options, Worldatwork Survey Shows

The U.S. Department of Labor released the final rules updating the Fair Labor Standards Act of 1938 (FLSA) earlier this year. The rules, which are effective December 1, 2016, raise the standard salary level threshold for exemption to $47,476 per year. WorldatWork conducted a snapshot survey of how organizations are planning to implement these changes. According to the survey, 73 percent of respondents will comply with the new regulation through a combination of re-classification of some workers to nonexempt and increasing salaries above the new threshold for others. Half of employers, 49 percent, who plan to reclassify employees from exempt to nonexempt reported that workplace flexibility options for those employees will decrease. “Once you dig deeper into the results, larger organizations, those that are more likely to have formalized workplace flexibility policies, will decrease workplace flexibility options at an even higher rate,” said Kerry Chou, CCP, senior practice leader at WorldatWork. Sixty two percent of employers with 10,000 to 39,999 reported that workplace flexibility options will decrease for employees reclassified to nonexempt. The survey asked total rewards professionals when they intend to implement any changes in order to be in compliance with the new rules; 63 percent indicated that they are planning to wait until Dec. 1 or the pay period that includes the Dec. 1 deadline to make any changes. From 2010 to 2016, the number of organizations using bonuses increased from 59 percent to 81 percent, reflecting a shift in variable pay programs. Meanwhile, the number of employers using individual incentives (other than sales) dropped during the same time period, from 67 percent in 2010 to 39...

How Will Title VII Be Impacted by Nationwide Injunction on Fed’s Transgender Bathroom Policy?

A federal judge in Texas has reaffirmed his nationwide injunction against the federal government, which was precipitated by a letter from the Departments of Justice and Education earlier this year that told schools they must “immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding.” As a result, more than a dozen states had sued the EEOC and the U.S. Departments of Labor, Education, and Justice, and various agency officials, challenging the government’s assertions that Title VII and Title IX require that all persons must be afforded the opportunity to have access to restrooms, locker rooms, showers, and other intimate facilities which match their gender identity rather than their biological sex. The states also claimed the government said that employers that “refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII.” Earlier injunction. In essence, the states argued that the federal government’s interpretation of the definition of “sex” in the various written directives as applied to Title VII and Title IX is unlawful and has placed them in legal jeopardy. The district court agreed, finding that the government had failed to comply with the Administrative Procedure Act by foregoing its notice and comment requirements and issuing directives that “contradict the existing legislative and regulatory texts.” It issued a nationwide injunction. Clarification. Now the judge has clarified, to a limited extent, just what the injunction means, but he refused to narrow the injunction to only those states which had filed suit. The issues remaining to be clarified were, the court said,...

OSHA Won’t Enforce Illness and Injury Tracking Rule’s Anti-Retaliation Provisions Until December 1

OSHA has agreed to further delay enforcement of the anti-retaliation provisions in its injury and illness tracking rule until December 1, 2016, at the request of a federal judge in the Northern District of Texas. The delayed implementation of the final rule would permit the court additional time to consider a motion challenging the new provisions. The anti-retaliation provisions were originally slated to go into effect August 10, 2016, but were previously delayed until November 1 to give the agency time for outreach to the regulated community. The rule requires employers to inform workers of their right to report work-related injuries and illnesses without fear of retaliation and implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting. The rule itself also incorporates the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses. Reposted with permission from Wolters Kluwer. Access CCHAnswersNow for more articles. (MEA Members...