Posted on September 18, 2013 by Epstein Becker & Green

Oct. 2: Webinar on Workplace Violence and Active Shooter Scenarios - Protecting Your Employees

We’d like to recommend an upcoming complimentary webinar, “Addressing and Responding to Workplace Violence and Active Shooter Scenarios to Protect Your Employees” (Oct. 2, 2:00 p.m. EDT), by our Epstein Becker Green colleagues Kara M. Maciel, Susan Gross Sholinsky, and Christopher M. Locke, with Daniel Hess and Lynne Cripe of The KonTerra Group, an employee assistance program provider that regularly counsels employees undergoing stressful life events that can lead to violence.

Below is their description of the event:

Violence in the workplace can range from bullying and harassment to physical attacks to fatal mass shootings. Workplace violence has unfortunately become one of the most common forms of violence that people are likely to encounter during their lives.

This informative webinar will:

  • Discuss ways of identifying the warning signs and recognizing behaviors that are precursors;
  • Summarize strategies to assist with hiring, managing and firing employees;
  • Present guidance on how to survive in the event their workplace is the scene of an active shooter scenario; and
  • Review legal consequences of failing to take appropriate steps to avoid an incident.

To learn more about it, visit Epstein Becker Green or click here for complimentary registration.

Posted on September 12, 2013 by Marisa S. Ratinoff

California's Leave Laws May Create the Perfect Storm for Employers

In this month’s Take 5 newsletter, I discuss how California is unique for making numerous types of protected leaves of absence available to employees.  All of these options can add up to a lot of protected leave.

Following is from the introduction:

National employers often find it challenging to navigate the employment laws of the various states in which they do business. In most cases, the easiest solution may be to adopt national policies that follow federal law. This process will not work, however, for employers that do business in California, where state protections are often more expansive and provide greater employee rights than their federal law equivalents. This is particularly true in the leave of absence arena. California is unique in that it makes numerous types of protected leaves of absence available to employees. The cumulative impact of administering all of the available leaves in California can be quite burdensome and lead to a perfect storm in which an employee may continue to be on a protected leave of absence for more than one year. Here's why …

The full issue is here.

Posted on September 03, 2013 by Epstein Becker & Green

A Less Discriminating Approach to Form I-9 Compliance

By: Robert Groban and Susan Gross Sholinsky

Recent settlements with Forever 21 and Macy’s announced by the U.S. Justice Department’s Office of Special Counsel (“OSC”) underscore the importance to retail employers of training staff regarding the anti-discrimination provisions of the Form I-9 requirements.

Most employers are familiar with the Form I-9 requirements that direct employers to obtain original documentation establishing the identity and work authorization of all new employees hired since November 7, 1986.  In their eagerness to satisfy their Form I-9 obligations, however, many employers, including a growing number in the retail industry, fail to comply with the anti-discrimination provisions of the law.

The Form I-9 requirements are contained in the Immigration Reform and Control Act of 1986 (“IRCA”).  When Congress passed IRCA, however, it recognized that this was the first time employers had been required to inquire whether new employees were authorized to work, and it was concerned that many employers might misuse the law to discriminate against “foreign looking” employees.  To guard against this possibility, Congress included several anti-discrimination provisions in IRCA that define unfair immigration-related employment practices.  These include asking for more or different documents than IRCA requires, asking for specific documents, applying the Form I-9 requirements differently to various applicants, limiting applicants to just U.S. citizens absent legal justification.  Congress also created the OSC to enforce these anti-discrimination provisions.

In Forever, 21, the OSC alleged that the company violated IRCA when it required a prospective employee to produce a permanent residence or “green card”, and refused to accept a valid employment authorization document (“EAD”).  A valid EAD is a document that satisfies the Form I-9 requirements under IRCA.  By refusing to accept the candidate’s EAD and insisting on a green card, the employer allegedly violated IRCA’s anti-discrimination requirements.  Under the terms of the settlement, Forever 21 agreed to pay a civil fine and back pay.

The OSC brought similar claims against Macy’s Retail Holdings, Inc., Macy’s Florida Stores, LLC, Macy’s Puerto Rico, Inc. and Macy’s West Stores, Inc. (collectively, “Macy’s”). The OSC alleged that Macy’s refused to accept documents presented by new hires that appeared on their face to be genuine and instead asked these employees for more or different documents than IRCA allows.  Macy’s agreed to pay $175,000 in civil penalties and to establish a $100,000 fund to compensate employees damaged as a result of its practices.     

These settlements by the OSC underscore the dangers that employers in the retail industry face if they focus too intently on compliance with the Form I-9 employment eligibility verification process.  With the emphasis placed on Form I-9 compliance, many of these employers forget these provisions and the substantial penalties and other obligations that they carry.  These settlements are but the latest reminders to retail and other employers of the importance of training staff on these other aspects of the Form I-9 process. 

Posted on August 19, 2013 by Epstein Becker & Green

More About T.G.I. Friday's Family Leave Violations

Our blog contributor Anna A. Cohen, an Associate in the Labor and Employment practice at Epstein Becker Green, was quoted in an article titled “TGI Fridays Busted for Family Leave Violations.”

Following is an excerpt:

The leave policy of TGI Fridays violates the Family and Medical Leave Act, and the popular restaurant chain has agreed to change its company-wide policy and pay one employee back wages, according to the Department of Labor (DOL).

The DOL announced the company's agreement on Aug. 7, following an investigation of a TGI Fridays restaurant in Shreveport, La. There, an employee took FMLA-covered leave but the company didn't reinstate the employee to the same or equivalent position, as required by the law.

"If violations cannot be resolved, the Department of Labor may bring an action in court to compel compliance," explains Anna Cohen, an employment lawyer with Epstein Becker Green in New York. "An employee may also file a private action against an employer for violations."

In this case, it appears that while the initial complaint was likely made by the employee who was denied immediate reinstatement after taking protected leave, the DOL's investigation uncovered problems with the way the restaurant was notifying its employees of their rights under the FMLA.

Under the FMLA, according to Cohen, employers must:

  • post, in conspicuous places, a notice explaining the Act's provisions and provide information concerning the procedures for filing complaints with the WHD
  • include the notice in employee handbooks or other written guidance to employees when they are hired
  • notify employees of their eligibility to take FMLA leave within five business days once a request is made
  • explain to employees taking leave their rights and responsibilities including their specific expectations and obligations and any consequences of failing to meet them
  • notify employees in writing whether or not the leave will actually be counted as FMLA leave

"As a general rule, it is important for employers to ensure that their FMLA policies and procedures are in compliance with the law," Cohen points out.

 

Posted on July 26, 2013 by Epstein Becker & Green

Domestic Violence Leave Law: New Jersey Enacts the SAFE Act

By Laura A. Stutz

Earlier we posted about the increase in domestic violence and the reauthorization of the Violence Against Women Act, which was extended in February 2013, and expanded to provide coverage to both male and female victims of various types of domestic violence.  (See “With Domestic Violence Increasing, What Should Employers Do?”)  A growing number of states have followed the federal lead and undertaken steps to protect domestic violence victims.  On July 17, 2013, New Jersey joined those states and enacted the New Jersey Security and Financial Empowerment Act (S-2177) (“SAFE Act”) to protect victims of domestic violence and sexual assault (as defined by N.J.S.A. 2C:25-19 and N.J.S.A. 30:4-27.6) from employment discrimination. 

The SAFE Act, effective October 1, 2013, seeks to prevent employment discrimination against employees for taking time off from work to seek treatment or legal assistance or to engage in other activity relating to the offense.  The law also covers employees who are close family members of victims of domestic violence and sexually violent offenses.  The Act defines close family member as a child, parent, spouse, domestic partner, or civil union partner.

The Act applies to New Jersey employers with 25 or more employees and provides 20 days of unpaid job-protected leave to eligible employees in the 12-month period following the incident.  Intermittent leave may be taken in intervals no shorter than a day.  The leave is in addition to any leave the eligible employee may already be entitled to under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”), or the New Jersey Family Leave Act (“FLA”), N.J.S.A. 34:11B-1 et seq.  If the domestic violence-related leave request would also be covered under the FMLA or FLA, the leaves will run concurrently.  Employers are permitted to request documentation to support the leave request.  Such documentation is to be maintained strictly confidential unless disclosure is voluntarily authorized in writing by the employee or required by law, rule or regulation. 

The Act requires New Jersey employers to conspicuously display a notice of employees’ rights under the law and to “use other appropriate means to keep its employees informed.”  The form of notice is to be provided by the Department of Labor and Workforce Development; what is necessary for compliance with the “other appropriate means” provision is not yet clear.

Employers should consider federal and state legal requirements when addressing requests for leave or other accommodations for victims of domestic or sexual violence, and should review their leave policies and procedures to ensure compliance.   

Posted on June 25, 2013 by Epstein Becker & Green

Supreme Court Holds That Only Employees Who Have Authority to Take Tangible Employment Actions Constitute Supervisors for the Purpose of Vicarious Liability Under Title VII

By Julie Saker Schlegel

In a 5-4 decision the dissent termed “decidedly employer-friendly,” the Supreme Court held on June 24, 2013 that only employees who have been empowered by the employer to take tangible employment actions against a harassment victim constitute “supervisors” for the purpose of vicarious liability under Title VII.  Per the holding in Vance v. Ball State University, employees who merely direct the work activities of others, but who lack the authority to take tangible employment actions, will no longer be considered supervisors under Title VII. 

Under long-standing precedent (Faragher and Ellerth), whether an employer can be found vicariously liable for harassment perpetrated by its employees is dependent on whether the harasser is a supervisor or merely a co-worker of the victim:

  • For co-worker harassment, the employer will only be found liable if it was negligent—that is, if it knew or should have known of the harassment and failed to take corrective action;
  • For supervisor harassment where the supervisor takes a tangible employment action against the victim (such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits), the employer will be considered strictly liable; and
  • For supervisor harassment where the supervisor does not take a tangible employment action against the victim, the employer may establish an affirmative defense to liability if it can prove that: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) the victim unreasonably failed to take advantage of the preventive or corrective opportunities offered by the employer.

Despite this framework that is highly dependent on the status of the harasser, however, the Court had never definitively ruled on who constitutes a supervisor, until now.

As a consequence of the Court’s truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction.”
—Justice Ginsburg, dissenting

In reaching this decision, the Court emphatically rejected the EEOC's definition of supervisor, which had included both those who have the authority to take or recommend tangible employment actions and those who direct the daily work activities of others.  The Court noted that a significant advantage of its new definition is that supervisory status can now be readily determined early in the case, and will generally be capable of resolution on summary judgment.  Alternatively, if the issue should reach trial, the new definition will be easier for juries to apply.

While the new definition of supervisor should benefit employers, by leading to more cases being decided under the more lenient “negligence” standard, the Court’s opinion contained a few caveats.  While employees who merely direct the daily work activities of others will no longer be considered supervisors, the Court noted that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent in controlling workplace harassment.  Further, an employer who attempts to evade liability by concentrating all decision-making authority in a few individuals, who in turn rely upon the recommendations of others who actually work directly with the affected employees, may be found to have effectively delegated the power to take tangible employment actions to those employees on whose recommendations it relies.  Accordingly, while the new definition of supervisor has been distinctly narrowed, the Court has allowed some room for it to be expanded in particular cases, should the situation warrant.

In accordance with this decision, employers should ensure that their job descriptions clearly define which employees have the authority to take tangible employment actions against others, keeping in mind that employees who make recommendations regarding such employment actions may also be deemed supervisors in certain situations.

Posted on June 04, 2013 by Epstein Becker & Green

The Ninth Circuit's Opportunity to Clarify California's Suitable Seating Requirements

by Lisa M. Watanabe

In recent years, retailers, grocery stores and banks have been hit with a wave of lawsuits over California’s suitable seating requirements set forth in §14 of the Industrial Welfare Commission’s Wage Orders.  (See http://www.dir.ca.gov/iwc/wageorderindustries.htm for § 14 in 16 of the 17 industry-specific Wage Orders).  Despite the surge in lawsuits, there continues to be several unanswered questions regarding the interpretation of subsections (A) and (B) to §14 which state the following:

  1. All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
  2. When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

For example, how does an employer determine when the “nature” of an employee’s work “reasonably permits the use of seats” (in which case §14(A) would apply) or generally “requires standing” (in which case §14(B) would apply)?  Additionally, as is often the case with retail employees such as a cashier or clerk, what if an employee performs a variety of assigned job duties, some of which may permit seating and some which may not? 

A pending case before the Ninth Circuit – Kilby v. CVS Pharmacy, Inc. – should provide answers to courts and litigants to these questions.  Kilby, a former cashier/clerk, filed a representative suit against CVS in 2009 for its alleged failure to provide her with suitable seating under §14(A).  The district court dismissed the lawsuit on the grounds that §14(A) was not applicable to Kilby’s job position.  (See Order Granting CVS’s Motion for Summary Judgment.)  In its decision, the district court interpreted §14(A) as requiring a “holistic” assessment of an employee’s entire range of assigned duties to determine whether the employee’s job “as a whole” reasonably permitted the use of seats (§14(A)) or generally required standing (§14(B)).  The district court also considered CVS’s business judgment in its decision – i.e., CVS expected its clerks/cashiers to perform their work while standing, and trained them to do so (among other things, CVS showed a training video to new hires that reinforced its expectations of them to perform a variety of work while standing). 

On appeal, Kilby contends that the district court misinterpreted §14 and, and in doing so, failed to account for evidence that she spent approximately 90% of her time performing duties that could have been done while seated.  The district court’s interpretation of §14, according to Kilby, allows employers to deprive employees of seats “simply by assigning a handful of tasks that require standing … even if the workers’ other assigned tasks consume a significant portion or even the vast majority of the work day.”  As such, Kilby requests the Ninth Circuit to interpret §14 as guaranteeing employees the right to suitable seating whenever a specific task or duty performed for an appreciable period of time can reasonably be accomplished while seated.  Kilby also challenges the district court’s consideration of CVS’s business judgment in determining the nature of an employee’s work on the grounds that it frustrates the Industrial Welfare Commission’s intent to create an objective standard for determining which duties could be performed while seated.

The Ninth Circuit now has an opportunity to clarify the legal standard for §14 and offer much-needed guidance on the scope of suitable seating requirements for employees, including those individuals with mixed seating and non-seating job tasks.   Moreover, the case will clarify what role, if any, an employer’s business judgment, expectations and training may have in assessing the nature of an employee’s work.  The parties’ briefing has been completed and oral arguments before the Ninth Circuit (which should be scheduled and posted on the Ninth Circuit’s website -- http://www.ca9.uscourts.gov/calendar/ -- in the next few months) will surely keep courts, litigants, and employers on the edge of their seats.