Employment Training, Practices and Procedures

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Under this program, which is to begin by October 1, 2015, the Commission is to use a technique known as “matched pair testing” to conduct at least five investigations into the employment practices of New York City employers.  The law requires the Commission to use two “testers” whose credentials are similar in all respects but one: their protected characteristics, i.e., actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, or another characteristic protected under the New York City Human Rights Law.  The testers will apply for jobs with the same employer to evaluate whether that employer is using discriminatory practices during the hiring process.

Employers may wish to notify their human resources personnel about the program and have them remind individuals who review job applications and conduct interviews to focus on job-related skills and abilities, not protected characteristics.  Job postings/advertisements should also be reviewed to ensure that they are neutral.

My colleagues Michael S. Kun and Jeffrey H. Ruzal at Epstein Becker Green has a Wage and Hour Defense blog post that will be of interest to all retailers: “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”Clock

Following is an excerpt:

More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 hours in a workweek – or receiving salary increases in order that their exempt status will continue.

Read the full original post here.

On Monday, June 29, 2015, Mayor Bill de Blasio signed into law the bill passed by the New York City Council “banning-the-box.” The law goes into effect on Tuesday, October 27, 2015. As discussed in our earlier advisory, the ban-the-box movement removes from an employment application the “box” that requests criminal conviction history. New York City’s law also imposes additional requirements upon the employer when making an adverse employment decision on the basis of criminal conviction history.

Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees.  In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.  Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender employees under Title VII.  Shortly thereafter, in December 2014, outgoing U.S. Attorney General Eric Holder released a memo announcing that the Department of Justice considers Title VII’s prohibition against sex discrimination to include discrimination based on gender identity, including transgender status.  Finally, earlier this year, on March 30, 2015, the Department of Justice filed its first lawsuit alleging an employer engaged in discrimination and retaliation against a transgender employee in violation of Title VII.

As a result, private employers may increasingly face lawsuits asserting gender identity discrimination claims and should revisit their policies– including employment, non-discrimination, and even dress code policies – to avoid the litigation of such claims.  Just last month, on April 1, 2015, Alexia (formerly “Anthony”) Daskalakis, a former employee of clothing retailer Forever 21, filed a complaint in the Eastern District of New York alleging discrimination, harassment, and retaliation on the basis of her gender, gender identity, gender expression and/or failure to conform to gender stereotypes.  Daskalakis, who was assigned male gender at birth, worked as a visual merchandiser at a Forever 21 store located in Brooklyn.  Daskalakis’s allegations arise from her manager’s conduct after she began transitioning to a woman.  The claims in Daskalakis v. Forever 21, Inc. are currently based on New York State and City non-discrimination laws, but the complaint indicates that plaintiff will file and/or seek leave to amend the complaint to include Title VII claims after receiving a Notice of Right to Sue from the EEOC.

In another recent EEOC decision, Lusardi v. McHugh, Appeal No. 0120133395, Agency No. ARREDSTON11SEP05574 (EEOC Apr. 1, 2015), the EEOC found that the Department of the Army subjected the complainant-employee to disparate treatment and a hostile work environment.  In holding that denying the employee equal access to the common women’s restroom constituted disparate treatment, the EEOC wrote: “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender” . . . and “perpetuated the sense that she was not worthy of equal treatment and respect.”  Appeal No. 0120133395 at 13.  Notably, the EEOC stated that co-workers’ confusion or anxiety regarding sharing a restroom with a transgender individual would not justify discriminatory terms and conditions of employment.   Appeal No. 0120133395 at 10-11.  The EEOC found that the Department of the Army had subjected the employee to a hostile work environment because a team leader referred to the employee by male names and pronouns and made hostile remarks after being aware that the employee identified as female.  Appeal No. 0120133395 at 17.

While the Lusardi decision has no precedential effect for private employers, it is predictive of a potential enforcement position in the event of a transgendered employee’s charge of discrimination against a private employer.  Notably, the EEOC did not declare that in all situations an employer should designate the gender-corresponding common restroom for the transgender employee’s use, but rather that the employer should develop individualized transition plans appropriate for the employee’s circumstances.  Appeal No. 0120133395 at 10.  Such a transition might even “include a limited period of time where the employee opts to use a private facility instead of a common one.”  Id.

To reduce the risk of litigating claims of gender identity discrimination and retaliation, it is important for employers to confer with counsel to ensure that all policies comply with the employer’s obligations to transgender employees under Title VII.

[1] Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012).

As we reported, last November, voters in Massachusetts approved a law granting Massachusetts employees the right to sick leave, starting on July 1, 2015.  The law provides paid sick leave for employers with 11 or more employees and unpaid sick leave for employees with 10 or fewer employees. While the law set forth the basics, many of the details, which have differentiated the various sick leave laws across the country, were not previously specified (e.g., minimum increments of use, frontloading, documentation).  The Massachusetts Attorney General’s Office (“AGO”) has set forth proposed regulations to guide employers in implementing the upcoming sick leave law.

Some of the proposed regulations include:

  • To determine an employer’s size, the number of employees at all locations will be counted, not just those employees in Massachusetts. For example, if a company has 25 employees in New York and three employees in Massachusetts, the employer will be required to provide paid sick leave to the Massachusetts employees because the employer has 11 or more employees in total.
  • Employees may use sick leave in hourly increments. However, if the employer has to hire a replacement, and does so, the employer may charge the employee for the entire missed shift.
  • If an employer decides to pay employees for their accrued, unused sick leave at the end of the calendar year, the employer need only frontload 16 hours in the following calendar year (as opposed to all 40 hours the employee will receive that year).[1]
  • An employer may choose to frontload 40 hours of sick leave per year rather than tracking accrual rates throughout the year.
  • An employer may not request documentation about an employee’s need for leave until the employee has taken 24 consecutive hours of sick leave.
    • At that point, an employee may provide documentation in the form of a doctor’s note or a written statement evidencing the need to use sick leave.[2]
    • If leave is related to domestic violence, an employee may provide alternative documentation.
    • The employee may submit any of the above documentation in any form customarily used to communicate, including via text message, e-mail, or fax.
  • Employers must provide written notice to employees at the beginning of employment as to what constitutes a “calendar year” for accrual and use purposes.
  • Employers must post the notice of the Earned Sick Time Law in the workplace and provide a copy to all employees.

The AGO will be holding six public hearings throughout the state, including one in Boston on May 18, 2015, to entertain comments to the proposed regulations. The deadline for written comments, which may be submitted by mail or electronically, is June 10.  If you would like assistance in preparing any comments, please contact us. We will provide an update upon adoption of the regulations (whether in this form, or revised after the comment period).

[1] This is more employer-friendly than the New York City Earned Sick Time Act, which requires that 40 hours be frontloaded if an employer pays out sick leave at the end of the calendar year.

[2] The AGO will create a model form for this use, but such form has not been posted yet.

Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.

Under this decision, which applies to both unionized and non-union workplaces alike, if an employer allows employees to use its email system at work, use of the email system “for statutorily protected communications on nonworking time must presumptively be permitted . . . .” In other words, if an employee has access to email at work and is ever allowed to use it to send or receive nonwork emails, the employee is permitted to use his or her work email to communicate with coworkers about union-related issues.

Read the full advisory here.

Regarding the Supreme Court’s Integrity Staffing Solutions v. Busk opinion, issued today, our colleague Michael Kun at Epstein Becker Green has posted “Supreme Court Holds That Time Spent in Security Screening Is Not Compensable Time” on one of our sister blogs, Wage & Hour Defense.

Following is an excerpt:

In order to prevent employee theft, some employers require their employees to undergo security screenings before leaving the employers’ facilities. That is particularly so with employers involved in manufacturing and retail sales, who must be concerned with valuable merchandise being removed in bags, purses or jacket pockets.

Often in the context of high-stakes class actions and collective actions, parties have litigated whether time spent undergoing a security screening must be compensated under the Fair Labor Standards Act (“FLSA”). On December 9, 2014, a unanimous United States Supreme Court answered that questionno.

The Court’s decision in Integrity Staffing Solutions v. Busk may have a far-reaching practical and legal impact. Not only may it make more employers comfortable conducting security screenings of their employees, but it may bring an end to most class actions and collective actions filed against employers seeking compensation for employees’ time spent in such screenings.

Retailers doing business in New York City should take note of a new ordinance Mayor Bill de Blasio signed into law on October 20, 2014 – The Affordable Transit Act. 

The Affordable Transit Act (the “Act”) requires employers in New York City with 20 or more full-time employees to offer pre-tax transit benefits to employees. The Act allows employees to use up to $130 in tax free money towards their transit costs, which is the current IRS limit.  Full-time employees are defined as employees working an average of 30 hours or more per week. 

Penalties for violating the Act are $100-$250 for first time violations and $250 for repeat violations.  Employers, however, have 90 days to cure the first violation before any civil penalties will be imposed and penalties will not be imposed on any employer more than once in any 30-day period.

Employers are exempt from the Act if a collective bargaining agreement covers the relevant employees or where the employer is not required to pay federal, state and city payroll taxes.  In addition, the Department of Consumer Affairs may waive the requirements if an employer demonstrates that offering the benefit is a financial hardship.

According to the Mayor’s office, the legislation is expected to save employees over $400 a year on Metro Card expenses and employers more than $100 per year per employee in tax liability.  The Mayor’s office also predicts that the Act will extend transit benefits to more than 450,000 employees in NYC who are not currently offered them.

The Act takes effect on January 1, 2016 but in order to allow businesses adequate time to adjust to the new law, employers will not be subject to penalties prior to July 1, 2016. 

Employers who do not already offer pretax transit benefits should take the next year to ensure compliance with the new law, assess and make any necessary changes to their payroll and benefits systems, and prepare communications to employees.

While by most accounts the current term of the Supreme Court is generally uninteresting, lacking anything that the popular media deem to be a blockbuster (the media’s choice being same-sex marriage or Affordable Care Act cases), the docket is heavily weighted towards labor and employment cases and a few that potentially affect retail employers in particular. They are as follows.

The Court already has heard argument in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, which concerns whether the Portal-to-Portal Act, which amends the Fair Labor Standards Act, requires employers to pay warehouse employees for the time they spend, which in this case runs up to 25 minutes, going through post-shift anti-theft screening. Integrity is a contractor to Amazon.com, and the 9th Circuit had ruled in against it, holding that the activity was part of the shift and not non-compensable postliminary activity. Interestingly, DOL is on the side of the employer, fearing a flood of FLSA cases generated from any activity in which employees are on the employers’ premises.  This case will affect many of our clients and should be monitored carefully.

On December 3rd, the Court will hear argument in Young v. United Parcel Service, Inc., No. 12-1226, which poses whether the Pregnancy Discrimination Act requires an employer to accommodate a pregnant woman with work restrictions related to pregnancy in the same manner as it accommodates a non-pregnant employee with the same restrictions, but not related to pregnancy. The 4th Circuit had ruled in favor of the company, which offered a “light duty program” held to be pregnancy blind to persons who have a disability cognizable under the ADA, who are injured on the job or are temporarily ineligible for DOT certification. Ms. Young objects to being considered in the same category as workers who are injured off the job. This case, too, will create a precedent of interest to at least some of our clients. Of  note, this week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers advising that starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well. In its brief UPS states “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”  The change in policy, UPS states, is the result of new pregnancy accommodation guidelines issued by the Equal Employment Opportunity Commission, and a growing number of states passing laws mandating reasonable accommodation of pregnant workers.

On October 2nd, the Supreme Court granted cert. in a Title VII religious accommodation case, EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The case concerns whether an employer is entitled to specific notice, in this case  of a religious practice – the wearing of a head scarf —  from a prospective employee before having the obligation to accommodate her.  In this case, the employer did not hire a Muslim applicant. The Tenth Circuit ruled that the employer was entitled to rely upon its “look” policy and would not presume religious bias where the employee did not raise the underlying issue. Retail clients and others will be affected by the outcome.

More will follow as developments warrant.

By Susan Gross Sholinsky

The Ebola virus disease (“Ebola”) has become a worldwide threat, which, among many other effects, has forced employers to think about how to protect their employees. Employers also must consider how Ebola might impact employment policies and procedures, including, but not limited to, those addressing attendance, leaves of absence, discipline, and medical testing.

My colleagues and I have written a detailed Act Now advisory providing legal framework of best practices and legal risks pertaining to Ebola. 

Click here to read the advisory in its entirety