On May 2, 2017, the California Department of Fair Employment and Housing (DFEH) issued a Workplace Harassment Guide, which offers recommendations for employers on how to prevent and address harassment in the workplace. While the Guide focuses on workplace harassment, it also is a useful tool for how to handle other workplace issues, including discrimination
Sexual Revolution: Seventh Circuit Holds Title VII Protects Sexual Orientation
On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit broke new legal ground by ruling that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, also forbids sexual orientation discrimination. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. 2017) (en banc). …
Emerging Labor & Employment Law Trends (Part 1)
With summer 2016 almost behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the final quarter of the year and into 2017. In the first part of this two-part series, we will take a look at some of the principal trends likely to be shaped by federal regulators.
- Wage & Hour Class Actions Will Remain Hot. On December 1, 2016, the U.S. Department of Labor’s (DOL) changes to the salary threshold for exempt employees will increase the number of workers eligible for minimum wage and overtime payments. Specifically, the salary threshold for exempt executive, administrative, and professional employees will increase to $47,476 per year (or $913/week), meaning that salaried employees earning less than this amount, regardless of job duties, must be compensated for overtime work. This will undoubtedly result in an increase in wage and hour class actions in the coming years.
In addition, the DOL and other administrative agencies, as well as the plaintiffs’ bar, remain intently focused on independent contractor misclassification, especially following the DOL’s July 2015 guidance proclaiming that most U.S. workers should be classified as employees. Bring-your-own-device policies will also continue to lead to claims of unpaid overtime work.
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Reminder for NYC Employers: Ban on ‘Caregiver’ Discrimination Has Taken Effect
On May 4, a New York City law barring discrimination against “caregivers” took effect. Specifically, the law prohibits employers from taking an adverse action (e.g., refusing to hire, firing, or demoting), or otherwise discriminating against an employee with respect to the terms and conditions of employment, based on the employee’s actual or perceived status as a “caregiver.”
The law defines “caregiver” as a “person who provides direct and ongoing care for a minor child or a care recipient.” “Care recipient,” in turn, is defined as a person with a disability who (1) relies on the caregiver for medical care or to meet the needs of daily living, and (2) resides in the caregiver’s household or is the caregiver’s child, spouse, domestic partner, parent, sibling, grandchild, or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the NYC Commission on Human Rights (the Commission), the agency that enforces the law.
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This Is Not a Prank: California’s New Amended FEHA Regulations Are Effective April 1
California’s Fair Employment and Housing Act (“FEHA”) prohibits harassment and discrimination in the workplace that is based on one or more of the categories commonly protected by local, state and federal discrimination laws. On April 1, 2016, new regulations interpreting and expanding upon the statutory language go into effect. Below, we provide a summary of some of the more notable updates to the regulations.
Counting Employees to Determine Whether an Employer Is Covered
The FEHA covers “[a]ny person or individual engaged in any business or enterprise regularly employing five or more individuals, including individuals performing any service under any appointment, contract of hire or apprenticeship, express or implied, oral or written.”
The regulations explain that employers must count individuals performing work both inside and outside of California. Although individuals who encounter potential discrimination or harassment outside the state of California are not protected themselves, they are counted for the purpose of assessing whether the employer is covered under the statute. Employers must also count all individuals on paid or unpaid leave, even those who are on administrative leave because of disciplinary suspension. No individual on a leave of absence of any kind should be excluded.
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DOL Seeks to Expand the Definition of Illegal Discrimination
We round out our series on recent federal agency action by discussing the U.S. Department of Labor’s (DOL) recent Notice of Proposed Rulemaking for the Workforce Innovation and Opportunity Act (WIOA). The Proposed Rules would update existing nondiscrimination and equal opportunity provisions of the WIOA, which is the DOL’s primary mechanism for providing job training funding. Thus, the proposed rules would only impact organizations funded by the DOL to provide job training under the WIOA. This is not a small number. There are approximately 34,450 recipients of WIOA funding annually, and those organizations serve approximately 56 million individuals.
Currently, the WIOA “prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of the WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA.” The Proposed Rules would update the WIOA, as the DOL believes that “the current rule does not reflect recent developments in equal opportunity and nondiscrimination jurisprudence.” …
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California’s Employment Law Class of 2016: The Laws, Their Effects and Our Recommendations for Compliance
Each year, the California legislature – historically the most active of state regulators – reexamines the relationship between employers and their workforces and emerges with a multitude of employment law protections. 2015 was no exception. Lawmakers created novel and expansive measures, affecting companies throughout the state in varying degrees. Some of the laws, most of which take effect January 1, 2016, are reactions to cases decided, while others are sweeping remedies to historic and longstanding issues.
As we close out 2015, we prepare for 2016, by providing an overview of specific areas of employment law (discrimination/anti-retaliation/discharge; wage and hour; leave laws), the effect the new laws will have on employers, and some basic recommendations to help prepare for compliance. Our recommendations are limited, as the impact of these new laws are yet unknown.…
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‘School’s Out!’ Means More Free Time for Kids, But None for Working Parents. Here is Help for Employers Managing the Fallout.
As our nation’s built-in babysitters close shop for the next three months, the bulk of our nation’s workforce braces for the barrage of new summer stressors, including: the uncertain reliability of teenage babysitters needed to cover 7-8 extra childcare hours per day; the effective imposition of second full-time job duties at home, with predictably unpredictable hours; and, for many, the summertime onset of “work-life imbalance malaise.”
These summertime stressors also cause angst for employers. Employees’ additional responsibilities at home invariably mean spikes in last-minute employee requests for “emergency” sick leave, attempts to “take off” early, and other impromptu absenteeism issues. All this can be incredibly disruptive to an employer’s normal business operations. Here are three tips to help maximize a smoother summer transition in your workplace:…
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Transgender at Work: How Employers Can Stay Off the EEOC Radar Screen
It’s no secret that the EEOC—and even some courts—read Title VII to prohibit discrimination against transgender employees. A growing number of state and city laws also specifically include gender identity and/or expression as protected characteristics. But while employers may understand the legal dangers of firing someone for “coming out” as transgender, the extent of employers’ day-to-day obligations with respect to transgender employees in the workplace is far less clear. For example:
- Are transgender employees entitled to access particular bathrooms or change their company employment records? And, if so, at what point in an employee’s gender transition must an employer accommodate such requests?
- How should employers address negative reactions and attitudes from coworkers?
Two recent EEOC cases provide initial guidance for employers trying to navigate these tricky—and still relatively uncharted—employment law waters.…
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EEOC v. Abercrombie & Fitch: Do You Need to Ask Applicants Whether They Require Religious Accommodation?
This post was also written by Megan E. Farrell.
On June 1, 2015, the United States Supreme Court held that a job applicant can establish religious discrimination under Title VII of the Civil Rights Act of 1964 without proof that the employer had “actual knowledge” of the applicant’s need for an accommodation; instead, the applicant “need only show that his [or her] need for an accommodation was a motivating factor in the employer’s decision” (emphasis added). Writing for eight of the Court’s nine Justices, Justice Scalia explained that employers “may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86, ___ S. Ct. ___ (2015).…
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