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September 25, 2014

Executive Orders Mean New Rules for Federal Contractors

Filed under: Discrimination,Legal Issues — Tags: 10:20 am

A series of new executive orders from President Obama present some new HR law compliance challenges for federal contractors.

The President recently signed an order requiring that federal contractors not discriminate based on sexual orientation or gender identity. About half the states already prohibit such discrimination in one form or another. Another order mandates such contractors pay a minimum wage of $10.10 per hour. Both rules will take effect after implementing regulations are adopted and finalized later in 2014.

Yet another order requires that certain contractors (those with contracts over $500,000) disclose state and federal labor law violations from the past three years and also gather similar information from their subcontractors. Such violations include problems under the Fair Labor Standards Act, the National Labor Relations Act, the Family and Medical Leave Act, and the anti-discrimination laws. Repeat offenders may not receive federal contracts. The latest executive order also will prohibit companies holding new contracts of more than $1 million from requiring that their employees arbitrate alleged discrimination and harassment claims. The most recent executive order will be implemented on new contracts beginning in 2016.

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September 11, 2014

Think Before Documenting That!

Filed under: Discrimination,Legal Issues,Title VII — Tags: 8:20 pm

I was relatively new to the human resources scene in the early/mid 90s, and I watched as my manager could have shrieked in horror, (Does an audible gasp count?), at the note a hiring manager wrote on an employment application.  The applicant’s first name was Ebony.  Noted.  But, that manager in her efforts (giving her the benefit of the doubt) to remember the applicant wrote quite simply, “black girl.” Those two words, just screamed “discrimination” at my manager and she immediately took control of the situation.

Most HR professionals realize the implications of making descriptive notes on applications can be a double-edged sword.  Nearly everything is fair game to a plaintiff’s attorney, even the notes we make to ourselves about who was who in our candidate pool.  However, I learned that very day, in those very tense moments, that it is much better to write, “navy blue suit” as opposed to describing someone’s skin color.  Better yet, write nothing at all!

Such was true for a manager involved in a recent case out of Texas in which two newly hired workers complained their wages were lower than other workers with the same or very similar jobs.   After about three weeks of work for the company they were terminated on a trumped up reason.

The manager documented their personnel files after receiving a notice from the Equal Employment Opportunity Commission granting the two terminated employees the right to sue.  He wrote:

“Please note he is not eligible for rehire ever.  Tried to sue us.  Simply tell him, ‘sorry but we have nothing for you at this time.  Please try again.  Have a nice day.’  Not for rehire.  Per Ben G.”

Those words were enough to cause the Texas Court of Appeals to find for the two workers on the charges of retaliation and malice.  They were awarded damages as well.  (You can read the case here.)

So in every situation from hiring to firing – be careful and think before you document that!

 

Source:  Meyer, Eric B.  “The Problem With Putting ‘Do Not Hire’ Notes in Personnel Files.”  Article available here and here.

 

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September 4, 2014

Interesting News Briefs from the World of HR Law

Filed under: FLSA,Hiring & Jobs,Legal Issues4:36 pm

In an interesting test of the Fair Labor Standards Act (FLSA) exemption regulations, a well-known national retailer has been sued in California by employees alleging that the company improperly classified its store assistant managers as exempt employees.  This lawsuit is a good reminder of how important it is to have updated job descriptions to determine the exempt or nonexempt status of all positions within an organization.  The Department of Labor website provides general information to determine exempt status.  Click here.

A national retail provider of rent-to-own merchandise (appliances, furniture, etc.) has been sued under the federal Fair Credit Reporting Act with the plaintiffs in the case alleging that the company used a third party to run background checks but did not provide copies of the same before taking adverse action against applicants and employees (e.g. denying or terminating employment) based on the background check results. The lawsuit is pending in Georgia.  This is a great example of the importance of knowing the law!  The Equal Employment Opportunity Commission provides excellent guidance to employers and employees on background checks from each perspective.  You can check those out for employers here, and for employees here.

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August 14, 2014

If It Looks Like Retaliation – It Probably Is!

Filed under: Discrimination,Legal Issues,Title VII — Tags: 7:39 am

An interesting case from Salt Lake County, Utah, recently caught my attention.  The county was facing a sexual harassment claim.  The complainant’s coworker, Michael Barrett, helped her successfully win her case.  Barrett is a hero, right?  Wrong.  Shortly after assisting his coworker, Barrett was demoted.  Now, if that wasn’t enough to scream, “Retaliation!” the county hired a replacement for his previously held position.

Barrett, now knowing his way around the justice system, filed suit against the county alleging his demotion was a retaliatory action and violated Title VII of the Civil Rights Act of 1964.  The county argued that he was poor worker.  However, Barrett successfully presented evidence of his 14 years with the county having received multiple promotions and positive performance reviews – until that fateful moment when he began helping his distressed coworker.  The court ordered that Barrett be paid the same amount of pay in his new, demoted position that he had received in the old job, and that the newly hired, innocent employee not be removed from Barrett’s old position.  The county, of course, appealed.

The 10th Circuit Court of Appeals, whose rulings govern Utah employers, upheld the previous court’s decision.  They agreed that Barrett had presented sufficient evidence to demonstrate that he had been retaliated against by the county.  The 10th Circuit also agreed that the trial court had ordered an appropriate remedy to Barrett and the new hire.

Notable in this case was the supervisor’s actions.  HRLaws.com reported that, “The disciplinary proceedings that resulted in his demotion began almost immediately after his ‘supervisor learned of his involvement in the sexual harassment complaint.’”  Interestingly enough, other witnesses that were involved in the case were disciplined and the supervisor who administered some of the disciplinary actions lost the records for them.  Convenient.

Employers should be aware that employees have the right to complain about illegal treatment in the workplace.  They have the right to assist other employees, as witnesses, in a claim.  Any adverse employment actions against a complainant or a witness should be taken with extreme caution (and experienced legal counsel) so the action doesn’t even appear to be retaliatory.

 

Source:  www.hrlaws.comUtah – Employment Law Letter

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July 2, 2014

Employers Score a Win in PPACA Contraception Mandate

Filed under: Benefits,Insurance,Legal Issues — Tags: 10:19 am

Monday, June 30, 2014, the United States Supreme Court in a 5-4 ruling sided with Hobby Lobby when they decided that closely held private corporations do not have to include four of the twenty mandated contraceptive methods in their group health plans due to the sincerely held religious beliefs of the owners.  These four exempted methods of contraception will have to be paid from the employees’ pocket, or possibly the federal government will seek a way to cover the costs in accordance with the Patient Protection Affordable Care Act.

 

 

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June 11, 2014

Insensitive Facebook Comments Lead to Resignation

Filed under: Discrimination,Legal Issues10:57 am

A cardiac nurse in Utah has resigned his employment in the face of controversy over his postings on Facebook.  The case arose after a shooting occurred in a gang crimes case in the new Utah federal courthouse. The defendant in that criminal case allegedly had charged the witness stand and threatened a witness when he was shot and killed by a federal marshal. Afterwards, the nurse posted a public Facebook comment that referred to the nationality of the involved gang member and said “Kill Them All.” The nurse’s employer, a Utah public hospital, put the nurse on leave while investigating the matter. The nurse eventually chose to resign his position. A recent article about the matter is available here: http://www.sltrib.com/sltrib/news/57855398-78/shrum-comment-angilau-hospital.html.csp

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May 22, 2014

Four Times Is a Charm, or Is It?

Filed under: ADA & Disability,Legal Issues4:03 pm

The Equal Employment Opportunity Commission (EEOC) filed suit (for the fourth time!) against the nationwide auto parts retailer, AutoZone, for disability discrimination.  This time its attendance policy which uses a “points” system for absences, did not permit any general exception for disability-related absences.  Its policy required termination for employees reaching twelve points.

The complaint included an example of an employee with Type 2 diabetes who had to leave work early on occasion because of insulin reactions.  The employee was fired because of an accumulation of attendance points.  Another employee was fired in retaliation for objecting to the attendance policy and filing a charge with the EEOC.

The three other disability claims were described as follows:
1)  Failure to promote a visually impaired employee and denying permission to use a guide dog; Employee awarded $140,000.
2)  Refusal to accommodate a sales manager’s disability by insisting he mop floors, leading to greater injury; Employee awarded $424,000.
3)  Refusal to accommodate a lifting restriction, fired the employee; Proceeding to jury trial.

The EEOC takes all discrimination and retaliation claims very seriously, which common sense would dictate that an employer should do the same.  Conducting a self-audit of policies to ensure they are in compliance with the law and are not discriminating toward any individual or protected class of individuals should be a high priority in most organizations.   As you can see from AutoZone’s examples, one charge is too much – four, well . . . .

 

Source:  www.eeoc.gov

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May 8, 2014

Third-Party Sexual Harassment

Filed under: Compliance,Harrasment,Legal Issues12:54 pm

Many times we think of sexual harassment as ‘quid pro quo’ (this for that) between a supervisor and employee.  However, other forms of sexual harassment can involve coworkers and third-parties and are just as serious for an employer to address.  Here are a couple scenarios to illustrate how third-parties can affect employees and create a hostile work environment:

Scenario 1:  A financial institution teller has a customer who conducts business weekly at her branch, and insists on only her helping him.  He lingers at her teller window beyond the time it takes to take care of business.  He always makes small talk that becomes too personal and that makes her uncomfortable.  His conversations escalate to him asking her repeatedly to meet him outside of work time.  The teller finds his conversations inappropriate and is upset when he won’t take “no” for an answer.  She now hides in the back room and another employee waits on him as he asks her whereabouts.

Scenario 2:  A retailer has a business relationship with an independent contractor.  The contractor is in and out of the business daily and talks to various individuals in the course of business.  However, the contractor uses foul and slang terminology when referring to African-American female employees, even in their presence and brings one employee to tears.  He discusses openly his sexual liaisons.  Over time, the employee develops depression and anxiety.  She has reported his behavior to management and she has told him directly she doesn’t want him speaking offensively around her. 

Now, the question: Is an employer liable for a third-party harasser (a customer or independent contractor)?  And, the answer: Yes, IF the employer knew or should have known about the harassment and failed to address it and take action.

No doubt as a conscientious employer you have a competent anti-harassment policy in place, including a complaint process and a thorough investigative action plan.  If you do – - kudos to you!  If you don’t – - please contact HRN and we will help you with your policy!

 

Source:  Meyer, Eric B. “What Do You Do When Your Contractor Is a Sexual Harasser?”

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April 17, 2014

Put Me in Coach, Or I Will File a Union Grievance

Filed under: Legal Issues,Unions/NLRB3:52 pm

A regional office of the National Labor Relations Board (NLRB) has ruled that the football players of Northwestern University actually are employees and should be allowed to form a union. The key question was whether the athletes perform services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. The NLRB office based its ruling on the fact that the college players received a substantial economic benefit (scholarships) for playing football – a revenue-generating sport – and are subject to the college’s control (team rules, practice schedules). The NLRB regional office distinguished graduate assistants (earlier ruled to be students, not employees) “because the players’ football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.” Northwestern has said it will appeal the adverse ruling to the full NLRB and thereafter to the courts as needed. Thus, this case likely will not be finally resolved for several years.

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April 10, 2014

Supreme Court Expands SOX Whistleblower Protection

Filed under: Compliance,Legal Issues6:00 am

In a recent decision, the United States Supreme Court extended the circumstances in which an employer can possibly be held liable for retaliation against whistleblowers. The Sarbanes-Oxley (SOX) law passed in the early 2000s prohibits publicly-traded companies from retaliation against whistleblowers who report corporate fraud. The case before the Supreme Court involved the question of whether the law’s anti-retaliation provisions would also apply to a private company which performed contract or subcontract work for a publicly-traded company. The court held that the word “employee” under the relevant SOX provision could be construed to protect employees of such contractors and subcontractors, thus expanding the reach of the SOX whistleblower law.

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