I have been watching, with interest and trepidation, the Baltimore City Council’s proposal to raise the minimum wage in the City to $15/hour by 2022. While I certainly understand the desire to “share the wealth” and to ensure a decent living standard, as several Council members have stated, I am very concerned about the unintended consequences of this well-meaning action – particularly on non-profit organizations. Continue Reading Thoughts on the Fight for Fifteen from a Management Lawyer
As I discussed in a blog last month, the Trump Administration rescinded joint Department of Justice (DOJ) and Department of Education (DOE) guidance (a “Dear Colleague” letter) that had been issued under the Obama Administration on how the agencies interpret Title IX (the non-discrimination law that applies to schools and students) in the context of bathroom use by transgender students. The guidance had stated that transgender students should be allowed to use the gender-specific bathroom consistent with their stated gender identity. The rescission of this guidance occurred just weeks before the Supreme Court of the United States was scheduled to hear oral arguments in the Gloucester County School Board v. G.G. (Gavin Grimm) case this month. Continue Reading Supreme Court Kicks Transgender Case Back – What Does This Mean for Employers?
We are all watching and reading how Uber is responding to yet the latest scandal and legal problem to confront the on-demand ride service giant. About a week ago, a former Uber employee, Susan Fowler, posted a blog about why she left Uber last December. Susan alleges (and these are only allegations at this point) that during her one year at Uber as an engineer, she was subject to harassment and a rampant sexist culture at Uber, and when she complained, Uber did nothing. Continue Reading What Does the Ex-Uber Employee’s Blog Teach Employers about the Power of Social Media?
Yesterday, February 22, 2017, the Trump Administration rescinded Department of Justice (DOJ) and Department of Education (DOE) guidance that had been issued to schools on May 13, 2016 in the form of a “Dear Colleague” letter. The letter stated that it was the DOJ’s and DOE’s interpretation of Title IX (the federal law prohibiting sex discrimination in education) that schools must allow transgender students to use the gender-specific bathroom with which they identify and that schools could not force students to use bathrooms based on their biological sex. The DOJ and DOE stated that schools that did not follow the guidance could risk losing federal funding. Continue Reading Trump Administration Rescinds Transgender Student Guidance – What Does This Mean for Employers?
As an employment litigator, I have repeatedly emphasized to my clients the need to get signed agreements, acknowledgements, and authorizations from employees. From a legal standpoint, these signed documents provide legal certainty (and frequently an absolute defense) to certain employee interactions and claims. For example, if an employee contends that she was unaware of the complaint procedure for a harassment claim, waving her signed acknowledgement form for the handbook that contains that procedure in front of her is a pretty stellar defense (and quite satisfying)! It’s hard for someone to repudiate their own handwritten “John Hancock.” Continue Reading Electronic Signatures v. Handwritten Signatures
This week, the United States Citizenship and Immigration Services (USCIS) published an updated I-9 Form on its website, which can be accessed here.
The Immigration Reform and Control Act prohibits employers from hiring people without first identifying their identity and employment authorization. The I-9 Form is the mechanism to achieve that. Employers are required to complete the I-9 Form within three days of the first day of work for all new hires.
By January 22, 2017, all employers will need to be using the revised form for all new hires. Until then, employers can either continue to use the current version, which is dated 03/08/2013, or they can use the new version. The version date is located at the bottom left corner of the form.
Here’s a seasonally appropriate horror story for employers.
As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:
moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.
The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc. Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion
Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includes discrimination based on a person’s gender.
The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer. In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man. He also started using the men’s bathroom at work. Co-workers in turn complained that a woman was using the men’s bathroom. A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.” When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change. Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII
As I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC
Following my post last week on the EEOC’s latest pronouncement on independent contractor status, it seemed appropriate to follow up with the National Labor Relations Board’s most recent activity on this issue. The Board’s Office of the General Counsel (OGC) released an advice memorandum in which it first reviews the Board’s test for independent contractor status (which is, of course, different than that of the EEOC) and then goes on to assert that the misclassification of employees as independent contractors is a violation of the National Labor Relations Act. (Curiously, it appears that the OGC actually issued the memo in a pending case, Pacific 9 Transportation Inc., back on December 18, 2015, but it only recently released it to the public on August 26, 2016. I suppose that the Board realized that this is an issue of significant interest to employers!) Continue Reading NLRB on Independent Contractor Status