Fiona W. Ong

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So as Halloween approaches, a recent religious accommodations case involving the “mark of the beast” seemed seasonally appropriate.

For those of you not so familiar with the Bible, the Book of Revelation tells the story of a satanic beast that comes out of the earth and forces all humans to worship another beast coming from the sea. The worshipers are marked on their right hands or their foreheads with the number “666” – i.e. the “mark of the beast.”Mark of the Beast

Several years ago, a client implemented a biometric timekeeping system, which used a hand scanning procedure. One of the employees objected to using the new system on religious grounds, based on his fear that the system would either imprint or reveal the mark of the beast (it wasn’t terribly clear exactly what the concern was). My partner, Mike McGuire, noted that the mark appears on the right hand, however, and the employee could simply use his left hand on the scanner. Well, that seemed to fix the problem – a pretty simple solution, wasn’t it?

Unfortunately, it didn’t work out so easily for another company – Consol Energy. In that case, an employee who was an Evangelical Christian objected to the biometric scanning system for the same reasons as our client’s employee. Consol actually provided a letter to the employee from the company that made the system, explaining that the Book of Revelation specifies that the mark will appear only on the right hand (or forehead), and therefore the left hand may be used for scanning purposes.Continue Reading Religious Accommodations – A Beastly Concern

There’s a part of me that thoroughly enjoys a smackdown between government agencies. (The other part of me is screaming at the government inefficiency and waste of my tax dollars). Here’s a good one.

As most of you know, the U.S. Department of Labor released its proposed revisions to the overtime regulations under the Fair Labor Standards Act. The current regulations set forth three tests for exempt status: (1) the employee must be paid on a salary basis; (2) the salary threshold must be at least $455 per week ($23,660 per year); and (3) the employee must meet duties tests specific to the exemption in questions (executive, administrative or professional). As we discussed (with a highly raised eyebrow) in a previous blog, the proposed regulations contain only one actual change to these tests – an increase in the salary level to over $50,000 per year, with yearly increases thereafter.

The public was invited to submit comments on the proposed regulations – 289,932 individuals and entities took them up on that invitation. One of those was the Small Business Administration – another federal agency. The SBA has an Office of Advocacy, which represents the interests of small businesses before Congress and other federal agencies.Continue Reading Don’t Invite the SBA and the DOL to the Same Party!

As those companies who are required to submit an EEO-1 form know, the extended deadline for the annual submission this year (2015) is coming up soon – October 30 (Normally it’s September 30 each year). Generally speaking, covered employers must report on the form, by establishment/company totals and job group (e.g. first level officials and managers, professionals, administrative support employees, etc.), the number of employees by sex and race or ethnic category. The Equal Employment Opportunity Commission requires most private employers with 100 or more employees to submit the EEO-1 form, while the Office of Federal Contract Compliance Programs requires most government contractors with 50 or more employees and $50,000 or more in federal contracts to submit this form.

Originally on the EEO-1 form, multi-racial employees had to be designated a single racial or ethnic category. For example, an individual who had a Black father and a White mother would have to be identified as solely White or solely Black. In 2005, however, the EEO-1 form was revised to include new racial and ethnic categories, including “Two or More Races.” This change was entirely appropriate in our increasingly multi-racial society, and permitted a more accurate reflection of the racial makeup of a company’s workplace.

But what about sex? There has been a lot of recent media attention to gender identity issues (in case you’ve been living in a cave) – and the choice of gender identity is apparently far broader than I could have possible imagined. As Slate reported, in July, Facebook began allowing its users to self-identify as other than just “male” or “female.” In fact, Slate counted 56 options!!! (Whaaaaat?!!!  Naïve me.) Many of these terms were ones that I had never heard of before – agender/neutrois, gender questioning, intersex, non-binary, pangender, two-spirit….Continue Reading Two or More Genders? Gender Identity and the EEO-1 Form

On Labor Day 2015, President Obama issued an Executive Order that requires certain government contractors and subcontractors to provide up to 7 days of paid sick leave per year. This leave may be used for illness or injury; medical appointments or treatment; caring for an injured or ill family member, or obtaining medical treatment for…

In a long-awaited and split decision, Browning-Ferris Industries of California, Inc., the National Labor Relations Board addressed whether BFI should be deemed a joint employer with the staffing agency whose employees performed various work functions for BFI and, in so doing, the Board revised its 30+-year standard for determining joint employer status. According to the three-member Democratic majority, the new standard in intended “to better effectuate the purposes of the Act in the current economic landscape.” This decision clearly alters the landscape for staffing agencies and host companies utilizing the services of staffing agencies. The two-member Republican minority castigates the new standard as a test that “confuses the definition of a joint employer and will predictably produce broad-based instability in bargaining relationships.”

The Staffing Arrangement Between BFI and Leadpoint

BFI owns and operates a recycling facility. It employs its own employees to operate forklifts and loaders on the outside portion of its facility, where the material to be recycled is delivered, moved around, and staged for processing. These 60 employees are represented by the Teamsters Union and subject to a collective bargaining agreement. Inside the recycling facility are conveyor belts on which the material to be recycled is placed for sorting and screening. A temporary staffing agency, Leadpoint, provides 240 workers to perform the sorting and screening services, as well as housekeeping services for BFI. Leadpoint also provides on-site supervision and lead workers who create the workers’ schedules and oversee the work.

The staffing arrangement between BFI and Leadpoint is typical of the type of arrangement that many companies have with the staffing agencies that they use. Under the staffing agreement, Leadpoint is responsible for the recruiting and hiring of workers, although it must ensure that the workers have the appropriate qualifications to perform BFI’s work. Leadpoint also conducts drug testing, piece-of-the-job testing, and background checks. Leadpoint is responsible for all discipline, evaluation and termination of the workers, but BFI has the authority to order the removal of any worker. Leadpoint sets the wages for its workers, although the agreement specifies that the wages cannot exceed those paid to BFI workers performing similar tasks (of which there was one worker, making $5.00 more per hour). All benefits, including holidays, PTO, and insurance are provided by Leadpoint.Continue Reading NLRB Issues New Joint Employer Standard

So I’ve noticed that the EEOC likes to adopt major policy shifts in sneaky ways.  For example, when the EEOC first decided that pregnancy-related impairments may be disabilities under the amended Americans with Disabilities Act, it didn’t put in the revised regulations, but slid it into the Q&A document on the revised regulations.  When the…

The U.S. Supreme Court’s decision in Obergefell v. Hodges, in which it held that same-sex couples have a constitutional right to marry, made headlines.  This decision has a practical impact on employers – particularly on those with operations in states that to date had not recognized the validity of same-sex marriages.

There are a…