Wyatt Employment Law Report


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President Signs Executive Order Prohibiting Discrimination Based on Sexual Orientation or Gender Identity

By Edwin S. Hopson

On July 21, 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.

The Executive Order is an amendment to Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965, and enforced by the Labor Department’s Office of Federal Contractor Compliance Programs.

Commenting on his action, “…the President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.”

For more information about Executive Order 11246, see:

http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm


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Employers Beware: The Lateral Transfer Of An Employee Can Be An Adverse Employment Action

by Michael D. Hornback

On January 14, 2014, the U.S. Court of Appeals for the Sixth Circuit reversed a grant of summary judgment in favor of the employer, finding that a jury should determine whether the lateral transfer of an employee constituted an adverse employment action. Continue reading


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Court Upholds Large Judgment Against EEOC For Bringing Frivolous Lawsuit

By Edwin S. Hopson

The U.S. Court of Appeals for the Sixth Circuit in EEOC v. Peoplemark, ___ F3rd ___, No. 11-2582 (2013) recently affirmed a judgment against the U.S. Equal Employment Opportunity Commission in the sum of $751,942 for attorney fees and costs sought by Peoplemark, which claimed that EEOC’s action brought against it was frivolous.  The Court of Appeals, in a 2-1 decision, agreed that EEOC’s claim that the company had a policy of denying employment to convicted felons and that it was unlawful and had a disparate impact on African-Americans lacked merit and was frivolous.  The company early on in the process had established that it had in fact hired convicted felons.  It would not be surprising if the EEOC sought review of this decision by the U.S. Supreme Court.

The Court of Appeals decision can be found at:

http://www.ca6.uscourts.gov/opinions.pdf/13a0291p-06.pdf


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New I-9 Forms Must Now Be Used, Starting Today, According to USCIS

By Glen M. Krebs

The U.S. Citizenship and Immigration Services (USCIS) is reminding all employers that beginning today, May 7, 2013, they must start using the revised Form I-9, Employment Eligibility Verification (Revision 03/08/13)N for all new hires and reverifications.

All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States.

Note: the revision date for the new Form I-9 is printed on the lower left corner of the form. Also, employers need not and should not complete a new Form I-9 for existing employees if a properly completed Form I-9 is on file.

USCIS advises that a Spanish version of Form I-9 (revision 03/08/13)N is available on its website for use in Puerto Rico only.  Spanish-speaking employers and employees in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version for reference, but must complete and retain the English version of the I-9 form.

The revised forms are available at www.uscis.gov/I-9. And for more information, you may call 888-464-4218. Government representatives are available Monday through Friday, from 8 a.m. to 5 p.m.  USCIS also maintains a website, I-9 Central, to support Form I-9 users.

To order forms, you can contact USCIS at 1-800-870-3676. For free downloadable forms and information on USCIS programs, immigration laws, regulations, and procedures, you can visit www.uscis.gov.

 


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Religion in the Workplace: How to Accommodate

By Emily C. Lamb

The end of the year is a time of joy and celebration as much of the American workforce observes one or more of the religious holidays.  Yet employers sometimes struggle as to how to celebrate these holidays while recognizing the diversity of religious beliefs.  As the holiday season rolls into full swing, it is particularly important for employers to remember their obligation to accommodate employees’ requests to observe religious practices. 

Both Federal and state law make it unlawful for employees to discriminate against employees on the basis of religion.  “Religion” includes all aspects of religious observance, practice, and beliefs.  It includes not only traditionally recognized religions, but also unorganized religions and non-traditional belief systems.  Employers must make reasonable accommodations to the sincerely held religious beliefs of employees when the accommodations can be made without undue hardship.  In other words, an employer must accommodate an employee’s religious beliefs unless the employer can show that the accommodation request imposes more than minimal cost to the operation of the employer’s business.   

One commonly recognized reasonable accommodation is granting employees time off for religious observances.  While many employers in the United States provide time off for the traditional Christian holidays, the ever growing diversity of the American workforce means that employers need to be able to accommodate a variety of religious beliefs and practices.  This means that employers should adopt a more flexible attitude towards employees whose religious beliefs don’t coincide with a traditional work schedule.

One approach is to use “floating holidays,” which allow employees to take paid time off for holidays that are not included on the company calendar.  Another approach is to permit employees to work calendared holidays in exchange for paid days off to celebrate non-calendared religious holidays.  A third and increasingly popular option is the use of paid time off.  This highly flexible approach gives employees a set number of hours of paid leave which the employees may use for any reason, including holidays.

Religious observance requests are not necessarily limited to time off of work.  They may include a variety of requests ranging from exceptions to dress code standards, modifications of work schedules, and authorization of various expressions of religion in the workplace such as the display of religious symbols.  As with requests for time off, employers should remain flexible and make reasonable accommodations to the religious needs of employees where such accommodations can be made without undue hardship.

Employers always need to be mindful of all requests for religious accommodation.  This is especially important during this time of year when employers are likely to make requests to observe an array of religious holidays.  By remaining flexible and engaging with employees to determine how to best accommodate employees’ requests while maintaining a successful work environment, employers can fulfill their legal obligations while enabling their employees to fully celebrate the holiday season.

 


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NLRB General Counsel’s Office Approves Two Employment-At-Will Policies

By George J. Miller
 
In July of this year I posted on this blog that the NLRB’s Acting General Counsel is beginning to scrutinize employers’ at-will employment policies.  At that time I reported about an NLRB administrative law judge’s decision that an at-will policy which said that the at-will relationship could never be altered violated the National Labor Relations Act (NLRA), because employees could reasonably construe it to prohibit them from exercising their right under the NLRA to attempt to obtain union representation and negotiate a collective bargaining agreement or otherwise to advocate concertedly for a change in the at-will relationship.
 
On October 31st, NLRB Acting General Counsel Lafe Solomon released two memoranda from his office’s Division of Advice which analyze at-will employment clauses in two employee handbooks and find that both are lawful under the NLRA.  Together with the earlier case, they provide a guide for employers on how to write these policies so that they will withstand NLRB scrutiny. In the handbook of trucking company Rocha Transportation, the clause advised drivers that their employment is at-will and may be terminated at any time.  It said that, “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.”  It continued: “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that they were prohibited from exercising their NLRA rights.The other memo concerned a case involving Mimi’s Café in Casa Grande, Arizona.  The Teammate Handbook description of at-will employment at Mimi’s Cafe’ includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.

According to an NLRB press release, “[t]he Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently.”  The press release concluded:  “Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.”

Any non-union company which has an employee handbook and might find itself the target of a union organizing campaign should carefully scrutinize any and all at-will policies in the handbook.  If a union organizing campaign begins, it is certain that the union will review the employee handbook and will file an unfair labor practice charge at the NLRB if the at-will policy is improperly worded.  Other policies which are vulnerable to attack are confidentiality, social media, union-free, off duty access to property, no solicitation/no distribution, conflicts of interest and outside employment.  Unlawful policies must be rescinded or reworded, and employers must notify employees in writing that they have done so, that they will not maintain or enforce such unlawful policies, and that they will not violate the NLRA in any like or related manner.  Thus, if the union is successful in attacking these policies, that could bolster their image in the eyes of the employees and influence the outcome of the organizing campaign. 

 


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“But-For” Causation Standard Applies To Claims Under The Americans With Disabilities Act

By Leila G. O’Carra

Since 1995, a plaintiff making an ADA claim in the Sixth Circuit could succeed only by proving that an employer based an adverse decision “solely” on the plaintiff’s disability.  That changed on May 25, 2012, with the Sixth Circuit’s opinion in Lewis v. Humboldt Acquisition Corporation, Inc., Case No. 09-6381, reducing the plaintiff’s burden from “sole factor” to “but-for” causation. 

Plaintiff Susan Lewisworked as a registered nurse for Humboldt Manor Nursing Home (“Humboldt”).  According to Lewis, about a year after Humboldt hired her, she developed a condition that affected her ability to walk and required her occasional use of a wheelchair. Humboldt fired Lewis in March 2006, because, Humboldt alleged, Lewis had an “outburst” at work, yelling and criticizing her supervisors. Lewis claimed that the real reason for the termination was her disability, and she filed suit in the United States District Court for the Western District of Tennessee.

On the plaintiff’s ADA claim, the district court instructed the jury that Lewis could recover only if her disability was the “sole reason” for her termination.  The jury found for the defendant, concluding that Humboldt considered factors other than Lewis’s disability, and Lewis appealed. 

On appeal, Lewis argued that the district court should have instructed the jury to find in her favor if she proved that her disability was a “motivating factor” in Humboldt’s decision.  Under a “motivating factor” analysis, a plaintiff may succeed at trial upon proving that her disability was one factor that the employer considered, even though the employer also had legitimate reasons for firing her.  In contrast, the “sole factor” standard used by the district court required Lewis to prove that her disability was the only reason for Humboldt’s termination decision.  A panel of the Sixth Circuit upheld the district court’s use of the “sole factor” standard, explaining that it was bound by precedent, but invited Lewis to seek rehearing en banc, strongly suggesting that the full Sixth Circuit would reverse the district court’s decision.  Lewis v. Humboldt Acquisition Corporation, Inc., 634 F.3d 879, 881 at n. 4 (6th Cir. 2011) (“Of course, after this panel issues its opinion,Lewis may still move for rehearing en banc…”).  And that is exactly what happened.

Writing for the majority, Judge Sutton explained: “The longer we have stood by [the “sole factor”] standard, the more out of touch it has become with the standards used by our sister circuits.  At this point, no other circuit imports the ‘solely’ test into the ADA.”  Upon rejecting the “sole factor” test, the Court was left with the question of what standard of proof  to apply in ADAcases.  Relying on the reasoning in the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), the Sixth Circuit held that “[t]he ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.”

While the Court unanimously rejected the “solely” standard, seven of the sixteen judges that heard the case would have applied a “motivating factor” standard to ADA claims, rather than the more onerous “but-for” standard endorsed by the majority of the Court.  One of the proponents of the “motivating factor” standard, Judge Stranch, wrote in a footnote that “this case is about the ADA language prior to the Congressional revisions in 2008.  Thus, only the pre-2008 statute is before this Court…[and] any conclusions offered on the current ADA are dicta.” Judge Stranch’s observation may be her attempt to limit the majority’s holding and leave the door open for application of the “motivating factor” standard to the current version of the ADA. 

In Lewis’s wake, employers in the Sixth Circuit must be mindful of the new “but-for” standard of proof, and the potential for an even more plaintiff-friendly “motivating factor” standard, when making decisions regarding litigation and settlement of ADA claims. 

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