EEOC Enters Historic First Settlement in Sexual Orientation Case

Contributed by Carlos Arévalo, July 20, 2016

settlementBack on our March 8, 2016 blog, we reported about two new lawsuits filed by the EEOC based on sexual orientation. On June 28, 2016, the EEOC reached a historic first settlement on one of these lawsuits. In the case against Pallet Companies, doing business as IFCO Systems North America, the EEOC alleged that the company discriminated against a woman by terminating her for complaining about harassment associated with her sexual orientation. Yolanda Boone, a forklift driver at IFCO’s Baltimore plant, complained that her supervisor harassed her by repeatedly making comments about her sexual orientation. This included comments such as “I want to turn you back into a woman,” “I want you to like men again” and “you would look good in a dress.” Despite Boone’s complaints to management, the harassment continued. Following additional complaints to the general manager and HR, Boone was purportedly terminated.

While the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion, it does not explicitly include sexual orientation as a basis.  Nevertheless, the EEOC maintains that harassment based on sexual orientation is covered under the prohibition against discrimination based on sex. To date, no federal appeals court has issued a ruling adopting the EEOC’s approach to sexual discrimination claims involving sexual orientation.  However, cases are pending in the 2nd, 7th and 11th Circuits.

The settlement award includes $7,200 in back pay, $175,000 in damages to Boone, and $20,000 to the Human Rights Campaign, an LGBTQ advocacy group. As part of the settlement, IFCO will also retain an expert to develop workplace training addressing sexual orientation, gender identity and transgender issues in the workplace.

In light of the terms of the settlement, and as we suggested in our earlier blog, employers nation-wide should review and revise their EEO policies to ensure conformance with the EEOC’s enforcement strategy, even if their state does not already protect sexual orientation. Employers should also ensure that management and supervisory employees are trained to identify potential instances of discrimination and harassment based on sexual orientation, and how to address employee complaints relating to sexual orientation as the failure to do so could have severe legal and financial consequences.

EEOC Task Force Identified Risk Factors for Harassment in the Workplace

Contributed by Allison Sues, July 18, 2016

Last month, an EEOC Task Force issued a lengthy report on harassment in the workplace.  The report begins with mention of the prevalence of harassment claims, which appear in almost a full third of the employment discrimination charges that the EEOC received in 2015. Given this, the report recommends that employers reboot their anti-harassment measures. Among other helpful research and advice, the report discusses risk factors that make a workplace more susceptible to harassment, many of which are discussed below:

  • Workforce comprised of many young workers. Those in their first job may not yetjob training, classroom understand appropriate workplace behavior. Reduce this risk by providing orientation to all new employees covering anti-harassment rules and complaint procedures.
  • Workplace where the job requires completion of monotonous or low-intensity tasks. Employees who are not actively engaged may turn to harassing behavior to pass the time. Reduce this risk by considering restructuring job duties to reduce monotony.
  • Isolated workspace. An employee working in an isolated area, such as a housekeeper in an individual hotel room, may become a target for harassment given the lack of witnesses. Reduce this risk by ensuring that employees in isolated areas understand complaint procedures and by creating opportunities for employees to connect with each other to share concerns.
  • Workplace with a culture of alcohol consumption. Workplaces that tolerate or encourage drinking, such as in sales, allow employees to interact with lowered inhibition and impaired judgment. Reduce this risk by training coworkers to intervene if they observe alcohol-related misconduct and by effectuating a process for handling customers who are inebriated and inappropriate.
  • Workforce where some workers do not conform to workplace norms. An employee, such as a lone female working in a male-dominated group, may perceive remarks or humor that is part of the workplace norm as harassing. Reduce this risk by leadership communicating an expected workplace culture of civility, respect, and professionalism.
  • Decentralized workplace.  Local managers may feel unaccountable for their actions or be unsure of how to handle harassment complaints. Reduce this risk by ensuring that compliance training reaches all levels of the organization and by developing systems for employees in geographically diverse locations to connect and communicate.
  • Coarsened social discourse outside of the workplace. A community’s heated discussion of current events involving a particular protected group may impact treatment toward that protected group in the workplace. Reduce this risk by proactively identifying current events that are likely to be discussed in the workplace and reminding employees of the type of conduct that is unacceptable.

In addition to the risk reduction strategies discussed above, an employer may minimize its vulnerability to harassment simply by assessing its workplace for each risk factor and then paying closer attention to the relations of the implicated work groups. Proactive employers should use these risk factors as helpful starting points for conducting anti-harassment training and in monitoring their workplace for potential harassment.

 

OSHA to Delay Enforcement of Electronic Recordkeeping Rule Until November 1, 2016

Contributed by Jonathon Hoag, July 14, 16

This is an update to our July 6, 2016 post regarding OSHA’s plan to enforce new rules concerning post-accident drug and alcohol testing.  In response to a lawsuit filed to block the August 10th implementation of OSHA’s new electronic recordkeeping rule (including the limits on post-accident drug and alcohol testing), OSHA announced yesterday that it will delay enforcement until November 1, 2016. There is no indication that OSHA will back away from its new stance on post-accident drug and alcohol testing, but enforcement will not begin until November 1, 2016.

The NLRB’s Latest Target? Dress Codes and Already Rescinded Policies

Contributed by Suzanne Newcomb, July 13, 2016

The Federal Court of Appeals for the First Circuit recently upheld a National Labor Relations Board decision finding a car dealership’s dress code ban on “pins, insignias, and message clothing” was, in and of itself, an unfair labor practice. The case is another in a long line of NLRB decisions striking down policies as unfair labor practices because, the board claims, employees might interpret them as infringing upon their right to unionize or engage in other concerted activity protected by Section 7 of the National Labor Relations Act.

The board concluded the dealership’s interest in maintaining its public image did not justify the outright ban. Adding insult to injury, the Board found a second violation for the dealership’s failure to properly repudiate overly restrictive policies contained in an earlier version of its handbook.

Employee handbookThe NLRB had earlier challenged several provisions in the dealership’s handbook. The dealership worked closely with the NLRB to draft new NLRA-compliant policies and issued a whole new handbook. In fact, the NLRB’s own General Counsel stipulated that, with the exception of the dress code policy, the new handbook was NLRA-compliant. So, even though the employer rescinded the offending policies and replaced them with policies the NLRB explicitly approved, the employer was still found to have engaged in an unfair labor practice because it had previously maintained policies the Board viewed as overly restrictive and the employer did not properly repudiate those policies.

The Board ordered the employer to issue a notice that specifically addressed the policies it found to be unlawful, advised employees of their Section 7 rights, and assured employees there would be no future interference with those rights. The Federal Appeals Court upheld the Board’s ruling, concluding that to be relieved of liability for unlawfully restrictive policies, even policies that have since been discontinued or appropriately revised, an employer must “signal unambiguously to employees that it recognizes it has acted wrongfully, that it respects their Section 7 rights, and that it will not interfere with those rights again.”

Notably, no employees were alleged to have actually suffered discipline or any other adverse action under the ban. The policies alone formed the basis for finding the employer liable for two distinct unfair labor practices.

In light of the NLRB’s aggressive approach, employers are again reminded to review handbooks and employment policies regularly. Anything the Board believes employees could reasonably interpret as improperly constraining Section 7 activity could form the basis for an unfair labor charge. If any of your policies are questionable, consult legal counsel to determine how best to revise those policies to bring them into compliance and, if necessary, to devise a strategy to effectively repudiate any policies that run afoul of the Board’s broad interpretation of Section 7 rights.

NLRB Rules Temp Workers and Regular Employees May Be Organized In Single Bargaining Unit Without Employers’ Consent

Contributed by Julie Proscia, July 11, 2016

In a 3-1 decision the National Labor Relations Board made it easier to organize a company with a contingent workforce. Today’s Board decision returned to the rule established in M.B. Sturgis, Inc., 331 NLRB 1298 (2000) (“Sturgis”), reversing Oakwood Care Center, 343 NLRB 659 (2004) (“Oakwood”) thereby holding that employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employer.

So what does this mean?

Under the newly resurrected Sturgis standard temporary employees can once again be included in a single bargaining unit, with regular employees, if:

(1) The staffing agency and the employer are determined to be joint employers, and

(2) the temporary employees shared a community of interest (e.g., similar working conditions, similar skills, functions, wage and benefit packages, and common supervision) with the company’s regular employees.

Under the Sturgis standard there is no requirement of a finding of joint employment for all employees in the bargaining unit. Rather under the Sturgis standard unions are allowed to organize both joint-employer and single-employer employees into a single bargaining unit when at least some of the impacted employees were jointly employed.

This newly resurrected rule is a departure from the NLRB standard that allowed a union to organize only if both the employer and the staffing agency consent. The resurgence of the Sturgis standard is part of a trend at the NLRB to expand the “joint employer” doctrine and increase the organization of separate businesses that are interrelated.

Employers should take care in their selection of staffing companies and be cognizant that a contingent workforce does not necessarily mean a union free workforce.

POST-ACCIDENT DRUG & ALCOHOL TESTING: A VIOLATION OF OSHA???

Contributed by Jonathon Hoag, July 6, 2016

As we previously reported, the August 10, 2016 effective date for OSHA’s final electronic reporting rule is quickly approaching. The requirement to electronically submit data does not begin until 2017, but an important part of this rulemaking that goes into effect August 10, 2016 is the requirement for employers to implement a reasonable procedure to ensure accurate reporting of illnesses and injuries. The concern about possible underreporting was highlighted during the rulemaking process and post-accident drug and alcohol testing was specifically targeted as an area which could deter accurate reporting of injuries. The preamble to OSHA’s final rule on electronic reporting states that blanket post-accident drug and alcohol testing policies deter accurate reporting and may constitute retaliation for reporting an injury.

Injured personIronically, employers have a long-standing practice of implementing post-accident drug and alcohol testing policies to promote safety and reduce workplace accidents. Now, OSHA suggests that post-accident testing policies might lead to OSHA violations. OSHA’s current stance is that blanket post-incident drug testing policies deter proper reporting. OSHA advises that drug testing policies should be revised to only require post-incident testing to situations in which employee drug or alcohol use is likely to have contributed to the incident and for which the test can accurately identify impairment. To muddy the waters further, OSHA explained that employers do not need to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury before requiring the employee to test. OSHA then added that drug testing that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

The only certain guidance OSHA provided on post-incident testing is that if the employer is required to test to comply with state or federal law, the testing policy is not prohibited by its final rule. However, if post-accident testing is not required by state or federal law, employers should expect that use of such testing will now be open to challenge and possibly subject to an OSHA violation. OSHA penalties are set to increase August 1, 2016, so this seemingly minor change to enforcement practices might result in significant penalties to employers.

Save the Date! August 4th Webinar: Managing Employee Medical Issues & Reducing Workers’ Compensation Exposures

Are you doing all you can to protect your company from workers’ compensation exposure?

Join us for the next installment of our quarterly labor and employment series on Thursday, August 4 at 12:00 pm CT where we will cover how to reduce workers compensation exposure and provide valuable insight and best practices for business owners, human resources professionals, and attorneys operating in an increasingly regulated and litigious environment.

Specific topics to be covered include:

  • Accident reporting and claim management
  • Interaction with the FMLA, ADA, and other mandated leaves
  • Avoiding retaliation lawsuits
  • Closing claims quickly to control costs

This program will be available via webinar. You can register here.