Author Archives: smithamundsen

California Amendments on Hairstyle-Related Discrimination Will Likely Have Broader Effect

Contributed by Steven Jados, July 19, 2019

Wooden judge gavel with USA state flag on sound block – California

The state of California recently passed legislation that amends the definition of race under the California Fair Employment and Housing Act (the California State statute that prohibits employment discrimination, among other things) to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”  The legislation defines “protective hairstyles” to include, without limitation, hairstyles such as “braids, locks, and twists.”  In passing this legislation, California’s Legislature made clear that the amendment was directed toward addressing persistent, racist norms that certain hairstyles associated with black people are inferior or unprofessional. The amendment is effective January 1, 2020, and several other states are considering similar measures. 

Along similar lines, the New York City Commission on Human Rights issued lengthy legal enforcement guidance relating to hair grooming policies earlier this year. The NYC Commission’s guidance provides an extensive discussion of natural hair textures and hairstyles associated with black people, and the various ways in which discrimination based on hair textures and hairstyles has occurred in the past and present.   

All of this is significant to employers, nation-wide, because even though the jurisdictions that have expressly recognized hairstyle discrimination as a form of race discrimination are limited, courts and governmental agencies across the country are likely to accept hairstyle discrimination as a cognizable theory of discrimination–particularly as more and more light is shed on this issue through actions like those of the California Legislature and the NYC Commission.  

With that in mind, employers must ensure that their managers and decision-makers are aware of this issue, and trained to ensure that discrimination based on hair textures and hairstyles associated with particular races, religions, and other legally-protected categories of employees does not occur.  It is also critical for employers to examine their grooming and dress code policies that cover hairstyles to ensure that such policies are strongly rooted in non-speculative safety and health concerns.  Such policies must not have a tendency to discriminate against natural or other hairstyles commonly associated with black people or any other racial or cultural group (e.g., twists, braids, cornrows, Afros, and hair kept in an otherwise natural state). In particular, employers should not impose a “neat and orderly” hair grooming policy if such a policy prohibits, for example, twists or cornrows, under the presumption that such hairstyles are inherently messy or unkempt. 

The take-away for employers is, as the NYC Commission stated, that an “employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”  

ICYMI: Cook County and Chicago Minimum Wages Increased on July 1, 2019

Contributed by Noah A. Frank, Mike Wong, and Sara Zorich

stacked coins showing growth

In case you missed it, on July 1, 2019, the Chicago and Cook County Minimum Wages increased as follows:

·         Chicago: $13.00 per hour for non-tipped employees and $6.40 for tipped employees.

·         O’Hare and Midway Airport Certified Service Providers: $14.10 for non-tipped employees and $7.60 for tipped employees.

·         Cook County: $12.00 per hour for non-tipped and $5.25 for tipped employees.

July 1, 2019 also marks the 2-year anniversary of the implementation of the Cook County and Chicago Paid Sick Leave Ordinances.  While the full details are nuanced, these laws require all companies with a Chicago business license, or physical location or employee who works in Chicago or Cook County to provide up-to 40 hours of job-protected, paid leave (60 hours for employers subject to the FMLA) to employees for certain absences. Employees may accrue up-to 40 hours per benefit year while working in non-opt-out locations, with the right to carry-over some unused leave. Employees may not be required to find their own replacements as a condition for taking leave. Of course, discrimination and retaliation are prohibited.

Employers in municipalities that previously opted-out of the Cook County minimum wage or paid sick leave ordinances initially must stay up-to-date and monitor these laws as they can and do change, especially following an election. For instance, on October 9, 2018, Northbrook voted to repeal its prior opt-out, and so effective January 1, 2019, businesses in Northbrook are required to comply with the Cook County sick leave ordinance. Other municipalities have re-considered the issues over time as well.  Similarly, the state legislature has passed Senate Bill 0001, increasing the Illinois minimum wage as we blogged about in February.  S.B.0001 was signed into law on February 19, 2019 by Governor Pritzker and became PA 101-0001. State wide, Illinois’ minimum wage will increase to $9.25 on January 1, 2020 ($5.55 for tipped employees) and to $10.00 on July 1, 2020 ($6.00 for tipped employees), with regular $1.00 increases each January 1st thereafter until it is $15.00 on January 1, 2025.Employers that are subject to the Cook County or Chicago minimum wage and paid sick leave ordinances should review and make sure that they have the current required poster posted.  The updated poster for the Chicago Minimum Wage ordinance can be found on the City of Chicago website in English, Spanish, Polish and Mandarin; the Paid Sick Leave poster is only available in English.  The Cook County minimum wage and sick leave posters can be found on the Cook County websites and are only in English. Illinois has not updated its minimum wage poster (yet).

Employers that have failed to implement compliant policies, including tracking sick leave accrual or carryover should discuss options with employment counsel to mitigate exposures and minimize risk.

United States Supreme Court Confirms and Limits Court’s Deference to Agency Guidance

Contributed by Allison P. Sues, July 11, 2019

Judge’s Supreme Court gavel with law books

On June 26, 2019, the U.S. Supreme Court confirmed the continued viability of Auer deference, an interpretive doctrine that requires courts to defer to an agency’s reasonable reading of a genuinely ambiguous regulation. In confirming the use of Auer deference, the Supreme Court also narrowed its scope, setting out clear limits to courts’ use of this doctrine. This decision came in the case Kisor v. Wilkie, which involved an ambiguous regulation of a Department of Veteran Affairs rule.  

In affirming Auer deference as a viable interpretive tool for courts to employ when deciding on two readings of a genuinely ambiguous rule, the Court reasoned that Congress generally wants agencies to play the primary role in resolving these questions. As the body that promulgated the rule at issue, the agency is in the best position to know the regulation’s original meaning and possess the expertise needed to interpret rules on specific subject matters. Determining the meaning of an ambiguous rule often requires policy-based judgment calls – a job more appropriate for politically accountable agencies than appointed judges. Finally, deferring to an agency’s interpretation of a rule promotes consistent application of those rules as an agency’s guidance has greater cover than a single district court. 

In confirming the use of Auer deference, the Court was also insistent on its limits. There are several instances in which Auer deference is not warranted. First, the regulation in question must be genuinely ambiguous even after a court has exhausted all of its traditional tools of construction. Second, the agency’s interpretation must be reasonable. Third, the agency’s interpretation must be an “official” or “authoritative” position taken by the agency rather than an ad hoc statement by an agency employee that does not necessarily reflect the agency’s official views. Fourth, the agency’s interpretation must rely on its specific expertise. Finally, the agency’s interpretation must reflect fair, considered, and consistent judgment. 

The Court’s decision in Kisor is a significant one for employers because the DOL and EEOC have issued detailed regulations bearing on various employment statutes, and Courts often look to these regulations in deciphering employment law claims. When the regulation itself does not answer the question, parties may ask the Court to defer to the agency’s guidance on its regulations, be it in the form of a regulatory appendix, compliance manual, or other policy guidance documents or statements. The Supreme Court’s decision in Kisor allows this – but with clear limits. 

Take the Seventh Circuit’s recent decision in Richardson v. Chicago Transit Authority (decided just prior to Kisor but consistent with Kisor’s holdings), which held that obesity is not a disability under the ADA if there is no evidence of an underlying physiological condition. In arguing that his obesity should constitute a disability, the plaintiff pointed to EEOC interpretive guidance that, he contended, indicated that a person has an ADA impairment if his weight is outside of a normal range. The Seventh Circuit held that even if the EEOC guidance did state this, the Court would not defer to the agency’s guidance because it was inconsistent with the text of the regulation. The regulation defined impairment as a “physiological disorder or condition.”  Determining that this regulation was not truly ambiguous, Auer deference was not justified.

So what should employers take away for the Kisor case? Agency guidance, appendixes, and other policy statements should not be ignored. While there are strict limits to the application of Auer deference, courts will continue to defer to an agency’s interpretations of its own rules in certain situations.

NLRB Makes It Easier To Oust a Union

Contributed by Beverly Alfon, July 9, 2019

group of people from different profession stick figure pictogram icons

Did you know that when a private sector employer has evidence that a union has lost support from a majority of its bargaining unit members, the employer can refuse to recognize the union as their bargaining representative?  In 2001, the National Labor Relations Board (NLRB) ruled that employers can unilaterally withdraw recognition from an incumbent union based upon “objective evidence” (typically, a petition signed by at least half of the bargaining unit members indicating that they no longer wished to be represented by a union) that the union has lost majority support (Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001)). This would allow the employer to withdraw recognition effective upon expiration of the collective bargaining agreement and allow the employer to end bargaining over a successor collective bargaining agreement (CBA). This is referred to as “anticipatory” withdrawal of recognition. This remains law – but in a 3-1 decision issued on July 3 (Johnson Controls, N.L.R.B., 10-CA-151843 (7/3/2019)) – the NLRB significantly changed the legal framework around withdrawal of recognition in favor of employers.

Until now, a significant hurdle for most employers who attempted to withdraw recognition from a union is that they would be at great risk for being subjected to an unfair labor practice charge from the union for failure to bargain in good faith. The crux of the problem was that the Board would look at whether or not the union lacked majority status at the time of actual withdrawal.  This allowed the union to covertly gather evidence of “reacquired” majority status (often consisting of signatures from the same members who signed the anti-union petition) between the time of the anticipatory withdrawal and the date of actual withdrawal on the date of contract expiration. The union was not required to show the employer its evidence prior to the effective date of withdrawal – often leaving the employer on the losing end of the charge, facing an order directing it to bargain with the union, and the union insulated from challenges to majority status from six months to a year (and an additional 3 years if an agreement is reached).

The Key Change for Employers

Now, if an employer receives objective evidence of an incumbent union’s loss of majority support (at least 50 percent of the bargaining unit no longer supports the union) no more than 90 calendar days prior to the expiration date of the relevant collective bargaining agreement (CBA), the employer is free to declare an anticipatory withdrawal of recognition from the union, without fear of being charged with an unfair labor practice. The Board “…will no longer consider, in an unfair labor practice case, whether a union has reacquired majority status as of the time recognition was actually withdrawn.” Instead, if the union wishes to re-establish its majority status, the burden falls on the union to file a petition for election within 45 days from the date that an employer gives notice of an anticipatory repudiation — regardless of whether the employer gives notice more than or fewer than 45 days before the contract expires.  The Board will process the petition without regard to whether the parties’ contract is still in force at the time the petition is filed. 

Some Things Stay the Same

It remains that a “good faith reasonable doubt” of majority status will not cut it as “objective evidence” to support an anticipatory withdrawal of recognition. The objective evidence that an employer relies upon to declare an anticipatory withdrawal of recognition must be free of improper influence or assistance from management. A majority of the bargaining unit (50% +1) would still have to vote “no union” during the election in order to oust the union.  Also, incumbent unions still enjoy insulated periods from challenge during which the union enjoys a presumption of majority status: (1) certification bar – up to one year after the NLRB certifies a union as the exclusive bargaining representative of a unit; and (2) contract bar – the first three years of a collective bargaining agreement. 

Bottom Line

In explaining the appropriateness of this new standard, the NLRB stated as follows: “It ends the unsatisfactory process of attempting to resolve conflicting evidence of employees’ sentiments concerning representation in unfair labor practice cases. Instead, such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”  The NLRB further reasoned that the election process generally moves at a faster pace than the ULP process.  Whether or not this shift has a significant impact on the employer’s rate of success in ousting a union remains to be seen. While a significant legal hurdle has been removed, others remain, and navigating this process requires careful planning.   

Nevada & NYC Roll Out Pre-Employment Cannabis Drug Screening Restrictions

Contributed by Noah A. Frank, July 2, 2019

gavel and scales of justice

Pre-employment drug screening for marijuana is starting to create exposure for employers.  In several states, including Connecticut, Maine and Massachusetts, courts have ruled that employees have a valid claim against an employer for terminating or pulling a job offer because the employee tested positive for marijuana during the pre-employment stage, in order to enforce a drug-free workplace policy. In fact, Illinois’ new recreational cannabis law, effective January 1, 2020, infers that employers could face a claim under Illinois’ Workplace Privacy law for doing the same. 

More recently though, Nevada and New York City passed first-of-their-kind laws expressly restricting pre-employment drug screening for marijuana, respectively effective January 1, 2020 and May 10, 2020.  While Nevada’s Assembly Bill 132 prohibits employers from failing or refusing to hire an applicant because a pre-employment drug screen shows the presence of marijuana, NYC’s Int. No. 1445-A prohibits testing for THC and marijuana in the first place. Employers must understand the significant impacts of these laws, and plan accordingly.

Exceptions

Neither law applies to the extent it is inconsistent with a CBA, federal law (including Department of Transportation regulations), or a position funded by Federal funds (reminder: cannabis is still Federally unlawful, even though Congress has curtailed the DOJ’s enforcement of marijuana where lawful for medical (not adult use) purposes and approved extraction of CBD from hemp). Nevada’s law further does not apply if inconsistent with an employment contract; while NYC exempts positions requiring compliance with other NYC and NY State law. 

In Nevada, positive tests can be used to weed out (pun intended) applicants for positions as firefighter and EMT, operators of motor vehicles for which federal or state law require substance testing, and positions that in the determination of the employer could adversely affect the safety of others; an employee tested in the first 30 days of employment can, at his/her own expense, submit to additional screening to rebut an employer’s initial screening. 

NYC permits pre-employment testing for police and other officers; positions requiring a CDL or supervision of children, medical patients, or vulnerable persons; or any position with the potential to significantly impact the health or safety of employees or members of the public – but only as determined by “the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services” or the chairperson. NYC is expected to promulgate further rules.

Penalties

NYC’s law amends its civil rights law, which provides for injunctive relief (e.g., an order to hire the applicant), back pay/front pay, attorneys’ fees, experts’ fees, costs, and civil penalties of $125,000 to $250,000. Though it does not specifically address penalties, Nevada’s law will likely amend its workplace privacy protections for use of a lawful product outside employment, with similar damages to NYC, plus liquidated damages (equal to lost wages and benefits), and as applicable, reinstatement without loss of position, seniority, or benefits.

Not a Total Ban on Pre-Employment Drug Testing

Neither law is a complete ban on pre-employment substance testing — employers may still test for other controlled substances like barbiturates and amphetamines. Note also the jurisdiction-by-jurisdiction at play. To the extent they permit cannabis – whether medical or adult-use – most other jurisdictions are either silent as to pre-employment testing, or implicate prohibitions vis-à-vis privacy laws. There, courts will likely resolve whether pre-employment screening is permitted or prohibited. Notably, courts have historically been pro-employer on this topic, though that could certainly change given the shift in cannabis regulation (and no company wants to be the test case!).

What Employers Must Do

With marijuana regulation in flux, employers must take steps to shore up their employment policies and practices in light of states and local jurisdictions’ growing acceptance of cannabis and employee protections. This includes updating job descriptions to identify safety sensitive positions, drug testing policies and procedures, and training for supervisors and employees. 

Employers must also ensure that their vendors comply with applicable laws and understand the basis/type of test being performed – it is not a guarantee that a vendor will know to appropriately exclude cannabis for pre-employment versus including it for post-accident/reasonable suspicion purposes. Appropriate contracts with risk shifting and backed up by insurance should be considered.

NYC employers may wish to work with regulators to categorically define positions that impact the health and safety of employees and the public. 

Now is the time to have intimate discussions with legal counsel to understand and address these issues.

The Status of Right-to-Work Laws in Select States

Contributed by Suzannah Overholt, June 25, 2019

Illinois recently enacted a Collective Bargaining Freedom Act which bars local governments from establishing “right-to-work” (“RTW”) laws or zones. This most recent piece of legislation serves as a timely reminder of the differing responses by states to the right-to-work movement. 

Section 14(b) of the National Labor Relations Act (NLRA) gives states the discretion to pass laws limiting the ability of unions to collect dues from non-members, commonly referred to as RTW laws. Critics claim that such laws lower wages and benefits. Supporters argue that RTW laws and zones promote free choice by allowing workers to choose whether to financially support unions or not. 

Gavel on white background

Over the past several years states have passed more regulations addressing this issue, resulting in varying regulations from state to state.  In 2012, Indiana became the 23d state to enact a right-to-work law that stated a person could not require an individual to (1) become or remain a member of a union; (2) pay dues, fees or assessments or other charges to a union; or (3) pay a charity or third party an amount equal to or a pro rata amount of dues, fees, assessments or other charges for a union. Indiana Code 22-6-6-8. The law, codified at Indiana Code 22-6-6, et seq., applies to public and private sector employees and creates a mechanism for filing complaints with the Indiana attorney general, department of labor, or prosecuting attorney of the county in which the individual making the complaint is employed. A knowing violation is a Class A misdemeanor, and an individual who allegedly sustains an injury due to a violation may file a civil action. Indiana’s law has been upheld by both the Indiana Supreme Court  and the Seventh Circuit Court of Appeals.

In 2015, Wisconsin followed in Indiana’s footsteps, passing a law barring mandatory union membership and prohibiting unions or employers from requiring non-members to pay dues.  Wisconsin’s law was also challenged and upheld in both state and federal court.  (The aspect of the law changing the period in which an employee’s authorization for dues deductions is deemed irrevocable was found to be pre-empted by federal law.) The law, codified at Wisconsin Code 111.04, et seq., makes a violation an unfair labor practice.  

As we explained in our prior post, in 2018, the United States Supreme Court weighed in on the issue in Janus v. AFSCME. In that case, the Court overturned a prior Illinois law that required public sector, non-union employees to pay union dues.

llinois’ most recent law, signed in April, prohibits local right-to-work ordinances and imposes penalties for violations.  The law was passed in response to an ordinance passed by the town of Lincolnshire in 2015. Whether local governments may adopt such ordinances is not clear. The Seventh Circuit Court of Appeals struck down the Village of Lincolnshire’s RTW ordinance that prohibited any requirement that private sector workers join a union or compensate a union in order to keep their job in a unionized workforce or that employees be recommended, approved, referred or cleared for employment by or through a union. The Lincolnshire ordinance was headed to the Supreme Court for review, but the Court has now declined to hear the case.  

Like Illinois, Missouri has taken action against right-to-work measures.  In 2017, Missouri’s legislature passed a bill that would have allowed private sector workers to opt out of paying union dues.  However, a coalition of labor groups petitioned to put the measure to a vote, and it was defeated in a voter referendum the next year.   We will continue to monitor this evolving area of the law and provide any necessary updates.

The Debate on Age Bias in a Hot Jobs Market

Contributed by Michael Faley, June 19, 2019

book with chapter age discrimination and a gavel.

The New York Times recently published an article discussing trends in the area of unlawful age discrimination occurring at a time when the U.S. has the lowest unemployment rate in half a century. New York Times writer Patricia Cohen details, how despite a scramble to lure applicants to alleviate a massive shortage of workers, many workers over 50, and now even over 40, appear to find that they are considered too old for a new position. The allegations of age discrimination have unleashed a wave of litigation. Notably, in a settlement with various plaintiffs groups, Facebook agreed to remove the ability of advertisers to screen out minority groups, women and older groups from seeing particular job listings. 

However, age discrimination is difficult to prove and litigation costs are high. The United States Court of Appeals for the Seventh Circuit recently ruled in a case titled Kleber v. CareFusion Corp.that some recruiting practices that very likely have the effect of screening out older applicants, such as ads that cap an applicant’s experience (say, for example, “3 to 7 years of experience”), do not violate the law. In legal terms, the Seventh Circuit held that the federal Age Discrimination in Employment Act’s (ADEA) disparate impact protections that typically shield older workers against the unfair effects of otherwise neutral practices do not apply to outside job applicants. The plaintiff in Kleber has requested that the U.S. Supreme Court review the case.       

For employers on the hunt for talent in the current market, it helps to stay focused on the applicant’s talent, skills and relevant job experience. With very limited exception, job postings should be age-neutral and requests for birthdays and graduation/degree years should be eliminated from application forms. Practices and phrases that have come under scrutiny in job postings and recruiting materials include using ad targeting tools to limit the age range of individuals that see the ad, using phrases such as “new graduates” or “recent graduates,” and having materials only showing younger employees. Additionally, all employees involved in the hiring process should be trained on age discrimination laws, and ensure that hiring criteria do not directly or indirectly exclude older workers. Lastly, if in doubt, it is always best to seek advice from legal counsel to help put a good process in place and to provide guidance and representation when problems occur.