What happens when the religious beliefs of an applicant conflict with your grooming and appearance policy? What if the applicant is seeking a public-facing position in which they will be the first (and only) representative of your organization with whom most members of the public interact? While some employers may believe that “image is everything” when it comes to the appearance of their public-facing employees, a 4.9 million-dollar settlement of a religious discrimination lawsuit announced recently by the U.S. Equal Employment Opportunity Commission (“EEOC”) serves as a stark reminder to employers that even your most straightforward policies may need to be modified in certain situations. As detailed in our June 7, 2018 blog post, the EEOC has been aggressively making good on the promise made in the agency’s Strategic Enforcement Plan for Fiscal Years 2017 – 2021 to focus on “class-based recruitment and hiring practices” that discriminate against people with disabilities by filing a series of lawsuits accusing employers of violating the Americans with Disabilities Act by inquiring about prior medical histories, subjecting applicants to physical capacity tests and refusing to hire individuals who disclosed certain conditions. The agency’s Strategic Enforcement Plan similarly committed to rooting out religious barriers to employment. This is important because while many employers readily understand the need to reasonably accommodate disabled applicants and employees, it seems that some employers fail to grasp that they may also have to accommodate religious beliefs and practices of applicants and employees.
What the Law Requires
Title VII requires that employers, once informed that a religious accommodation is needed, accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. If an employer’s dress and grooming policy conflicts with an employee’s known religious beliefs or practices, the EEOC expects Continue reading
On Wednesday, February 20, 2019, at 1 pm EST, join Kara M. Maciel and Lindsay A. DiSalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: #MeToo Movement Update: Practical Strategies for Training, Investigations, and Discipline.
In 2017, we saw the proliferation of the #MeToo Movement with a slew of high-profile allegations of sexual harassment and assault and tens of thousands of people, mostly women, voicing their own experiences on social media using the hashtag “MeToo”. Its momentum continued into 2018, with more people coming forward to make allegations of sexual assault and harassment and the Movement’s purpose becoming an even more prominent and influential topic of discourse. Its significance and impact has not slowed and its influence and impact is likely to be felt into 2019 and beyond. So, what does this mean for employers?
In the wake of the #MeToo Movement, the amount of sexual harassment claims filed with the EEOC increased by almost 14% in FY 2018 versus FY 2017. In addition, the EEOC filed 66 harassment lawsuits against employers in FY 2018, which is more than a 50% increase in EEOC suits challenging sexual harassment compared to FY 2017. Thus, it is more important than ever for employers to ensure they are effectively preventing and addressing sexual harassment in the work environment through their policies, training, and investigative procedures.
Participants will learn about the following:
- The legal standards for sexual harassment and their nuances
- Elements of an anti-harassment policy and complaint procedure
- Elements of a sexual harassment training program
- Best Practices for investigating complaints of sexual harassment
- Recommendations for how to respond to sexually harassing conduct
Click here to register for this webinar.
Cybersecurity and digital threats were a hot topic at ALIS Law, a conference for hotel owners and operators, in Los Angeles last month. I had a pleasure of moderating a session on “threats in a digital world” with senior executives from national hotel management and ownership groups. In our session, we discussed what were some of the pressing and most concerning digital threats that kept the hospitality industry up at night. Here are some highlights and take-aways from the session:
- Cybersecurity and hacks from foreign and domestic threats remain a top concern. Many hotels have been engaging in surveillance as one method of cyber protection. It was noted how much the investment in technology to prevent, address, and respond to cybersecurity issues has increased for both owners and operators. While owners may bear the cost on their profit & loss statement, and management companies are putting in policies, owners are adding property specific monitoring. It was discussed that one global hotel company, Hyatt Hotels, recently announced a bug bounty program whereby they will be paying ethical hackers to monitor their systems, including mobile applications, for potential risks and where credible risks or threats are found – the hackers will be compensated – which is a novel approach in the hospitality industry.
- While cybersecurity threats have been a focus, one repeated concern is the threat of harm to a hotel’s reputation due to guests and third parties spreading false information on social media sites, such as LinkedIn, Yelp, and Trip Advisor. To address these concerns, hotel operators talk with their teams daily about the consequences of false information or a bad review and take steps to remove false reviews if possible. Others noted that removing a false review from a site like Trip Advisor can be challenging unless the company is able to prove that the review was posted for criminal reasons or demonstratively false.
- One consequence of a cybersecurity hack beyond the disclosure of guest information is if a hacker was able to secure personal identifiable information of a hotel company’s investors and borrowers. If investors are concerned that a hotel company is not protecting their highly confidential and personal financial information, that would have a significant impact on the reputational harm to the company.
- Some of the best practices that owner and operators have put into place is an incident response plan to respond to a threat. In doing so, a key question is who you need at the table to decide how to move forward (IT / GC / PR / Owner) and what elements do you need to put into place. In addition, implementing policies and procedures on the front end is critical. For example, from an accounting perspective, having controls in place that can protect where the money is going and where it is coming from and ensuring that there are multiple approvals before money is sent out electronically. Finally, training staff on the policies and procedures so that the right people are getting the right information. Managers need to judge and reward staff for compliance with the policies because while a company continue to monitor and audit, training is only effective if compliance is monitored. For example, one company reported conducting more secret shoppers to determine whether someone can drop a flash drive into a front desk computer to tap into the network.
Unfortunately, cybersecurity risks and threats are not going away anytime soon, but with planning and focus on this important issue, hotel owners and operators can get ahead of some of the threats and take control and strong action if a risk materializes.
Last Friday, the National Labor Relations Board (the “Board”) returned to its long-standing independent-contractor standard, reaffirming its adherence to the traditional common-law test. In deciding SuperShuttle DFW, Inc. on January 25, 2019, the Board voted 3-1 along party lines to overturn the 2014 Obama-era ruling in FedEx Home Delivery. In that case, the Board modified the applicable test for determining independent-contractor status by “significantly limit[ing] the importance of [a worker’s] entrepreneurial opportunity.” Specifically, the Board in FedEx created a new factor – “rendering services as part of an independent business” – and made entrepreneurial opportunity merely one aspect of that factor. However, in its Friday decision, the Board found that FedEx impermissibly altered the common-law test, and clarified the essential role entrepreneurial opportunity plays in its determination of independent-contractor status.
In SuperShuttle, the Board analyzed the issue of whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth are employees covered under the National Labor Relations Act (NLRA) or independent contractors. Shuttle van drivers for SuperShuttle sought to unionize at Dallas-Forth Worth airport, but the protections of the NLRA do not extend to independent contractors. The Acting Regional Director, in making her decision before the 2014 FedEx case, applied the traditional common-law test and found that SuperShuttle met its burden in establishing that the franchisees are independent contractors and not employees. After overturning FedEx and applying the common-law test, the Board affirmed the Acting Regional Director’s decision.
To start, the Board explained that the inquiry into whether a worker is an employee or an independent contractor has traditionally depended on the common-law agency test, which involves the application of Continue reading
An important decision issued by the Ninth Circuit Court of Appeals last month once again illustrates the one-sided nature of many withdrawal liability disputes and will likely have significant ramifications for many employers withdrawing from underfunded pension plans. The decision holds that the plan correctly applied a credit for a prior partial withdrawal against the employer’s subsequent complete withdrawal before calculating the twenty-year limitation on annual payments provided by ERISA.
By way of background, withdrawal liability is imposed upon an employer when it withdraws from a multiemployer pension fund, and a withdrawal may be either partial or complete. If an employer incurs a partial withdrawal and subsequently incurs either another partial or a complete withdrawal, ERISA directs that the employer be given a credit for the first partial withdrawal. ERISA also limits an employer’s obligation to twenty years of payments.
In GCIU-Employer Retirement Fund v. Quad Graphics, Inc., the employer incurred a partial withdrawal followed by a complete. In calculating the subsequent complete withdrawal liability, the plan applied Continue reading
On Tuesday, January 22nd, at 1 pm EST, join Andrew J. Sommer and Beeta B. Lashkari of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: California Employment Law Update for 2019: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.“
In the final days of California’s 2018 legislative session, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new laws addressing the #MeToo movement and increased efforts to address harassment and discrimination in the workplace. While many of the new laws impose additional requirements on employers, a few clarify the reach of existing employment laws or carve out exceptions to wage and hour requirements. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and recent court decisions and best practices for avoiding potential employment-related claims.
Participants will learn about the following:
Expanded anti-harassment training requirements covering both supervisory and nonsupervisory employees
Limits on confidentiality of settlement agreements involving certain types of claims for sexual assault, harassment and discrimination
Limits on releasing claims of discrimination and harassment as a condition of employment, continued employment or in exchange for a raise or bonus
Expansion of privilege protections to cover communications with prospective employers about sexual harassment
New training requirements for hotels regarding human trafficking
Clarification of the existing prohibition against considering an applicant’s salary history
Clarification of existing lawmaking construction contractors liable for their subcontractors’ wage violations
New exceptions to meal period requirements for certain motor carriers and rest period requirements for certain employees in the petroleum industry
Temporary carve-out from PAGA liability for construction employees covered by collective bargaining agreements
New requirements concerning lactation accommodations
Significant new court decisions concerning the independent contractor relationship, wage and hour requirements and the enforceability of existing California law prohibiting employers from volunteering personnel information to immigration authorities
Current minimum wage requirements both statewide and on local level
The webinar will also address steps employers can take to achieve compliance including evaluating current personnel practices and updating employee handbooks, employment agreements and training protocol.
Click here to register for this webinar.