Expert Panelists Testify Before EEOC on “Revamping Workplace Culture to Prevent Harassment”

shutterstock_me tooOn October 31, 2018, roughly one year after the beginning of the #MeToo movement, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting at agency headquarters in Washington, D.C. entitled “Revamping Workplace Culture to Prevent Harassment.”  The purpose of this meeting was to hear various approaches that different industries are implementing to prevent harassment and provide employers the skills, resources, and knowledge to respond workplace harassment.

Acting Chair Victoria Lipnic began the meeting by noting that the nation is at the apex of a cultural awakening that the EEOC has been tracking for years.  Since the #MeToo movement went viral, hits on the EEOC website Continue reading

Mitigating Risk for Rogue Employee Speech

shutterstock_angry manGenerally, employers can be held vicariously liable for the tortious conduct of an employee committed within the scope of his or her employment.  This often arises in the context of negligence cases, such as automobile and workplace accidents.  However, employers can also be held liable for defamatory statements made by their employees when those statements are made within the scope of their employment.  Therefore, it is important to mitigate this risk through effective policies and procedures and employee training.

Employers do not need to police employee communications around the clock.  However, employers can and should provide clear policies about employee conduct in the Continue reading

Novel Legislation: Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018

harassmentWith the rise of the #MeToo movement, there have been a number of responses from both employers and state legislatures to address workplace harassment.  As discussed during the EEOC Special Task Force Meeting on June 11, 2018, several state legislatures are taking proactive steps to combat workplace sexual harassment.  For example, on May 15, 2018, Maryland Governor Larry Hogan signed and ratified the Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 – which passed the Maryland House (46-0) and Senate (136-1) with almost unanimous support.

The Act, which goes into effect on Continue reading

Second Circuit Rules Title VII Bars Sexual Orientation Discrimination

shutterstock_gender diversityAlthough the Supreme Court has not taken up the issue and the status of sexual orientation discrimination remains uncertain, another Circuit Court of Appeals has now affirmatively ruled on the issue.  In a 10-3 en banc decision, the U.S. Court of Appeals for the Second Circuit recently ruled in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018) that Title VII of the U.S. Civil Rights Act prohibits sexual orientation discrimination.

The Second Circuit’s decision deepens the existing circuit split on Continue reading

U.S. Department of Labor Changes Position on Internships under the FLSA

interns wantedAlthough summer seems far away, now is the time when most employers begin to prepare for their summer internship programs.  Internships are a great way to give college students or new professionals some hands-on experience in your industry.  However, one major question that has plagued employers over the past decade is whether an intern must be paid under the Fair Labor Standards Act (“FLSA”) based on the duties he or she performs in the intern role and the structure of  internship program.

While some employers offer paid internships, other internships are unpaid or only provide a stipend lower than the minimum wage.  Given the recent string of high-profile class action cases brought by unpaid interns, for-profit, private sector employers must be aware of the FLSA’s requirements as it relates to unpaid interns.  Specifically, employers need to carefully evaluate whether an intern qualifies as an “unpaid intern” or an “employee” entitled to compensation.   Continue reading

The Office Holiday Party: Best Practices to Avoid Legal Trouble

shutterstock_holiday party glassesThe holiday season is here, and employees are looking forward to celebrating with their family and co-workers.  However, the office holiday party – an anticipated yearly tradition in many workplaces – has now become a cause for concern for employers, especially amidst the current national conversation about workplace sexual harassment.

What is the result?  Many companies are cancelling holiday party plans, or hosting alternative parties with less alcohol and more day light.

There is certainly nothing wrong with hosting a holiday party, and employers should not be discouraged from doing so.  Hosting a holiday party for your employees is beneficial, as it helps boost employee morale and demonstrates Continue reading

California Governor Signs SB 396 Requiring Training on Gender Identity Harassment

shutterstock_gender diversityOnly a few months after the California Department of Fair Employment and Housing amendments to the FEHA regulations went into effect on July 1, 2017, which centralize, clarify, and expand protections for transgender individuals against discrimination, California Governor Jerry Brown signed Senate Bill 396 into law on October 15, 2017.  Senate Bill 396 goes even further in facilitating a discrimination-free workplace by requiring employers to provide gender identity and sexual orientation training to supervisory employees.

The FEHA prohibits harassment and discrimination based on protected classes, which includes people who identify as transgender, providing protections on the basis of both gender identity and gender expression. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression, unless the employer can establish a business necessity defense.  As explained in a previous post, however, the new regulations significantly increase protections for transgender employees by specifying rules concerning access to bathroom facilities, grooming and dress standards, and recording the gender and name of employees.  Additionally, the new regulations include an amendment that prohibits employers from seeking gender- or sex-related information from applicants and employees, such as proof of an individual’s sex, gender, gender identity, or expression.

In an effort to help prepare employers for these new requirements and the protections extended to transgender employees, the California Legislature drafted Senate Bill 396 to require employers to provide training to supervisors based on gender identity, gender expression, and sexual orientation.  FEHA already requires employers with 50 or more employees to provide supervisors sexual harassment training within 6 months of becoming a supervisor, and at least once every two years.  Therefore, employers can incorporate the specific requirements of Senate Bill 396 – gender identity, gender expression, and sexual orientation – into that training.  Under Senate Bill 396, employers must ensure that that training is performed by an individual with knowledge and expertise in these topics, and must include practical examples.

As of January 1, 2018, employers are also required to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.  In addition to this posting, employers must distribute an information sheet that will be created by the Department of Fair Employment and Housing to its employees, unless the employer provides equivalent information to its employees that contains, at a minimum, information on the following:

  1. The illegality of sexual harassment;
  2. The definition of sexual harassment under applicable state and federal law;
  3. A description of sexual harassment, utilizing examples;
  4. The internal complaint process of the employer available to the employee;
  5. The legal remedies and complaint process available through the department;
  6. Directions on how to contact the Department of Fair Employment and Housing; and
  7. Protections from retaliation.

Employers can satisfy this requirement by updating their anti-discrimination/anti-harassment policies in their employee handbooks.

In light of the recent amendments to the FEHA regulations and Senate Bill 396’s new supervisor training requirement, California employers should take time to review their employment applications and employment policies to ensure that their policies reflect the FEHA’s prohibition against transition discrimination and gender identity and expression discrimination.  Additionally, employers should update their training materials and programs for supervisors to ensure that they are properly trained on this subject.  In the interim, employers should instruct supervisors to refer any questions or concerns related to gender identity, gender expression, or sexual orientation promptly to human resources.  Swiftly implementing these policy changes and conducting new training for supervisors will help ensure compliance with the new regulations and limit the potential for workplace issues and FEHA violations.