New California Regulations Expand Protections for Transgender Workers

By:  Andrew J. Sommer

The California Office of Administrative Law has approved new regulations, effective July 1, 2017, expanding protections for transgender workers under California’s Fair Employment and Housing Act (FEHA).  The FEHA prohibits workplace discrimination and harassment on the basis of gender identity or gender expression, among other protected classifications.  These regulations specifically address protections for transgender employees, including access to bathroom facilities, grooming and dress standards and recording the gender and name of employees.

All_gender_restroom_sign_San_Diego_airportRecognition of Transition Discrimination

While the FEHA addresses discrimination because of the gender identity or gender expression of an employee or applicant for employment, these new regulations make it unlawful to discriminate against an individual “who is transitioning or has transitioned or is perceived to be transitioning.”  Transitioning is defined as “a process some transgender people go through to begin living as the gender with which they identify” including changes in name and pronoun usage, facility usage, participation in employer-sponsored activities, or undergoing hormone therapy, surgeries or other medical procedures.

Recording of Gender and Name

These regulations require employers to abide by an employee’s request to be identified with a preferred gender, name, or pronoun.  An employer is permitted, however, to use an employee’s gender or legal name as indicated in a government-issued identification document, even if inconsistent with the employee’s preferred gender or name, as necessary to meet a legally-mandated obligation. Continue reading

Labor Unions Attempt to Use DOL and OSHA Enforcement as Organizing Tactic

By:  Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency that is the typical focal point is the National Labor Relations Board (“NLRB”), whose purpose is to protect the right of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.  However, unions have also engaged with or depended on the regulations of other federal agencies as a tactic to gain leverage in organizing campaigns.  There are a number of ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees or put pressure on employers to concede to union representation.

Taking OSHA as an example, an inspection or the threat of an inspection can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or of an OSHA inspection could put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with about 75% of OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading

DOL Takes Significant Step Forward in Rescinding Persuader Rule

4This week the Department of Labor (“DOL”) submitted a proposed rulemaking that would rescind the regulation commonly termed the “Persuader Rule” to the Office of Management and Budget’s Office of Information and Regulatory Transparency (“OIRA”) for review.  The DOL, through its Office of Labor-Management Standards (“OLMS”), promulgated the Persuader Rule during the last year of the Obama Administration and received vehement opposition from the employer community due to its impact on access to legal advice and counsel.  If OIRA approves the proposed rulemaking, the next step is for the DOL to publish it in the Federal Register for public review and comment.  The DOL will then consider and evaluate the comments it receives and decide how to proceed with the rulemaking.  Although the outcome is not guaranteed due to the pending comment process, this is an essential step toward eliminating the Persuader Rule.

As we discussed in a prior post, the Persuader Rule imposed stricter reporting requirements on employers under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”).  Specifically, the rule aimed to close a loophole in the reporting requirements, known as the “advice exemption,” which permitted employers to hire a consultant solely for advice without making a related report.  Thus, in the past, the LMRDA required an employer to file a report if it hired a consultant to directly persuade employees on organizing or bargaining issues, but did not mandate an employer file a report if the consultant hired only used “indirect” persuasion, such as advising employers on what to say to employees.  With the Persuader Rule, however, the DOL has essentially eliminated the advice exemption as it now requires employers and their labor relations consultants, including outside attorneys, to report any activities by the consultants that could be construed as an attempt to “persuade” employees regarding their rights to organize and bargain.  Continue reading

Acosta Confirmed as Secretary of Labor

Department of LaborOn Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the Secretary of Labor in the Trump Administration.  In this role, Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws.  The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

During the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately 8 months.  In 2003, President Bush appointed him to the head of the United States Department of Justice’s Civil Rights Division, a position which he maintained for about 2 years.  Thereafter, Acosta served as the United States Attorney for the Southern District of Florida.  Most recently, Acosta filled the role of Dean for Florida International University School of Law, a role from which Acosta has said he would resign if he was confirmed as Secretary of Labor.  Continue reading

Maryland on Track to Join Growing Trend of Paid Sick Leave

crutchesOn April 5, 2017, the Maryland General Assembly passed a paid sick leave bill – the
Maryland Healthy Working Families Act (the “Act”) – that is now waiting for Republican Governor Larry Hogan’s approval.  Governor Hogan has opposed the Act and publicly vowed to veto the bill if it passed – stating that the bill would be “dead on arrival.”  However, the bill is likely to become law in the next legislative session, even if Governor Hogan does veto it, because the bill garnered enough votes in both chambers of the legislature to override a veto.

Governor Hogan had introduced an alternative sick leave bill that would have required businesses with 50 or more employees to provide five paid sick days a year and offered tax incentives to smaller businesses that voluntarily agreed to do so.  He had urged lawmakers to negotiate with him and create a bill more like the version he proposed, stating he would not support a sick leave law unless it provides flexibility and support for smaller businesses.  However, no negotiation occurred and Governor Hogan’s bill never made it out of committee.

If the law does pass, Maryland will join Arizona, California, Connecticut, Massachusetts, Oregon, Vermont and Washington as states with laws requiring employers to offer paid sick leave, in addition to the District of Columbia, Montgomery County in Maryland, and several other localities across the country.  Maryland employers, particularly those that operate in Montgomery County and other locales in Maryland, must pay close attention to the details of the Act because it is significantly different from the more employee friendly provisions of Montgomery County’s Earned Sick and Safe Leave Act, as well as other local sick leave laws.  Continue reading

Cal/OSHA’s Workplace Violence Rules for Health Care Take Effect April 2017

By Andrew J. Sommer and Eric J. Conn

Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan.  The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.

Rules Apply to Health Care Facilities

Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior.  The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:

“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which [] persons are admitted for a 24-hour stay or longer.”

Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:

  1. Home health care and home-based hospice;
  2. Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
  3. Drug treatment programs;
  4. Outpatient medical services to the incarcerated in correctional and detention settings.

Immediate Requirement to Begin Reporting Violent Incidents

Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving either of the following:

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Uncertainty Surrounding Gender Identity and Sexual Orientation Discrimination and Steps Employers Should Take

All_gender_restroom_sign_San_Diego_airportIn the current legal landscape, the scope of laws prohibiting sex discrimination remains uncertain, especially because the Supreme Court has yet to take up the issue as it relates to LGBT rights.  Most recently, the high court’s decision not to answer the question whether discrimination “on the basis of sex” prohibits discrimination based on gender identity and/or sexual orientation in a case brought by a transgender student raises many questions for employers about compliance with federal anti-discrimination laws.

However, even though this question has not been definitively resolved on the federal level and the new administration recently changed its stance on transgender issues, the Equal Employment Opportunity Commission (“EEOC”) has made discrimination on the basis of gender identity and sexual orientation an enforcement priority in its 2017 Strategic Enforcement Plan.  Moreover, employers need to be mindful that several state and local laws prohibit both sexual orientation and gender identity discrimination and take steps to ensure their employment law policies and training comply with existing federal, state and local law.

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