Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.

2018 Legislative Update for California Employers

By: Andrew J. Sommer and Daniel C. Deacon

california-flagCalifornia has had yet another banner year closing the 2017 legislative session with a spate of new employment laws imposing additional compliance obligations on employers.  Bucking the anti-regulatory tide in Washington, DC, California has passed dozens of new laws impacting both private and public sector employers.  Overall, Governor Jerry Brown has vetoed just over 12% of the bills passed by the California legislature this year.

Conn Maciel Carey LLP provides this summary of key new employment bills, regulations and local ordinances impacting California private sector employers.  Unless otherwise indicated, these new employment laws take effect January 1, 2018.

 Statewide “Ban the Box” Law

Continuing a national trend at the state and municipal level, California has passed Assembly Bill (AB) 1008, a statewide “ban the box” law limiting any inquiry into an applicant’s criminal history.  AB 1008 applies to employers with five or more employees, and is markedly different from San Francisco’s “ban the box” ordinance.

The statewide law makes it unlawful for an employer to inquire into or consider an applicant’s criminal history, including seeking such information on any job application, before the employer has made a conditional offer of employment.  In addition, an employer that intends to deny an applicant a position solely, or in part, because of the applicant’s conviction history ascertained after the conditional job offer has been extended must make an individualized assessment of whether the applicant’s conviction history has a “direct and adverse relationship” with the specific duties of the applied for position.  In making this assessment, the employer must consider:  (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.

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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.

Accommodating Pregnancy Under State and Federal Law

shutterstock_pregnant employeeLaws requiring both public and private employers to accommodate their pregnant employees have become a trend over the past several years.  Indeed, this past July, Massachusetts became the 22nd state, along with the District of Columbia, to pass a law that requires an employer to engage in the interactive process and provide an accommodation to a pregnant employee, where that accommodation would not put an undue burden on the employer.  It joins the states of Nevada, Vermont, and Washington, all of which passed similar laws in 2017.  Additionally, many of these state laws provide clear protections against discrimination based on pregnancy and pregnancy-related conditions.  Although the Americans with Disabilities Act (“ADA”) does cover some impairments related to pregnancy and the birth of a child, state laws regulating pregnancy accommodation generally expand that coverage to pregnancy, child birth and related conditions that may not rise to the level of a disability under the ADA.

Pregnancy Accommodation Under Federal Law

Title I of the ADA prohibits discrimination against employees or applicants due to their disability or perceived disability, and requires employers to accommodate disabled employees if they can still perform the essential functions of their job.  The ADA applies to employers with 15 or more employees and mandates that those employers accommodate a disabled employee’s condition as long as the accommodation would not cause undue hardship on the company.  Under the ADA, pregnancy itself is not a disability; however, the ADA does cover impairments related to pregnancy and birth that would qualify as disabilities under the ADA.

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OMB Suspends New EEO-1 Reporting Data Requirement

Employers throughout the nation who have been preparing to comply with the revised Employer Information Report (EEO-1) will be pleased to learn that the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) has indefinitely suspended the new report’s compliance date.

By way of background, as explained hereEEOC Picture, in February 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a major revision to the EEO-1 Form reporting requirements, requiring all employers with more than 100 employees (and federal contractors with more than 50 employees) to submit compensation data based on certain demographic information such as gender, race, and ethnicity to the EEOC beginning in 2017.  Following that announcement, employers in all industries voiced numerous concerns about those changes, including the increased time and money that would be required to complete the new report, confidentiality issues, data security and privacy issues, the range of false positives that would result from the submission of pay data, and the enforcement actions that would inevitably arise from these false positives.  Although the EEOC thereafter issued a “revised” Final Rule in September 2016, the revised rule changed very little from the original, aside from moving the due date for submission to March 31, 2018.

However, on August 29, 2017, the OIRA stopped the new EEO-1 rule in its tracks, stating in a memorandum to the EEOC that among other things, it is “concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

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California Opportunity to Work Act Spells Trouble for Employers

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California Assembly Bill (AB) 5, the Opportunity to Work Act, was recently approved by the California Assembly Committee on Labor and Employment in April 2017.  The Appropriations Committee postponed a hearing on the bill that was scheduled for May 3, 2017.  Given the strong industry opposition to this bill and its harmful impact on employers, it is likely that the Appropriations Committee is taking a closer look at the bill and the negative Continue reading

Businesses Should Prepare For Predictive Scheduling Laws

Last month, Victoria’s Secret agreed to pay $12 million to settle a class action lawsuit in California brought by hourly employees that were denied pay as a result of the store’s use of on-call shift scheduling.  In that lawsuit, the employees relied on a California law requiring employees, who report for work on a scheduled workday but who either are not needed (and therefore not put to work) or are furnished with less than half their usual or scheduled hours, to receive two to four hours of pay at their regular rate of pay. Work Schedule Calendar

This settlement brings to light the “predictive scheduling” trend that is occurring throughout the nation.  Historically, restaurants and retailers have used on-call scheduling to help control labor costs.  But as workers began claiming that the daily unpredictability of on-call scheduling hindered their ability to earn a living, hold more than one job, arrange reliable child care, and attend classes, this practice began to change.

Now, to combat worker uncertainty, numerous states and municipalities have begun passing these types of laws, referred to as “predictive scheduling,” “fair scheduling,” “secure scheduling,” and “fair workweek.”  For the most part, predictive scheduling laws typically require employers to provide employees (i) with their schedules two to four weeks in advance; and (ii) with predictable pay if changes to work schedules are made within this window.    Most of these laws contain exceptions to these requirements where an employer’s inability or failure to provide an employee with scheduled work results from specific causes beyond its control.

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