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
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.
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.
Under this rule, if a tipped employee spent more than 20% of his or her working time performing “non-tipped” duties, his or her employer could not take a tip credit for time spent performing those non-tipped duties. The rule caused years of confusion, especially among employers. After all, what duties exactly qualified as “non-tipped”? Would folding napkins in between waiting tables count? And were employers expected to track every second of an employee’s day to determine if those non-tipped duties exceeded 20% of the total workday?