As we reported back in March, Judge Chutkan of the U.S. District Court for the District of Columbia lifted the stay on the Equal Employment Opportunity Commission’s (“EEOC’s”) 2016 final rule mandating that employers who are required to submit an annual Employer Information Report (“EEO-1”) also submit pay data by sex, ethnicity, and race. This additional piece of the EEO-1 Report has come to be known as “Component 2.” After the Judge lifted the stay, the EEOC responded that it would not be in a position to accept the EEO-1 Component 2 by May 31, 2019 – the deadline to submit the standard data set collected through the EEO-1 Report (“Component 1”) – and adjusted the deadline to submit Component 2 data to September 30, 2019. Judge Chutkan reluctantly accepted this timeline and mandated that two years of data be collected by this date. Accordingly, the EEOC provided notice that it would be requiring employers to submit pay data for calendar years 2017 and 2018 by or before September 30, 2019.
Despite the fact that collecting this data could be very burdensome for employers, the EEOC’s deadline provided only a matter of months in which to gather and submit it. Now, with just over a month to spare, covered employers must ensure they understand what data needs to be submitted, how to tabulate the data for submission, and how to ultimately submit the data to the EEOC. Continue reading
On May 10, 2019, the D.C. Circuit issued its opinion in Figueroa v. Pompeo, 923 F.3d 1078 (D.C. Cir. 2019), raising the bar for employers to articulate legitimate non-discriminatory business reasons for taking alleged unlawful actions against plaintiffs. As we explained in a prior post, under the McDonnell Douglas burden shifting framework, after the plaintiff makes his/her prima facie case of discrimination, the employer has an opportunity to rebut plaintiff’s prima facie case by articulating legitimate non-discriminatory business reasons for taking the alleged discriminatory action. And, if the employer is able to do that, the burden shifts back to the plaintiff to show that the employer’s stated reasons are a pretext for discrimination. Figueroa now makes it more difficult for employers to successfully argue that the actions they took were for legitimate non-discriminatory business reasons. So, what happened in the case, and what should employers do going forward?
The facts of the case are straightforward. Figueroa, a Puerto Rican employee, alleged that his employer, the State Department, discriminatorily passed him over for promotions. At the trial court level, the State Department moved for summary judgment, claiming that it did not discriminate against Figueroa, but rather decided not to promote him because other candidates were better qualified. The State Department explained that candidates for promotion are ranked based on substantive criteria called “core precepts.” These precepts consist of six performance areas: (1) leadership skills; (2) managerial skills; (3) interpersonal skills; (4) communication and foreign language skills; (5) intellectual skills; and (6) substantive knowledge. The State Department explained that, although Figueroa
Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.
This complimentary program will feature panel discussions with representatives from the National Labor Relations Board, OSHA, and MSHA addressing key policy trends and regulatory developments. The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys. The plenary sessions will cover topics including:
- OSHA policy and enforcement developments
- NLRB rulemaking and Board case law updates
- MSHA regulatory and enforcement priorities
- Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)
There will also be Continue reading
A recent California Court of Appeal decision, Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.
A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes. Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.
Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.
The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes. Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.
On Tuesday, August 13, 2019 at 1:00 PM Eastern, Jordan Schwartz, Eric J. Conn and Lindsay Disalvo of Conn Maciel Carey will present a complimentary webinar regarding “Joint- and Multi-Employer, Independent Contractor, and Temp Labor OSHA and Employment Law Issues.”
Employment relationships can take many forms, and employers’ perceptions of their legal responsibilities for certain workers is not always reality. An employer may classify workers as temporary or independent contractors, but that does not mean DOL will agree. This is particularly challenging due to continuous changes in the law relating to these types of employment relationships.
One particular area in flux over the past several years has been the joint-employer standard, significantly expanding in the Obama-era NLRB decision in Browning-Ferris, but in the wake of change through an ongoing NLRB rulemaking. Similarly, the boundary between employees and independent contractors has also been a moving target. Although the prior administration took the view that a majority of workers are employees in its guidance to employers, the Trump Admin. has signaled a change in direction.
Even where there is not a legal employer-employee relationship, companies may have certain safety and health obligations and potential liabilities depending on their role at multi-employer worksites or the use of temporary workers. Protecting temporary workers and enforcing the responsibilities of host employers and staffing agencies was a priority of OSHA in the Obama Admin. through a Temporary Worker Initiative that continues today. OSHA has also continued to defend its multi-employer worksite enforcement policy through legal challenges.
Specifically, participants in this webinar will learn about: Continue reading
As we have written about on multiple occasions, public access lawsuits relating to website accessibility under Title III of the Americans with Disabilities Act (“ADA”) have been increasing at a rapid pace. In fact, 2019 is on pace to have more than 2,000 website accessibility lawsuits, which will be by far the highest number on record (and this number does not include the hundreds of “brick and mortar” lawsuits filed against places of public accommodations). Thus, regardless of whether you own or manage a retail store, a large hotel chain, a small bed & breakfast, or any other place of public accommodation, you are at serious risk of getting hit with an ADA lawsuit relating to your company’s website, especially if your website does not comply with the Web Content Accessibility Guidelines (“WCAG”), a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the main international standards organization for the Internet.
Nonetheless, there are two recent rulings that at least provide a sliver of hope for business owners, although both cases arise out of the Southern District of New York and therefore are limited to that jurisdiction. Most recently, on June 4, 2019, a judge in the Southern District of New York ruled that a website accessibility case could be mooted by a defendant fixing their website. (See Diaz v. The Kroger Company, 1:18-cv-07953). In that case, Diaz, a legally blind individual, brought a lawsuit against Kroger, a large supermarket chain, alleging that Kroger’s website was not compatible with screen reader software and thus failed to comply with Title III of the Americans with Disabilities Act because it denied equal access to visually impaired customers. In response, Kroger filed a motion to dismiss, claiming that among other things: (i) it had undertaken to make its website comply with WCAG 2.0 before the lawsuit was even filed; (ii) its website was now fully compliant with WCAG 2.0; (iii) that each barrier to access identified by the plaintiff had been fixed and/or no longer existed; and (iv) it was committed to keeping the website in compliance with WCAG 2.0 in the future. By taking those actions, the court found that the plaintiff’s ADA claim was moot and thus granted Kroger’s motion to dismiss. Continue reading
As Illinois prepares to join the growing ranks of states that have legalized recreational use of marijuana, employers in the Land of Lincoln may find it difficult—if not impossible—to legally maintain a drug-free workplace. Signed into law on June 25, 2019 by Governor J.B. Pritzker, the Illinois Cannabis Regulation and Tax Act (“CRTA”) goes into effect on January 1, 2020. If you employ workers in Illinois, you now have less than six months to decide whether and how you will continue testing for marijuana. You will also need to lay the groundwork so that you can reduce the risks associated with disciplining and/or discharging employees who appear to be impaired—due to cannabis consumption/use—while at work. While the CRTA lists a number of indicia of impairment that may be used to determine if someone is under the influence, proving that an employee is impaired will likely be easier said than done. Even then, the CRTA requires that you give the allegedly impaired employee an opportunity to respond. When and how you do that, though, remains to be seen.
What the Law Does and Does Not Require
Beginning January 1, 2020, Illinois residents over the age of 21 can legally buy (in licensed stores), possess or use cannabis and cannabis products. Possession is limited to: (1) 30 grams of raw cannabis; (2) cannabis-infused products containing no more than 500 mg of THC; or (3) 5 grams of cannabis product in concentrated form. Non-residents may purchase half those amounts (i.e., 15 grams of cannabis, 250 mg of THC in a cannabis-infused product, or 2.5 grams of concentrated cannabis product). Patients using cannabis for medical reasons, meanwhile, will be allowed to purchase cannabis seeds and grow up to five plants at their residence. The CRTA, however, limits home growth to five plants per household, regardless of the number of residents who are 21 or over. These plants must be secured and out of view by the public. While medical cannabis patients may keep what they grow, the CRTA possession limits apply when they leave their residence. Furthermore, they cannot sell what they grow unless they do so as part of a licensed cannabis business.