Have Faith: 4.9 Million Dollar Settlement Underscores Importance of Accommodating Religious Beliefs During Hiring Process

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?  shutterstock_EEOCWhile 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

[Webinar] #MeToo Movement Update: Practical Strategies for Training, Investigations, and Discipline

shutterstock_me tooOn Wednesday, February 20, 2019, at 1 pm EST, join Kara M. Maciel and Lindsay A. DiSalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: #MeToo Movement Update: Practical Strategies for Training, Investigations, and Discipline.

In 2017, we saw the proliferation of the #MeToo Movement with a slew of high-profile allegations of sexual harassment and assault and tens of thousands of people, mostly women, voicing their own experiences on social media using the hashtag “MeToo”.  Its momentum continued into 2018, with more people coming forward to make allegations of sexual assault and harassment and the Movement’s purpose becoming an even more prominent and influential topic of discourse.  Its significance and impact has not slowed and its influence and impact is likely to be felt into 2019 and beyond.  So, what does this mean for employers?

In the wake of the #MeToo Movement, the amount of sexual harassment claims filed with the EEOC increased by almost 14% in FY 2018 versus FY 2017.  In addition, the EEOC filed 66 harassment lawsuits against employers in FY 2018, which is more than a 50% increase in EEOC suits challenging sexual harassment compared to FY 2017.  Thus, it is more important than ever for employers to ensure they are effectively preventing and addressing sexual harassment in the work environment through their policies, training, and investigative procedures.

Participants will learn about the following:

  • The legal standards for sexual harassment and their nuances
  • Elements of an anti-harassment policy and complaint procedure
  • Elements of a sexual harassment training program
  • Best Practices for investigating complaints of sexual harassment
  • Recommendations for how to respond to sexually harassing conduct

Click here to register for this webinar.

NLRB Returns to Common-Law Test for Independent Contractors

Last Friday, the National Labor Relations Board (the “Board”) returned to its long-standing independent-contractor standard, reaffirming its adherence to the traditional common-law test.  In deciding SuperShuttle DFW, Inc. on January 25, 2019, shutterstock_424794466the 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.

In SuperShuttle, the Board analyzed the issue of whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth are employees covered under the National Labor Relations Act (NLRA) or independent contractors.  Shuttle van drivers for SuperShuttle sought to unionize at Dallas-Forth Worth airport, but the protections of the NLRA do not extend to independent contractors.  The Acting Regional Director, in making her decision before the 2014 FedEx case, applied the traditional common-law test and found that SuperShuttle met its burden in establishing that the franchisees are independent contractors and not employees.  After overturning FedEx and applying the common-law test, the Board affirmed the Acting Regional Director’s decision.

To start, the Board explained that the inquiry into whether a worker is an employee or an independent contractor has traditionally depended on the common-law agency test, which involves the application of Continue reading

Ninth Circuit Allows Pension Fund to Wipe Out Credit for Prior Partial Withdrawal Liability

gciuAn 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.

By way of background, withdrawal liability is imposed upon an employer when it withdraws from a multiemployer pension fund, and a withdrawal may be either partial or complete. If an employer incurs a partial withdrawal and subsequently incurs either another partial or a complete withdrawal, ERISA directs that the employer be given a credit for the first partial withdrawal. ERISA also limits an employer’s obligation to twenty years of payments.

In GCIU-Employer Retirement Fund v. Quad Graphics, Inc., the employer incurred a partial withdrawal followed by a complete. In calculating the subsequent complete withdrawal liability, the plan applied Continue reading

[Webinar] California Employment Law Update for 2019: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know

On Tuesday, January 22nd, at 1 pm EST, join Andrew J. Sommer and Beeta B. Lashkari of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: California Employment Law Update for 2019: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.

In the final days of California’s 2018 legislative session, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new laws addressing the #MeToo movement and increased efforts to address harassment and discrimination in the workplace.  While many of the new laws impose additional requirements on employers, a few clarify the reach of existing employment laws or carve out exceptions to wage and hour requirements.  This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and recent court decisions and best practices for avoiding potential employment-related claims.

​Participants will learn about the following:

  • Expanded anti-harassment training requirements covering both supervisory and nonsupervisory employees

  • Limits on confidentiality of settlement agreements involving certain types of claims for sexual assault, harassment and discrimination

  • Limits on releasing claims of discrimination and harassment as a condition of employment, continued employment or in exchange for a raise or bonus

  • Expansion of privilege protections to cover communications with prospective employers about sexual harassment

  • New training requirements for hotels regarding human trafficking

  • Clarification of the existing prohibition against considering an applicant’s salary history

  • Clarification of existing lawmaking construction contractors liable for their subcontractors’ wage violations

  • New exceptions to meal period requirements for certain motor carriers and rest period requirements for certain employees in the petroleum industry

  • Temporary carve-out from PAGA liability for construction employees covered by collective bargaining agreements

  • New requirements concerning lactation accommodations

  • Significant new court decisions concerning the independent contractor relationship, wage and hour requirements and the enforceability of existing California law prohibiting employers from volunteering personnel information to immigration authorities 

  • Current minimum wage requirements both statewide and on local level

The webinar will also address steps employers can take to achieve compliance including evaluating current personnel practices and updating employee handbooks, employment agreements and training protocol.

Click here to register for this webinar.

California Employment Law Update for 2019 

By: Andrew J. Sommershutterstock_150165167

In the final days of California’s 2018 legislative session, and the end of his term, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new legislation seeking to bolster the state’s workplace harassment laws in the aftermath of the #MeToo movement.  Conn Maciel Carey LLP provides this summary of key new employment laws impacting California private sector employers.  Unless otherwise indicated, these new laws just took effect on January 1, 2019.

#MeToo Legislation

Expanded Anti-Harassment Training Requirements

Existing law requires that employers with 50 or more employees provide at least two hours of sexual harassment training to all supervisory employees within six months of the individuals becoming supervisors, and at least once every two years thereafter.  Covered employers must provide classroom or other effective interactive training that incorporates the topics of sexual harassment and abusive conduct as well as harassment based on gender identity and expression and sexual orientation.

Senate Bill (SB) 1343 broadly expands the harassment training requirements to small employers and for the first time requires training of non-supervisory employees.

Continue reading

DOL Says Goodbye to the 80/20 Rule for Tip Credits

On November 8, 2018, the Department of Labor (DOL) issued an opinion letter retracting the controversial “80/20 rule” for tipped employees.  shutterstock_losing moneyUnder 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?

Under the DOL’s latest opinion letter on this issue, it has made clear that the it “do[es] not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the [Fair Labor Standards] Act are met.”  Accordingly, employers should be able to breathe at least a sigh of relief.  So how did we get here, and what should employers be able to expect in the new year?

By way of background, under the Fair Labor Standards Act (FLSA), “tipped employees” are defined as Continue reading