Employer Law Report

#MeToo: Looking to best teaching practices for effective training

When did canned web-based presentations become the norm for harassment, discrimination and other inappropriate workplace conduct training? Companies who rely on pre-prepared, generic materials often find those trainings for HR, management, supervisors and employees to be ineffective, particularly now that #MeToo is a part of our vocabulary. For the employer who has the goal of efficient and effective HR trainings, it is helpful to look to best teaching practices. Educators know that teaching a lesson in a memorable and engaging way will help student retention…algebra or workplace harassment alike. Simply put, face-to-face, interactive training is the most effective way to communicate key concepts and reduce complaints related to workplace behavior.

True engagement requires connection

We all have a favorite teacher. Perhaps it was your third-grade teacher, who smiled as they asked how you were doing each day. Maybe it was a college professor whose lectures were so engaging that you couldn’t help but absorb their every word. My favorite was one I had in high school, who used storytelling in his teaching. He was an expert at weaving in vivid details of his life into his lessons; memories of being a young boy in South Africa, or the experience of the first time he held his newborn son into his lessons. I will always remember these lessons in vivid detail because true engagement requires connection. In order to affect learning and ultimately change behavior, one has to make a genuine connection with another person to bring about new understanding. My high school teacher did this, and undeniably your favorite teacher did too.

Building a culture of transparency in the age of #MeToo

Discrimination manifests in many shapes and sizes, through workplace harassment, sexual harassment or retaliation (to name a few). In the age of #MeToo, employers are seeking efficient and effective HR trainings for their workers that will resonate with their employees, and will produce more than just a printed certificate of completion. Trainings that push past the discomfort of the topic, engage their audience, generate thought and encourage open discussion will ultimately have the greatest impact on employee behavior. The more we engage our employees in these trainings, the more likely our workplaces will develop a culture of transparency. This will aid in helping your employees feel comfortable coming forward with situations they feel the need to discuss.

Efficient and effective HR training as risk management

It’s far more pleasant to educate your staff than to prepare for a deposition. Training is an essential part of the defense to harassment, discrimination, or retaliation charges and lawsuits. Further, the EEOC strongly recommends these trainings, and are required by law in some states. In short, harassment and other improper workplace conduct is not just a legal risk; it is a day-to-day damage that can effect employee morale, retention, attendance and more. Effective training is your best chance to actually change employee behavior.

Porter Wright holds effective, in-person training for HR, management, supervisors and employees for many businesses. If you have interest in talking about cost-effective training sessions, visit the HR Audit page at porterwright.com.

Are changes coming to the FMLA?

It has been a decade since the United States Department of Labor (DOL) made any changes to the FMLA regulations, but we now have an indication that the DOL is at least willing to consider issuing new regulations at some point in the next few years. The United States Office of Management and Budget announced that, by April 2020, the DOL will “solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”

Employers interested in offering suggestions for the DOL’s consideration will be invited to do so. No promises, however, that the DOL will actually make any changes or that the changes, if made, will meaningfully address the aforementioned “administrative and compliance burdens.” But this is a start.

Applicants may be required to declare citizenship status when filing for Ohio workers’ compensation benefits

The Ohio House of Representatives passed a two year $645 million workers’ compensation budget on June 5, 2019. As part of the budget bill, a provision was added that requires anyone who files an application for a workers’ compensation claim through the Ohio Bureau of Workers’ Compensation, to identify themselves as either a U.S. citizen, a noncitizen with permission to work in the country or an illegal alien or an unauthorized alien. All applicants may be eligible for workers’ compensation benefits regardless of citizenship identification. However, under the bill, anyone providing false information on a claim application will be ineligible to receive workers’ compensation benefits and may be subject to criminal prosecution. Prior to this budget bill, anyone, regardless of citizenship status, who was injured in the course and scope of employment was entitled to receive workers’ compensation benefits through the Ohio Bureau of Workers’ Compensation.

Previous attempts in Ohio to introduce language to bills and laws to prohibit illegal or unauthorized aliens from obtaining workers’ compensation benefits have failed to be signed into law.

In addition, the current House budget bill includes a provision permitting first responders such as police, firefighters and emergency medical personnel diagnosed with post-traumatic stress disorder to be eligible for workers’ compensation benefits. Presently, Ohio law only permits a claim to be recognized for a psychological condition such as post-traumatic stress disorder when it arises out of an underlying physical injury.

The House budget bill will now proceed to the Ohio Senate for consideration. We will keep you updated should this budget bill become law.

Kentucky’s new pregnancy accommodation law goes into effect

Kentucky recently enacted the Pregnant Workers Act, which amends the Kentucky Civil Rights Act to provide accommodations to pregnant and lactating employees. The law goes into effect on June 27, 2019. Below are the important implications of the Pregnant Workers Act, which will affect employers that operate or maintain business locations in Kentucky.

Who does the law cover?

Covered employers are those that employ 15 or more persons during 20 or more calendar weeks in the current or preceding calendar year. Employees limited by pregnancy, childbirth or related medical conditions, including lactation, are eligible for reasonable accommodations under this law.

What are reasonable accommodations?

Covered employers must engage in a timely, good faith and interactive process to determine effective reasonable accommodations for the employee. The law goes beyond what the federal law  specifically requires, in that it identifies a number of reasonable accommodations to consider:

  • More frequent or longer breaks
  • Time off to recover from childbirth
  • Acquisition or modification of equipment
  • Appropriate seating
  • Temporary transfer to a less strenuous or less hazardous position
  • Job restructuring
  • Light duty
  • Modified work schedule
  • Private space, that is not a bathroom, for expressing breast milk

Employers cannot require an employee to take time off of work, if another reasonable accommodation is available.

Like under federal law, covered employers are not required to provide reasonable accommodations for pregnancy, childbirth or related medical conditions, if doing so would result in an undue hardship. A number of factors may be considered when determining whether a particular accommodation is an undue hardship, including the duration of the requested accommodation and whether similar accommodations are required by policy or past practice for any group of employees. If a covered employer has provided or is required to provide a similar accommodation to another group of employees, there is a rebuttable presumption that the particular accommodation will not pose an undue hardship on the employer.

Are there any notice requirements?

Employers must give new employees written notice of the right to reasonable accommodations at the commencement of employment and to existing employees no later than July 27, 2019. Finally, employers must display a written notice of the right to reasonable accommodations.

Next steps

Employers with operations in Kentucky should review full details of the law with counsel and update policies and notices to comply with the Pregnant Workers Act. These types of laws are a growing trend across the U.S. Multi-state employers should be aware of similar pregnancy accommodation laws in a number of other states.

Special thanks to Taeylor Stanley for her assistance on this article.

Multi-state employers: Be prepared for July 1 minimum wage increases

On July 1, 2019, the minimum wage will increase in several locations throughout the country. While the federal minimum wage has remained $7.25 per hour since July 2009, many states, cities and counties have adopted their own minimum wage laws which provide for a higher rate. In areas where minimum wage laws overlap, employees are entitled to receive the highest applicable rate.

The following minimum wage increases will become effective July 1, 2019:

 

California

  • Alameda, California: $13.50 per hour
  • Berkeley, California: $15.59 per hour
  • Emeryville, California: $16.30 per hour for all businesses (the rate is no longer differentiated by employer size)
  • Fremont, California: $13.50 (for businesses with 26 or more employees); $11.00 (for businesses with fewer than 26 employees)
  • Los Angeles, California (city and county): $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • Malibu, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • Milpitas, California: $15.00 per hour
  • Pasadena, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)
  • San Francisco, California (city and county):$15.59 per hour
  • San Leandro, California: $14.00 per hour
  • Santa Monica, California: $14.25 (for businesses with 26 or more employees); $13.25 (for businesses with fewer than 26 employees)

The District of Columbia

  • $14.00 per hour

Illinois

  • Chicago, Illinois: $13.00 per hour
  • Cook County, Illinois: $12.00 per hour

Maine

  • Portland, Maine: $11.11 per hour

Maryland

  • Montgomery County, Maryland: $13.00 (for businesses with 51 or more employees); $12.50 (for businesses with fewer than 51 employees)

Minnesota

  • Minneapolis, Minnesota: $12.25 (for businesses with 101 or more employees); $11.00 (for businesses with fewer than 101 employees)

New Jersey

  • $10.00 per hour

Oregon

  • Portland Urban Growth Boundary, Oregon (applies to employers located within the urban growth boundary of Portland’s metropolitan service district, including those in Washington, Multnomah and Clackamas counties): $12.50 per hour.
  • Nonurban Counties, Oregon (Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler Counties): $11.00 per hour
  • Standard Rate, Oregon: $11.25 per hour

Additional minimum wage increases are set to become effective later in 2019 and in January 2020. Porter Wright will continue to provide updates on future increases.

Special thanks to Abigail Thederahn for her research and assistance in preparing this update.

United States Supreme Court makes it easier to get discrimination cases into court

The U.S. Supreme Court ruled recently that Title VII’s administrative exhaustion requirement – whereby an employee must file a claim with the EEOC prior to filing a lawsuit – is not a jurisdictional rule. This means that the employee’s failure to file a charge does not automatically mean the case cannot go to court. Instead, the employer must raise the “failure to file” issue as an affirmative defense and do so in a timely fashion. The case is Fort Bend County v. Davis.

Facts

Lois Davis filed a charge against her employer, Fort Bend County, with the Texas Workforce Commission (Texas’ EEOC equivalent) claiming sexual harassment and retaliation. While that charge was pending, Davis was terminated. She claimed it was  for failing to report to work due to a church commitment. After her termination, Davis attempted to raise the issue of religious discrimination in the ongoing Texas Workforce Commission investigation, but she did not add it to the actual charge. Shortly thereafter, she filed a lawsuit in federal district court alleging sexual harassment, retaliation, and religious discrimination under Title VII. Continue Reading

Supreme Court to determine if Title VII prohibits discrimination based on gender identity

This fall the Supreme Court will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes, in which it will decide whether Title VII prohibits discrimination on the basis of gender identity. The case is on appeal from a 2018 decision of the Sixth Circuit Court of Appeals.  EEOC v. R.G. & G.R. Harris Funeral Homes. In Harris Funeral Homes, a former employee of a funeral home was terminated after she transitioned from male to female. The Sixth Circuit ruled that, while transgender status is not specifically protected under Title VII, alleged discrimination based on transgender status can be pursued under Title VII as a form of  sex or gender-based stereotyping. The Supreme Court has accepted the case for appeal and is expected to resolve a split among federal appeals courts on the issue.

The number of people who openly identify as transgender, meaning a person whose sense of personal identity does not correspond with their birth sex or gender, or non-binary, meaning people who do not identify with or fit into the two-gender binary of male and female, is on the rise. The Supreme Court case may provide some clarity under federal law. In the meantime, many state and local governments have enacted laws to promote gender non-binary and transgender inclusive workplaces. Here is a brief summary of the major issues under federal and state law.

Federal law

The EEOC and OSHA take a position

The Equal Employment Opportunity Commission (EEOC) interprets Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity, contrary to the position taken by the Department of Justice that Title VII does not forbid gender identity discrimination. This difference in opinions will likely be resolved when the Supreme Court hears the R.G. & G.R. Harris Funeral Homes Case later this year.

The Occupational Safety and Health Administration (OSHA) takes the position that employees should be permitted to use the restroom that corresponds with their gender identity, regardless of their birth gender.

EEO-1 reporting

The federal EEO-1 form filed each year by companies with over 100 employees and certain federal contractors requires  identifying employees by gender, among other things. The current EEO-1 form only recognizes two genders—male and female. Thus, employers must classify each employee as either male or female, without exception, but doing so can be more difficult as employees increasingly identify as non-binary or transgender.

To this point the EEOC has not issued any guidance on how to best report gender non-binary and transgender employees on the EEO-1 form. One option is to allow employees to self-identify and report their genders accordingly. However, if an employee chooses not to self-identify as male or female, employers are still obliged to make a good-faith determination for the purpose of completing the EEO-1 Report.

State law

Several years ago, California became the first state in the nation to require all single-occupancy restrooms in businesses, government buildings, and places of public accommodation to be gender neutral. Cities like Washington D.C., Philadelphia, Seattle, Chicago, and New York have adopted similar requirements.

Twenty-two states and Washington D.C. prohibit workplace discrimination on the basis of gender identity or expression, and a number of municipalities, including New York City, have passed similar laws. In Ohio, over twenty cities have adopted similar protections, and a bill introduced in the state legislature could extend these protections to all employees working in the state.

Conclusion

We anxiously await the Supreme Court’s guidance in R.G. & G.R. Harris Funeral Homes later this year. Regardless of the Supreme Court’s decision, employers would be wise to recognize that this is an emerging area of the law in which state and city specific legislation is constantly enlarging the rights of transgender and non-binary employees.

Court ruling puts administration’s immigration policy on hold

On Friday, May 3, a Federal District Judge in North Carolina enjoined the Trump Administration’s effort to change the immigration policy on “unlawful presence” as it is applied to foreign students, in Guilford College et al. v. McAleenan, et. a.l. The concept of unlawful presence was first introduced into the immigration laws in 1996 to impose a penalty on those who remain in the U.S. after their authorized period of stay expires. This penalty, a bar, known as the “3/10-year bar,” is imposed from the day the foreign national departs the U.S., preventing their return for either 3 or 10 years, depending on whether they remained more than 180 days or 365 days after their authorization expired.

The key to imposing this bar, however, depends on the calculation of the date the authorized stay expired. For foreign students, who are admitted for the duration of status (d/s), there is no certain date by which they are told they must depart the United States. Therefore, in 1997 Legacy INS announced a policy that students would be deemed unlawfully present only when an immigration officer or Immigration Judge made a determination that they had violated their status. In the event such a determination was made, the student was informed of the decision and then given 180 days to depart the U.S. before the 3- or 10-year bar would be imposed. Continue Reading

UPDATE: EEO-1 reporting; Now open for business

Pay Data Required by September 30, 2019

Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.

Porter Wright will continue to provide updates on this breaking news as more details become available.

Cincinnati bars questions about salary history

In March 2019, the City of Cincinnati became the latest in a small but growing list of states and municipalities prohibiting employers from asking prospective employees about their prior compensation. Citing concerns about the perpetuation of pay discrimination against women in the workforce, the legislation bars Cincinnati employers with 15 or more employees from asking applicants for positions in Cincinnati for their salary histories.

What does the law say?

The law prohibits employers from:

  • Asking for information about an applicant’s current or prior compensation, including salary, benefits, and other compensation, such as bonuses
  • Screening applicants based on their salary histories
  • Relying on an applicant’s salary history (even if volunteered by the applicant) when determining whether to make an offer of employment or determining the amount of compensation offered to an applicant
  • Lastly, refusing to hire or retaliating against an applicant who refuses to provide his or her salary history

The applicant may sue an employer for damages, including attorney’s fees, if the employer violates this law. The applicant has two years from the date of the violation to bring a lawsuit.

There’s a catch. Actually, there are two catches.

Cropped shot of a man and woman completing paperwork together at a desk

This legislation does not go into effect for a full year. And, a similar law in Philadelphia was ultimately struck down by a federal district court in a lawsuit brought by its local chamber of commerce. So, Cincinnati employers may continue to ask their applicants for and consider salary histories until March 2020, when the practice must be discontinued . . . unless the law is challenged and a court strikes it down.

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