Friday, July 10, 2020

Supreme Court Broadens Ministerial Exception to Nondiscrimination Laws for Religious Employers

Author: Rebecca Yocum

This week, the U.S. Supreme Court affirmed First Amendment protections for religious institutions in the hiring and firing of employees who play an important role in carrying out the institution’s religious mission. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court upheld the dismissal of employment discrimination claims brought by two teachers against their Catholic school employers under the ministerial exception, a legal doctrine that prohibits courts from getting involved in employment disputes between religious institutions and their ministerial employees. 

Thursday, July 2, 2020

Union Organizing in the Time of Coronavirus

Author: Brian Woolley

Two current developments could provide a boost to union organizing efforts. Even in normal times, a workforce that is unsettled and facing an uncertain future can be fertile ground for a union organizing effort. Employees looking for certainty and stability may be more receptive to a union’s promise to solve the problems of the day. Employers should be on higher alert right now, because these are not normal times.  Workplaces may be at greater risk of union organization efforts due to the chaos in the economy caused by the COVID-19 pandemic, coupled with the following two developments: (1) the widespread use of mail ballots and (2) a recent court order delaying revisions to the union election rules.

Friday, June 26, 2020

Supreme Court Rules: Title VII Protects LGBTQ Individuals from Discrimination

Authors: Jill Waldman

On June 15, 2020, the United States Supreme Court handed the LGBTQ community a major victory. In Bostock v. Clayton County and companion cases, the Supreme Court held that an employer who terminates an individual for being homosexual or transgender violates Title VII of the Civil Rights Act of 1964.  


The Court’s ruling involved a trio of cases, with each employee filing a lawsuit under Title VII alleging discrimination based on sex. Title VII applies to employers with at least 15 employees in each of 20 or more calendar weeks in the current or preceding calendar year and makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The issue before the Court was whether Title VII’s prohibition on discrimination “because of . . . sex” encompasses sexual orientation or transgender discrimination. Two of the trio of cases involved employees who alleged they were discriminated against because of sex when they were discharged based on their sexual orientation and the other case involved an employee who alleged she was discharged on the basis of sex when she was fired for being transgender.

Friday, June 12, 2020

It's Time to Emphasize EAP Benefits

Author: Tammy Somogye

For many, January 1, 2020 was the start of a new decade, full of optimism and hope for the future. As of June 1, 2020, this year has brought troubling times that include fear and pain due to racial injustice, a pandemic, unemployment, and growing isolation. 


Employees across the nation are hurting. Some are grieving the loss of one or more loved ones from COVID-19. Against the backdrop of rampant unemployment, many are anxious about how long they might be employed, looming pay cuts, child care challenges, and the rising cost of food. Combined with intense feelings about injustices and other problems plaguing our country and the loss of so many lives, stress is undoubtedly at an all-time high.


Tuesday, May 26, 2020

The DOL "Unshackles" Employers in Retail and Services Industries

Authors: Laura Reathaford

On May 18, 2020, the United States Department of Labor (DOL) implemented a final rule arguably giving employers more flexibility in the retail and service industries to exempt certain employees from overtime pay requirements. 

Generally, the Fair Labor Standards Act (FLSA) requires that employers pay employees at an overtime rate for time worked in excess of 40 hours in a workweek, unless the employees are exempt under Sections 7 or 13 of the statute. One of these exemptions applies to employees who work for a “retail or service” establishment if: (i) the employee’s regular rate of pay averages more than one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked; and (ii) more than half the employee’s total earnings in a representative period comes from commissions.

The federal FLSA regulations explain that an employer is a “retail or service establishment” if it typically has a “retail concept.” The regulations have also included a list of industries that were viewed as “lacking” a “retail concept” (such as accounting firms, construction contractors, and real estate companies) and a list of industries that “may be recognized” as having a “retail concept” (such as auto repair shops, department stores and restaurants).  The regulations have not included an explanation of why certain industries were included on each of these lists.


On March 18, 2020, the DOL withdrew these two lists in an effort to allow any employer to argue for the retail and service exemption by applying the same test to everyone – irrespective of whether their industry was listed as potentially exempt. The DOL noted that some courts have questioned the merit of the lists and that the new rule will allow more businesses to “assert that they have a retail concept,” as long as they meet the existing definition of “retail” and certain other criteria. The DOL further stated, that “Insofar as these establishments were deterred from availing themselves of the exemption and its flexibilities, they may now do so if they qualify—including by having more flexibility to work with workers on commission-based pay arrangements.”


 “This final rule unshackles job creators in the retail space who had previously been categorically excluded from the exemption without notice and comment,” said Wage and Hour Division Administrator Cheryl Stanton. “Permitting all retail employers to potentially qualify for this exemption can increase flexibility for businesses and workers. Eliminating confusion empowers job creators to grow their businesses, comply with the law and provide even more good jobs for American workers.”

Employers who may have been deterred from seeking the FLSA retail and service overtime exemption should consider seeking the advice of counsel to determine whether their employees may meet the test of the exemption in light of this new rule. Employers should also consider whether any state or local wage and hour laws also implicate overtime pay obligations even if overtime pay is not required by the FLSA. 

Wednesday, May 20, 2020

Employee Well-being While Working Remotely

Authors: Jehan Kamil Moore with assistance from Vanessa Vaughn West 

"The Modern Workplace" has taken on a new meaning during this time when many employees are working from home, social distancing, and, often, balancing increased responsibilities for homeschooling, childcare and caring for older relatives. My modern workplace often includes Zoom meetings while my daughter watches cartoons or plays in the same room. Telephone calls are sometimes interrupted by a request for a snack. I have a friend who starts her workday after her children go to bed and goes to sleep herself around 3:00 a.m., just to get a few hours of sleep before her kids are up again at 6:00 a.m. People like to use the term "new normal," but there is nothing normal about what we are experiencing. Work and home have combined to create what some have described as a never-ending Saturday, Groundhog's Day or the Flat Spot. Working from home can be great. Working from home during a global pandemic is not great. Accordingly, employers should be mindful of employee well-being during this abnormal time. Here are some things to consider:

Monday, May 11, 2020

A Small Break for Employers—EEO-1 Data Collection Suspended to 2021

Author: Caitlin Miles Gehlan

The Equal Employment Opportunity Commission (the “EEOC”) announced yesterday that, due to the COVID-19 Pandemic, it would suspend the anticipated opening of its 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections. The EEOC’s EEO-1 Component 1 data collection process requires an employer to report the number of employees working for a covered business and sort those employees by job category, race, ethnicity, and gender. In turn, the EEOC’s EEO-3 data collection process requires race, ethnicity, and gender reporting by local unions and the EEO-5 data collection process requires race, ethnicity, and gender reporting by public elementary and secondary school districts.