Thursday, July 31, 2014

The EEOC Delivers its Expected New Guidance on Pregnancy Discrimination

Dust off your handbooks and rethink your employment policies – the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.

In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to pregnancies.

Some of the more significant guidance points in the EEOC’s updated pregnancy guidance include:
  • Accommodations:
    • Light duty – The new guidance sets forth the EEOC’s position that, not only must employers not discriminate based on pregnancy; they must grant reasonable accommodations for pregnancy if those accommodations are granted to non-pregnant employees. As such, if an employer provides light duty work to non-pregnant employees, such as for worker’s compensation injuries, it should offer this to pregnant employees to avoid discriminating on the basis of pregnancy. The EEOC’s position on this point is highly controversial.
    • Accommodation Examples – EEOC examples of reasonable pregnancy accommodations include redistributing nonessential job duties, modifying workplace policies to allow for frequent breaks or water bottles, modifying a work schedule, allowing telecommuting, and purchasing or modifying equipment.
    • Lifting restrictions – Lifting restrictions are also listed as an example of a reasonable accommodation that must be granted to a pregnant employee even if she is not deemed “disabled” under the ADA.
  • Pregnancy in Dangerous Workplace Environments
    • Discrimination – Employers cannot fire, refuse to hire, demote or take any other adverse employment action based on an employee’s pregnancy, childbirth or related medical condition, even if the employer believes it is acting in the employee’s best interest due to dangerous work conditions (at a lead mine, for example).
  • Disabilities
    • More than just Bed Rest – Many pregnancy-related conditions may be considered impairments that are “disabilities” under the ADA, including depression, nausea, sciatica, painful swelling, walking limitations, carpel tunnel syndrome, anemia, and gestational diabetes. 
  • Health Insurance
    • Contraceptives – With some minimal exceptions, an employer health insurance plan must cover prescription contraceptives on the same basis that it covers other prescription medications. This position is, however, likely to be limited by the recent Supreme Court decision in Burwell v. Hobby Lobby Stores.
  • Coverage
    • “Pregnancy” Discrimination – The prohibition on pregnancy discrimination applies to more than just those individuals with pregnancy-related complications and includes a prohibition on discrimination based on a past pregnancy (i.e. during pregnancy-related medical or parental leave), an employee’s potential or intention to get pregnant, infertility treatments, the use of contraception or abortion, and lactation. 
    • Who gets leave? – Leaves related to pregnancy or childbirth can be limited to women, but parental leave must be provided equally to both women and men to avoid gender discrimination. Note that, in Minnesota and some other states, this is already required under state law.
The EEOC’s new pregnancy guidance has been controversial, even drawing public objections by two EEOC Commissioners. The guidance is not binding on courts, and some courts have previously come to different conclusions about many of the issues addressed in the guidance. Nevertheless, employers should expect that some courts will likely view this guidance as persuasive and may follow it. Additionally, the EEOC will be using this guidance to inform its investigations of charges alleging pregnancy-related discrimination. Therefore, employers should familiarize themselves with the EEOC guidance and recommended best practices, and they should consider whether their policies and handbooks meet the new EEOC guidance. 

Employers should also stay tuned. The U.S. Supreme Court recently agreed to hear a case involving whether an employer must provide similar work accommodations to non-pregnant and pregnant employees. The Court’s upcoming decision in Young v. United Parcel Service could, depending on what it says, upturn this area of the law and impact aspects of the EEOC’s guidance.

Friday, July 25, 2014

Week in Review

Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn’t only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year.  And, for the curious, links can be found below to articles discussing the predicted features of the new iPhone 6 and “iTime” smartwatch. Both products are expected to launch this Fall.

Technology and the Workplace
Apple dealt new class-action lawsuit by 20,000 employees (CNET)
Technology, Aided by Recession, Is Polarizing the Work World (NYTimes)
Dell becomes largest company to accept bitcoin (LA Times)
The Hot HR Technology Trends of 2014 (Forbes)
A Startup Creating a Hyper-Smart Office That Tracks Everything (WIRED)

Technology and the Law
Can Use Agreement Protect Apple and Sina Weibo?  (Forbes)
New York unveils Bitcoin license rules (CNN)
Snowden asks hackers to protect whistleblowers (CNN)
Easier Ways to Protect Email From Unwanted Prying Eyes (NYTimes)
Defense lawyers say feds' refusal to screen inmate-attorney email frustrates right to counsel (ABA Journal)

There's an App for That
Apple Readies a Big Bet on Big-Screen Phones (WSJ)
Apple's 'iTime' Patent Hints at Possible iWatch Features (Mashable)
Facebook Adds a Read-It-Later Button (The Atlantic)
Robot Wearable Adds Two Fingers To Your Hand (Mashable)
Aspire raises money for marketplace where employees pick their own company perks (The Washington Post)

Wednesday, July 23, 2014

GPM Labor & Higher Ed Teams Assist St. Thomas in Landmark Union Election Result

Photo Courtesy of Minnesota 2020
Adjunct faculty members at the University of St. Thomas Monday voted overwhelmingly against union representation by the Service Employees International Union (SEIU) Local 284Gray Plant Mooty’s Labor Law and Higher Education Practice Teams served as labor counsel to St. Thomas in the union representation process. Since the union filed its petition for an election on May 23, GPM has been working intensively with the General Counsel’s office at St. Thomas to advise on the labor law, handling matters before the National Labor Relations Board (NLRB), assisting the university’s election campaign, and providing strategic and operational support and project management.  

SEIU has been aggressively and successfully organizing adjunct faculty into union representation nationally through its Adjunct Action arm. This union has won 11 of 12 adjunct faculty union elections at private institutions of higher education across the country in the past 32 months. Adjunct Action expanded its focus to new regions around the beginning of 2014. The Twin Cities is one of the announced targets of the union’s organizing efforts. A similar election at Macalester College was called off by the union last month, but adjunct faculty at Hamline University recently voted for union representation by a wide margin. The vote at St. Thomas bucked strong national and local trends, with our client’s adjuncts voting overwhelmingly against unionization by 134 to 86, a nearly 62% vote margin. 81% of eligible voters turned out by mailing in ballots to the NLRB.  
Among the keys to this remarkable result for St. Thomas were the personal commitment of University President Julie Sullivan to maintaining first priority focus on the quality of student education, and to convincing voters to give her new administration a chance to work with them directly toward that end without interference from a union.
Under the law, the election result cannot be certified by the NLRB until after a seven day waiting period. If no objections are filed, the NLRB is expected to certify the election July 29. If objections are filed, the certification will be delayed indefinitely while the NLRB works through its standard processes to address the objections. President Sullivan stated in an email to adjunct faculty that she is pleased with the result and is prepared to communicate and initiate an action plan addressing the top-level adjunct faculty priorities identified over the past year.
GPM’s teams have provided information to clients and others on preparing for and responding to union organizing on campus. Inquiries on higher education labor law matters may be directed to Mark Mathison or any member of the GPM Labor Law or Higher Education teams. 

Thursday, July 17, 2014

Week in Review

Some high profile companies, including two technology giants, made headlines this week after former employees filed lawsuits against them alleging discrimination and harassment.  The case against Yahoo is likely to be particularly interesting, because the executive accused of harassment is alleging that she’s being defamed by false allegations. You can read more about each of these lawsuits below, and you can revisit one of our recent prior posts for more information on the same topic.  In other news from Silicon Valley, Google is making headlines this week for its work on Internet security. This week, Google announced the creation of an Internet defense security team to protect web tool users from hacking. Google is also working on a new security protocol that would eliminate the need for online passwords by using device-based authentication, such as a smartphone, to gain access to online accounts.

Technology and the Workplace
Former Twitter employee alleges age discrimination in lawsuit (LA Times)
Female Yahoo exec sued for sexual harassment (CNN)
Chris Kluwe plans to sue the Minnesota Vikings (The Washington Post)
Google uncloaks Project Zero security team set to defend the internet (The Guardian)
The Truth About Tech Company Perks (WSJ)

Technology and the Law
The Password Is Finally Dying. Here's Mine (WSJ)
Data Breaches in New York Hit Record High in 2013, State Attorney General Says (NYTimes)
China Declares the iPhone a National Security Threat (Yahoo)
Waiver of Attorney-Client Privilege Via Facebook (Delaware Employment Law Blog)
Firm sues ex-client over Yelp review that claims firm will 'take everything you've got' (ABA Journal)

There's an App for That
A Redesigned Parking Sign So Simple That You'll Never Get Towed (WIRED)
Prototype Improves Mobile Typing by Ditching the Keyboard (Mashable)
Google partners with Novartis to create smart contact lenses (LA Times)
You can use a fake name on Google + now (LA Times)
How Much Time Do You Spend On Your Smartphone? Let's See (NPR)

Wednesday, July 16, 2014

Will Minnesota's New Medical Marijuana Law Leave Employers High and Dry?

Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota’s new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota’s new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many unanswered questions. Because marijuana use is still illegal criminal activity under federal law, it is currently unclear if Minnesota courts will strictly enforce the new state law against employers or whether the federal law criminalizing all marijuana use will trump the new state law. 

Limited Protection for Medical Marijuana Use

By way of background, Minnesota’s new medical marijuana law has been described as one of the narrowest and strictest medical marijuana laws in the country. The law requires authorized medical marijuana users to register with the state and only permits the use of marijuana delivered in liquid, pill, or vaporized form. The law does not protect or authorize the smoking of marijuana cigarettes. Additionally, medical use of marijuana is only authorized for nine specified medical conditions.

Employee Protections Under the New Law

Historically, it has been lawful for Minnesota employers to make adverse decisions about a job applicant or employee based on their proven use of marijuana so long as any adverse decisions were made in accordance with Minnesota’s drug and alcohol testing law. This is because marijuana has been, until now, illegal under both federal and Minnesota law.

Now, the future is suddenly less clear. While marijuana is still illegal under federal law, Minnesota’s drug testing law for applicants and employees defines illegal drugs by pointing to Minnesota – not federal - law. In addition, Minnesota’s new medical marijuana law purports to prohibit an employer from discriminating against or otherwise penalizing a person in connection with hiring or employment based on: (1) the person's status as a patient enrolled in the medical marijuana registry program; or (2) a registered patient's positive drug test for marijuana. 

There are a few important exceptions to this prohibition on discrimination, but these exceptions do not clearly indicate how the new state law interacts with the federal criminal law banning all marijuana use:
  • First, an employer can penalize a registry patient for a positive marijuana drug test if the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Because marijuana can stay in someone’s system for some time after use, however, it may be difficult for an employer to establish whether an employee used medical marijuana or was impaired at the office or during working hours.
  • Second, the new law permits adverse action against a patient on the state registry if the failure to act "would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations."
Impact on Other Laws

In addition to the newly enacted protections discussed above, the new marijuana law could also impact other employment law obligations. Minnesota has a lawful consumable products (LCP) statute that prohibits an employer from taking adverse action against a job applicant or employee for consuming lawful products outside of work, such as alcohol or tobacco. It is now unclear whether medical marijuana is a lawful consumable product given that the product is lawful under state, but not federal, law. 

In addition, an employer has not historically had an obligation to accommodate marijuana use as a possible disability under the Americans with Disabilities Act (“ADA”), because current illegal drug use is not protected by the ADA.  Apart from the ADA, Minnesota has its own employment discrimination law – the Minnesota Human Rights Act – that requires accommodations for covered disabilities.  While an employer is unlikely to have to tolerate marijuana use or impairment at work, the new medical marijuana law may require employers to have to revisit their accommodation obligations under state law where medical marijuana use occurs outside the workplace and outside of working hours.
Uncertainty in Light of Federal Law

As medical marijuana begins to be distributed in the state, employers should stay tuned to see how the courts interpret Minnesota’s new medical marijuana law — especially in light of the continued federal prohibition on marijuana use. 

Thursday, July 10, 2014

Criminal Background Discrimination Dragnet Ensnares Government Employer

Last week a New York federal court certified a class of approximately 250,000 African-American job applicants in a race discrimination case against the U.S. Census Bureau. The plaintiffs allege that they were unlawfully excluded from consideration for door-to-door census positions due to arrest records that never resulted in convictions. In other instances, applicants were allegedly rejected based on convictions for minor crimes or convictions that were so old they should not have been considered. The lawsuit alleges that the Census Bureau’s practices disparately impacted minority applicants in violation of Title VII’s prohibition on race discrimination. 

The court’s ruling allows the case to proceed as a class action against the Census Bureau. While it is too early to assess the merits of the claims at issue, the case provides several good reminders of the increased risks surrounding the use of criminal background information in making employment decisions. These lessons include the following:
  • Arrest Records Are Off Limits – The fact that an individual was arrested for a crime does not mean that he or she actually committed the alleged crime. A large percentage of arrests never lead to prosecution or conviction. Because racial minorities experience arrests at a far higher rate than Caucasians, employment decisions based on arrests inherently have a disparate impact on minority applicants or employees. This is not to say that employers have to entirely ignore arrest information that comes to light; however, relying on this information alone (as the Census Bureau is accused of doing) will be difficult, if not impossible, to justify on business necessity grounds.
  • Individual Assessment is Key – To avoid lawsuits like the one pending against the Census Bureau, it is important for employers to make employment decisions on a case-by-case basis. Blanket “no felon” policies are a recipe for lawsuits. Before excluding a candidate from consideration, the employer should consider the nature of the crime for which the individual was convicted, the nature of the job duties at issue, the time that has elapsed since the conviction and the last day of any incarceration, any available recidivism data, and whether the conduct underlying the conviction poses a real, current risk given the job duties at issue.
  • Criminal Background Checks Remain an Important Screening Tool – The Census Bureau jobs at issue in the pending lawsuit involved going door-to-door to collect census data from the public. The Census Bureau is certain to argue that its background checks were necessary to ensure public safety. Employers in Minnesota have a duty to take reasonable measures (which could include conducting background checks) when a job presents special risks of harm to the general public. In this case, it seems perfectly reasonable that the Census Bureau would seek to conduct background checks of individuals working in communities and approaching private homes largely unsupervised. The troubles facing the Census Bureau arise not from the practice of doing background checks, but from the allegations that applicants were automatically excluded based on arrest records and any criminal history rather than more individualized assessments of actual risks.

Week in Review

According to an article in The New York Times this week, high level executives make up the majority of tablet users in the workplace. That may change, though, as in the workplace tablet usage increases.  It was predicted this week that, during 2015, manufacturer shipments of tablets will exceed shipments of desktops and laptops. This suggests more tablet use in the workplace going forward. While this is good news for the tablet industry, employers should be mindful of new data security issues in the headlines this week. A cyber forensic expert revealed this week that Google Glass wearers can steal tablet and smartphone passwords from almost ten feet away using software that maps the shadows of  fingertips typing on the tablet or smartphone. Read the article below to learn how this wearable technology is creating new security challenges.

Technology and the Workplace
Tablets in the Workplace:  a Corner Office Perk (NY Times)
The line between wearable technology and prosthetics is blurring (The Washington Post)
OK Glass, Go To The Office (WSJ)
LinkedIn Founder:  How to Fix the Way We Work (WSJ)
Does Your Work Track Its Employees?  (Minnesota Labor & Employment Law Blog)
Why employee use of social media 'off the clock' may still impact your workplace (The Employer Handbook Blog)

Technology and the Law
Google Glass wearers can steal your password (CNN)
TSA bans uncharged cellphones and laptops on some international flights (ABA Journal)
Why More Start-Ups Are Sharing Ideas Without Legal Protection (NY Times)
Senator Urges FTC To Investigate Facebook Manipulation Study (Forbes)
The new plague:  Computer viruses that extort you (CNN)

There's an App for That
More tablets to be sold than PCs in 2015, report says (LA Times)
The App That Lets You Spy on Yourself and Sell Your Own Data (WIRED)
PayPal's Braintree Moves To Be The Cash Register For Every App (Forbes)
Making sure politicians make good on campaign promises?  There's an app for that (CNN)
Can WeChat Become a Major Advertising Platform (WSJ)

Monday, July 7, 2014

Week in Review

We hope you had a happy 4th of July weekend!  Last week’s news included more employees making headlines for their misuse of social media.  The links below highlight three cases in which employees’ social media activity or misuse of company computers led to a loss of employment or litigation.  For other recent headlines on the same topic, check out this link to our Week in Review from a few weeks back.  These news stories are great reminders of why all employers should have a robust social media and computer usage policy in place.  So, as you’re digging back into your work post-holiday, consider whether revamping your company policy should be on your “to do” list.

Technology and the Workplace
Federal court finds employer may be liable under the ADA for employee's snarky Facebook comments about another employee's medical condition (Employer Law Report)
Court holds employers not liable for employee defamatory online speech made using employer computers.  Plaintiffs can't take the money and run! (Employer Law Report)
Facebook Post Means No Unemployment Benefits for Nurse (Delaware Employment Law Blog)
China:  Cult following for police blogger (BBC News)
More Employers Not Hiring Due to What They Find on Social Media (TLNT)

Technology and the Law
Online Security Is a Total Pain, But That May Soon Change (WIRED)
Tinder Is Target of Sexual Harassment Lawsuit (NYTimes)
Facebook Lawyer:  That Emotion-Manipulation Study Was About Customer Service (The Atlantic)
Burglar Succumbs to Facebook Addiction (Lowering the Bar)
Could government employees' personal email accounts be subject to open records law? (ABA Journal)

There's an App for That
Could Color Wheels Make for Easier, More Secure Passwords? (WIRED)
Siri May Get a Whole Lot Smarter, Very Soon (Mashable)
BlaBlaCar, a Ride-Sharing Start-Up in Europe, Looks to Expand Its Map (NYTimes)
Apple expands CarPlay to nine more automakers (LA Times)
It Takes 155 Million Hot Dogs and 15,000 Fireworks to Celebrate the Fourth of July (Mashable)

Tuesday, July 1, 2014

Are You Ready for Next Month’s Change in the State Minimum Wage?

On August 1, 2014, Minnesota’s new minimum wage law takes effect. The new law changes the state’s minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.

Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales amount for a large employer was $625,000. As a result, more employers will be considered large employers under the statute.

For large employers, the minimum wage will increase to $8 per hour on August 1, 2014. The large employer rate will increase, again, to $9 per hour on August 1, 2015 and then go to $9.50 on August 1, 2016. For small employers, the minimum wage will be $6.50 per hour on August 1, 2014.  The small employer rate will increase to $7.25 on August 1, 2015, and then to $7.75 on August 1, 2016.

For large employers, the new state rates are significantly higher than the federal minimum wage of $7.25 per hour. For small employers, the rate will remain lower than the federal rate for one more year. Employees are entitled to the higher of the two minimum wages when both the state and federal law apply.

Starting on January 1, 2018, the state minimum wage will include an inflation index that will be used to increase the minimum wage in relation to inflation. The inflationary increase is capped at 2.5% per year. The inflation index will not be used to reduce the minimum wage in any year with negative inflation.

Employers should act now to determine if they are large or small employers under the state law changes. Small employers should carefully analyze whether the federal law is applicable. Those employers who have been small employers in the past and will be large employers under the new definition should take steps to adjust rates in a timely manner.