Tuesday, March 31, 2015

The Supreme Court's Opinion in UPS v. Young


In an update to a previous post, the highly anticipated United States Supreme Court decision in UPS v. Young was announced last week. In a 6-3 decision, the Court vacated rulings of the district court and the Fourth Circuit Court of Appeals, both having issued summary judgment in favor of UPS. The Court remanded the decision to determine whether the policies of UPS were legitimate and nondiscriminatory. The Court stated the Fourth Circuit had not yet considered the combined effects of UPS' other accommodation policies or the strength of UPS' justifications for the policies.

In its decision, the Supreme Court rejected the interpretations of the Pregnancy Discrimination Act argued by both parties. Notably, the Court rejected Young’s "most favored nation" status argument, that the Pregnancy Discrimination Act afforded the best accommodations previously afforded to other, non-pregnant employees. Similarly, the Court rejected UPS' argument that the Pregnancy Discrimination Act defines sex discrimination to include pregnancy discrimination.

Instead, the Court held that a claim of pregnancy discrimination should be analyzed under the McDonnell-Douglas framework. According to the Court, a pregnant employee may make out a prima facie case by showing she belongs to a protected class, sought an accommodation from her employer, the employer rejected her request for an accommodation, and the employer accommodated other employees "similar in their ability or inability to work." The employer then has an opportunity to show it did not intend to discriminate against pregnant workers, and instead has legitimate, non-discriminating reasons for denying the employee’s accommodation request. The employee then must show that, even though it was not intended to be biased, the employer's policies put a significant burden on pregnant workers and the employer’s proffered reasons were not strong enough to justify the burden.

In issuing its opinion, the Court did not adopt the EEOC’s approach from its 2014 published guidance, in part questioning the basis under which the EEOC developed its guidance. The Court also noted that amendments to the Americans with Disabilities Act expanding the definition of "disability" and the EEOC's interpretation of these amendments¾requiring employers to accommodate employees whose temporary lifting restrictions originate off the job¾may limit future significance of its decision.

In the meantime, employers should review their accommodation policies in light of the Court's decision. Additionally, employers faced with a pregnancy accommodation request should carefully consider the Court’s decision and assess how a pregnant employee’s accommodation request is similar to those accommodation requests of other non-pregnant employees.

Thursday, March 26, 2015

Important News on the Equal Opportunity Jerk: Minnesota Workplace Bullying Bill Is Reintroduced

When I present harassment training, I tell my audience that harassment is usually unlawful only when based on a protected-class status, such as race, gender, age, disability, etc. During the training, I often tell the story of the "equal opportunity harasser"the individual in the workplace who is a jerk to everyone and does not discriminate in picking the targets of his/her jerkiness (that's my technical term). This is the person who is a jerk to everyone. Because this person's behavior is status-blind, it doesn't violate discrimination or harassment laws.

Some Minnesota legislators are, however, trying to raise the legal stakes surrounding bullying. On March 20th, the Minnesota legislature introduced a bill that proposes to make workplace bullying unlawful. The bill would prohibit employees from engaging in "abusive conduct" in the workplace. In addition, the law would make employers liable for such conduct unless the employer can establish an affirmative defense, such as prompt and appropriate action to stop and remedy the behavior. The proposed law defined "abusive conduct" as "conduct, including acts or omissions, that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct."  The definition goes on to provide some examples that seem targeted at severe, egregious mistreatment of others. You will, however, find no mention of legally protected-class status as a condition of liability.

So, it looks like our equal opportunity harasser is in big trouble, right? Well, not so fast. The "new" bill is actually a reintroduction of a bill that was proposed in 2011 and, at that time, went nowhere. The proposed Minnesota bill is modeled after the "Healthy Workplace Bill"—a bill that has been introduced in 29 states over the years—including 8 states in 2015. So far, none of these proposed state laws have passed, and the chances of the proposed Minnesota bill becoming law seem slim given that Republicans control the Minnesota House.

So, our equal opportunity harasser is in the clear again, right? Again, ... not so fast.  The movement to pass workplace bullying law is growing and, at some point, it might succeed. In the meantime, there are other serious issues to consider.  As discussed in a previous post, workplace bullying is bad for business, negatively impacting morale, attendance, productivity, work quality, customer service and the bottom line. Given these serious business costs, employers don't need to and shouldn't wait to prohibit bullying and to discipline bullies.  Shortly before the first Minnesota workplace bullying bill was introduced in 2011, my colleague gave wise advice in our earlier post about the steps an employer should take to reduce workplace bullying. These are steps that still make sense and can be made today to crack down on and get rid of the bad effects of an  equal opportunity "jerk."

Thursday, March 19, 2015

Are More Protections for Minnesota Working Parents on the Way?

We recently alerted you to proposed legislation that, if passed, would expand last year’s Minnesota Women’s Economic Security Act (WESA) by requiring paid “sick and safe” time off benefits for almost all Minnesota employees and extending pregnancy accommodation and parental leave obligations to all Minnesota employers.  You should be aware that Minnesota lawmakers are at it again. Late last month, additional legislation (HF 1093 and SF 1085) was proposed that is aimed at benefiting working parents. Together with the earlier proposed sick and safe leave bill, the legislation is being referred to as the “Working Parents Act.” 

If enacted, the Working Parents Act would considerably expand WESA and impose a number of significant new obligations on all Minnesota employers related to work schedules, pay, breaks, and flexible work schedules. While most of the proposed changes appear to be the type that would normally be aimed at non-exempt employees subject to timekeeping and overtime pay requirements, the legislation is drafted to extend to all employees – whether exempt or non-exempt. As currently proposed, the “Working Parents Act” would include the following new requirements:

Fair Scheduling: All Minnesota employers would be required to:
  • Provide each employee a written work schedule, including any on-call time, at least 21 days in advance; 
  • For new employees, provide a written work schedule on or before the beginning of employment covering the employee’s first 21 days;
  • Notify each employee of any changes in his/her work schedule before the change takes effect and provide a revised written work schedule reflecting the changes within 24 hours of making the change;
  • Post a written schedule of the shifts of all current employees at the worksite, whether or not they are scheduled for work or on-call that week, at least 21 days before the start of each work week and update the posting  within 24 hours of any change;
  • Start an employee’s work week on the same day of each week;
  • Not require an employee to work hours not included in the employee’s written work schedule without the employee’s written consent; and
  • Not require an employee to seek or find a replacement employee for any shifts or hours the employee is unable to work.
Predictability Pay: All Minnesota employers would be required to provide compensation to an employee for certain changes made to the employee’s work schedule less than 21 days in advance, as follows:
  • If the change or cancellation is made less than 21 days but more than 24 hours in advance, the employer would pay the employee one hour of “predictability pay” in addition to the wages earned during the changed shift;
  • If the change is made less than 24 hours in advance, but does not reduce the total hours of the shift, the employer would pay the employee one hour of “predictability pay” in addition to the wages earned during the changed shift; and
  • If the change or cancellation is made less than 24 hours in advance and reduces the total hours of the shift, the employer would pay the employee “predictability pay” equal to the lesser of four hours or the number of hours originally scheduled, in addition to the wages earned during the changed shift.
Nondiscrimination Based on Hours of Work: Minnesota employers could not pay employees a different rate of pay based on the number of hours the employee is scheduled to work. In addition, employers could not condition eligibility for leave, time off, raises, or promotions on the number of hours an employee is scheduled to work, but would be able to pro-rate employee leave or time off based on hours worked.

Right to Rest: Employees would have the right to decline work hours that occur either: (1) less than eleven (11) hours after the end of the employee’s prior shift or (2) during the eleven (11) hours following the end of a shift that spanned two days.  Employers would be required to compensate employees who do work such hours at one and one-half times the employee’s regular rate of pay.

Rest and Meal Breaks: The new law would require one paid rest break of at least 10 minutes for every four consecutive hours of work and one unpaid meal break of at least 30 minutes for employees who work at least five consecutive hours.

Interactive Process for Flexible Work Arrangements: All Minnesota employers would be required to engage in an “interactive process” in response to an employee’s request for a “flexible working arrangement,” such as a modified work schedule, changes in start and end times, a predictable and stable schedule, part-time employment, job sharing, telecommuting, changes in job duties or work site, or partial-year employment. If the employee’s request is based on the employee’s serious health condition, responsibilities as a caregiver, enrollment in a career-related educational or training program, or, in the case of part-time employees, second job, the employer “must grant the request.”

In addition, the proposed Working Parents Act would:
  • Require employers to offer additional hours of work available in existing positions to current qualified employees before hiring new employees or contractors.
  • Require employers to provide written statements with detailed information about the terms and conditions of employment to employees annually and at the time of hire.
  • Increase potential penalties for violations of Minnesota wage and hour laws and potential criminal liability for some violations of the Minnesota Fair Labor Standards Act. 
  • Increase the statute of limitations to six years for any claims for the recovery of unpaid wages or overtime.
Stay tuned for developing information about this proposed Minnesota legislation. If so inclined, readers can contact their state representatives to voice their opinions on the Working Parents Act.

Wednesday, March 11, 2015

Leadership Lessons From Bad News

Two big news items this week have affected people near and dear to me. First, I am an alumnus of the University of Oklahoma (OU). OU made national news this week due to the deplorable actions of now former members of its chapter of the Sigma Alpha Epsilon (SAE) fraternity, who were filmed chanting a racist song on the way to a party. The video went viral online, prompting a local and national outcry. OU’s President, David Boren, moved swiftly to denounce the students’ actions and shut down the fraternity chapter. The second big news event occurred just down the street from my downtown Minneapolis office when, Tuesday morning, Target Corporation told approximately 1700 headquarters employees that they no longer have jobs.  It was a somber day downtown.

What do these two events have in common? Aside from being big news, they remind me that being a leader is hard and that your actions can be highly visible. In my view, though, OU President David Boren’s response to the OU SAE members’ disgraceful actions was spot-on. President Boren did exactly what I would advise an employer to do if employees engaged in similar conduct with evidence on film. He did not wait until the outcome of a full investigation to condemn the actions. He also did not dismiss or diminish the cultural importance or impact of the behavior by chalking it up the misguided actions of a few individuals or saying “boys will be boys.” News reports confirm that specific students identified as leading the chant have been expelled

The SAE house really was home to some True Gentlemen in my day. It is unfortunate that the inexcusable actions of recent SAE members has sullied the reputation of their chapter. But, leaders have to act for the organization as a whole. President Boren did that, apparently recognizing that pulling punches and lowering standards does not do anyone any favors. In the employment context, excusing intolerable or poor conduct on one occasion makes it all the more difficult to take necessary and appropriate action if a similar future incident occurs.

Target CEO Brian C. Cornell has also had to take bold and visible action this week. He is likely not the most popular figure in some Minnesota households this week, but leadership often means making tough choices with the long-term view in mind.

As an employer or leader, are there difficult tasks you have been avoiding? Are you inviting greater legal risk or increased difficulty because of your delay and possible personal discomfort? If so, here are a few reminders to help you keep your house in order:
  • Be Thoughtful: Use documented decision-making processes that are as objective as possible and that can be clearly explained and defended if necessary.
  • Be Consistent and Fair: Inconsistency and a sense of unfairness increase the practical risk of legal claims and can create problems in defending against claims that do arise.
  • Take Your Time: Employment decisions should not be made in haste or out of emotion. No one does his or her best thinking in the heat of the moment.
  • Be Respectful: Treat employees with respect, even when you have to make and implement tough decisions. This can help reduce the risk of legal claims. No one likes to receive bad news, but it will be received more poorly if delivered without respect.


Wednesday, March 4, 2015

The EEOC Experiences yet Another Background Check Court Loss


As we previously reported, the EEOC’s targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court’s grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employer’s background checks, because the EEOC’s expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOC’s background check lawsuit against Kaplan Higher Education failed last year before the US Court of Appeals for the Sixth Circuit. In fact, the same EEOC expert testified in that case as in the Freeman case, and the Sixth Circuit questioned his expertise and methodology. 

These court losses are important, because to prevail on a claim that an employer’s background check process or decisions are racially discriminatory, the EEOC must show a statistically significant disproportionate impact on applicants or employees of color. So far, the EEOC is struggling to make this showing.  Nevertheless, the EEOC is unlikely to retreat from its background check lawsuits. The EEOC identified eliminating barriers in recruitment and hiring as its top priority in its latest strategic enforcement plan. Consistent with this priority, the EEOC has additional background check cases pending against BMW Manufacturing Company and Dollar General. 

While employers might find some relief in the EEOC’s recent losses, they should continue to take care when conducting and making decisions based on background checks. As discussed in a prior post, there are procedural requirements to be followed to conduct background checks and discrimination law considerations to bear in mind. Employers should avoid automatic employment exclusions based on background check data, and instead conduct an individualized assessment that considers the conviction data and any actual, current risks posed based on the nature and needs of the position at issue. Additionally, employers should be mindful of state law requirements, as many states, including Minnesota, have laws regulating background checks and the timing of when an employer may make criminal history inquiries.