Martha Zackin

HR Manager’s Remarks Regarding Nature of Hiring Process May Help Employee Establish Discrimination Case

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Written by Alexandra D. Thayer (posted by Martha Zackin)

On November 12, the Payroll Fraud Prevention Act of 2013 (S. 1687) was introduced in the United States Senate.   The bill, which would amend the Fair Labor Standards Act, seeks to impose new rules and penalties relating to misclassification of employees as independent contractors.  The changes would apply to all entities covered by the FLSA, including those that do not use independent contractors or other “non-employees.”

Although the Payroll Fraud Prevention Act would not prohibit the use of properly classified independent contractors, the bill would make it unlawful to “wrongly classify an employee . . . as a non-employee,” even if the misclassification is unintentional and made in a good faith attempt to comply with the law.  If passed as currently written, the bill would:

  • Impose treble damages for misclassification when the misclassification is combined with a violation of the minimum wage or overtime pay requirements of the FLSA;
  • Require every entity covered by the FLSA issue a classification notice to all workers, informing them of their status as an “employee” or “non-employee,” and directing them to the Department of Labor for guidance.   Failure to provide the required notice would result in penalties of up to $1,100 for each individual who did not receive notice.  This penalty would increase to up to $5,000 per individual for a second offense or a willful violation;
  • Authorize the Secretary of Labor to report misclassification information to the IRS, impose additional penalties upon employers that misclassify employees for unemployment compensation purposes, and conduct targeted audits within certain industries.

The issue of misclassification continues to be front and center for many lawmakers and regulators at both the state and federal levels.  Bills similar to the Payroll Fraud Prevention Act of 2013 have been repeatedly introduced in Congress since 2010, and numerous states have recently passed or introduced legislation specifically addressing misclassification.  The IRS and DOL are also actively pursuing employers in industries in which misclassification is viewed as prevalent.

Although in the current atmosphere of partisan gridlock on Capitol Hill the proposed bill is likely to face significant push-back, the issue of “misclassification” has been in the forefront for lawmakers and regulators in recent years and is unlikely to go away soon.  The broad scope of S. 1687 means employers will be well served to stay on top of this legislation should it move forward through Congress.

Martha Zackin

HR Manager’s Remarks Regarding Nature of Hiring Process May Help Employee Establish Discrimination Case

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Article by Monica Rose Cafaro (Posted by Martha Zackin)

A recent decision by a federal appeals court underscores the need for HR mangers and other hiring personnel to watch what they say about job openings and the company’s hiring practices.

In Kidd v. Mando American Corporation, a white female employee who worked in the accounting department of a Korean-owned company was not considered for a promotion, despite her qualifications.  Instead, a Korean male was hired.  When the employee who was not hired – Leanne Kidd – complained to an HR Manager, Ms. Kidd alleges she was told that the Company’s predominately Korean management “refused to even consider an American candidate.”   Ms. Kidd also alleges that another HR employee told her that “no matter what . . . there would never be any American management in the company, it would always be Korean management . . . .”  Ms. Kidd relied on the HR employees’ comments to support her claim that that the employer engaged in discriminatory hiring practices by hiring the Korean male candidate over her and other qualified American candidates.

Finding that the company articulated a legitimate non -discriminatory reason for the adverse employment action, the lower court dismissed Ms. Kidd’s complaint.   In so holding, the lower court refused to consider the HR employees’ comments, finding that they were not admissible as evidence to show that the company’s articulated reason for denying Ms. Kidd a promotion was a pretext for unlawful discrimination.

The Eleventh Circuit overturned the lower court’s decision after analyzing various legal standards relating to hearsay.  That legal analysis is not relevant to the point of this blog entry- rather, the key point here is that HR employees, as well as other employees involved in hiring decisions, should avoid commenting on a company’s hiring practices or disclosing certain desired characteristics of an “ideal candidate.”  Periodic training, to educate and to reinforce good hiring practices and “common sense” principles, may help to remind hiring personnel and management employees of their obligations under the law.

Martha Zackin

EEOC Hands Out New Religious Discrimination Complaint

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On September 25, the EEOC issued a press release announcing CONSOL Energy and Consolidation Coal Company violated federal law when they refused to accommodate a long-time employee’s religious belief.  Apparently, the companies installed a biometric hand scanner to track employee time and attendance.  The employee in question, Beverly Butcher, believed that that there was relationship between hand-scanning technology and the Mark of the Beast,* such that submitting to handscanning technology would violate his sincerely held religious beliefs as an Evangelical Christian.

The money quote in the EEOC’s press release is this:

In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs…Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.

Whether an employer believes that biometric technology is the Mark of the Beast, and thus a prelude to the End of Days, is not relevant.  All that matters under the law is whether the employer reasonably accommodates an employee’s sincerely-held religious belief if it can do so without undue hardship. Here, the companies allowed employees to submit manual time cards if their handprints could not be read with a biometric scanner.  Accordingly, the EEOC asserts, this same accommodation should have been offered to Mr. Butcher.

 

*Biblical reference to the Mark of the Beast may be found in Revelation 13:16-17.

Martha Zackin

Abercrombie & Fitch Loses Another to the EEOC

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For the past few years, Abercrombie & Fitch has been fighting to uphold its “Look Policy,” described by the website Buzzfeed as “effortless sex-meets-Ivy League aesthetic.”  A&F’s Look Policy, as reported by Buzzfeed, provides that its employees must, among other things, represent A&F with “natural class” and “American style.”  The Look Policy governs hairstyle, clothing, shoes, makeup, fingernail polish, and tattoos, and prohibits facial hair, hats and other head coverings.

After A& F settled a lawsuit with the EEOC in 2004 for $50,000,000, A&F modified its practices and policies, including its Look Policy, to be more inclusive.

Nevertheless, the A&F Look Policy continued to prohibit hats and other head coverings.  As a result, A&F has continued to face lawsuits alleging that its refusal to waive the Look Policy to allow for the wearing of head scarfs as accommodation to the sincerely held religious beliefs of Muslim women violated Title VII and applicable state law.  A&F lost one such case in 2011, when a federal court in Tulsa, OK found that Abercrombie Kids subjected a 17-year-old Muslim girl to religious discrimination when it refused to hire her for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.   Recently, a different federal court reached the same conclusion, finding that A&F had engaged in religious discrimination when it terminated a Muslim employee who refused to take off her hijab while working in the store.

The facts of EEOC v. Abercrombie & Fitch were not disputed.  In short, an A&F employee, Umme-Hani Khan, was a devout Muslim whose sincerely held religious belief required her to wear a hijab while in public or in the presence of men who are not immediate family members.  After wearing a hijab in “store colors” for four months, Ms. Khan was disciplined after a District Manager visited the store and noticed Ms. Khan was in violation of the Company’s Look Policy.  A&F asked Ms. Khan to remove her hijab while in the store; Ms. Khan refused and her employment was terminated.

A&F tried to defend against the EEOC and Ms. Khan’s claim of religious discrimination by arguing that it could not reasonably accommodate Ms. Khan without undue hardship.  More specifically, A&F argued that compliance with the Look Policy is critical to the Company’s success, and that deviations from the policy “detract from the in-store experience” and negatively affect its brand.  In support of its argument, A&F offered testimony from its employees, all of whom expressed their personal belief that Ms. Khan’s hijab would cause harm to the Company.  Notably, A&F failed to offer any sales reports, surveys, customer complaints, or any concrete evidence to support its undue hardship claim.

The Court rejected A&F’s argument, stating that the evidence A&F had presented was speculative.  By failing to produce more than some employees’ subjective belief that violation of the Look Policy could result in declining sales, A&F failed to raise a triable issue as to whether an undue hardship would have resulted from allowing Ms. Khan to wear her hijab.   Accordingly, the court granted summary judgment to the EEOC, and against A&F.

The EEOC is continuing to target companies that refuse to alter dress codes as accommodation for employees’ sincerely held religious beliefs.  Just last week, the EEOC issued a press release announcing that it filed suit against two companies operating a chain of KFC stores for terminating female employees, whose Pentecostal beliefs require that they wear skirts, refused to wear the KFC uniform pants.

This issue is not going away.  HR and front-line managers should know that all requests for accommodation (based on the requester’s religious beliefs or disability) must be considered, and that refusals may need to be defended.

Martha Zackin

New Beginning

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I discovered the joys of blogging in 2009, when I helped launch an employment law-related blog at another firm.  I recently joined Bello/Welsh, LLP, a boutique labor and employment law firm, where I am excited to be launching our new blog.

Our primary goal here at WorkLawBlog (worklawblog.net) is to educate you about interesting developments in labor and employment law (and our firm).  If we can entertain you along the way, all the better.

On to business… much has happened recently.

  • The Department of Labor issued a final rule extending the Fair Labor Standard Act’s minimum wage and overtime protections to direct care workers who provide home care assistance to elderly people and people with illnesses, injuries or disabilities.   Companionship workers, or individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.  You can access the DOL’s press release here.
  • The National Labor Relations Board launched its first mobile app, available free to iPhone and Android users.  According to the NLRB’s press release, the app provides information for employees, unions and employers- whether unionized or not- with information about their rights and obligations under the National Labor Relations Act.  The NLRB joins the DOL’s Wage and Hour Division and the Occupational Safety & Health Administration, both of which have already launched apps.  Click here for the WHD timesheet app and here for OSHA’s heat index for outdoor workers safety app.

And last (for now), but certainly not least…

  •  A NY federal court judge has ruled that Lady Gaga’s former personal assistant is entitled to have a jury decide her claim for unpaid overtime.  According to the former assistant, she was required to be on-call 24/7 and should be paid nearly $400,000 for 7,000 of overtime hours, worked over the course of 13 months.
Bello Welsh LLP

CLIENT ALERT – More and More Municipalities Are Legislating Paid Sick Leave

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Philadelphia is poised to join a growing list of cities and states (including Portland, Oregon; Seattle; and San Francisco) which in the last few years have begun to require employers to provide paid sick time (“PST”) to their employees. These laws allow employees to receive limited paid time off to care for their own health or the health of a family member, and, in some cases, for leave directly related to medical, social or legal services needed when an employee or their loved one becomes a victim of stalking, domestic violence or sexual abuse. Employers with pre-exiting PTO policies must ensure these policies meet the minimum accrual requirements and that employees may use the leave for the purposes provided in the laws. Employers must comply with notice and recordkeeping requirements to avoid penalties and litigation.

Bello Welsh LLP

CLIENT ALERT – New York City Passes Ordinance Prohibiting Discrimination Based on Unemployment Status

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Effective June 11, 2013, the New York City Human Rights Law is amended to prohibit employers and employment agencies from discriminating against job applicants on the basis of unemployment status. The law also prohibits employers/employment agencies from publishing advertisements for any job in New York City that indicates that current employment is a requirement or qualification for a job, or that an employer/employment agency will not consider currently unemployed individuals. Although the law provides certain clarifying provisions regarding permissible hiring practices, employers/employment agencies subject to the law are strongly encouraged to review their hiring practices, including job advertisements, employment applications, and interview practices, in order to ensure compliance with the law prior to June 11, 2013.

Bello Welsh LLP

CLIENT ALERT – Department of Labor Issues Revised FMLA Regulations

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The United States Department of Labor has issued revised regulations to the Family Medical Leave Act (FMLA) that go into effect March 8, 2013. The revised regulations implement recent statutory amendments to the military leave provisions of the FMLA, update the FMLA notice employers must post, and contain other minor changes. The revised regulations also contain a number of provisions specific to airline flight crew members, which are not relevant to most employers.

Most importantly, employers must begin posting the revised FMLA notice beginning March 8th. The revised poster is available at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf. The regulations continue to require that employers’ FMLA policies include all of the information contained in the FMLA poster. As such, employers must also revise their FMLA policies to reflect the revisions to the poster, including the substantive changes to the section on military leave entitlement.

If you would like more information on the changes to the regulations, a side-by-side comparison of the former and new regulations is available on the Department of Labor’s website (http://www.dol.gov/whd/fmla/2013rule/comparison.htm).

Bello Welsh LLP

CLIENT ALERT – Massachusetts High Court Clarifies Rule for Release of Wage Claims

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The Massachusetts Supreme Judicial Court recently clarified that a general release between an employer and employee will only be enforceable as to claims under the Massachusetts Payment of Wages Act if the agreement is stated in “clear and unmistakable terms” and is “plainly worded and understandable to the average individual.” An enforceable release also must specifically refer to the rights and claims under the Wage Act that the employee is waiving. While the Court held that general releases are ineffective to bar claims under the Wage Act, it failed to either provide illustrative, enforceable releases or define the phrase “clear and unmistakable terms.”