And this little piggy went to your workplace … and might decide to stay

The resurgence of the H1N1 influenza (swine flu) this fall and winter could infect approximately 30-50 percent of the US population, hospitalizing up to 1.8 million people and causing between 30,000-90,000 deaths, according to recent estimates from the President’s Council of Advisors on Science and Technology in an 86-page report to the White House assessing the government’s preparations for the H1N1 influenza. Employers, who are already reeling from the recession, must also brace themselves for the return of the H1N1 influenza because a pandemic could result in an estimated 30-40 percent reduction of their workforce and significant absenteeism for up to 12 weeks.

While the H1N1 influenza discovered last spring was decidedly less severe than originally anticipated, the flu strain, for which a vaccine is not expected until October, seems to be targeting a disproportionate number of children and young adults, according to a recent Centers for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report. This is a key reminder to employers that employees may be absent from work not just because they are sick, but also to care for their sick family members.

Timing. The fall resurgence may well occur as early as September, beginning with the school term, with the peak infection hitting in mid-October, according to the President’s Council report. However, significant availability of the H1N1 vaccine is currently projected to begin only in mid-October, with several additional weeks required until vaccinated individuals develop a protective immunity. The government is asking employers to consider offering not just the seasonal flu vaccine to their employees, but also the H1N1 vaccine, once it's available. The federal government has said that the vaccine will be provided at no cost to health care providers. Even then, (1) pregnant women, (2) health care workers/emergency medical responders, (3) parents or guardians of infants under 6 months of age, (4) persons between the ages of 6 months and 24 years of age and (5) individuals under 65 who are at higher risk for H1N1 influenza because of chronic health conditions or compromised immune systems would be the first to receive the vaccine, according to the CDC, with the elderly and then everyone else next in line. The majority of the H1N1 vaccine will be in multi-dose vials, with the remainder in single-dose syringes or nasal sprayers.

Given all the unknowns related to the H1N1 vaccine—owing to its availability and coverage—it begs the question, what should employers be doing now?

Recommendations for employers. Updated guidance from the CDC encourages employers to plan now for the impact that both the seasonal and the 2009 H1N1 influenza could have on their employees and operations. Among the CDC’s suggestions are the following:

• Review or establish a flexible influenza pandemic continuity plan and involve your employees in developing and reviewing the plan;
• Have an understanding about your organization’s normal seasonal absenteeism rates and know how to monitor your personnel for any unusual increases in absenteeism through the fall and winter;
• Engage state and local health departments to confirm channels of communication and methods for dissemination of local outbreak information;
• Cross-train personnel to perform essential job functions so that the workplace is able to operate even if key staff are absent;
• Assess your essential functions and the reliance that others and the community have on your services or products; be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed);
• Allow sick employees to stay home without fear of losing their jobs;
• Develop other flexible work arrangements (i.e., telecommuting) to allow workers to stay home to care for sick family members or for their children if schools dismiss students or child care programs close;
• Share your influenza pandemic plan with employees and explain what human resources policies, workplace and leave, pay and benefits policies will be available to them;
• Encourage infection control practices in the workplace such as displaying posters that address and remind employees on correct hand and respiratory hygiene and cough etiquette;
• Consider canceling non-essential, face-to-face meetings and travel during flu season; and
• Add a “widget” or “button” to your company web page or employee web sites so employees can access the latest information on influenza: http://www.cdc.gov/widgets/ and http://www.cdc.gov/SocialMedia/Campaigns/H1N1/buttons.html.

In addition to the obligation to provide your employees and customers with a safe and healthy workplace, employers must avoid any liability issues that may arise when responding to the 2009 H1N1 influenza pandemic.

If the courts won’t tell us, how will we know?

A law is only as good as a court’s willingness to apply it to the very real circumstances encountered by the individuals the law seeks to protect. So, courts are often called upon to determine exactly how far each protected category extends. For example, does the protected category of sexual orientation extend to ex-gays? Does the protected category of pregnancy (derived from the protected category of sex) extend to women, who, as a result of having a baby, are lactating?

These are the questions that the Superior Court for the District of Columbia and the Supreme Court of Ohio, respectively, had the opportunity to answer. One court answered the question loud and clear. The other missed the chance to provide clarity to the many women who need to know how far the law reaches when it comes to sex discrimination - do women in Ohio have to choose between their jobs and providing mother’s milk for their babies?

The sexual orientation question. In the D.C. case, the Parents and Friends of Ex-Gays, Inc (PFOX) challenged the District’s Office of Human Rights’ (OHR) rejection of the group’s public accommodations claim, finding that ex-gays are not members of a protected class under the District’s Human Rights Act (HRA), and, even if they were, the National Education Association (NEA) had rejected the group’s application for a booth at its annual convention for nondiscriminatory reasons. NEA viewed the group as hostile to gays and lesbians, and thus, its message was contrary to NEA’s policies regarding sexual orientation.

The court rejected OHR’s finding that ex-gays are not protected under the HRA since they do not have an immutable characteristic (presumably required for protected categories), calling it “clearly erroneous as a matter of law.” The HRA lists many protected categories such as religion, personal appearance, familial status, and source of income, all of which are subject to change, noted the court. Moreover, the HRA defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” The court made it clear that the immutability of sexual preferences was not a part of the equation because the HRA protects sexual practices as well as preferences.

While ruling that OHR erred on the protected category issue, the court found that, although PFOX presented a prima facie case of discrimination, there was substantial evidence supporting the OHR’s determination that the non-discriminatory reasons asserted by NEA for its actions were not pretext for discrimination. Thus, the court affirmed OHR’s no probable cause determination.

The breast-feeding inquiry. As to mother’s milk, a splintered Supreme Court of Ohio, despite accepting a discretionary appeal to determine whether Ohio law prohibits discrimination against female employees because of lactation, chose not to give the clear direction so sorely needed.

In this case (Allen v Totes/Isotoner Corp), an employee was fired for taking breaks to pump her breasts after giving birth several months prior. A trial court entered summary judgment for her employer, reasoning that, since the employee had given birth five months earlier, and women who choose not to breast feed or pump their breasts do not continue to lactate for five months, the employee’s condition was not related to pregnancy, but rather to breastfeeding – which was not protected as gender discrimination.

An appeals court affirmed, holding that the employee had not presented a prima facie case of sex bias based on pregnancy, and that she wasn’t fired because she was lactating and needed to pump her breasts but, rather, because she took unauthorized extra breaks.

With no discussion on the reach of protections against sex or pregnancy bias, or whether the employee presented a prima facie case of discrimination, the high court’s per curiam opinion merely affirms based on the issue of pretext; the employee failed to show her employer’s justification for firing her - not following directions - was pretext for bias.

Three justices, two concurring in the judgment only and one dissenting, criticized the failure of the per curiam opinion to answer the question they believed was incorrectly answered by the trial court – all three justices would find that Ohio law protects against employment discrimination based on lactation.

One of these justices pointed out that Ohio’s Pregnancy Discrimination Act uses broad language, protecting employees ‘“because of or on the basis of pregnancy” and states that ‘[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”’

The same justice found it curious that the trial court would find lactation related to breast feeding but not to pregnancy. “[G]iven the physiological aspects of lactation, I have little trouble concluding that lactation also has a clear, undeniable nexus with pregnancy and with childbirth,” she wrote.

I’m sure many, many working mothers would agree. And they would like to know the answer to the question put to the state supreme court as soon as possible. Does Ohio law protect women from employment discrimination based on breast feeding?

If the state supreme court will not answer the question, how will they know?

Ricci decision highlights importance of validating tests

One of the important lessons from the Supreme Court's June 29, 2009 decision in Ricci v DeStefano, is that employers need to make sure, before administering a test, that the test is valid under the Uniform Guidelines on Employee Selection Procedures (41 CFR §60-3) for the specific job in question. Moreover, federal contractors should note that, post-Ricci, the OFCCP has demonstrated it will continue to evaluate whether employment tests have a disparate impact against any racial, ethnic or gender group. 

In Ricci, the Supreme Court found that the City of New Haven, Connecticut violated Title VII's prohibition against discriminatory treatment when it tossed the results of firefighters' promotion exams on the premise that certifying the exam results would lead to disparate impact litigation from minorities who were not promoted. In so ruling, the Court adopted a new standard — “strong-basis-in-evidence” — for resolving any potential conflict between Title VII’s disparate treatment and disparate impact provisions. The High Court held that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.

However, the High Court ruling did not change the standards under Title VII and, thus, the Uniform Guidelines, regarding liability for employment tests that result in a disparate impact. Under the Uniform Guidelines, it is permissible for an employment test to have a disparate impact if the test is valid – i.e., job-related and consistent with business necessity, unless a plaintiff can show the employer had a better option, equally valid alternatives with lesser adverse impact, which is rare. A highly unusual aspect of the Ricci case was that the employer (rather than an employee alleging disparate impact) argued that its test was not valid and that it had equally valid alternatives with lesser adverse impact.

In addition to Title VII, the Uniform Guidelines apply to disparate impact liability under Executive Order 11246. During a forum at the Industry Liaison Group National Conference in Atlanta on July 30, OFCCP Midwest Regional Director Sandra Zeigler specifically stated that, post-Ricci, the OFCCP will continue to evaluate federal contractors’ use of tests pursuant to the requirements of the Uniform Guidelines. Recent OFCCP enforcement actions buttress Zeigler’s statement. On July 28, the agency announced that Kraft Foods Global, Inc. paid $227,500 to settle allegations of hiring discrimination against 193 minority jobseekers for the position of plant laborer at a Kraft facility. On August 18, the OFCCP announced that Gerber Products Co. agreed to pay $900,000 to settle findings of hiring discrimination against 1,912 rejected minority and female applicants for entry-level positions. In both cases, OFCCP investigators found that the employers used pre-employment tests with a disparate impact where there was insufficient evidence of validity for the positions at issue.  

Thus, employers are left with a legal landscape where they risk a Title VII action or OFCCP enforcement action by using invalid tests that result in a disparate impact, but, under Ricci, they cannot legally throw out the results of such tests without “a strong basis in evidence.” If the City of New Haven’s assertions are to be believed, then it begs the question why the city did not take care to validate the test prior to its implementation. In addition to potential disparate impact liability from using tests that are not valid, the OFCCP’s testing expert, Richard J. Fischer, Ph.D., has pointed out that if a test is not job-related, it simply doesn't make business sense to use it. The bottom line is that employers should not be so concerned with the unusual circumstances presented in the Ricci case that they forget to focus on whether they are implementing valid employment tests in the first place. 

New York City private employers may soon wrestle with paid sick leave obligations

Positioning New York City to become the fourth municipality in the country to pass paid sick leave legislation, Council Member Gale A. Brewer (D-Manhattan) introduced legislation on August 20, 2009, mandating that New York city private employers provide paid sick leave to their employees. Thirty-five of the 51 City Council Members have agreed to cosponsor the bill. New York City Mayor Michael Bloomberg has also endorsed the concept of paid sick days.

Called the Earned Paid Sick Leave Law, the bill would require employers to provide paid sick leave annually to each employee at a rate of one hour of paid sick leave for every 30 hours worked. Employees who work a 40-hour workweek would earn up to nine paid sick days per year, while employees working for small businesses (employing ten or fewer employees) would earn up to five days per year. Employees are eligible for the benefit once they begin work, but the paid sick days cannot be used until the employee has worked at least 90 days.

An employer must permit an employee to use the paid sick leave for the following reasons:

• an employee's or the employee's child's, spouse's, parent's, grandparent's or domestic partner's mental or physical illness, diagnosis or preventive medical care;
• issues related to domestic violence; and
• in the event a public oficial closes a school or place of business due to a public health emergency.

According to the bill, reasonable notice of foreseeable leave may be required and documentation may also be required for leave of more than three days. In addition, the bill bans employers from taking retaliatory personnel actions or discriminating against an employees because they take the leave. Businesses would be fined $1,000 per violation.

The District of Columbia, San Francisco and Milwaukee are municipalities that have paid leave programs, but Milwaukee's paid sick leave ordinance was declared unconstitutional. An appeal has since been filed. Nationally, the Healthy Families Act (S. 1152/H.R. 2460) would establish a minimum standard of paid sick days for the nation, allowing workers to earn up to seven paid sick days a year. It is currently being considered by both the House and Senate.

U.S. signs international treaty promoting worldwide rights of persons with disabilities

The Obama administration continued to act on its stated commitment to be a “strong advocate for persons with disabilities” when it signed the U.N. Convention on the Rights of Persons with Disabilities. The convention is a treaty committing governments to promote, protect and ensure the full and equal enjoyment of all human rights and basic freedoms by people with disabilities worldwide.

When Susan Rice, U.S. Ambassador to the United Nations, signed the treaty, she noted it was “the first new human rights convention of the 21st century adopted by the United Nations and further advances the human rights of the 650 million people with disabilities worldwide. It urges equal protection and equal benefits under the law for all citizens, it rejects discrimination in all its forms, and calls for the full participation and inclusion in society of all persons with disabilities.”

“We all still have a great deal more to do at home and abroad,” she continued. “As President Obama has noted, people with disabilities far too often lack the choice to live in communities of their own choosing; their unemployment rate is much higher than those without disabilities; they are much more likely to live in poverty; health care is out of reach for far too many; and too many children with disabilities are denied a world-class education around the world. Discrimination against people with disabilities is not simply unjust; it hinders economic development, limits democracy, and erodes societies.”

Senior presidential advisor Valerie Jarrett took a moment during the signing ceremony to announce the President’s intent to create a new senior-level diplomatic post in the State Department to promote the rights of people with disabilities internationally.

“This individual will be charged with developing a comprehensive strategy to promote the rights of persons with disabilities internationally; he or she will coordinate a process for the ratification of the Convention in conjunction with the other federal offices; last but not least, this leader will serve as a symbol of public diplomacy on disability issues, and work to ensure that the needs of persons with disabilities are addressed in international situations. By appointing the necessary personnel to lead and ensure compliance on disability human rights issues, the President reinforces his commitment to the UN Convention.”

The United States joined 141 other countries that have signed the U.N. treaty. President Obama must submit the treaty to the U.S. Senate for ratification.

The workplace “equalizer”: female supervisors more likely to be targeted for sexual harassment

Last week, ground-breaking research regarding women in the workplace managed to create a buzz on a number of labor, science, health and feminist blogs. The first-ever, large-scale, longitudinal study to examine workplace power, gender and sexual harassment, presented August 8, 2009 at the 104th annual meeting of the American Sociological Association, contended that female supervisors are more likely to be the targets of sexual harassment than women in lower-level positions. Surprised? One might think that a managerial title might offer a female employee some protection, but the study’s findings did not support that presumption.

The research concluded that nearly fifty percent of women supervisors, but only one-third of women who do not supervise others, reported sexual harassment in the workplace. In more conservative models with stringent statistical controls, women supervisors were 137 percent more likely to be sexually harassed than women who did not hold managerial roles.

“The study provides the strongest evidence to date supporting the theory that sexual harassment is less about sexual desire than about control and domination,” said Heather McLaughlin, University of Minnesota sociologist and the study’s primary author, adding that “male co-workers, clients and supervisors seem to be using harassment as an equalizer against women in power." While supervisory status increased the likelihood of harassment among women, it did not significantly impact the likelihood for men.

In addition to workplace power, the sociologists found that gender expression was also a strong predictor of workplace harassment. More effeminate men were at a greater risk of experiencing more severe or multiple forms of sexual harassment, as were those employees who self-identified as non-heterosexual.

Sponsored by the National Institute of Mental Health and the National Institute of Child Health and Human Development, researchers used data on nearly 600 men and women who were part of the 2003 and 2004 Youth Development Study, which began in 1988 in St. Paul, Minnesota public schools.

So, what can employers do about this? Although McLaughlin recommends increasing and improving anti-sexual harassment education programs at work, she allowed that companies often treat the subject as a joke and merely provide such programs as a way to protect themselves from liability.

For those employers who desire more information on sexual harassment in the workplace, the EEOC website is an excellent resource that provides guidance, training and outreach. Employers are encouraged by the EEOC to take the necessary steps to prevent sexual harassment from occurring and to communicate to employees that it will not be tolerated. In addition to training, the EEOC notes, employers should also establish an effective complaint or grievance process and take immediate and appropriate action when an employee complains.

It became necessary to destroy EFCA in order to save it

The proposed Employee Free Choice Act -- once labor's greatest hope for reform -- has been dealt a death blow. And it was poor EFCA's friends who delivered it.

To recap, a group of senators led by Tom Harkin (D-Iowa) has decided to remove the card-check portion that would allow workers to bypass secret-ballot elections, if a majority signs petition cards stating their intent to organize. According to the New York Times, Congress is considering replacing that provision with a measure that would require shorter and quicker elections.

The senators and their labor allies claimed that the card-check provision, which was once considered so important that the bill became known as the "card-check" bill, lacked sufficient support and would kill the overall labor reform bill. They suggested that shortening election periods and expanding union's worksite access will curtail the ability of employers to thwart the will of those employees who desire unionization. But these hopes seem illusory, given the response of EFCA's opponents.

Corporate lobbyists have promised to oppose fast elections, arguing that they would deny employers ample opportunity to educate employees about the downside of unionizing. They want the situation to remain status quo and, in dropping card-check, EFCA opponents have taken away their only bargaining chip. But it gets worse for labor fans.

The same interests that killed card-check are even more adamantly opposed to the arbitration provision, which would mandate arbitration if no agreement is reached after 120 days of bargaining.

Some refer to it as economic poison and other lobbyists refer to it as “an absolute nonstarter.” Newt Gingrich wrote that "EFCA’s imposed binding arbitration would irreparably wound one of the most extraordinary features in American society, the willingness to take risk to build an enterprise that generates prosperity for one’s family and community. It must never be allowed to be signed into law."

Whew. That's a lot of intellectual firepower being aimed at the provision. And how will labor fight back?

The suggestion here is that they can't. In bidding adieu to card-check by completely taking it off the table, the senators deprived themselves of their one big stick. They could have wielded card-check to force acceptance of the arbitration, triple-damages, and shorter election period provisions. The bill has the most prominent supporter imaginable in President Obama and with card-check available as a bargaining chip, EFCA's supporters could have wrested a meaningful reform bill out of the legislative gristmill.

Instead, they chose to dump card-check. Given the intense opposition to the arbitration provision, it's entirely possible that the labor "reform" bill will merely impose treble damages against employers proven to have engaged in unfair labor practices. And unions will tell you how difficult it can be to prove unfair labor practices.

The timing of the announcement suggests that EFCA, for all intents, is a dead political issue. By dropping this pebble into the ocean that is Health Care Reform-dominated Washington, the senators ensured that the ripples from this decision won't reach shore for a long time. By then, perhaps no one but the union rank and file will mind that labor reform was taken down by its very supporters.

In a race for federal jobs, military spouses get a “leg up” on the competition

Of all human powers operating on the affairs of mankind, none is
greater than that of competition.

-Henry Clay

If open competition is king, then under new guidelines issued by the Office of Personnel Management, those spouses of active-duty service members may have just had the pool of competition drained a bit. Well, maybe not exactly, but under these new rules, effective September 11, 2009, issued by the Obama administration (and first initiated by the Bush administration), federal agencies will soon be able to hire military spouses by allowing them to “bypass” traditional hiring procedures for many open federal positions.

Certainly, no one would begrudge anyone for making life easier for military spouses whose wives or husbands are serving our country. Yet, with a down economy and high unemployment, those open government jobs may have just gotten a little more difficult to get. Now to be fair, these new hiring rules merely allow eligible spouses to apply for federal jobs with the option of asking recruiters to allow them to bypass the traditional hiring process—an option most are, without a doubt, certain to avail themselves of.

However, with a growing population of unemployed, and programs already in place that provide preference to some military groups (i.e., veterans’ preference), does this program simply create a “spouses preference” that just shrinks, rather than encourages, competition for open federal jobs? Michael Maloney, head of OPM's staffing group, denied such a preference was being created on Federal News Radio, and stated further that:

[i]t provides hiring managers with an option. They're just another source of applicants they can consider when filling those jobs. There's no requirement that they use this authority, or that jobs are set aside for these individuals. With respect to the issue of a "preference" or an "advantage," a "preference" is giving points to veterans in examination, or rules that you can't pick non-veterans before considering veterans. This isn't that; it's just another way to consider these individuals, and it's completely discretionary with the agencies.

And OPM Director John Berry said in a statement that “[t]his family-friendly policy provides employment opportunities from individuals and a measure of economic stability to military families who must deal with a multitude of issues arising from one spouse serving their country [.]" Nevertheless, with nearly half a million active service members married, this could potentially create a situation where thousands of spouses could find it much easier to get a federal job. One could argue that there are already loopholes that make getting jobs easier for some than others, i.e., knowing someone or having more education, but those aren’t federally mandated situations.

Yet, when you are talking about the biggest employer in the United States making something easier, even when it is for a group as honorable as military spouses, that just makes things a little tougher for the “average Joe or Jane” who is still out there looking for a job. It’s a question of, with all these military spouses, all this unemployment, and only so many federal jobs available, will an “open competition” for some federal jobs simply be among military spouses?

The BlackBerry affliction

A prominent theme in the employment law e-press this week, as the healthcare reform storm raged on in townhall yelling matches across the country, is the darkening clouds gathering in the form of BlackBerry-inspired wage-hour suits. These seemingly disparate topics are not unrelated.

Back in May, the month when dreams of a two-week reprieve from the office typically begin to surface, the partner of a London law firm told his colleagues they were to be within reach by e-mail even while on vacation. An “out of office” auto-reply saying an attorney is unavailable is acceptable only in rare circumstances, he said, such as when a lawyer is on an international flight in a different time zone. The story, posted in the online ABA Journal, generated quite a stir. “A lawyer should be on-call 24/7? That’s a prescription for an alcoholic or even suicidal lawyer!,” wrote one respondent. “The good thing about being so available is that it results in premature death of the lawyer,” commented another.

The suck-it-up types were represented as well: “We all know when we sign up for BigLaw (and the paycheck that comes with it) we’ve signed a pact with the devil and we shouldn’t be all that surprised when Ol’ Scratch comes back to collect his debt. If you don’t appreciate that kind of treatment, go get another job.”

But here’s the thing: It’s not just the high-paid law firm lawyer who is expected to be at beck and call. Employees with much lower salaries and far less prestige face these demands today as well. Thus, the BlackBerry “problem.” It’s the next wave of wage-hour litigation: suits by nonexempt workers seeking pay for time spent answering BlackBerrys, responding to emails—simply being on an ever-shorter electronic leash—while ostensibly off the clock.

Certainly there is cause for concern about liability, given the growing use of these electronic devices and the ever-expanding workday. While such tasks may seem de minimis, the Department of Labor says even 10 minutes of work is substantial enough to count as compensable. The law on this issue is still developing; however, employers would be wise to follow the sage advice of counsel: Issue BlackBerrys to exempt employees only. Failing that, as to nonexempt workers:

• Forbid the use of BlackBerrys or company email outside of normal working hours, or require a manager’s approval before doing so.
• Require employees to promptly report time spent after hours on work-related emails or calls to ensure that time is promptly recorded and properly paid.
• Discipline employees who don’t adhere to these policies.
  

And know these tips will not prevent liability for paying employees who, you have reason to know, will stay wired after hours nonetheless.

Back to healthcare reform. Employers are paring back coverage, increasing employee contributions or, increasingly, scrapping healthcare benefits altogether. Facing spiraling costs, many employers also have heeded the clarion call of “wellness.” Maybe they’ve started a lunchtime walking program. Monetary incentives for weight loss. Perhaps even issued a no-smoking edict.

But here’s something else to consider: The more time spent on leisure activities, the better a person’s health tends to be, according to research just published by CCH sister company, Lippincott Williams & Wilkins. The study found that adults with the most time spent in a variety of leisure activities had lower blood pressure, waist circumference, body mass index and cortisol measurements, all markers of good health. That’s something to ponder when you pass out the BlackBerrys—regardless of whether overtime pay will come due.

Employment attorneys often bemoan that the FLSA—with its aversion to comp time and flexible scheduling, its unwieldy definitions of who is nonexempt—is simply ill-suited to today’s 24/7, BlackBerry-buzzing world of work. But the statute’s purpose, when enacted in 1938, was to ensure working conditions deemed necessary “for health, efficiency, and general well-being of workers.” Perhaps those legislators were onto something.

Can I get a Baby Boomer sandwich, hold the caregiver discrimination?

This isn’t your regular bacon, lettuce and tomato sandwich, people … Baby Boomers have found themselves part of a new “club” called the “sandwich generation” – in the middle of caring for their parents on the top and their children on the bottom. Faced with their work responsibilities, along with eldercare and childcare duties, more of these employees are filing lawsuits asserting that they have been discriminated against because of their caregiving obligations. The Center for WorkLife Law at the University of California, which educates stakeholders on caregiver discrimination, found that such lawsuits have risen by 400 percent in the last decade. It is clear that caregiver discrimination is an emerging workplace issue, but how can employers protect themselves from these lawsuits?

The EEOC has taken steps to educate both employers and employees about this developing area of the law, first through enforcement guidance about what federal equal employment opportunity (EEO) laws may apply to caregivers, and then with a best practices document on what employers can do to avoid liability for caregiver discrimination.

Caregivers, in and of themselves, are not a protected class. No federal EEO statutes prohibit discrimination based solely on one’s caregiver status. However, employers may have legal obligations towards employees with caregiving responsibilities under the Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave and the Americans with Disabilities Act. Examples of caregiver discrimination include: (1) reassigning a female employee to less-desirable projects based on the assumption that, as a new mother, she will be less committed to her job; (2) limiting a pregnant employee’s job duties based on pregnancy-related stereotypes; (3) denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver; and (4) refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable. There are many others.

The EEOC has also issued employer best practices for employees with caregiving responsibilities. The document provides recommendations for creating workplace policies aimed at removing barriers for workers with caregiving responsibilities. Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, providing flexible work arrangements and part-time opportunities with proportional compensation and benefits and creating equal opportunity policies that address unlawful discrimination against caregivers. For some employers, if they can do so in these economic times, the best defense against caregiver discrimination lawsuits is a family-friendly workplace that offers flexible work arrangements, according to the EEOC.

Employers, however, have not lost the ability to discharge, discipline, demote, not promote, transfer or reprimand employees for legitimate business reasons. This means caregivers can still be fired for not being able to perform their jobs, just like any other employee. Make sure your reason for the discharge is not discriminatory. Other essential tips from the EEOC include, providing in the policy, examples of illegal conduct and identifying a contact person for questions or complaints. In addition, because this is an emerging area of the law, the EEOC advises that employers train managers about caregiver discrimination.

While the EEOC’s advice is helpful, be careful that the workplace policy you draft does not unintentionally cause more harm than good. First and foremost, remember your workplace as a whole. A policy intended to benefit only caregivers could have the unintended consequence of discriminating against employees who are not caregivers. For example, an employer that offers flexible work arrangements, like telecommuting, only to those employees who have primary childcare responsibilities may be discriminating against its male workforce. Federal and state wage and hour laws may also have an impact on your policy. It is always a good idea to make sure to run the policy by your employment law counsel before it is disseminated to employees.

Stayed tuned with this one -- it is only going to get more complicated. State and federal legislators are continuing to introduce more family-friendly workplace bills (paid sick leave, paid family leave, academic activities leave, domestic violence leave, family leave insurance) at a rapid pace. And, this issue is on the Obama Administration’s radar. During the 2008 campaign, Obama committed to supporting the EEOC guidance on caregiver discrimination.

Lawmakers take aim at employer credit-check policies

The practice of running credit checks on potential employees poses a substantial threat to increasing numbers of job applicants given the harsh economic climate that has rendered so many unemployed, uninsured, facing home foreclosures, or the impossibility of meeting credit card payments, and the rising number of employers relying on credit histories to make employment decisions. How will the jobless get back to work if they’re barred from employment because of financial difficulties caused by job loss? You see the vicious cycle here.

It turns out that July 2009 was a good month for would-be employees with financial problems. On the 15th, despite the governor’s veto, the Hawaii legislature amended the state's Fair Employment Practices Act to make it an unlawful discriminatory practice for an employer to base employment decisions on an individual’s credit history or credit report, unless the information directly relates to a bona fide occupational qualification. (H. 31, L. 2009) There are exceptions for employers that are expressly permitted or required to inquire into credit histories under federal or state law, employers that are financial institutions in which deposits are insured by a federal agency having jurisdiction over the financial institution, and for managerial or supervisory employees.

Speaking to the State Senate Committee on Labor, Acting EEOC Chair Stuart J. Ishimaru explained that credit-check policies have a disparate impact based on race. Under Title VII standards, employers must be able to show that any disparate impact is justified by business necessity and that there is no less discriminatory alternative. Thus, employers must be able to “show that a credit check policy accurately measures whether applicants possess the qualifications needed for the positions from which they are excluded,” he said.

Employer credit-check policies would have much difficultly meeting this standard, according to Ishimaru. Credit histories often contain inaccuracies and errors that are serious enough to prompt denial of a loan or employment. Moreover, negative credit information may not account for circumstances that were beyond an individual’s control, such as developing a disability, divorce, death of a spouse, a family member’s illness, identity theft, or an employer’s downsizing. Finally, even if a credit report accurately reflects an individual’s credit history, “there is little, if any, evidence that credit information will generally be predictive of successful job performance,” Ishimaru, pointed out.

Recognizing similar problems, Rep. Steve Cohen (D-Tenn), on July 9, introduced a bill in the U.S. House of Representatives that would amend the Fair Credit Reporting Act to bar the use of consumer credit checks of current and prospective employees for the purpose of making employment decisions. (HR 3149). “In recent years, the number of employers using credit checks on potential employees has risen to 43%,” Cohen said in a press release. “According to a recent report, one-third of individuals making less than $45,000 a year have poor credit scores caused by the result of bankruptcies, loan delinquencies, divorce, medical problems or unemployment.”

Dubbed the “Equal Employment for All Act,” the bill has 34 cosponsors and is endorsed by many civil rights and consumer protection organizations. It has been referred to the House Committee on Financial Services.

It seems that what used to be a “protected category” problem with an adverse impact felt most strongly along racial lines is growing into a more universal problem. Employers should anticipate that credit-check policies will increasingly be on lawmakers’ radar – everyone has an interest in getting the jobless back to work.

Pending Paycheck Fairness Act would resurrect controversial EO Survey

The Paycheck Fairness Act (H.R. 12, S. 182), currently pending in Congress, would require specific changes to OFCCP and EEOC enforcement activities related to gender discrimination in compensation. One proposed change of particular concern to the federal contractor community is the proposed legislation’s requirement that the OFCCP reinstate the controversial Equal Opportunity (EO) Survey. The Act would require that "not less than half of all nonconstruction contractor establishments" prepare and file the EO Survey each year and require the OFCCP to "review and utilize the responses to the survey to identify contractor establishments for further evaluation." 

The regulatory requirement for federal contractors to file the EO Survey, put into place by the Clinton Administration, was eliminated on September 8, 2006 (71 FR 53032-53042) by the Bush Administration. The decision to eliminate the EO Survey was based in part on two studies commissioned by the OFCCP to access the validity of the EO Survey as a selection tool for compliance reviews. One of the studies failed to find a correlation between the predictive variables generated from the EO Survey and determinations of noncompliance. The second study showed that the EO Survey did not provide sufficiently useful data for enforcement targeting purposes. On October 5, 2006, at the National Employment Law Institute's Twenty-Fourth Annual Affirmative Action Briefing in Chicago, then OFCCP Director Charles E. James, Sr. said the EO Survey "was a noble effort, but with a faulty design."

The EO Survey was not popular among the federal contractor community, who generally found it to be unduly burdensome. The survey required contractors to report information about personnel activities, compensation and tenure data, and certain information about the contractor's affirmative action program. Although the OFCCP's recordkeeping regulations require contractors to maintain information that was necessary to complete the EO Survey, contractors were not required to maintain that information in the format called for by the survey instrument. Critics asserted that the data request in the EO Survey was too generalized to provide useful compliance or enforcement information. Another concern was that the EO Survey required companies to report personnel data by individual business location. Companies that monitored their employment practices on a broader basis (for example, by functions or geographic regions) complained that requiring reports to be prepared by single business location was unduly restrictive. This was particularly problematic for contractors that utilized functional affirmative action programs, rather than the traditional establishment-based affirmative action programs.

Nevertheless, civil rights groups, such as Women Employed, the National Women's Law Center and the National Partnership for Women & Families have maintained that the EO Survey could have been a vital tool to enable the OFCCP to detect discrimination based on race and gender and target investigations or other enforcement action. "They want to eliminate this enforcement tool without ever having used it," said Jocelyn Frye, General Counsel at the National Partnership for Women & Families in a statement issued at the time the OFCCP first proposed elimination of the EO Survey. "OFCCP has not suggested changes to improve it or offered any alternative. Instead, it is discarding an important tool that would have provided hard data on pay and job practices."

The House passed the Paycheck Fairness Act on July 31, 2008, but the bill has not yet come to a vote in the Senate. If the Act does become law with the EO Survey resurrection provision intact, the OFCCP would be faced with the choice of using the previous, much criticized format, or developing a revised, and hopefully more utilitarian, format. Given the agency’s difficulties with its previous attempts in utilizing the EO Survey, this looks to be a monumental task.
 

Over Governor’s veto, Hawaii passes controversial “mini-EFCA” law

The Hawaii State Legislature has enacted legislation to certify unions as exclusive bargaining representatives without an election, or secret ballot, for employers with an annual gross revenue of $5 million or more. House Bill 952 also requires arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties of up to $10,000 per violation for unfair labor practices. The State Legislature overrode the governor's July 14 veto by a two-thirds vote in a Special Session held July 15.

While Hawaii has moved forward with its “mini-EFCA,” six Democratic U.S. senators friendly to labor reportedly have decided to drop the card-check provision of the Employee Free Choice Act, according to the New York Times. Card-check is a central element in the legislation, but it has proven to be a stumbling block in securing full support for the bill among Democrats. Provisions for a sharply reduced union election cycle, required union access to employer property, and a ban on captive audience meetings are some of the revisions said to be in the works; the bill's original mandatory arbitration and heightened damages provisions remain.

Effective July 1, Hawaii employees covered by H.B. 952 will be able to skip a secret ballot election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards. After a union is certified and issues a request to collectively bargain, the employer must commence bargaining within 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years.

Whether Hawaii will be the first of many states to move forward with EFCA-type laws remains to be seen. From a statistical standpoint, Hawaii’s move may seem unexpected since the state has the second-highest percentage of union workers in the country and nearly twice the national percentage.