Category: Labor & Employment

EEOC Proposes Rule Requiring Employers to Disclose Pay Data on EEO-1 Forms and Key Recent Pro-Employee Changes in New York State’s and New York City’s Employment Laws and Regulations

EEOC EEO-1 Form Pay Data Requirement Raises Risks for Management

In a proposed regulation announced on January 29, 2015, the U.S. Equal Employment Opportunity Commission set forth changes that would require federal contractors and all other private-sector employers throughout the nation of more than 100 employees to report wage and salary data on their annual EEO-1 Forms. This new rule would mandate that such employers disclose compensation ranges and hours worked on their EEO-1 Forms, which already must contain data on employees’ gender, ethnicity, and race.

The Commission’s plans to require management to submit this data is part of the Obama Administration’s aggressive efforts to enforce the federal Equal Pay Act and other fair employment statutes and to promote pay equity in the workplace. Complying with the new regulation would require employers to spend substantial additional time and resources in gathering compensation information, which often involves many variables, and then organizing it into the format that the EEOC will mandate. Reporting this data to the EEOC would give the U.S. Government data without context and may lead to burdensome Commission investigations and enforcement actions based on misunderstandings of incomplete compensation information. Further, even though EEO-1 data enjoys some protections, the confidential status of employers’compensation information will now be vulnerable either to Freedom of Information Act requests or to kind of hacking attacks to which the federal government, with its antiquated IT systems in agencies such as the EEOC, has already suffered.

In sum, employers in New Jersey, New York, and around the country would become subject to higher EEOC scrutiny of their payroll practices, would face more Commission inquiries and litigations, would have to expend additional resources to complete EEO-1 Forms, and would need to live with a higher risk that their competitors will be able to obtain the confidential compensation data that the new rule would require management to submit each year to the EEOC.

Key Pro-Employee Changes in New York State and New York City Employment Laws and Regulations

New York State and New York City made significant changes in their labor and employment laws and regulations last year and this month. The NYS Legislature enacted, and Governor Cuomo signed, key revisions to laws that affect management throughout New York State. Mayor de Blasio and the City Council expanded local laws that further burden employers in the City. These important developments include:

A. New York State Women’s Equality Agenda

The Women’s Equality Agenda that went into effect on January 19, 2016 significantly amended New York State’s sex discrimination, sexual harassment, and equal pay laws to afford women greater protection in the workplace. These new statutes promoting gender equality in New York State include provisions that:

1. Amend New York State’s Equal Pay Act to require that an employer which pays lower wages to women than to men, for a job of equal skill, effort, and responsibility, demonstrate that such disparity is due to a bona fide factor other than sex, such as education, training, or experience, and that the difference in pay is job related and consistent with business necessity.

2. Make it unlawful for employers, in general, to prohibit employees from discussing or disclosing their wages — a new provision which affects both women and men.

3. Significantly increase the penalties for New York State Equal Pay Act violations by allowing employees to recover liquidated damages of three times (300%) the unlawfully unpaid wages, in addition to making the employee whole by requiring payment of the unpaid wages.

4. Allow a court to award attorneys’ fees to a prevailing plaintiff in sexual harassment and other sex discrimination actions.

5. Add familial status as a protected class under the New York State Human Rights Law. This new provision applies equally to men and women who are parents or guardians.

6. Expand the New York State Human Rights Law’s coverage of sexual harassment claims to all employers, including employers of from one to three employees who were not previously covered.

7. Require employers to provide reasonable accommodation for pregnancy-related medical conditions.

B. New NYS and NYC Protections for Transgender Individuals

1. Earlier this month, the New York State Division of Human Rights adopted regulations that make discrimination on the basis of a person being transgender unlawful under the New York State Human Rights Law. These regulations also prohibit harassment of transgender persons and require New York employers to reasonably accommodate employees who have been diagnosed with a “gender dysphoria” medical condition.

2. On December 21, 2015, the New York City Commission on Human Rights issued new enforcement guidelines on discrimination against transgender individuals, which the New York City Human Rights Law prohibits. The guidelines provide for penalties of up to $250,000 for violations that are found to be willful, wanton, or malicious.

C. New NYC Protections for Caregivers

1. The New York City Council has amended the New York City Human Rights Law to include caregiver as a protected class. The new local legislation, which Mayor de Blasio signed on January 5, 2016, defines caregivers as persons who provide direct and ongoing care for a minor child or a care recipient, such as a relative or individual with a disability who resides in the caregiver’s household. This amendment will go into effect on May 4, 2016.

Article By David I. Rosen, Galit Kierkut & Charles H. Kaplan of Sills Cummis & Gross P.C.

© Copyright 2016 Sills Cummis & Gross P.C.

2015 Union Membership Rate Relatively Stable Despite New NLRB Election Rules

national labor relations boardDespite the National Labor Relations Board’s “quickie election rules,” the percentage of unionized workers in the private sector remained stable during 2015, according to the Bureau of Labor Statistics of the U.S. Department of Labor: 6.7% of private-sector workers were in unions in 2015, up from 6.6% in 2014. Not surprisingly, public-sector workers had a much higher union membership rate: 35.2%.

According to the report, men had a higher union membership rate than women: 11.5% versus 10.6%. In addition, the percentage of African-American workers who were union members was greater than Caucasian workers.

New York (24.6%), Alaska (22.8%), and Hawaii (21.8%) had the highest unionization rates, whereas South Carolina (2.2%), Mississippi (3.7%), and Utah (3.7%) had the lowest.

The report found the median weekly earnings of nonunion workers were lower than the median weekly earnings for unionized workers ($776 per week versus $980 per week). The report, however, recognizes that this comparison may not be valid because the “comparisons of earnings in [the] release are on a broad level and do not control for many factors that can be important in explaining earnings differences.” Indeed, this is likely the case.

Article By Howard M. Bloom & Philip B. Rosen of Jackson Lewis P.C.

Jackson Lewis P.C. © 2016

EEOC Releases New Guidance on Rights of HIV-Positive Employees Applicable to Health Care Providers and Employers

In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry.  This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” discusses rights provided under the Americans with Disabilities Act (ADA).  Although the guidance is directed to applicants and employees with HIV infection, there are key takeaways for employers.  First, the EEOC emphasizes the workplace privacy rights of those with HIV infection, but reminds individuals that in certain situations an employer may ask medical questions about their condition.  Second, HIV infection should be treated as a disability and HIV-positive individuals are protected against discrimination and harassment at work because of the condition.  Finally, those with HIV infection may have a legal right to reasonable accommodations at work, which may include altered break and work schedules, changes in supervisory methods (e.g., written instructions from a supervisor), accommodations for visual impairments, ergonomic office furniture, unpaid time off (e.g., for treatment), and reassignment to a vacant position.

The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work,” informs physicians about their HIV-positive patients’ rights to reasonable accommodations at work.  While the guidance effectively coaches health care providers to advocate for their patients’ rights to accommodation, the EEOC reminds providers that that their legal and ethical obligations are not altered by the ADA.  Thus, providers should only disclose the medical information if requested by the patient and an appropriate release is signed.  Further, providers are reminded not to overstate the need for a particular accommodation in case an alternative accommodation is necessary.

Health care entities should be aware that, in its press release regarding the guidance, the EEOC continues to take the position that HIV-positive employees, even in health care settings, should not be excluded from jobs unless they pose a “direct threat” to safety, a strict standard under the ADA.  The EEOC—following CDC guidance—has said that “HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially defined exposure-prone invasive procedures, do not pose a safety risks in their employment based on HIV infection.”  For example, says the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.

The EEOC guidance makes clear that HIV infection is a disability under the ADA.  Employers should be aware that applicants and employees have a right to privacy and, in most situations,  need not reveal the exact diagnosis of their medical illness. Employers should not unnecessarily inquire about the exact illness diagnosis if it is not needed for the purposes of determining reasonable accommodations.  Most importantly, health care employers should not use stereotypes or misinformation in evaluating patient safety implications for those employees with HIV infection.  Even in safety sensitive positions, an HIV-positive health care employee generally poses no safety risk when using standard precautions.  Health care employers should make sure that their front-line supervisors are also aware of the rights of their subordinates who may have HIV infection.

Article By Nathaniel M. Glasser & Jonathan K. Hoerner of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Handling Employee Attendance and Pay When the Weather Outside is Frightful

Handling Employee Attedance and Pay When the Weather Outside is FrightfulLike it or not, winter has finally arrived.  During times of snowy and icy road conditions, employers will undoubtedly be faced with tardiness, absenteeism, and the possibility of implementing office and/or plant closures.  One question that often arises during inclement weather is how to handle pay issues under the Fair Labor Standards Act (FLSA).  If you find yourself in that boat snowmobile, read on!  While it’s been a while since anything new has been issued in this area, the U.S. Department of Labor has previously issued guidance to help employers administer the FLSA when bad weather affects employee attendance.  The answers to many of your questions probably depends on two factors – first, whether the employee is exempt or non-exempt, and second, whether the employer’s business remains open or closes during the inclement weather.

Must Employees be Paid When the Employer Closes its Business Due to Bad Weather? 

The DOL’s position is that employers who close their business because of weather conditions must still pay exempt employees their regular salaries for any shutdown that lasts less than one full workweek.  However, the DOL notes that no provision of the FLSA prohibits employers from requiring exempt employees to use vacation time or other accrued leave to cover the missed work.  So long as there is no state law restriction, written policy, or collective bargaining agreement which provides otherwise, employers may require employees to use their PTO to cover absences in the event of an office closure in bad weather.  Due to the negative effect on employee morale, however, many employers opt not to require employees to do this.  If you intend to require employees to use paid leave in this circumstance, you should make that clear in your written policy.  The key, for an office closure lasting less than one workweek, is to ensure that an exempt employee’s salary is not affected.

If an exempt employee is required to use PTO for an office closure but doesn’t have any leave left in his leave bank, then what?  The employee must still be paid his regular salary when the employee’s business is closed for inclement weather for less than a week, regardless of whether he has available PTO.  In cases where a weather closing leaves an employee with a negative leave balance, employers can grant the leave and allow the employee carry a negative PTO balance until he accrues additional leave to make up for the deficit in the employee’s leave bank.

The rule for non-exempt employees is much simpler – they are paid only for time worked.  Thus, if the employer’s business is closed due to bad weather, the employer is not required to pay a non-exempt employee for time that is not worked, even if the employee was scheduled to work on the day of the closure.  However, if non-exempt employees are required to report to work and asked to stay until a decision can be made whether to shut down or remain open in inclement weather, they must be paid – even if the employee is simply waiting around for his supervisor to make a decision about closing and there is no work for the employee to do. 

Must Employees be Paid When the Employer’s Business Remains Open during Bad Weather, but Employees are Either Late to Arrive, Leave Early, or Entirely Absent? 

Since non-exempt employees are paid only for the time worked, any scheduled work time that is missed due to late arrival, early departure, or absence in the event of inclement weather may be unpaid.

For exempt employees, proper pay depends on whether the employee misses a full day or only a partial day of work.  If the employer’s business remains open, but an exempt employee is unable to make it into work due to bad weather and misses an entire day, the DOL regards the absence as one for personal reasons. Thus, the employer may deduct a full day’s pay from the employee’s salary, or require the employee to use available vacation time (or accrued PTO) to cover the time off, according to the DOL.

Conversely, if the employer’s business remains open but an exempt employee shows up for only part of the day, she must be paid for a full day’s work, regardless of how long she is there.  The employee can be required to use vacation time (or other accrued PTO) to cover the hours missed due to late arrival or early departure, but the exempt employee’s salary can’t be affected.  Docking an exempt employee’s pay for partial-day absences is not permitted under the FLSA and may compromise the employee’s exempt status.

There’s no question that bad winter weather creates havoc, stress, and unpredictability for employers and employees alike.  Having clearly-communicated and consistently-followed policies about how weather-related absenteeism and tardiness will be handled can help to alleviate some of that anxiety and uncertainty, and knowing what the DOL regulations permit you to do as an employer can’t hurt either.

Article By Julie A. Moore of Steptoe & Johnson PLLC

© Steptoe & Johnson PLLC. All Rights Reserved.

Appellate Division Upholds Decision in Walmart Workers’ Comp Case

walmart-signA particularly noteworthy case was recently decided by the Appellate Division on November 20, 2015. This case, Colleen Fitzgerald v. Walmart, is so interesting because the Court found that the worker’s injured condition did not qualify as a work related injury simply because she felt a “pop” in her low back while walking at work.

The Petitioner, Colleen Fitzgerald, filed a claim for an accident that occurred on April 26, 2010, while she was working for Walmart. She stated that she was merely walking in the store and felt a “pop” in her low back. While at the time of the claim Ms. Fitzgerald said she felt the pop she was not doing anything other than walking, later testimony revealed that at some time prior to the incident she had been doing some lifting at work in her position as a zone merchandise supervisor.

She reported the accident to her manager, and after seeing her family doctor who diagnosed her with protruding lumbar discs, she took FMLA for 12 weeks and a leave of absence while she received treatment. She did return to work at Walmart for a period of time, however because she then had another non-work related slip and fall accident where she broke her elbow, she was ultimately terminated from her job at Walmart. There was never any authorized treatment provided by the Workers’ Compensation carrier for Walmart.

Petitioner filed two claim petitions, one for the specific incident that occurred on April 26th and an occupational claim for work she did from December 2008 through April 2010. Since Walmart denied both claims, petitioner filed a Motion for Medical and Temporary Disability benefits with the Workers’ Compensation Court. The Motion was heard by Judge Gangloff, who found in favor of Walmart, as did the Appellate Division on appeal.

In the trial before Judge Gangloff, both sides called medical experts to testify. Petitioner’s expert, Dr. Gaffney, testified that in his opinion petitioner’s injury was caused by her work at Walmart, while Respondent’s expert, Dr. Meeteer felt that the injury was not related.

The Appellate Division upheld Judge Gangloff’s decision under Close v. Kordulak and held that they found no reason to disturb his well-reasoned findings. They stated that the Judge reviewed the applicable case law and applied the two step “positional risk test” for determining whether the injury arose out of the course of employment. The first part of this test requires the petitioner to prove that “but for” the fact of employment the injury would not have happened. The next part of the test is to analyze the “nature of the risk” that caused the injury.

In this case, the Court concluded that that the petitioner failed to satisfy the first part of the test because “the facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.” In other words, as she was simply walking when she felt the “pop” in her back, the back injury could have just as easily occurred while she was not at work. According Judge Gangloff, “she could have been walking anywhere at the time of onset of pain.” He found that there was nothing about the workplace that contributed to petitioner’s injuries. The Judge did not find that petitioner had a compensable occupational claim either, because the medical records did not support Dr. Gaffney’s opinion that her condition was somehow related to a progressive occupational condition.

COPYRIGHT © 2015, STARK & STARK

Does the DOL Consider You a Joint Employer under Its “Broad as Possible” Standard? You May Be Surprised at the Answer

DOLOn January 20, 2016, the U.S. Department of Labor’s Wage and Hour Division (DOL) articulated a new standard that it will use to identify joint employment relationships. Specifically, the DOL published Administrator’s Interpretation No. 2016-1 (AI 2016-1), which is the first Administrator’s Interpretation this year, following the DOL’s similar pronouncement regarding independent contractor classifications in July 2015.

AI 2016-1 broadly interprets the Fair Labor Standards Act (FLSA) and Migrant Seasonal Agricultural Worker Protection Act (MSPA) and narrowly interprets case law regarding joint employment, resulting in its conclusion that “the expansive definition of ‘employ’ . . . reject[s] the common law control standard and ensures that the scope of employment relationships and joint employment under the FLSA and MSPA is as broad as possible.”

AI 2016-1 also sets forth two approaches for analyzing whether a joint employment situation exists: (1) horizontal, which looks at the relationship of the employers to each other, and (2) vertical, which examines “the economic realities” of the employee in relation to a “potential joint employer.” The structure and nature of the relationship(s) will dictate which analysis applies. In some cases both may be applicable, for example, when two businesses share an employee provided by a third-party intermediary, such as a staffing agency, that is the direct employer.

Horizontal Joint Employment

Citing the FLSA regulations, the DOL explained horizontal joint employment as follows:

Where an employee’s work simultaneously benefits two or more employers, or an employee works for two or more employers throughout the week, a joint employment relationship “generally will be considered to exist” in circumstances such as where:

  1. the employers arrange to share or interchange the employee’s services;

  2. one employer acts directly or indirectly in the interest of the other employer(s) in relation to the employee; or

  3. “one employer controls, is controlled by, or is under common control with the other employer.”

In addition, the DOL set forth the following factors as potentially relevant in gauging the relationship between two or more employers and the degree of shared control over employees that might suggest a horizontal joint employment arrangement:

  • who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners);

  • do the potential joint employers have any overlapping officers, directors, executives, or managers;

  • do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs);

  • are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for);

  • does one potential joint employer supervise the work of the other;

  • do the potential joint employers share supervisory authority for the employee;

  • do the potential joint employers treat the employees as a pool of employees available to both of them;

  • do the potential joint employers share clients or customers; and

  • are there any agreements between the potential joint employers.

According to the DOL, not all (or even most) of these factors need to be present for a horizontal joint employment relationship to exist. The agency set forth an example of a server who works at two separate restaurants owned by the same entity. The managers at each restaurant share the employee and coordinate the employee’s schedule between the two locations. Both employers use the same payroll processor and share supervisory authority over the employee. The DOL would find this to be a horizontal joint employment relationship. The agency distinguished this from a scenario where an employee works at two restaurants, one in the mornings and the other in the afternoons, and while each restaurant’s owners and managers know of the employee’s other job, the restaurants are completely unrelated. However, these examples leave quite a bit of grey area where the DOL apparently envisions a fact-intensive analysis under “as broad a standard as possible.”

Vertical Joint Employment

When it comes to vertical joint employment, the DOL maintains that the proper analysis is an economic realities test, and not the traditional inquiry focused on control. AI 2016-1 focuses on an employee’s “economic dependence” on the “potential joint employer” as the critical inquiry. This view appears to conflate the principles underlying the DOL’s recent independent contractor analysis with the question of whether an additional employment relationship exists beyond the one already established between an employee and his/her direct employer. The resulting approach likely will result in the DOL (and many courts) finding more entities to be joint employers under the FLSA where they otherwise would not—and in situations where a joint employer determination has largely been unnecessary because the employees in question already receive FLSA protections in their employment relationships with their direct employers.

To explain what it views to be the proper analytical approach, the DOL heavily relies on an MSPA regulation listing seven factors to consider under that statute’s version of the economic realities test for farm laborers. While the DOL acknowledges that the MSPA regulation does not actually apply to the FLSA, the agency believes the MSPA’s factors are “useful guidance in a FLSA case” and that “an economic realities analysis of the type described in the MSPA joint employment regulation should be applied in [FLSA] cases” to determine whether a situation is one of vertical joint employment. The MSPA’s seven factors are as follows:

  • Directing, Controlling, or Supervising the Work Performed. “To the extent that the work performed by the employee is controlled or supervised by the potential joint employer [i.e., the end user] beyond a reasonable degree of contract performance oversight, such control suggests that the employee is economically dependent on the potential joint employer.” The DOL goes on to clarify, as did the National Labor Relations Board recently, that such control need not be direct, but can be exercised through the intermediary employer. Likewise, the end user need not exercise as much control as the direct employer for it “to indicate economic dependence by the employee.”

  • Controlling Employment Conditions. Along the same lines, if an end user “has the power to hire or fire the employee, modify employment conditions, or determine the rate or method of pay,” this indicates economic dependence on the end user, even if the control is indirect or not exclusive.

  • Permanency and Duration of Relationship. If a work assignment for the end user is “indefinite, permanent, full-time, or long-term,” this suggests economic dependence. The DOL further instructs that analysis of this factor should consider “the particular industry at issue” such as “if the work . . . is by its nature seasonal, intermittent, or part-time.”

  • Repetitive and Rote Nature of Work. If the employee’s work for the end user “is repetitive and rote, is relatively unskilled, and/or requires little or no training,” this indicates economic dependence on the end user.

  • Integral to Business. “If the employee’s work is an integral part of the potential joint employer’s business, that fact indicates that the employee is economically dependent on the potential joint employer. . . . .”

  • Work Performed on Premises. If the work is performed “on premises owned or controlled by” the end user, this indicates economic dependence on the end user.

  • Performing Administrative Functions Commonly Performed by Employers. Economic reliance also can be imputed if the end user performs “administrative functions for the employee, such as handling payroll, providing workers’ compensation insurance, providing necessary facilities and safety equipment, housing, or transportation, or providing tools and materials required for the work.”

The DOL acknowledges that there are other possible factors that courts consider, but states that “regardless, it is not a control test.” To the extent that some, if not many, courts still do apply a control test, the DOL responds that doing so “is not consistent with the breadth of employment under the FLSA.” The agency buttresses its stance with citations to case law from the Second Circuit (covering New York, Vermont and Connecticut), while noting elsewhere that other circuits have not followed suit.

Despite the lack of consensus among jurisdictions to apply an economic realities test to determine joint employment, the DOL encourages application of the test in a way that would drastically expand the scope of joint-employment liability. In a footnote, for example, the agency notes that in general, an employee need not even economically depend more on the end user than on his/her direct employer for a finding of vertical joint employment. “The focus . . . is not a comparison [of the two relationships].”

In summary, businesses must carefully monitor their relationships with affiliated companies or business partners. If affiliated entities employ the same person and do not take measures to maintain the separateness of their operations and management, the DOL likely would find horizontal joint employment, requiring the aggregation of work hours for purposes of overtime pay. Likewise, under the DOL’s interpretation of vertical joint employment, if a worker tends to economically depend on the end user business, which could be imputed from a wide variety of factors, the DOL likely would deem that end user business a joint employer for purposes of wage and hour liability—regardless of the employee’s primary economic reliance on his/her direct employer. These expansive interpretations could be especially problematic for staffing agencies and other types of tiered business models.

AI 2016-1 signifies the latest effort by the DOL to expand the FLSA’s reach to nontraditional work arrangements. Like its other recent effort, this may result in more DOL investigations and litigation. The AI 2016-1 almost certainly will be challenged in court. Additionally, legislation has been proposed (but not passed) to curtail similar attempts by federal agencies to expand joint employment liability. Nonetheless, based on the DOL’s new guidance, companies should reassess their business and staffing arrangements to manage the risks associated with costly governmental investigations.

Article By Elizabeth Gotham of Honigman Miller Schwartz and Cohn LLP

© 2015 Honigman Miller Schwartz and Cohn LLP

Ramping Up For H1B Cap Season

USCISEach year, USCIS issues 65,000 H-1B visas and 20,000 “master’s cap” visas. April 1, 2016 is he first date on which an H-1B petition may be filed for FY 2017, in anticipation of an October 1, 2016 start date. Last year, USCIS accepted 233,000 petitions in the first week. A lottery was conducted and over 60% of all petitions were rejected.

What does this mean?

Employers need to be prepared to file H-1B petitions on April 1. Now is the time to review your employees’ immigration status and start talking to your managers and HR teams to identify employees who may need H1B sponsorship in 2017.  Many possible candidates may be working pursuant to an Optional Practical Training (OPT) work authorization card that may not expire until sometime in 2017. We nevertheless strongly suggest filing petitions for these employees for this fiscal year as well to maximize their chance for selection in the H-1B lottery.

Article By Jessica Feinstein of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Is Inconsistent Application Of Social Media Policy Evidence Of Discrimination?

A District Court in Louisiana concluded recently that a television station’s inconsistent application of its social media policy entitled a terminated employee to defeat summary judgment regarding his discrimination claim.

The television station in question, KTBS, had implemented a social media policy that included a prohibition on employees responding to viewer complaints. The station also held a mandatory meeting at which the policy was discussed. Shortly thereafter, Chris Redford, a male on-air reporter, wrote a negative post on his Facebook page about a viewer who had commented on one of his stories. Upon being notified of Redford’s post, KTBS fired Redford for violation the station’s social media policy.

Redford sued KTBS, alleging, among other things, gender discrimination because the station had not terminated a female on-air personality (Sarah Machi), who also had written a negative post on her Facebook page in response to a viewer’s comment.

KTBS moved for summary judgment, including as to Redford’s gender discrimination claim. In support of its motion, the station admitted that it did not consider an employee’s negative comments on his or her “private Facebook page” regarding a viewer to violate its social media policy. Although both Redford and Machi had posted negative comments on their personal Facebook pages, the station argued that Machi’s situation was different because her Facebook page was protected by privacy settings that only permitted it to be viewed by people she had “friended” whereas Redford’s Facebook page was public and he used it to promoted his work at KTBS. The court was not persuaded by the station’s attempted distinction. Rather, the court determined that the station’s inconsistent application of its social media policy to Redford’s and Machi’s same conduct—i.e., Redford was fired whereas Machi was not disciplined at all—created a triable issue of fact. Therefore, it denied the station’s motion as to Redford’s gender discrimination claim.

The important takeaway for employers, as we previously have discussed in various posts, is the critical importance of consistently applying its social media policies. It is not sufficient merely to have a social media policy. It is just as important to apply it in a consistent manner to avoid potential discrimination claims.

Article By Alexander Nestor of Allen Matkins Leck Gamble Mallory & Natsis LLP
© 2010-2016 Allen Matkins Leck Gamble Mallory & Natsis LLP

USCIS Issues New Rule for Highly Skilled Workers: U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (“USCIS”) issued its long-awaited final rule regarding highly skilled workers from Australia, Chile, Singapore, and the Commonwealth of the Northern Mariana Islands (“CNMI”), along with amendments favoring employment-based immigration. In summary, this rule:

  • facilitates more favorable processing of H-1B1 and E-3 treaty-based extension of status petitions;

  • adds E-3 Australian, H-1B1 Chilean/Singaporean, and CW-1 CNMI nationals to the list of those work-authorized nonimmigrants who can secure up to 240 days of continued employment authorization beyond their current expiration date simply by filing their timely extensions with USCIS before their current status expires;

  • clarifies that principal E-3 and H-1B1 nonimmigrants are authorized to work incident to their status and thus do not have to obtain independent employment authorization (applied in practice but not officially adopted as a formal regulation); and

  • expands the type of evidence that foreign nationals being sponsored under EB-1 outstanding professor and researcher permanent residency petitions can submit to include “comparable evidence” of their outstanding professor or research work.

This rule is expected to take effect on February 16, 2016.

Article By Robert S. Groban, Jr., Pierre Georges Bonnefil, Patrick G. Brady & Jang Hyuk Im of Epstein Becker & Green, P.C.
©2015 Epstein Becker & Green, P.C. All rights reserved.

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected to continue through 2016, employers should prepare themselves for a barrage of agency activity, especially from the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), and Department of Labor (“DOL”).  Our summary is below.

Expected Agency Activity of 2016

Based on the 2015 Supreme Court decisions in Young v. UPS and EEOC v. Abercrombie & Fitch Stores, Inc. and the EEOC’s interest in systematic discrimination in the workplace, we predict the EEOC will focus heavily on companies’ policies regarding pregnancy and religious discrimination and accommodation in 2016.  As a refresher, in Young the Court held a genuine factual dispute existed as to whether UPS provided more favorable treatment to at least some employees whose situation “cannot reasonably be distinguished” from Ms. Young’s —e.g., workers unable to lift up to 70 pounds due to reasons other than pregnancy limitations such as a workplace injury or a recognized disability.  In Abercrombie (blogged about here) the Court concluded an employer violates Title VII by rejecting an applicant in order to avoid making a religious accommodation, even if the employer only has an “unsubstantiated suspicion” that the applicant may eventually request an accommodation.

Along with discrimination/accommodation policies, we predict the EEOC and NLRB will focus on company-wide social media policies in 2016. While the NLRB has been hounding employers on social media policies since 2010, the EEOC did not really begin gathering information on the issue until 2014.   We believe 2016 will be the year the EEOC begins targeting employers’ social media policies to evidence discrimination.  We also predict the EEOC’s focus on gender identity discrimination and the NLRB’s focus on FLSA class action settlements will continue with full force into 2016.

With the DOL’s Final Rule on overtime exemption updates expected to roll out this year, we predict the agency will focus on wage-hour reform and that employers will be expected to get into compliance sooner rather than later. Although Solicitor of Labor Patricia Smith stated in November 2015 that final guidelines will not likely be issued until “late 2016,” we believe the DOL will push them out before November’s presidential election.  Employers should expect the Final Rule to increase the minimum salary exemption requirement from $455/week to $970/week.  We would not be surprised if the DOL also finalizes revisions to the duties test, which is a factor along with salary level used to determine whether an employee qualifies under a white collar exemption to minimum wage and overtime rules.

Although the 2016 federal legislation horizon looks bleak, President Obama and his executive agencies are poised for a busy final year. Stay tuned for further developments.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
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