UK Holiday Pay Inactivity – Inertia or Strategy?

We were in the hallowed legal portals of Farringdon’s Bleeding Heart Restaurant last week for a client dinner on the still vexed issue of holiday pay. “Hallowed legal portals”, because so far as I know, no other restaurant has been cited so frequently in the employment law reports as just the only place to go for a decent spot of covenant-busting and a little post-prandial breach of fiduciary duties.  They also do a very good coffee.

We had to open with an acknowledgement – that despite the absolute nature of my recollection, Peter O’Toole had not said in the film Lawrence of Arabia that “doing nothing was generally best”. Apparently it was Anthony Quayle.  Pressing on despite this setback, our dinner guests considered with the kind contribution of a senior member of the Engineering Employers Federation’s Employment Policy Team whether doing nothing could really remain a sensible holiday pay position at this stage, a full year after the EAT’s decision in Bear Scotland.

Despite the breadth of sectors represented, including retail, financial services, recruitment and advertising, there was a remarkable commonality of view. While it was of course sensible to be providing behind the scenes for some possible accrued holiday pay liability, none of our guest organisations had yet sought any negotiation or reached any agreement with staff representatives (unionised or not) about the inclusion of overtime or commissions in holiday pay calculations.   Despite this inaction, only one of our attendees had had a Tribunal claim on the point.  This is a function perhaps of the relatively limited quantum of most holiday pay claims per individual, a sum which will often be less than the Tribunal fees incurred in making the claim in the first place.

We floated the proposition that an employee’s entitlement to an allowance for commission or overtime in his holiday pay should depend upon his being able to show (at least on a balance of probabilities) that he would have earned that extra money had he not been on leave, i.e. that he had suffered some actual loss. Most of our attendees seemed willing to take that loss as a given based on recent average overtime or commissions rates. Where such extra earnings are pretty regular and pretty consistent, that might well be a sensible approach.  However, the financial services attendee, being from a sector which pays fewer but larger supplementary sums above salary, could see some mileage in this argument.  If such a lumpy payment fell within the reference period for the holiday pay calculation, it could seriously distort the figure and turn it into a number wholly unconnected with what the employee would actually have earned had he not been on leave.  None of the cases or commentaries have yet mentioned this possibility (apart from the most throw-away line in the Acas Guidance http://www.acas.org.uk/holidaypay). Nonetheless, it will surely gain new legs as an idea if and when the Government confronts the reality of drafting legislation to define a “normal pay” formula which works equally well over the myriad different shapes and sizes of supplementary payment arrangements in the UK market.

Might some clarity on this be derived from Mr Cameron’s impending begging session in Europe? His original podium-thumping was about procuring material changes to the Working Time Directive as applicable to the UK, but his formal overture was watered down to a gripe about lessening employer red tape.  The collective view around our table was that the EU will listen politely to Mr C and give him nothing.  The more cynical among our guests (that is to say, all of them) considered that he would then introduce some “clarificatory” amendments to the Working Time Regulations which would make little or no actual impact on employers but could be presented to a puzzled electorate as an indication of the merits of his tough stance in Europe.

I asked our guests at the outset of the dinner what they wanted from it. Almost exclusively it was reassurance that they were not alone or acting foolishly in doing nothing about holiday pay at this stage.  In cases where there are no unions, no pressing reputational issues and no easy means of determining what supplement to holiday pay would be appropriate anyway, it was reassurance which we were happy to give.

Article By David Whincup of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

Thanksgiving Treat: Executive Branch Gift Rules in for Rewrite

As the nation looks forward to giving thanks with family and friends, the Office of Government Ethics (OGE) will be proposing revisions to regulations that specify when employees of the federal executive branch must say, “No, thanks.” These changes are only proposals at this time and have not yet taken effect. Many of the changes are intended to make the rules more readable, but there are a number of important revisions, including:

  • Written authorization required for all widely attended gatherings (WAGs). The WAG rule allows for free attendance at certain events and is one of the most commonly used exceptions to the gift rules. OGE’s proposal would require written authorization for all WAGs, not just when the person extending the invitation has interests that could be substantially affected by the employee. The OGE believes “certain technologies . . . such as the Internet and mobile devices” make this change practicable, and the authorization would not need to be detailed.

  • A new provision discourages acceptance of permissible gifts. OGE added a new provision designed to encourage government employees to consider whether, even if a gift is permissible, acceptance of the gift could negatively “affect the perceived integrity of the employee or the credibility and legitimacy of the agency’s programs.” The new provision includes a number of factors to consider in making this judgment call, such as whether those with views different from the donor are also provided access to the government.

  • Alcohol is not a “modest item of food or refreshment.” A new example would clarify that the exclusion to the definition of “gift” for “modest items of food and refreshment” does not allow for the acceptance of alcoholic beverages.

  • Store gift cards of $20 or less are ok; prepaid cards are not. A rule that permits employees to accept gifts of $20 or less would be clarified to allow for gift cards to a particular store (the OGE example discusses a gift card “to a national coffee chain”). Cards without such restrictions, such as prepaid debit cards, are still prohibited as the functional equivalent of cash.

  • Receptions Hosted by Former Employer. The changes would allow a government employee to attend receptions hosted by a former employer, if the government employee is not given special treatment.

  • Unsolicited informational materials are ok; approval required if they exceed $100. Recognizing that some informational material, such as books, may be useful but expensive, the OGE would allow unsolicited informational material of up to $100 in value; if the value exceeds $100, approval would be required. Entertainment and art are not allowed.

  • “Free attendance” could include meals outside a group context. The OGE recognized that, when employees present at an event, a meal is often held just with the presenters. This revision would allow government employees to participate in those meals.

Comments on the proposed rule must be submitted within 60 days of the publication of the rule in the Federal Register—which is expected to occur on November 27.

Article By Kevin Glandon of Covington & Burling LLP
© 2015 Covington & Burling LLP

U.S. Department of Education Issues New Guidance on Incentive Compensation Regulations

On Friday, November 27, 2015, the U.S. Department of Education (the “Department”) will publish guidance in the Federal Register regarding its October 29, 2010 changes to the incentive compensation regulations at 34 C.F.R. § 668.14(b)(22) that took legal effect July 1, 2011. Those revised regulations removed a “safe harbor” that had previously permitted certain graduation-based or completion-based compensation, and further indicated that the Department interpreted its revised regulations to ban such forms of compensation to persons covered by the Higher Education Act’s incentive compensation prohibition.

In light of the federal court decision and subsequent order in APSCU v. Duncan, 70 F. Supp. 3d 446 (D.D.C. 2014), the Department states that it has now reconsidered its interpretation of the statutory prohibition and (subject to the caveats described below) that it does not interpret its July 1, 2011 regulations to proscribe compensation for admissions and recruiting personnel that is based upon students’ graduation from, or completion of, educational programs. Correspondingly, the Department also announced that it will not view references in its regulations to enrollment activities that may occur “through completion” by a student of an educational program as prohibiting graduation-based or completion-based compensation to admissions and recruiting personnel.

Importantly, the Department’s notice explicitly reserves its right to take enforcement action against institutions if compensation labeled as graduation-based or completion-based compensation is merely “a guise for enrollment-based compensation,” which remains prohibited. In assessing the legality of any compensation structure, the Department says it “will focus on the substance of the structure rather than on the label given the structure by an institution.” Thus, the Department further states that while compensation based on students’ graduation from, or completion of, educational programs is not per se prohibited, institutions are still prohibited from providing compensation that is based directly or indirectly, in any part, upon success in securing enrollments (as such activities are broadly defined in the Department’s regulations) even if one or more other permissible factors are also considered.

In this same notice, the Department also responds to the federal court’s order with respect to potential impacts of the regulations, as revised effective July 1, 2011, on the recruitment and enrollment of minority students. The Department acknowledges that its regulations could negatively affect outreach and enrollment generally, as well as student outreach that is specifically targeted at promoting diversity, which could result in fewer minority students recruited and enrolled. However, it states, neither the Higher Education Act nor any information presented by commenters to the regulations when proposed provide a basis for treating a recruitment program directed at minority students differently than an institution’s general or other specific recruitment programs.

A full copy of the Department’s Federal Register guidance is available here.

Article By John R. Przypyszny & Jonathan D. Tarnow of Drinker Biddle & Reath LLP

©2015 Drinker Biddle & Reath LLP. All Rights Reserved

The Viral Spiral: How An Employee’s Facebook Post Dragged Her Employer Into A Social Media Controversy

Instances of deplorable racism have sparked recent protests on the University of Missouri’s campus. Not surprisingly, these protests have received a significant amount of media attention. On Nov. 13, 2015, however, the world’s attention shifted to the horrific terrorist attacks in Paris. We have since been inundated with 24-hour news coverage on developments related to the war on terror.

Following the Paris attacks, the Washington Times released a story explaining how University of Missouri protestors had taken to Twitter to express disappointment with the fact that this tragedy was directing media attention away from their cause. College student Emily Faz, an employee of Wild Wing Café, apparently found this development unsettling. So what did she do? Faz took to Facebook to disseminate her opinion regarding the Washington Times article. Here is the content of her post:

I’m just going to leave this here. I swear if I see this B* at Southern, I’ll make you regret even knowing what a movement or a hashtag is, and you’ll walk away with your tail tucked. This whole black lives matter movement is misguided and out of hand. Maybe no one likes or takes y’all seriously because no one can see past your egotistical B*******. Some people might just look past it, but fair warning I’m am (sic) not one. All lives matter, that has always been the case, and you are part of the problem if you think other wise (sic).

Faz’s controversial post didn’t just go viral: it created a social media firestorm. Thousands of individuals took to Facebook and Twitter to condemn Faz’s commentary. Despite the criticism, a large number of supporters rushed to Faz’s defense. Many supporters claimed Faz was the target of a social media “witch hunt.” In their subjective view, Faz had done nothing more than share her opinion on a controversial subject. Nevertheless, she was being made the target of a significant amount of online harassment.

The ongoing debate intensified when the Internet turned its attention to Wild Wing Café. The business started receiving messages calling for Faz’s termination. The attention also unquestionably disrupted the company’s business operations.

What happened next? Rumors started to circulate that Wild Wing Café had terminated Faz’s employment. So Faz’s supporters took to Twitter to protest the company’s decision. The rumor was incorrect. The company did not terminate Faz’s employment and ultimately issued a statement to set the story straight.

Will Faz remain employed by Wild Wing Café? We don’t know. And that is not really the focus of this blog post. The issue we would like employers to focus on is this: A controversial Facebook post sparked a social media frenzy that unquestionably impacted this employer’s day-to-day operations.

The Big Picture

Faz’s Facebook post provides a vivid example of how an employee’s social media activity can have a very real impact in the workplace. This raises an important question: What should an employer do if an employee’s social media post goes viral and negatively impacts business operations?

Well, for starters, avoid the knee jerk reaction. Take a step back and evaluate the content of the post. For example, does it violate the company’s EEO policy? Does it provide evidence of a discriminatory animus? Examining social media content from this angle is critical to making an informed decision.

Additionally, consider whether the National Labor Relations Act (NLRA) will have an impact on your analysis. The NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.). For example, a social media controversy created by a group of employees complaining about wages may fall within the scope of “protected concerted activity.” As such, examining the social media content from this angle is also critical to making an informed decision.

Moreover, if an employer is leaning towards termination, evaluate whether the company may be setting itself up for a lawsuit. For example, has the company allowed controversial posts in the past? Will the employee be able to point to similarly situated individuals who received more favorable treatment? This is yet another angle an employer will have to consider in order to formulate a game plan.

What’s the bottom line? It’s all about assessing risk. And properly assessing risk will involve a careful analysis of the facts specific to each case. Employers are therefore encouraged to involve outside counsel when navigating this minefield.

One final note: We’ve repeatedly emphasized that it is critical for employers to monitor what is trending on the Internet. The debate regarding Faz’s social media activity only serves to underscore this point. To be sure, keeping up on what is trending probably won’t stop a controversial social media post from going viral,but it may provide an employer with more lead time to formulate a game plan.

Article By Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

It’s (Not) Academic: Cybersecurity Is a Must for Universities and Academic Medical Centers

Cutting-edge research institutions need cutting-edge cybersecurity to protect their IP and critical personal and financial data.  Universities hold vast repositories of valuable information, including student healthcare information, patient information from academic medical centers, and financial and personal data from applicants, donors, students, faculty, and staff.  So it’s no surprise hackers have been targeting universities lately—in fact, at least eight American universities (including Harvard, UC Berkeley, University of Maryland, and Indiana University) have announced cyber intrusions over the past two years.

With the cost of a data breach averaging $3.8 million,[1] universities cannot afford to pretend cybercrime won’t happen to them.  For institutions with health records, the financial costs can be even greater (as high as $360 per record!), due to the high value of health records on the internet’s black market, the “Dark Web.”

But, the dollars may not mean as much as the bad PR—having your institution’s name in national headlines, risking research funding from governments or corporate partners, losing protected and sensitive IP, fielding calls from angry donors, students, and parents whose personal information has been compromised, and defending multiple civil suits—all because the institution failed to assess its cyber liability.  (See additional information on assessing cyber liability).

For major research institutions holding valuable IP, health records, and grants for sensitive research, having a cybersecurity prevention and remediation plan is more than just a good idea, it’s an absolute must.  And these cybersecurity measures must extend beyond mere “compliance.”  The Federal Government will continue to create cybersecurity regulations, but their regulations never will keep up with the risks.  A university’s administration answers to the Federal Government, to its Board, to its donors, to the media, to its students and faculty, and to the general public. None of these constituencies will be calmed by minimal compliance with outdated regulations.

Instead, universities can address their cybersecurity risks with some initial measures to prevent intrusions and to minimize the damage if a hacker does get through:

  • Protections against Insider Threats: Attacks by insiders accounted for more than 50% of the cyberattacks in 2014. To help mitigate these threats, create an insider threat team and build a holistic approach to security—include staff from IT and technology, legal, physical security, and human resources. Emphasize training of employees, faculty, and administrators in basic cybersecurity awareness to instill habits that will better protect the institution.

  • Enhance Network Security Policies and Procedures: Implement security precautions to make a hack more difficult. For example: create enhanced protocols to prevent unauthorized access to devices and systems, including multi-factor authentication; provide broad and frequent updates to computers on-campus and for computers that regularly access campus networks; and prevent access to compromised sites by incorporating controls into your network.

  • Cyber Intrusion Testing: Work with a vendor to test the institution’s current cybersecurity vulnerabilities and get advice on how to reduce those vulnerabilities.

  • Corrective Action Plan: —one that includes disclosure and mitigation efforts. Importantly, if an institution holds government contracts or grants, follow the required disclosure protocols for cyber intrusion (note that agencies may differ in their disclosure and mitigation requirements).

  • Cyber Insurance: —particularly those with academic medical centers and/or sensitive research programs—should ensure their policies are large enough to cover a worst-case scenario.While a comprehensive cybersecurity plan will require additional systematic and long-term efforts, taking these steps will at least keep an institution off of a hacker’s list of “low-hanging fruit.”

Article By Christine R. Couvillon of Sheppard, Mullin, Richter & Hampton LLP

Copyright © 2015, Sheppard Mullin Richter & Hampton LLP.

[1] Ponemon Institute, Cost of Data Breach Study (2015).  Note this average does not include mega-breaches like those experienced by Home Depot, Target, or Sony Pictures.

 

Let’s Talk Turkey: Wage/Hour and Other Laws to Feast on Over Thanksgiving

We all know that employers do not receive “time off” from applicable employment laws during the holidays. To avoid unnecessary holiday headaches, be mindful of the following issues as you conduct your workplace holiday staffing and planning.

Comply with your Policies and Collective Bargaining Agreements

Remember to abide by the applicable holiday provisions of your policies, agreements, or collective bargaining agreements. Pay for unworked time on recognized holidays; how time worked on holidays is computed or paid; and eligibility requirements for receipt of holiday pay are often a matter of policy or contract. Breaching such provisions—or disparately enforcing them—can give rise to a claim, charge, or grievance.

Think Beyond your Holiday Policy—Comply with Wage Laws

Be mindful of wage payment laws when you are planning office closures to ensure that you do not run afoul of state requirements governing the time, frequency, and method of paying earned wages. Also, remember that time worked on a holiday should be counted as “hours worked” for purposes of overtime laws, regardless of whether you provide a holiday premium or other benefit.  Further, be careful about making deductions from exempt employees’ salaries for time off around the holidays so as not to jeopardize the exempt status—a company closure for the holidays is not listed among the Department of Labor’s enumerated instances of proper reasons to make deductions under the salary basis rules of the Fair Labor Standards Act.

No Break from Meal and Rest Period Laws

Even if your employees are frantically setting up holiday displays or assisting eager consumers on Black Friday, provide meal and rest periods in accordance with state law. Many states require that employers provide meal and break periods, and the frequency and timing of such periods are often dependent upon the total number of hours worked in a day. For instance, Illinois employers must allow a meal break for employees working 7.5 continuous hours or longer within 5 hours of starting work; New York’s Department of Labor guidelines specify requirements for a “noonday” meal period between 11:00 a.m. and 2:00 p.m., with additional meal periods for shifts extending into specified evening hours.

Also, while bona fide meal breaks of a sufficient duration can generally be unpaid, beware that restrictions, duties, or parameters on such breaks might run afoul of your state’s law and can make a meal period compensable.

A “Blue” Christmas

If your business has operations in one of the few states that impose “Blue Law” requirements for business operations on holidays, then be aware of obligations or restrictions that might apply. For instance, if you operate in Massachusetts, then you might be required to obtain a local permit and/or be subject to extra pay or other standards for employees working on a holiday. In Rhode Island, you might be subject to an overtime pay rate on holidays or other requirements.

Be sure to check your state and local laws to confirm applicable standards.

Accommodate Observation of Holidays Due to Religious Beliefs

Finally, remember that Title VII of the Civil Rights Act of 1964 and many state or local laws require employers to reasonably accommodate employees’ sincerely held religious beliefs, unless doing so would cause an undue hardship. “Religion” can include not only traditional, organized religions such as Judaism, Islam, Christianity, Hinduism, and Buddhism, but also sincerely held religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.

Thus, while your company may be closed on Christmas Day, you may need to allow an employee time off to celebrate a religious holiday that your company does not recognize. Businesses can accommodate in the form of time off, modifications to schedules, shift substitutions, job reassignments, or other modifications to workplace policies or practices.

Illinois: Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX

An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.

The OCR released its findings on November 2, 2015, after completing an extensive investigation of a complaint for unlawful discrimination under Title IX of the Education Amendments of 1972 filed by a transgender female high school student against the Township High School District 211 in Palatine, Illinois. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Schools districts, colleges, and private employers are increasingly at risk of transgender discrimination charges or complaints under laws enforced by the OCR, the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Occupational Safety and Health Administration as these agencies develop their policies on transgender issues.

The EEOC, the DOL, and the DOJ have interpreted Title VII of the Civil Right Act’s prohibitions on sex discrimination to bar employment discrimination based on gender identity.

On the employment front, in the seven months between October 2014 and April 2015, EEOC received 505 charges based on sexual orientation discrimination and 112 charges based on gender identity. Moreover, the EEOC’s Strategic Enforcement Plan for 2012-2016 includes the investigation and enforcement of LGBT (lesbian, gay, bisexual, and transgender) sex stereotyping claims .

Further, effective April 2015, the DOL’s Office of Federal Contract Compliance Programs requires federal contractors subject to Executive Law 11246 to allow transgender employees to use the restroom and other facilities consistent with their gender identity (See article DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants).

Finally, the OSHA guidelines require all employers under its jurisdiction to provide a “safe and healthy working environment for all employees” and transgender employees “should have access to restrooms that correspond to their gender identity.”

OSHA recommends that companies should implement written policies to ensure that all employees have “prompt access to appropriate sanitary facilities.” The agency’s best practices guide also recommends providing options from which a transgender employee may choose. These can include single-occupancy gender-neutral facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls (See article Restroom Access Should Be Consistent with Employee’s Gender Identity, OSHA Says).

Background

The Township High School District 211 denied a transgender female student access to three separate girls’ locker rooms (“LR”) (including the Physical Education (“PE”) LR, the PE Swim LR, and the Athletics LR). The Student alleged the District discriminated against her based on sex by denying her access to the girls’ locker rooms because of her gender identity and gender non-conformity.

OCR Decision

The OCR found the District violated Title IX for excluding the Student from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.

“The evidence shows that as a result of the District’s denial of access to the girls LRs, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but also has experienced an ongoing sense of isolation and ostracism throughout her high school enrollment.”

Other than access to the female locker rooms, the OCR found the District treated the Student consistently with her gender identity, including identifying her by her female name and with female pronouns, providing her with full access to girls’ restrooms and allowing her to participate in girls’ sports.

Alternatives Not Acceptable

The District argued it offered the Student alternative changing options, such as permitting her to change with several female friends in an alternative restroom closer to the PE gym and offering her another restroom near the Swim LR.

The OCR found that the alternatives “continued or would continue to exclude [the Student] from the girls’ locker rooms and set her apart from her female classmates and teammates,” particularly as some of the proposed alternative facilities were not comparable to those provided for other girls.

For example, unlike the other female students who used the PE class swim unit, the Student had access only to a rinse shower and was not able to dry her hair because there was no electrical outlet. Furthermore, by not having access to the PE locker room, she was subjected to stigma and different treatment, OCR said, because she occasionally had been late to class or missed class announcements that were made in the girls’ locker room.

Finally, as a result of being denied access to the girls Athletics LR, the Student felt excluded from the team because she missed the informal huddle in the LR before matches, locker room “girl talk,” and the female bonding in the LR. According, the OCR concluded the District denied the Student’s Title IX rights.

Privacy Concerns Unavailing

While acknowledging that it denied the Student access to the female locker rooms, the District argued that it had to balance the Student’s rights and interests with two distinct privacy concerns of other female students:

  • the need to protect female students from “being observed in a state of undress by a biologically male individual,” and

  • the “inappropriateness of allowing young female students to view a biologically naked male in the locker room in a state of undress.”

The OCR found both of these arguments unpersuasive as the District had installed five showers with privacy curtains and five restroom stalls in the girls PE LR, but had not provided private changing areas in the other two LRs.

“The District’s installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights in this context. Those female students wishing to protect their own private bodies from exposure to being observed in a state of undress by other girls in the locker rooms, including transgender girls, could change behind a privacy curtain.”

Given the Student’s willingness to change privately, the OCR said, the District could have provided equal access to all three LRs if it installed additional privacy curtains for any student that wanted privacy.

Takeaways

Federal government agencies are increasingly examining the purported protections afforded to transgender students and employees, in both the public and private sectors. How to handle transgender issues is still a work-in-progress for the agencies and the entities they regulate. In this case, despite the District’s accommodations and options to provide equal treatment to the Student in all respects other than access to the Locker Room, the OCR nevertheless held its efforts were insufficient. Moreover, states also have laws protecting LGBT individuals (See article Utah Governor Signs Landmark LGBT and Religious Expression Anti-Discrimination Bill).

The following steps can help lower the risk of being under government scrutiny:

  1. closely review and revise EEO (equal employment opportunity), harassment, and transgender policies;

  2. ensure proper sensitivity training of administrators, faculty, and students to foster diverse and inclusive primary, secondary school, and campus environments to avoid stigmatizing transgender students; and

  3. ensure that accommodations for transgender students and employees provide equal access in all respects, as well as balance privacy concerns.

Because of the complexities involved in this area, school districts, colleges, and private sector employers would be well-served to regularly review their policies and practices with counsel to ensure they address specific organizational needs effectively and comply with applicable law.

Article By Michelle E. Phillips, Bethany Swaton Wagner & Gregg E. Clifton of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Breaking News: Refusing to Allow an Employee to Rescind His Or Her Voluntary Resignation Can Get You Sued

Here is the scenario. Your employee decides to voluntarily resign. She gives plenty of notice. Before her scheduled end date, the employee provides information relevant to a sexual harassment investigation involving her supervisor. Before the scheduled end date, the employee tries to rescind her employment. The supervisor refuses. Here’s the question: Is the refusal to allow the employee the opportunity to rescind her resignation an “adverse employment action” for purposes of a retaliation claim?

It could be, at least according to the Fifth Circuit Court of Appeals. A similar scenario played out in Porter v. Houma Terreboone Housing Authority. According to the court:

“Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee’s rescission. Failing to do so in either case because the employee has engaged in a protected activity is nonetheless an adverse employment action.”

This is something employers need to be aware of. Remember: thoroughly investigate all work place harassment claims. Also, separate the subject of the investigation from any decisional process regarding the employee’s employment. In a perfect world, the decision-maker would not have any knowledge regarding the employee’s “protected activity.”

Article By Peter T. Tschanz of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Health Officials’ Latest Tool in Tool Box – Whole Genome Sequencing

In late October, the Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), along with state and local officials investigated an outbreak of E. coli infections linked to food served at a major fast-casual restaurant chain. Much of the underlying information documenting the outbreak has been derived from an advanced laboratory technique called “whole genome sequencing” (WGS). This is a fairly new instrument in the CDC toolbox. WGS reveals the complete DNA make-up of an organism, thereby enabling health officials to better understand variations both within and between potentially pathogenic species. Such information can then be compared with clinical isolates from sick patients, and, if they match, there may be a reliable link established between the illness and the pathogen. This new technique has the potential to define the scope of a foodborne illness outbreak more quickly and ideally will help to prevent additional cases. Traditionally, this analysis has been done via a process known as pulse-field gel electrophoresis (PFGE). But PFGE has a shortcoming in that it is unable to differentiate between related species of organisms, which can be critical when health officials are trying to delineate the specific source of the outbreak, and want to know whether to recall a product or not.

The FDA cites numerous examples of how it has used WGS: 1

  • To differentiate sources of contamination, even within the same outbreak;

  • To determine which ingredient in a multi-ingredient food harbored the pathogen associated with an illness outbreak;

  • To narrow the search for the source of a contaminated ingredient;

  • As a clue to the possible source of illnesses; and

  • To determine unexpected vectors for food contamination.

The use of techniques such as WGS reflects FDA’s shift toward a broader preventative-centric approach to food safety. This approach can be associated the Food Safety Modernization Act (FSMA), signed into law on January 4, 2011, which requires comprehensive, science-based preventive controls across the food supply.2 FSMA provides the FDA with new enforcement authorities designed to achieve higher rates of compliance with prevention-based and risk-based food safety standards, and to better respond to and contain problems when they do occur. Lastly, the law also gives the FDA important new tools to hold imported foods to the same standards as domestic foods and directs FDA to build an integrated national food safety system in partnership with state and local authorities.

WGS also has been employed in the context of recent illness outbreaks associated with products regulated by the Food Safety and Inspection Service (FSIS), which oversees the safety of meat and poultry. In some circumstances involving FSIS, the regulated industry has found itself on the receiving end of confusing scientific input, as regulatory recommendations based upon PFGE analysis were subsequently negated by WGS data.

A shift to WGS may allow health officials to more quickly and more precisely connect the dots during an outbreak, and use of this tool may also benefit the regulated community. The enhanced precision of WGS may provide the regulated community with a new ability to prevent being falsely labeled as the source of the outbreak. Under the prior testing regime, PFGE tests were often unable to differentiate between related species of organisms, and as a result, regulators were at times forced to cast an overly wide net to capture the source of an outbreak. The new WGS technique provides authorities with a more precise and accurate tool. But, as circumstances with FSIS suggest, companies may also encounter confusion over growing pains associated with the movement from one generation of technology to another. We will continue to monitor the development and use of new tools and techniques the FDA, FSIS, and other federal agencies are using to prevent and respond to food safety issues.

ARTICLE BY Robert G. Hibbert of Morgan, Lewis & Bockius LLP

1 Food and Drug Administration, Examples of How FDA Has Used Whole Genome Sequencing of Foodborne Pathogens For Regulatory Purposes, (last visited Nov. 9, 2015).
2 FDA Food Safety and Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2001). 

Employers: Twitter is Going Crazy Over #InternationalMensDay Hashtag

This will be a short post. Earlier this week we posted an article that discussed the need for employers to stay on top of what is trending on the Internet. Why? Because trending topics can sometimes lead to controversial discussions that might not be consistent with an employer’s EEO Policy. As a result, we explained that it would be prudent to understand what may be the current topic being discussed around the watercooler. Here is a follow up to that article:  The #InternationalMensDay hashtag is currently trending on Twitter (right now at 114K tweets). What is the relevance of this topic to employers? A quick search shows that a lot of the content posted can be construed as inappropriate and/or discriminatory (although presumably meant to be humorous).  It’s the middle of the work day where we are – so we can only presume a lot of this content is being posted by employees in the workplace.

Remember: Title VII and many state laws prohibit discrimination based on gender. The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a  convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions. And, as always, be sure to stay on top of trends that may have an impact in the workplace.

ARTICLE BY  Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP