Labor & Employment Archives - Page 102 of 154

New York Implements Medical Marijuana Rules

The New York State Department of Health has issued regulations implementing the State’s medical marijuana law, enacted last July.

Published April 15 in the State Register, the regulations allow the use of marijuana for patients with cancer, AIDS, Lou Gehrig’s disease, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s Disease, and symptoms including severe or chronic pain, surgeries, severe nausea, persistent muscle spasms and wasting syndrome, who comply with the rules. The Commissioner of Health may add other conditions, symptoms or complications, under the regulations.

In accordance with the law, those patients will be able to use only non-smokable forms or marijuana, to be ingested or vaporized. “Smoking is not an approved route of administration.” However, even vaporization is banned in public places, and in no case may approved medical marijuana be consumed through vaporization in locations where smoking would be prohibited by the State’s Public Health Law, including places of employment. Products authorized by the regulations are restricted to liquids, oils or capsules. Unless the Commissioner approves, approved marijuana products may not be incorporated into edible food products by a registered organization.

Only five businesses or non-profits in the State may be licensed to grow, process of distribute approved marijuana. Each such enterprise may have four dispensing facilities. The Commissioner can consider permitting more dispensing facilities.

While implementation will not be immediate, employers should prepare for responding to employees taking marijuana under the law and regulations.

Authored by: Roger S. Kaplan of Jackson Lewis P.C.

Australian Federal Government Implements Changes to 457 Visa

Following the publication of the independent review into the Temporary Skilled (Subclass 457) visa program, the federal government announced on 18 March 2015 its intention to implement a number of the proposed changes to ‘increase flexibility and reduce restrictions on 457 programme users while maintaining integrity in the programme’.

Despite growing suspicions that this would be another ‘broken promise’, the government has now implemented the following changes from 18 April 2015.

English language

An applicant can now satisfy the English language requirement by obtaining an average score of five across all components of the International English Language Testing System (IELTS), rather than a score of five in each component (reading, writing, speaking and listening). The number of English language tests has also been increased to include the following in addition to IELTS:

Occupational English Test (OET)
Test of English as a Foreign Language internet-based test (TOEFL iBT)
Pearson Test of English (PTE) Academic test
Cambridge English: Advanced (CAE) test

Exemptions to the English language requirement will also be granted when an applicant can provide evidence of five cumulative (rather than consecutive) years of study in English at the secondary or tertiary level.

Standard Business Sponsorship term

The term of a standard business sponsorship has been extended from 3 years to 5 years.

Start-up businesses will also benefit from an increase in the term of their standard business sponsorship from 12 months to 18 months, giving start-up businesses a greater grace period to establish lawful operations in Australia. 457 visas granted to employees of start-up businesses will also now be granted for 18 rather than 12 months.

Market salary exemption threshold

Employers will no longer be required to demonstrate that highly paid 457 applicants will be paid in line with the Australian market in cases where the visa holder will be paid in excess of $180,000 (down from the existing threshold of $250,000). This brings the threshold in line with the marginal tax rate. The Temporary Skilled Migration Income Threshold (TSMIT) has also been frozen at $53,900.

MARN 1460940

ARTICLE BY

Jillian R. Howard

Adriana Bedon

Squire Patton Boggs (US) LLP

Employment Law Worldview

Workers Abuse A.D.H.D. Drugs To Be More Productive At Work

The New York Times reported on April 18, 2015 that employees increasingly are abusing stimulants used to treat attention deficit hyperactivity disorder to be more productive at work.

Prescription stimulants have a calming and “focusing” effect on individuals with A.D.H.D., a disorder marked by severe impulsivity and inattention. The Times article stated that while reliable data quantifying how many Americans misuse stimulants does not exist, dozens of people in many different professions admitted in interviews that they misuse A.D.H.D. drugs such as Adderall, Ritalin, Vyvanse and Concerta to improve work performance. Stimulants generally suppress appetite, increase wakefulness, and increase focus and attention.

Users who were interviewed said that they got pills by feigning symptoms of A.D.H.D. to physicians who casually write prescriptions without proper evaluations. Others got them from friends or dealers. Most interviewees spoke on the condition of anonymity for fear of losing their jobs or access to the medication. Obtaining stimulants without a prescription is a federal crime.

Many young workers insist that using prescription stimulants to increase productivity is required in order to get hired and to be competitive in the marketplace. One woman interviewed stated that use of prescription stimulants is “necessary for the survival of the best and the smartest and the highest-achieving people.”

According to the National Institute on Drug Abuse, prescription stimulants do not enhance learning or thinking ability when taken by people who do not actually have A.D.H.D., although they do promote wakefulness. Addiction to stimulants is also a potential consequence for anyone taking them without medical supervision. Addiction most likely occurs because stimulants, when taken in doses and routes other than those prescribed by a doctor, can induce a rapid rise in dopamine in the brain. Furthermore, if stimulants are abused chronically, withdrawal symptoms—including fatigue, depression, and disturbed sleep patterns—can result when a person stops taking them.

ARTICLE BY

Kathryn J. Russo

Jackson Lewis P.C.

Drug and Alcohol Testing Law Advisor Blog

Protect Workers From The Number One Cause of Workplace Deaths – Distracted Driving

Distracted driving is the number one cause of workplace deaths in the United States. OSHA has partnered with the National Safety Council to call employers’ attention to this issue and urge the adoption of safe driving policies. Failure to adopt and enforce such policies in the workplace leads to tragic results and OSHA has made it perfectly clear that employers who do not take this issue seriously should expect OSHA citations. On its distracted driving webpage, the agency has stated that employers “have a responsibility and legal obligation to have a clear, unequivocal, and enforced policy against texting while driving.”

But to truly protect your employees from the hazards of distracted driving, your policy should cover more than just texting. A comprehensive policy should cover all employees, both handheld and hands-free devices, company vehicles, company cell phones and all work-related communications. All employees should be forbidden to use cell phones, hands-free devices, and any other mobile electronics while operating a vehicle when:

the vehicle is owned, leased, or rented by the employer
a personal motor vehicle is used in connection with company business
the motor vehicle is on the employer’s property
the cell phone or mobile electronic device is owned or leased by the employer
the cell phone or mobile electronic device is used to conduct company business

Employers should strongly discourage distracted driving by incorporating written safe driving policies into employee handbooks, providing training on these policies during worker orientation, and providing annual refresher training. Safe communication practices should be put in place such as established procedures, times, and places for drivers’ safe use of cell phones and other electronic devices for communicating with supervisors, customers, and others. To the extent that the employer has any programs in place that could incentivize employees to use cell phones or other electronic devices while driving, they should be eliminated.

Finally, safe driving policies must be enforced – it is not enough simply to write a policy and provide employee training. As we have all become so dependent on our cell phones and other mobile electronic devices, it is likely that some employees will resist or simply ignore these policies, but enforcement is necessary to truly improve employee safety. Accordingly, employers should reprimand employees who violate safe driving policies and those reprimands should involve serious penalties, including, where appropriate, termination. There is no way to protect employees from every hazard they may encounter on the road, but implementing a strong safe driving program will go a long way towards decreasing the likelihood of a workplace tragedy on the road.

ARTICLE BY

Valerie Butera

Epstein Becker & Green, P.C.

UK Employment Tribunal Awards £3.2m To Woman Called “Crazy Miss Cokehead” By Colleagues

The woman who was called “Crazy Miss Cokehead” by her manager has been awarded nearly £3.2m by an Employment Tribunal for sexual harassment, reportedly including £44,000 for injury to feelings and a further £15,000 in aggravated damages.

We originally posted a blog on this story in November 2013 http://www.employmentlawworldview.com/crazy-miss-cokehead-when-banter-goes-too-far/. Following the liability hearing, the Tribunal found in favour of Svetlana Lokhova who worked for the London branch of the Russian bank Sberbank CIB (UK) Ltd.

The Tribunal found that 19 out of her 22 allegations were not well founded. However, on the main issues, it was found that Ms Lokhova’s former manager, David Longmuir, had bullied and harassed her on grounds of sex (even in emails), reportedly suggesting that she needed to visit a Nigerian tribesman for sex to “calm her down”. Other such put-downs included saying that she had only been hired “because of her t***” and poking fun at her perceived privileged background.

In a stinging attack on the Bank, the Tribunal heavily criticised its conduct of the proceedings and said that there had been a “deliberate” attempt to bully her at the liability hearing in relation to an allegation that Ms Lokhova took drugs. It said, “That allegation is completely without foundation and should never have been put to her in cross examination”. In a Jeremy Kyle-style twist, Ms Lokhova was so “incensed and appalled” by the allegation that she took a drug test during the hearing, which was negative.

There were a number of other aggravating factors in this case. Mr Longmuir was not disciplined at all despite the strength of the evidence and carried on working for the Bank for a further year after the bullying, receiving a £168,000 pay-off when he eventually did leave. While I am sure that this of course had no bearing at all on the Tribunal’s ruling, you might be aware that with the benefit of the tax breaks applicable to severance payments, this is the equivalent of an Employment Judge’s salary for some 20 months. No reason at all why thatpay-off should have irritated the Tribunal.

The Tribunal further criticised Paolo Zaniboni (who is still the CEO of the London office) who took no action against Mr Longmuir despite the evidence against him and whom the Tribunal also found to be guilty of unlawful victimisation.

The Tribunal’s attitude towards the Bank and its view of the aggravating features of this case is, perhaps, reflected in the reported awards of £44,000 and £15,000 for injury to feelings and aggravated damages respectively, which (if those reports are right) are very high awards indeed compared to previous cases. The £44,000 figure would represent nearly a 50% uplift on the previously-understood ceiling for such awards.

The Tribunal in this case found that Ms Lokhova, who earned £750,000 a year in salary and bonuses working in Equity Sales, “will never work in financial services again, on the basis of the medical evidence”. They found that she was suffering from a moderately severe psychiatric illness and had been suffering from such since January 2012. The bulk of her compensation therefore represented future loss of earnings.

Lessons for employers

An interesting point for employers arising out of this case is how to deal with a case like this to limit the potential financial sanctions. In this case there were emails containing the abuse and therefore written evidence of it (however, in most cases there will not be). It should have been obvious to the Bank that it was going to lose in relation to those allegations. So what can you do by way of mitigation?

1. In circumstances where internal investigations reveal that it is likely that the allegations of harassment are true, we suggest issuing an immediate apology to the complainant in relation to those allegations (and in extreme circumstances consider paying some money as compensation to the victim).

2. If an individual brings a claim, give serious consideration also to conceding liability when it is obvious that the allegation is true (however, take legal advice before doing this). Continuing to defend allegations that are indefensible will increase your costs and could lead to the Tribunal finding that the complainant’s injury (either medical and/or to feelings) has been aggravated. An early apology can improve your prospects of limiting the damage and you will be able to focus on the allegations that are, perhaps, capable of a defence. A swift apology could limit the complainant’s ability to claim that stress and/or publicity had done fatal damage to his/her career path (especially in a small world like the City of London) and so prevent such significant loss of earnings claims also.

3. Further, think carefully what is put to a witness in Tribunal. There was no relevance of Ms Lokhova’s alleged drug habits to the main issues in this case (which was whether or not she had been bullied and harassed). It is difficult to see how baiting her on the witness stand to try and “prove” that she was a drug addict was going to achieve anything and, in this case, the Bank scored a comprehensive own goal when she conclusively proved that she was not.

4. Last, give visible consideration to the handling of any employee who is clearly guilty of inappropriate behaviours. It did not take the Tribunal decision to show the Bank that Mr Longmuir’s conduct should be regarded as unacceptable. If an employer in those circumstances takes the decision not to act against an employee (for example because he/she is a real money-spinner or related to someone in senior management or a major client) then that is a judgment it is entitled to make but only once it has weighed that option against the additional compensation the harassed individual is likely to receive as a result. A really scorching final warning would now seem to have been a better compromise.

5. If there is a pay-off, make it as small as possible!

ARTICLE BY

Louise Martin

Squire Patton Boggs (US) LLP

NLRB Issues Guidance Regarding Lawful Employee Handbook Policies

Employers might know (or if they do not, they should) that the National Labor Relations Act (or “NLRA”) applies even to employers who do not have a unionized workforce. Due to the broad reach of the NLRA, the recent guidance issued by the General Counsel of the National Labor Relations Board (“NLRB”) regarding employee handbook policies is a must-read for human resources professionals and those charged with maintaining their company’s employee policies.

The focus of the General Counsel’s “Report” issued on March 18, 2015, arises out of Section 8(a)(1) of the NLRA, pursuant to which the mere maintenance of a rule that has a chilling effect on an employee’s Section 7 activity is unlawful. (“Section 7 activity” is any activity by an employee or group of employees by which they seek to improve their pay and working conditions, regardless of whether or not they are already unionized.) The most important obstacle for employers to consider when drafting and revising their policies, according to the General Counsel, is the fact that policies will be considered unlawful by the NLRB when they would bereasonably construed by employees as restricting Section 7 activity, even if the policies are not designed or intended to have that effect.

The primary recommendation from the General Counsel is that handbook policies include clear and specific language, precise examples, and explanatory context so that employees will not reasonably construe otherwise lawful policies as limiting their Section 7 activity.

An exhaustive recitation of the General Counsel’s extensive examples of lawful and unlawful handbook language goes beyond the scope of this article. However, as a general matter, the General Counsel found that language that provided sufficient context to employees, so as to avoid employees misconstruing the targeted conduct, was the most likely type of policy to meet with NLRB approval.

Again, as with other policies, the use of clarifying examples and context to avoid misinterpretation is highly recommended in the Report.

Regarding confidentiality, for example, handbook policies are considered unlawfully overbroad if they leave employees with the impression they cannot discuss wages, hours, and other terms and conditions of employment with fellow employees and with non-employees. Employers can minimize the risk of creating such an impression by defining terms such as “confidential information,” or by placing confidentiality policies within a context that clarifies their scope, such as within handbook sections addressing trade secrets or patient medical information.

As for employee conduct rules governing action that might include criticism of management (a protected Section 7 activity), the NLRB considers it unlawful for such rules to prohibit merely “rude” or “disrespectful” behavior toward managers or the “company” without sufficient clarification or context. Even false statements cannot be prohibited by a blanket rule (maliciousfalsehoods, however, may be lawfully prohibited). Businesses may nevertheless prohibit disrespectful or unprofessional behavior toward co-workers, clients, and other non-managers – as opposed to the company management – and may generally prohibitinsubordination toward management, as well.

Company media policies, in the meantime, need to be clear that any prohibition on speaking with the media is with respect to anyone purporting to speak on behalf of the employer without authorization. Employees should not be led to believe, whether intentionally or not, that they are in any way limited from speaking with the media regarding their employment in an individual capacity regarding wages, benefits, and other terms and conditions of employment. For example, the General Counsel found lawful a media policy that indicates one person only should speak for the company and that instructs any employee interviewed to state that he or she is not authorized to comment for the employer in response to any reporter inquiries.

The General Counsel looked unfavorably upon employee handbook policies that invoked anti-strike language within policies restricting employee movement to and from work. Such policies should not prohibit “walking off the job,” which can be misconstrued to refer to protected strike actions and walkouts. Phrases like “work stoppage” should also be avoided. The General Counsel, however, found acceptable a policy that simply stated, “Entering or leaving Company property without permission may result in discharge.” But employers must also be careful regarding a requirement of permission before employees can enter property, as employers may not deny off-duty employees access to non-work areas (such as parking lots) unless justified by legitimate business reasons.

As a final example, the General Counsel’s Report indicates that lawful employee policies may prohibit employee activity that amounts to competition against the company or to self-dealing, but a policy may not, under the broad label of a “conflict-of-interest” rule, prohibit any conduct that is not “in the best interest” of the employer because protected Section 7 activity can, of course, be against the interest of the company.

Employers with questions on a particular situation should consult with experienced labor and employment counsel regarding their handbook policies.

When Coworkers Invade Your Space re: Personal Privacy in the Workplace

Invasion of personal privacy in the work place concerns all of us, but can you sue for that? A Connecticut trial court recently addressed this compelling privacy issue. A Board of Education employee sued her coworkers for intentional infliction of emotional distress and for invasion of privacy. The employee alleged that her co-workers had, for several months, gathered together without her knowledge or permission to open and read her personal materials that she had stored on her work computer. The Waterbury Superior Court held that the employee had not stated a claim for intentional infliction of emotional distress, as the alleged conduct was only “undesirable and inappropriate”, and thus did not meet the “extreme and outrageous” standard of an intentional infliction of emotional distress claim. However, the court held that the employee had stated a claim for invasion of privacy, since her coworkers’ uninvited intrusion into her personal material was behavior that a reasonable person would find highly offensive. Referencing a 2009 District of Connecticut case, where the court held that employees have a reasonable expectation of privacy for their work emails, the Waterbury Superior Court noted that although the employee’s computer was a work computer, and not a personal device, this fact did not preclude her from bringing an invasion of privacy claim.

The right of privacy was first recognized by the Connecticut Supreme Court in 1982, when the Court adopted the standards for invasion of privacy listed in the Restatement (Second) of Torts. The Restatement explains that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.” 3 Restatement (Second), Torts, Invasion of Privacy § 652B, p. 378 (1977). Following the Restatement, Connecticut law now categorizes four classes of invasion of privacy: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of the other’s name or likeness; 3) unreasonable publicity given to the other’s private life; or 4) publicity that unreasonably places the other in a false light before the public. Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 127-28 1982). A few years later, a Connecticut Appellate Court adopted the invasion of privacy damages listed in the Restatement (Second) of Torts. In that decision, the court held that a plaintiff who has established a cause of action for invasion of his privacy is entitled to recover damages for: 1) the harm to his interest in privacy resulting from the invasion; 2) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and 3) special damages of which the invasion is a legal cause. Jonap v. Silver, 1 Conn. App. 550, 557 (. 1984)

This raises an interesting legal question. If a plaintiff’s claim is found to have fulfilled the standards of an invasion of privacy claim, yet not the standards of an intentional infliction of emotional distress claim, what damages can the plaintiff recover? An intentional infliction of emotional distress claim must involve “extreme and outrageous” conduct, while an invasion of privacy claim must involve conduct that is “highly offensive to a reasonable person.” It seems incongruous that a plaintiff is unable to recover for emotional distress under an intentional infliction of emotional distress claim, yet is able to recover for “mental distress” arising from an invasion of privacy claim. However, it appears that courts have determined that conduct qualifying as invasion of privacy needs to meet a less stringent standard of distress than conduct qualifying as intentional infliction of emotional distress. If this is true, then it makes sense that a plaintiff could be unable to recover for emotional distress under an intentional infliction of emotional distress claim, while still being able to recover for mental distress under a less stringent invasion of privacy claim.

ARTICLE BY

Bruce H. Raymond

Raymond Law Group LLC

Connecticut Workplace Privacy Law

President Obama Urged to “Ban the Box” for Federal Contractors

In a letter this past week, nearly 200 interest groups urged President Obama to issue an executive order “banning the box” for federal contractors and to implement other “fair chance” hiring reforms protecting ex-offenders. “Ban the box” refers to a movement that has swept across state and local legislatures in recent years requiring contractors (and employers more broadly) to remove the check box from job applications asking whether prospective employees have a criminal history.

To date, several state and local jurisdictions have “banned the box” for contractors, including California (for construction contractors), Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY) (for human services contractors), Pittsburgh (PA), and Syracuse (NY). Delaware and Madison (WI) have “encouraged” the same.

In addition, six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers (either expressly or implicitly covering government contractors).

At the federal level, the Office of Federal Contract Compliance Programs (OFCCP) also has issued a directive on criminal background checks. The Directive cautions contractors that the consideration of criminal records in hiring or other personnel decisions may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964.

If President Obama issues an executive order that “bans the box” for federal contractors, the executive action will add to an already growing patchwork of laws and orders restricting criminal background checks on job applicants and employees of government contractors. Stay tuned to see what the President decides.

ARTICLE BY

Connie N Bertram

Daniel L. Saperstein

Proskauer Rose LLP

Are Employees in Pennsylvania Bound by their Contractual Commitments?

With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.

To be enforceable, such agreements must:

Relate to a contract for the sale of goodwill or sale of property or a contract for employment;
Be supported by adequate consideration; and,
Be reasonably limited in both time and territory.

Initial employment is sufficient consideration for such an agreement. If not entered into at or about the commencement of employment, then, to be enforceable, such an agreement must be supplemented by additional consideration – i.e., a monetary payment or benefit, change in job status, or conversion of an at-will relationship into a contract of employment for a specific period of time. All of these items are possible points of contention by a former employee seeking to avoid his commitment and to engage in competitive activity.

The Uniform Written Obligations Act (UWOA), however, provides that a signed, written promise is not unenforceable for lack of consideration if the writing contains an expressed statement in any form of language that the signer “intends to be legally bound.” Insertion of such language into a covenant not to compete thus raises the issue of whether an employer can prevent a former employee from trying to avoid his contractual obligation by claiming that his commitment was not supported by consideration (or additional consideration for such agreements made after the commencement of employment).

Pennsylvania courts generally will not review the adequacy of consideration in determining the enforceability of a contract. Courts, however, regularly do make such an inquiry when a covenant not to compete is at issue. Only new, valuable consideration will support the enforcement of such an obligation – not continued at-will employment, a contract under seal, or nominal consideration.

Thus, there is tension between the UWOA and the inherent reluctance of Pennsylvania courts to review the adequacy of consideration on one hand, and these courts’ inclination to ensure that the employee receives something of value in exchange for his post-employment commitment not to compete on the other hand. When called upon to resolve this conflict, both a Pennsylvania trial court and the Superior Court sided with the employee and held that the mere insertion of “intending to be legally bound” language from the UWOA into a covenant not to compete did not prevent the court from considering whether the agreement was supported by adequate consideration. Since the agreement at issue in that case was entered into after the commencement of employment without any additional consideration, both courts refused to hold the employee to his commitment.

These decisions clearly are inconsistent with the terms of the UWOA. The Supreme Court of Pennsylvania, therefore, has agreed to review the underlying case and determine whether the inherent dislike of covenants not to compete by courts will trump the literal language of the UWOA. If the Pennsylvania Supreme Court reverses the decision of the two lower courts, then all employers with a nexus to Pennsylvania will be well-advised to insert such “magic language” in all present and future covenants not to compete, thereby taking any question of consideration off the table.

ARTICLE BY

Martin Saunders

Steptoe & Johnson PLLC

Employers Take Note: The Supreme Court’s Game-Changing Decision in Young v. UPS Requires Review of Pregnancy Accommodation Policies and Practices

Earlier today, the Supreme Court issued a much-anticipated decision in the closely watched case of Young v. UPS, holding that a plaintiff may be able to prove unlawful failure to accommodate a pregnancy-related condition through evidence that other non-pregnant employees were provided with the requested accommodation. As further explained in this Alert, theYoung v. UPS decision promises dramatic changes in how pregnancy discrimination and accommodation claims are viewed and handled by courts nationwide, and requires employers to review and, if necessary, change their relevant policies and practices.

Young v. UPS involves former UPS driver Peggy Young, who, upon becoming pregnant, was put on a lifting restriction by her doctor: no lifting of more than 20 pounds during the first 20 weeks of pregnancy, and no lifting of more than 10 pounds through the remainder of the pregnancy. At that time, UPS required its drivers to be able to lift a minimum of 70 pounds. As a result, the company told Young that she could not return to work until the restriction was released. The lower federal court granted summary judgment in favor of UPS, holding that no pregnancy discrimination had occurred, and the Fourth Circuit Court of Appeals affirmed. In one of its most important employment discrimination decisions in decades, today the Supreme Court vacated the Fourth Circuit’s decision, allowing Young to proceed in her pregnancy discrimination claim.

The Supreme Court held that an individual may establish a prima facie case of pregnancy discrimination by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion.” Put another way, an employee may establish her prima faciecase of pregnancy discrimination by pointing to some evidence that the employer’s actions were discriminatory. As the Court explained, the burden of making this showing is “not onerous,” and, significantly, does not require the plaintiff to show that non-pregnant employees who were allegedly treated more favorably were in similarly situated positions. Rather, the employee needs only to show that: (1) she was pregnant at the relevant time; (2) her employer did not accommodate her; and (3) her employer did accommodate others who are similar only “in their ability or inability to work.” The Court reasoned that Young could satisfy her prima facie burden by pointing to evidence that UPS had policies accommodating non-pregnant employees’ lifting restrictions – for example, its Americans with Disabilities Act (ADA) and job injury policies provided for light duty-type arrangements – but the same accommodation was not extended to pregnant employees.

The Court went on to explain that once the plaintiff meets the initial burden of establishing her prima facie case, then, as is typical in discrimination cases, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for denying the requested accommodation. While this burden traditionally set a comparatively low bar for employers to overcome, the Court cautioned that an employer’s reasoning that “it is more expensive or less convenient” to extend protection to pregnant women will not suffice, though the Court did not elaborate as to what articulated reasoning will, in fact, be deemed to be legitimate and sufficient. If an employer is able to satisfy its burden of articulating a legitimate, non-discriminatory reason, the final burden shifts back to the plaintiff to show that reason to be pretextual. While showing “pretext” traditionally has presented a comparatively high bar for plaintiffs to overcome, here again the Court lent a helping hand to plaintiffs in pregnancy discrimination cases by holding that this burden may be met if the employee can point to evidence that the employer’s policies “impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, non-discriminatory’ reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.” In Young’s case, for example, the Court reasoned that if the facts are as Young says they are, she may be able succeed in her claims by proving “that UPS accommodates most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations,” thereby giving rise to an inference of intentional discrimination based on pregnancy.

Today’s Supreme Court’s decision in Young v. UPS is a game changer for pregnancy discrimination and accommodation cases. Setting lower burdens for plaintiffs and a higher burden for employers to overcome than, arguably, ever before seen from the Court in employment discrimination cases, at a minimum employers can expect that going forward it will be substantially easier for plaintiffs to succeed in pregnancy discrimination and accommodation claims, and that policies that tend to negatively impact pregnant employees – particularly where there is evidence that the requested accommodations have been provided to non-pregnant employees – are likely to be scrutinized and may well be deemed to be unlawful. It is important for employers to review their policies and practices with today’s ruling in mind, and to make whatever changes necessary to ensure appropriate accommodation of, and no adverse effect with respect to, pregnant employees. Any requests for pregnancy-related accommodations must be taken seriously and evaluated thoughtfully, so as to ensure compliance and help prevent claims.

ARTICLE BY

Sonya Rosenberg

Neal, Gerber & Eisenberg LLP

Category: Labor & Employment

New York Implements Medical Marijuana Rules

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