Category: Labor & Employment

Connecticut’s Pay Equity Law Prohibits Salary History Inquiries

As of January 1, 2019, Connecticut employers are prohibited from inquiring about prospective employees’ wage or salary histories. Connecticut’s new pay equity law is intended to promote equality in pay and close the wage gap. Under the new law, employers—defined as entities having “one or more employees”—are also prohibited from using a third party to inquire about any applicant’s wage or salary history. Employers may still inquire about the components of an applicant’s compensation structure—for example, retirement benefits or stock option plans—but they may not inquire about the value of any individual component.

Nothing in the law prevents an employer from verifying salary information if a prospective employee voluntarily discloses such information. Additionally, the law does not apply where a federal or state law “specifically authorizes disclosure or verification of salary history” in the employment context.

A private right of action exists for violations of the law, and a prospective employee can potentially recover compensatory damages, attorneys’ fees and costs, and punitive damages. A two-year statute of limitations applies.

In light of this new law, Connecticut employers should revise their employment applications to remove any requests for candidates’ salary histories. Employers that have hiring policies and/or hiring scripts should revise these documents to remove any questions about salary histories. Further, employers may want to affirmatively state that it is the employer’s policy not to make such inquiries. Connecticut employers may also want to ensure that any employees involved in interviewing candidates are trained on the new law and understand that they should not be asking about salary history information. Finally, employers may want to verify that any third parties they are using to help screen candidates are aware of and in compliance with the new law.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Read more employment updates on the National Law Review’s employment law page.

Woo-Hoo! Workplace Civility Rules Upheld by NLRB General Counsel

Between 2009 and 2017, the National Labor Relations Board (NLRB) invalidated countless workplace employment policies – including those of non-union employers – where the agency found them to potentially infringe on workers’ rights under the National Labor Relations Act. Among the types of policies overturned were “positive workplace” or “workplace civility” rules, which were said to limit employees’ right to discuss the terms and conditions of their employment. While courts sometimes intervened to strike down these board decisions, the NLRB nevertheless largely held to its view.

However, in the wake of the Boeing case last year, the agency has been taking a fresh look at workplace civility rules. And those results are refreshing.

This week, the NLRB General Counsel’s office released a memo in which it analyzed a “Commitment to My Co-Workers” policy of a company. That policy required workers to “maintain healthy relationships” and to address conflicts with co-workers directly instead of behind their backs. Before the new standard announced in Boeing, that policy almost certainly would have been found to be unlawful. But relying on Boeing, the NLRB General Counsel determined the workplace civility rules at issue were permissible and that the company could require employees to sign off on the policy and even terminate ones who refused to do so.

This is great news for companies who want to promote positivity and healthy relationships in the workplace. It also serves as a reminder that under the NLRB’s current employment policy test enunciated in Boeing, many workplace policies that may have been rescinded due to board decisions issued between 2009-2017 may be worth revisiting in 2019.

 

© 2018 BARNES & THORNBURG LLP
This post was written by David J. Pryzbylski of Barnes & Thornburg LLP.

Mixed Results for Employers on Marijuana – Two Federal Courts Refuse to Find State Marijuana Laws Preempted by Federal Law

Two recent federal cases illustrate why employers – even federal contractors – must be cognizant of relevant state-law pronouncements regarding the use of marijuana (i.e., cannabis) by employees. While one case found in favor of the employer, and the other in favor of the employee, these decisions have emphasized that state law protections for users of medical marijuana are not preempted by federal laws such as the Drug-Free Workplace Act (DFWA). Employers must craft a thoughtful and considered approach to marijuana in the workplace, and in most cases should not take a zero-tolerance approach to marijuana.

Ninth Circuit Finds in Favor of Employer Who Discharged Employee for Positive Drug Test

In Carlson v. Charter Communication, LLC, the Ninth Circuit affirmed the dismissal of a lawsuit brought by an employee who alleged discrimination under the Montana Medical Marijuana Act (MMA) because he was discharged for testing positive for marijuana use. The plaintiff, a medical marijuana cardholder under Montana state law, tested positive for THC (a cannabinoid) after an accident in a company-owned vehicle. His employer, a federal contractor required to comply with the DFWA, terminated his employment because the positive test result violated its employment policy.

The District Court of Montana held that the employer was within its rights to discharge the plaintiff because (1) the DFWA preempts the MMA on the issue of whether a federal contractor can employ a medical marijuana user; and (2) the MMA does not provide employment protections to medical marijuana cardholders. Indeed, the MMA specifically states that employers are not required to accommodate the use of medical marijuana, and the Act does not permit a cause of action against an employer for wrongful discharge or discrimination. The Ninth Circuit rejected this rationale. Because the MMA does not prevent employers from prohibiting employees from using marijuana and does not permit employees for suing for discrimination or wrongful termination, the Ninth Circuit held that the MMA does not preclude federal contractors from complying with the DFWA and thus found no conflict.

The plaintiff asserted that the provisions of the MMA exempting employers from accommodating registered users and prohibiting such users from bringing wrongful discharge or discrimination lawsuits against employers are unconstitutional and sought certification of the question to the Montana Supreme Court. The Ninth Circuit rejected this request because, it determined, the Montana Supreme Court already decided the issue. The MMA and the specific sections challenged by the plaintiff appropriately balance Montana’s legitimate state interest in regulating access to a controlled substance while avoiding entanglement with federal law, which classifies the substance as illegal.

Plaintiff Wins Summary Judgment Against Employer That Rescinded Job Offer Due to Positive Test

If federal law does not preempt state law on the issue of marijuana, then in certain states – like Connecticut – employers will be more susceptible to discrimination claims from marijuana users. In Noffsinger v. SSC Niantic Operating Company, the District of Connecticut granted summary judgment to a plaintiff-employee of Bride Brook Nursing & Rehabilitation Center who used medical marijuana to treat post-traumatic stress disorder (“PTSD”) and whose offer was rescinded for testing positive for THC during a post-offer drug screen. Plaintiff filed a discrimination claim under the Connecticut Palliative Use of Marijuana Act (“PUMA”), which makes it illegal for an employer to refuse to hire a person or discharge, penalize, or threaten an employee “solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver.”

We covered a previous decision in this case, in which the court held that PUMA is not preempted by the federal Controlled Substance Act (“CSA”), the Americans with Disabilities Act, or the Food, Drug & Cosmetic Act (“FDCA”). The decision was notable then for being the first federal decision to hold that the CSA does not preempt a state medical marijuana law’s anti-discrimination provision, a departure from a previous federal decision in New Mexico.

In this recent decision, the District Court again considered whether PUMA was preempted by federal law. In ruling for the Plaintiff, the court rejected Bride Brook’s argument that its practices fall within an exception to PUMA’s anti-discrimination provision because they are “required by federal law or required to obtain federal funding.” Bride Brook argued that in order to comply with DFWA, which requires federal contractors to make a good faith effort to maintain a drug-free workplace, it could not hire plaintiff because of her failed pre-employment drug-test. The court was not persuaded, concluding that the DFWA does not require drug testing, nor does it prohibit federal contractors from employing people who use illegal drugs outside the workplace. The court noted that simply because Bride Brook’s zero-tolerance policy went beyond the requirements of the DFWA does not mean that hiring the plaintiff would violate the Act.

The court also rejected Bride Brook’s argument that the federal False Claims Act (“FCA”) prohibits employers from hiring marijuana users because doing so would amount to defrauding the federal government. Because no federal law prohibits employers from hiring individuals who use medicinal marijuana outside of work, employers do not defraud the government by hiring those individuals.

Lastly, the court rejected the theory that PUMA only prohibits discrimination on the basis of one’s registered status and not the actual use of marijuana, as such a holding would undermine the very purpose for which the employee obtained the status.

What These Decisions Mean for Employers

These decisions are notable for the fact that the federal courts refused to find the state laws were preempted by federal law. Importantly, neither found that the DFWA preempts state law, which means that even federal contractors must be aware of and follow state law with respect to marijuana use by employees. Thus, in states in which employers may not discriminate against medical marijuana users – such as Connecticut – all employers must take care not to make adverse employment decisions based solely on off-duty marijuana use and, in certain states, must accommodate medical marijuana use. A majority of states and the District of Columbia now permit the use of medical marijuana; employers, including federal contractors, should be mindful of these statutes and consult with counsel to ensure their employment policies are compliant.

©2018 Epstein Becker & Green, P.C. All rights reserved.

This post was written by Nathaniel M. Glasser ofEpstein Becker & Green, P.C.

Pennsylvania Supreme Court Holds Employers Have a Duty to Exercise Reasonable Care to Safeguard Sensitive Personal Information About Their Employees

To date, Pennsylvania has not adopted a comprehensive law specifying how sensitive personal information about individuals must be secured or the protections that holders of this information must use to minimize risk of breach. [1] Pennsylvania only requires that, in the event of a breach, holders of sensitive personal information notify the affected individuals so they can take appropriate precautions against misuse of their information. Pennsylvania does have some laws specific to particular industries, such as health care and insurance, regarding how sensitive personal information may be used or disclosed, but there is no single mandate across all industries obligating holders of sensitive personal information to secure it in any particular way.

Employers, however, are a common denominator among all industries, and recently, the Pennsylvania Supreme Court in Dittman v. UPMC d/b/a The University of Pittsburgh Medical Center held that when employers (regardless of the industry, the size of the employer, or the number of employees they hire) require their employees to provide sensitive personal information, such as Social Security numbers, bank accounts, tax returns, or other financial information, those employers have a legal duty to exercise reasonable care to safeguard that information when they store it on an Internet-accessible computer system. [2] Employers who do not exercise reasonable care to safeguard the sensitive personal information may be liable for financial damages to their employees in the event of a breach. [3]

All employers who collect sensitive personal information about their employees and maintain the information electronically on an Internet-accessible system are affected by the court’s decision. The court’s analysis also suggests that, regardless of how the information is stored (i.e., electronically or otherwise), an employer has a duty to exercise reasonable care to safeguard the sensitive personal information it collects about its employees from known threats to the information. This alert examines the court’s holding and identifies questions employers should be asking about their data requests, data security practices, and data-retention policies and procedures, and it offers suggestions for mitigating associated risks that apply regardless of whether employers store the information on an Internet-accessible computer.

What Happened?

UPMC’s Internet-connected computer system was hacked and sensitive personal information about its employees was accessed and stolen. This information included names, birth dates, Social Security numbers, addresses, tax forms, and bank account information. The hackers used the stolen information to file false tax returns, and affected employees incurred financial damages. As a result, several UPMC employees filed a class-action lawsuit against UPMC on behalf of all 62,000 current and former UPMC employees whose data were accessed and stolen. The employees alleged that:

• UPMC affirmatively required employees to provide certain sensitive personal and financial information (including names, birth dates, Social Security numbers, addresses, tax forms, and bank account information) as a condition of employment.
• UPMC had a duty to exercise reasonable care to protect their employees’ personal and financial information from being compromised, lost, stolen, misused, and/or disclosed to unauthorized parties.
• UPMC stored the employees’ sensitive personal information on its Internet-accessible computer system without adopting adequate security measures, such as encryption, adequate firewalls, and an adequate authentication protocol, to safeguard that information, which allowed hackers to access the system and steal the information.
• UPMC breached its duty to exercise reasonable care to protect the information, which allowed hackers to access the system and steal the information.
• UPMC was liable to the employees for the financial damages they incurred resulting from the breach.

UPMC filed preliminary objections to the complaint — Pennsylvania’s form of a motion to dismiss — and asserted that the economic-loss doctrine barred the employees from recovering purely economic damages. Under the economic-loss doctrine, actions sounding in tort require physical injury or property damage in order to recover for a breach of duty. [4] The trial court agreed with UPMC that the economic-loss doctrine barred recovery. [5] The trial court also found UPMC owed no existing duty to the employees as they alleged, and the “‘courts should not impose ‘a new affirmative duty of care that would allow data breach actions to recover damages recognized in common law negligence actions.’” [6] The trial court accordingly dismissed the complaint.

The employees appealed to the Pennsylvania Superior Court, and in a split decision, the Superior Court affirmed the trial court’s determination that employers did not owe their employees a duty under Pennsylvania law to exercise reasonable care to safeguard their sensitive personal information. [7] The Superior Court also agreed that the economic-loss doctrine barred recovery. [8] The Superior Court therefore affirmed the trial court’s order sustaining UPMC’s preliminary objections and dismissing the claim. [9]

The Pennsylvania Supreme Court’s Review

The Pennsylvania Supreme Court granted a discretionary appeal to determine the narrow questions of (1) whether an employer in Pennsylvania has a legal duty to use reasonable care to safeguard sensitive personal information about its employees when the employer chooses to store such information on an Internet-accessible computer system, and (2) if so, whether the employees could recover purely financial damages resulting from the breach of the duty. As discussed more fully below, the Supreme Court held that (i) employers have an existing duty to employees under Pennsylvania common law to exercise reasonable care in collecting and storing their sensitive personal information on their computer systems, and (ii) purely financial damages may be recovered if employers fail to exercise reasonable care in securing the sensitive personal information. [10]

First, the Supreme Court disagreed with the lower courts’ analysis that, if employers owed such a duty to exercise reasonable care to safeguard their employees’ sensitive personal information, such duty was a “new, affirmative duty” and was being created solely by the employees’ allegations. [11] In the Supreme Court’s view, the employees’ allegations were simply a “novel factual scenario” to apply an existing duty employers owe to the employees. [12]The Supreme Court stated that, as it has observed previously, “in scenarios involving an actor’s affirmative conduct, he is generally ‘under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm arising out of the act.’” [13] The Supreme Court concluded that, in this case, the employees alleged such affirmative conduct on the part of UPMC — namely, that “as a condition of employment, UPMC required them to provide certain personal and financial information, which UPMC collected and stored on its internet-accessible computer system without use of adequate security measures, including proper encryption, adequate firewalls, and an adequate authentication protocol. These factual assertions plainly constitute affirmative conduct on the part of UPMC.” [14] The Supreme Court also agreed with the employees that “this affirmative conduct resulted in UPMC owing the employees a duty to exercise reasonable care to protect them against an unreasonable risk of harm arising out of that act.” [15]

With respect to the economic-loss doctrine, the Supreme Court held that the decisions relied upon by the trial court and the Superior Court “do not stand for the proposition that the economic loss doctrine, as applied in Pennsylvania, precludes all negligence claims seeking solely economic damages.” [16] Instead, the ability to recover “turns on the determination of the source of the duty plaintiff claims the defendant owed.” [17] In cases where the duty arises outside the context of a contract between the parties, the breach of that duty may be the basis of a negligence claim. [18] According to the Supreme Court, the employees’ allegations in the complaint existed independently from any contractual obligations between the parties. Accordingly, the employees had stated a claim upon which they could recover if their allegations proved to be true.

The Implications of the Court’s Holding for Employers

Private employers in Pennsylvania (regardless of industry) who affirmatively request sensitive personal information from their new or existing employees and who maintain the sensitive personal information on Internet-connected computer systems have an existing duty to exercise reasonable care to safeguard that information. [19] As a result, employers (regardless of size or number of employees) should be evaluating their data collection and maintenance policies and procedures to mitigate the risk of being found not to have exercised reasonable care in safeguarding the information. In particular, employers should be answering the following questions:

1. Is the information really needed? Employers should be able to connect each data request to a legitimate business need (e.g., a legal requirement) and limit the data requested to the minimum amount of data required to achieve that legitimate business purpose. Some data elements are essential: names, addresses, Social Security numbers, and birth dates. This data is necessary to pay employees, to report tax withholdings, and to prevent fraud, among other purposes. Any data being requested from employees that is not absolutely necessary for a legitimate business purpose should be reevaluated and collection discontinued if it is determined to be unnecessary. Unnecessary data should also be deleted.

2. Could any of the information collected and maintained about the employees and determined to be necessary for a legitimate employer-purpose harm employees if it were stolen? To make this determination, employers must have a thorough understanding of precisely what information they maintain about employees. Information such as names and addresses likely does not qualify as sensitive personal information (although there are always exceptions) but financial information does. In order for an employer to be able to show it exercised reasonable care, it must first know the nature of the data in its possession.

3. What are foreseeable threats to the information being inappropriately accessed or stolen?Information being stored electronically is literally under attack. If employers maintain sensitive personal information about their employers electronically (or employers hire vendors who do so), they must understand these threats and how they might come to fruition. As noted above, however, the Supreme Court’s analysis applies equally to sensitive personal information in other forms, such as paper. If an employer could reasonably foresee that the paper records could be misused, the employer likewise has an existing duty to exercise reasonable care to protect it (e.g., locked file cabinets with limited access).

4. Based on the nature of the information and the identified foreseeable threats to that information, have appropriate safeguards to protecting the information been identified and implemented?Safeguards may vary depending on the nature of the underlying data and the identified foreseeable risks, although certain security practices have become or are quickly becoming fairly standard and failure to implement them would likely be seen as a failure to exercise reasonable care. At a minimum, employers should be able to demonstrate that people with appropriate experience and knowledge in safeguarding information are involved in these decisions.

5. Have the steps taken to safeguard the information been documented? The Supreme Court’s holding does not impose strict liability on employers in the event they get hacked and sensitive personal information about employees is accessed or stolen. The Supreme Court’s holding requires the exercise of reasonable care to safeguard the information from foreseeable threats. The best way to be able to support that reasonable care was exercised is to document all the steps taken including those listed above.

6. Does the cyber insurance policy cover breaches of employee data? It probably does, but employers should check the scope of coverage and ensure that nothing in the policy excludes the types of financial damages the employees in UPMC experienced.

Conclusion

The Supreme Court’s holding drives home that employers must use reasonable care in the collection of sensitive employee data and adds an incentive for doing so (the risk of incurring economic damages for breach).

NOTES:

[1] Indeed, there is no overarching definition of “sensitive personal information,” but it typically includes personal information that if acquired inappropriately could be used to harm the person to whom it belonged, such as Social Security or a driver’s license number coupled with bank account information.
[2] Dittman v. UPMC d/b/a The Univ. of Pittsburgh Med. Ctr. & UPMC McKeesport, No. 43 WAP 2017, slip op. at 1–2 (Pa. Nov. 21, 2018) (herein, “UPMC”).
[3] Id.
[4] See Bilt-Rite v. The Architectural Studio, 866 A.2d 270, 273 (Pa. 2005).
[5] See UPMC, slip op. at 4–5.
[6] See id. at 5 (quoting Bilt-Rite, supra). The trial court also “observed that the Legislature is aware of and has considered the issues that Employees sought the court to consider herein as evidenced by the Breach of Personal Information Notification Act (Data Breach Act), 73 P.S. §§ 2301 – 2329. Specifically, the court explained that, under the Data Breach Act, the Legislature has imposed a duty on entities to provide notice of a data breach only … and given the Office of the Attorney General the exclusive authority to bring an action for violation of the notification requirement … The court thus reasoned that, as public policy was a matter for the Legislature, it was not for the courts to alter the Legislature’s direction.” Id. at 6–7.
[7] Id. at 8–9.
[8] Id. at 7.
[9] Id.
[10] Id. at 1–2.
[11] Id. at 15.
[12] Id. at 10. Indeed, “[c]ommon-law duties stated in general terms are framed in such fashion for the very reason that they have broad-scale application.” Id. at 15–16. “‘Like any other cause of action at common law, negligence evolves through either directly applicable decisional law or by analogy, meaning that a defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context.’” Id. at 16 (quoting Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 299 (Pa. 2012)).
[13] Id. at 16 (emphasis added).
[14] Id. (emphasis added).
[15] Id. at 16–17. In arriving at this conclusion, the Supreme Court also rejected UPMC’s argument that “the presence of third-party criminality in this case eliminates the duty it owes to Employees …” Id. at 17. The Supreme Court acknowledged that an actor otherwise owing a duty “cannot be liable for third-party conduct that could ‘conceivably occur.’” Id. at 17. However, the Supreme Court agreed that “liability could be found if the actor ‘realized or should have realized the likelihood that such a situation might be created and that a third person might avail himself of the opportunity to commit such a tort or crime.’” Id. at 17–18 (quoting Mahan v. Am-Gard, Inc., 841 A.2d 1052 1061 (Pa. Super. 2003)) (emphasis added).
[16] Id. at 28.
[17] Id.
[18] Id.
[19] The court did not consider whether a cause of action would exist against local or state agencies under the limited waivers of sovereign immunity.

 

Copyright 2018 K & L Gates
This post was written by Patricia C. Shea of K & L Gates.
Read more about Cybersecurity concerns on the National Law Review’s Communication page.

Social Security Administration ‘No Match’ Letters to Employers Make Another Comeback

Social Security Administration (SSA) has begun notifying employers that the information reported on an individual employee’s W-2 form does not match the SSA’s records with “Request for Employer Information” letters, known as “No-Match” letters.

SSA started sending these controversial informational requests in 1993, but the practice has waxed and waned in part due to litigation. In 2011, SSA resumed the practice of notifying employers of social security number mismatches. But in 2012, the Obama Administration decided to simply stop the practice.

Now, the letters are back! In July 2018, probably in response to President Donald Trump’s Buy American, Hire American Executive Order, SSA re-started the practice by sending “informational notifications” to employers and third party providers telling them of mismatches on their 2017 Forms W-2 and explaining where to find helpful resources. The plan was to send 225,000 of these notices every two weeks. Starting in Spring 2019, notices will be sent regarding 2018 Forms W-2s, but these letters, unlike the “informational” letters, will tell employers that corrections are necessary.

A mismatch does not necessarily mean that there is any wrongdoing. It can be caused by an administrative error: numbers can be reversed, names might be misspelled or changed, for instance, due to marriage. But once a letter is received, in determining how to respond, employers find themselves caught between agencies. SSA wants to maintain accurate records of earnings. ICE wants to ensure compliance with employment verification laws. And the Immigrant and Employee Rights Section of the Department of Justice (IER) wants to ensure that employers are not discriminating on the basis of citizenship, nationality or by pursuing unfair documentary practices in violation of the INA.

What is an employer to do?

  1. Don’t take any adverse action against an employee based on a No-Match letter alone.

  2. Compare the SSA information with the individual’s employment records.

  3. If the employer’s records match, ask the employee to check the name and number on his or her Social Security card.

  4. If there is a mistake on the card or the card needs to be changed or corrected, ask the employee to reach out to SSA to resolve the issue.

There are no “safe harbors.” Each case is different and must be analyzed individually to avoid missteps and penalties from either SSA, ICE, or IER.

Jackson Lewis P.C. © 2018
This post was written by Sean G. Hanagan of Jackson Lewis P.C.

No vaccine? No job! Court affirms employer’s ability to condition employment upon vaccinations

On December 7, 2018, the U.S. Eighth Circuit Court of Appeals held that an employee who was terminated for refusing to take a rubella vaccine was not discriminated or retaliated against, under the Americans with Disabilities Act, as amended (“ADA”).  See Hustvet v. Allina Health System, Case No. 17-2963.

In this case, Janet Hustvet worked as an Independent Living Skills Specialist. In May 2013, Hustvet completed a health assessment, during which she stated she did not know whether she was immunized for rubella.  Subsequent testing confirmed she was not.  Her employer — Allina Health Systems — then told Hustvet she would need to take one dose of the Measles, Mumps, Rubella vaccine (“MMR vaccine”).  Hustvet stated to an Allina representative that she was concerned about the MMR vaccine because she had previously had a severe case of mumps and had “many allergies and chemical sensitivities.”  Later, Hustvet refused to take the MMR vaccine, and was terminated for failure to comply with Allina’s immunity requirements.  Hustvet then sued Allina, alleging discrimination, unlawful inquiry, and retaliation claims under the ADA and Minnesota state law.  The district court granted Allina’s motion for summary judgment, and Hustvet appealed.

On appeal, the Eighth Circuit first addressed Hustvet’s unlawful inquiry claim; specifically, Hustvet alleged that Allina violated the ADA when it required her to complete a health screen as a condition of employment.  When affirming the district court’s grant of summary judgment, the court explained that the information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job related abilities.  Indeed, Allina sought to ensure their patient-care providers would not pose a risk of spreading certain diseases – such as rubella – to its client base.  Thus, the inquiry was job-related and consistent with business necessity.

The court then did away with Hustvet’s discrimination claim based upon failure to accommodate because Hustvet was not disabled and, thus, she could not state a prima facie case of disability discrimination. There was simply no record evidence to support the conclusion that Hustvet’s purported “chemical sensitivities” or allergies substantially limited any of Hustvet’s major life activities. She was never hospitalized due to an allergic or chemical reaction, never saw an allergy specialist, and was never prescribed an EpiPen.  Rather, Hustvet suffered from “garden-variety allergies,” which was not enough to conclude she was disabled.

Finally, the court affirmed the district court’s grant of summary judgment regarding Hustvet’s retaliation claim. In pertinent part, the court reasoned that Hustvet could not show that Allina’s proffered reason for terminating her employment – her refusal to take an MMR vaccine – was a pretext for discrimination.  The record evidence demonstrated that Allina terminated Hustvet’s employment because her job required her to work with potentially vulnerable patient populations, and she refused to become immunized to rubella, an infectious disease.

This decision comes as welcome news to employers that provide healthcare-related services, and confirms that healthcare providers may condition employment upon taking certain vaccinations, so long as the vaccination is job-related and consistent with business necessity.  Employers with questions regarding implementing or enforcing such policies would do well to consult with able counsel.

 

© Polsinelli PC, Polsinelli LLP in California
This post was written by Cary Burke of Polsinelli PC.

BOLI Issues Final Rules on Oregon’s Equal Pay Law

On November 19, 2018, the Oregon Bureau of Labor and Industries (BOLI) issued its final administrative rules relating to the state’s Equal Pay Law, which prohibits pay discrimination on the basis of protected class, as well as screening job applicants based on current or past compensation.

The rules establish definitions for several key words in the law, provide more concrete guidance on how to meet the law’s posting requirements, and seek to clarify certain provisions of the law related to screening job applicants based on salary history, determining whether employees perform work of comparable character, establishing bona fide factors that may justify paying employees performing work of comparable character at different compensation levels, explaining benefits as a component of compensation, and “red-circling” or freezing employee compensation in order to bring the pay of employees performing work of comparable character into alignment. Finally, the rules establish that an employer commits an unlawful compensation practice each time an employee is paid in violation of the Equal Pay Law.

Key Takeaways

  • Oregon Administrative Rule (OAR) 839-008-0005 provides that the Equal Pay Law’s prohibition on screening job applicants based on current or past compensation includes a prohibition on using anyinformation about an applicant’s past compensation, regardless of how the information was obtained, to determine a job applicant’s suitability or eligibility for employment. However, unsolicited disclosure of a job applicant’s past compensation (whether by the applicant or former employer) does not constitute a violation of the law, so long as the information is not considered by the employer making the hiring decision.

  • OAR 839-008-0010 expands upon the Equal Pay Law’s criteria for evaluating whether employees perform “work of comparable character” and thus should be paid the same absent the existence of one or more bona fide factors justifying any disparity. The rule provides that “work of comparable character” means work requiring substantially similar knowledge, skill, effort, responsibility, and working conditions in the performance of work, regardless of job description or title. BOLI’s new rule provides non-exhaustive lists of factors that may be considered in determining whether employees have substantially similar knowledge, skill, effort, responsibility, or working conditions. For example, the rule provides that “skill” considerations “may include, but are not limited to, ability, agility, coordination, creativity, efficiency, experience, or precision.”

  • OAR 839-008-0015 establishes criteria that may be used to evaluate whether bona fide factors explain pay differentials that would otherwise violate the Equal Pay Law. The law already broadly delineates what constitutes a “bona fide factor” (i.e., a seniority system; a merit system; a system measuring earnings by quantity or quality of production; differing workplace locations, travel, education, training, experience, or any combination of those factors). While the rule seeks to further explain and provide examples of those factors. For example, the rule provides that education considerations “may include, but are not limited to, substantive knowledge acquired through relevant coursework, as well as any completed certificate or degree program.” Training considerations “may include, but are not limited to, on-the-job training acquired in current or past positions as well as training acquired through a formal training program.”

  • OAR 839-008-0020 seeks to clarify benefits as a component of compensation under the Equal Pay Law. Specifically, the rule provides that (1) employees performing work of comparable character may be provided different benefits so long as the same benefit options are offered to all employees performing work of comparable character; and (2) if an employee declines a benefit, the full cost of the benefit offered to the employee may be used to calculate the total amount of compensation paid to the employee under the Equal Pay Law.

  • OAR 839-008-0025 clarifies that “red circling,” freezing, or otherwise holding an employee’s pay constant as other employees performing work of comparable character are brought into alignment is not considered a reduction in pay for the employee whose pay is frozen.

Questions Remain Unanswered

While the rules clarify some aspects of the Equal Pay Law, many questions remain unanswered for employers. This is particularly true when it comes to performing an equal pay analysis to (1) determine and rectify any pay disparities among comparable employees and (2) take advantage of the law’s affirmative defense to compensatory and punitive damages. No guidance is given, for example, as to how to account for the protected classes that are not self-evident or self-reported. And, while the rules provide some information as to what amounts to a “bona fide factor” justifying a pay disparity, the list remains exclusive and vaguely defined at best.

Next Steps for Employers

Oregon employers that have not yet done so may want to perform equal pay analyses of their workforces as soon as possible. While the Equal Pay Law has been in effect since October 2017, employees will be able to bring claims beginning January 1, 2019, which carry the possibility of economic, compensatory, and punitive damages, as well as attorneys’ fees.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Title VII and LGBT Rights: The Current Landscape

The U.S. Supreme Court currently is contemplating whether to review three employment discrimination cases involving what, if any, protection Title VII extends against discrimination on the basis of sexual orientation and gender identity.  See R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., case number 18-107 (considering transgender discrimination under Title VII; see Sixth Circuit opinion below reported at 884 F.3d 560); Altitude Express v. Zarda, case number 17-1623 (considering sexual orientation discrimination under Title VII; see Second Circuit opinion below reported at 855 F.3d 76); Bostock v. Clayton County, Georgia, case number 17-1618 (same; see Eleventh Circuit opinion below reported at 894 F.3d 1335).  The Court will consider the certiorari petitions for all three cases in conference on November 30.

Under Title VII, it is illegal for an employer to discriminate against an employee “because of… sex.”  The statute does not explicitly protect against sexual orientation or gender identity discrimination, and circuit courts are split as to whether Title VII’s protection against sex-based discrimination also provides protection based on sexual orientation, with the Second and Seventh Circuits holding that Title VII prohibits sexual orientation-based discrimination and the Eleventh Circuit reaching the opposite conclusion.  In Harris Funeral Homes, the Sixth Circuit became the first federal Circuit Court of Appeals to recognize transgender discrimination as a form of prohibited sex-based discrimination under Title VII.  The Supreme Court could choose to resolve these questions this term, but until then, this issue will continue to be closely watched by the nation, with government agencies and employers weighing in on the debate.

In October 2018, a U.S. Department of Health and Human Services (“HHS”) memo garnered national attention for defining “sex” to exclude transgenderism.  The memo circulated internally within HHS for months, but was just recently made public in a New York Times article.  The memo defines “sex” as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”  In other words, HHS wants to rely on birth certificates as the main identifier of an individual’s sex, a policy that would essentially abolish federal recognition and protection of transgender individuals.  The memo requests that other federal agencies – including the Departments of Justice, Education, and Labor – alter their own understanding of the word “sex” to match HHS’s proposed definition.

Shortly after the HHS memo became public, the Department of Justice (“DOJ”), appearing before the Supreme Court on behalf of the federal government, urged the Court to postpone consideration of Harris Funeral Homes until it decides whether to review Zarda and Bostock because the Sixth Circuit relied heavily on Zarda in concluding that Title VII prohibits transgender discrimination.  Further, the DOJ contended, consistent with the HHS memo, that Title VII does not prohibit employers from discriminating against employees based on gender identity.

Not all agencies agree with the HHS and DOJ’s interpretation of Title VII.  For instance, the Acting Chair of the U.S. Equal Employment Opportunity Commission (“EEOC”), Victoria Lipnic (who was appointed Acting Chair by President Trump in 2017), announced that the EEOC plans to continue prosecuting transgender discrimination claims in accordance with the agency’s stated policies.  In response to these recent agency developments, nearly 200 companies – including Amazon, Apple, Pepsico, Twitter, and Uber – signed the Business Statement for Transgender Equality opposing “any administrative and legislative efforts to erase transgender protections through reinterpretation of existing laws and regulations.”

The federal stance on Title VII and LGBT discrimination is conflicting, to say the least.  Until the U.S. Supreme Court rules on these issues, it is important for employers to remember that although there are currently no express federal protections against sexual orientation or transgender discrimination, many state and local governments prohibit such discrimination.  Employers are encouraged to consult with counsel to ensure compliance with state and local laws regarding transgender and sexual orientation discrimination in the workplace.  Stay tuned for our update on whether the Supreme Court decides to hear these cases.

 

© Copyright 2018 Squire Patton Boggs (US) LLP

U.S. Department of Labor Rescinds Guidance Regarding “Side Work” and the FLSA’s Tip Credit in Restaurants

Under the Fair Labor Standards Act (“FLSA”), employers can satisfy their minimum wage obligations to tipped employees by paying them a tipped wage of as low as $2.13 per hour, so long as the employees earn enough in tips to make up the difference between the tipped wage and the full minimum wage. (Other conditions apply that are not important here.) Back in 1988, the U.S. Department of Labor’s Wage and Hour Division amended its Field Operations Handbook, the agency’s internal guidance manual for investigators, to include a new requirement the agency sought to apply to restaurants. Under that then-new guidance, when tipped employees spend more than 20% of their working time on tasks that do not specifically generate tips—tasks such as wiping down tables, filling salt and pepper shakers, and rolling silverware into napkins, duties generally referred to in the industry as “side work”—the employer must pay full minimum wage, rather than the lesser tipped wage, for the side work.

This provision of the Handbook flew largely under the radar for years. This was partly because the Department did not publicize the contents of the Handbook, and party because the Department did not bring enforcement actions premised on a violation of this 20% standard. And historically, virtually nobody in the restaurant industry maintained records specifically segregating hours and minutes spent on tip-generating tasks as compared to side work.

In 2007, a federal district court in Missouri issued a ruling in a class action upholding the validity of the 20% standard, and that decision received an enormous amount of attention and publicity. In the years that followed, a wave of class actions against restaurants flooded the courts across the country, all contending that the restaurants owe the tipped employees extra money because of the Department’s 20% standard in the Handbook.

In January of 2009, in the waning days of the George W. Bush Administration, the Department issued an opinion letter rejecting the 20% standard, superseding the Handbook provision, and stating that there is no limit on the amount of time a tipped employee can spend on side work. Six weeks later, however, in March of 2009, the Obama Administration withdrew that opinion letter. In subsequent years, the Department filed several amicus curiae briefs in pending court cases endorsing the 20% standard, and the Department even modified the Handbook provision to make the requirements even more difficult for employers to satisfy.

In late 2017, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit concluded, in nine consolidated appeals presenting the same issue, that the Department’s 20% standard is not consistent with the FLSA and thus was unlawful. A few months later, however, a divided 11-judge en banc panel of the same court reached the opposite conclusion, ruling by an 8-3 vote that the 20% standard is worthy of deference.

In July of 2018, the Restaurant Law Center, represented by Epstein Becker Green, filed a declaratory judgment action against the Department in federal court in Texas challenging the validity of the 20% standard under the FLSA, the Administrative Procedure Act, and the U.S. Constitution. Roughly a month before the employers’ deadline to file a certiorari petition with the Supreme Court regarding the en banc Ninth Circuit ruling, and just days before the government’s response is due in the Texas litigation, the Department reissued the 2009 opinion letter.

This opinion letter, now designated as FLSA2018-27, once again rejects the 20% standard and clarifies that employers may pay a tipped wage when employees engage in side work so long as the side work occurs contemporaneously with, or in close proximity to, the employees’ normal tip-generating activity. This opinion letter should put an end to the many pending cases, including numerous class actions, that depend on the 20% standard.

The overall take-away for employers is that at least under federal law, side work performed during an employee’s shift, in between tip-generating tasks, should present no concern. The same should be true of side work performed at the start or end of an employee’s shift, so long as the side work does not take too long. An employee coming in fifteen or thirty minutes before the restaurant is open to help get the restaurant ready for the day, followed by the remainder of the shift in which the employee generates tips, seems to be consistent with the new opinion letter. Likewise for employees who spend some time at the end of the shift helping to close the restaurant for the day. But employers should use common sense and good judgment, as having tipped employees spend hours and hours performing side work may still give rise to risks. And it remains important to be aware of any state or local law requirements that may differ from federal law.

©2018 Epstein Becker & Green, P.C. All rights reserved.

This post was written by Paul DeCamp of Epstein Becker & Green, P.C.

#MeToo Movement Inspires Avalanche of New Laws Affecting California Employers

On September 30, 2018, Governor Jerry Brown signed several bills that will affect California employers. The following summarizes key aspects of these new laws. Unless otherwise noted, the new laws are effective January 1, 2019.

Major Changes to the Definition of “Hostile Work Environment” Harassment

Senate Bill (“SB”) 1300 significantly expands the circumstances in which hostile work environment harassment may be found to exist by rejecting the “severe or pervasive” standard developed and refined over several decades by California courts. Harassment is redefined to encompass a broad spectrum of conduct, specifically:

“Harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.”

Government Code Section 12923, which declares the Legislature’s intent in enacting the new law, will provide guidance about what types of evidence will be sufficient to establish a harassment claim. It states that employees are no longer required to prove that their productivity has declined as a result of harassment. Now, they only need to show that the harassment made it “more difficult” for them to do their job. Even a “single incident of harassing conduct” is now sufficient to create a triable issue of fact, allowing a case to go to a jury. Furthermore, a single remark made by someone unconnected to a termination decision can be circumstantial evidence of discrimination. Finally, the Legislature made it clear that harassment cases are “rarely” appropriate for dismissal at the summary judgment stage.

Employers can be held liable for all forms of harassment – not just sexual harassment – directed at employees by non-employees, such as clients or vendors. This includes harassment based on race, national origin, religion, and other protected characteristics.

Finally, if an employer wins a sexual harassment lawsuit, it cannot recover attorney’s fees and costs unless it can prove that the plaintiff’s action was “frivolous, unreasonable, or groundless” either when filed or after it clearly became so.

Restrictions on Releases and Non-Disparagement Agreements

SB 1300 also prohibits employers from requiring a release of harassment, discrimination, or retaliation claims or to sign a non-disparagement agreement that purports to prevent disclosure of information about unlawful acts in the workplace, if the release is required to get a job, stay employed, or receive a raise or bonus. This does not apply to a negotiated settlement to resolve a claim filed in court, with government agencies, in arbitration, or through an employer’s internal complaint process, provided that the employee has an attorney or an opportunity to retain one.

Extended Statute of Limitations for Sexual Assault

The California Legislature lengthened from three years to ten years the statute of limitations for sexual assault claims. Under Assembly Bill (“AB”) 1619, a plaintiff may now bring a civil action for sexual assault within the later of “[ten] years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff” or “[w]ithin three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted” from the defendant’s act.

Restrictions on Confidentiality and Testimony Provisions in Settlement Agreements

SB 820 prohibits settlement agreements that restrict plaintiffs from disclosing factual information about harassment claims in judicial proceedings. The bill does not, however, prohibit settlement provisions restricting disclosure of settlement amounts. Furthermore, a provision that shields the identity of a claimant may be included in a settlement agreement at the request of the claimant, unless a government agency or public official is a party to the agreement.

AB 3109 voids settlements that waive the right to testify regarding criminal conduct or sexual harassment, when the party has been required or requested to attend a proceeding by court order, subpoena, or other government request.

Enhanced Protection from Defamation

AB 2770 enhances protections from defamation claims made against sexual harassment claimants and employers that investigate such complaints. Three types of statements are privileged: 1) employee complaints of sexual harassment made without malice and supported by credible evidence; 2) communications made without malice between an employer and other interested persons regarding a sexual harassment complaint; and 3) answers provided without malice by a current or former employer in response to questions from a prospective employer regarding whether the current or former employer would rehire an employee, and whether the decision not to rehire is based on a determination that the former employee engaged in sexual harassment.

Broadened Definition of Non-Employment Related Harassment

SB 224 significantly expands sexual harassment claims in business, service, and professional relationships under California Civil Code Section 51.9. Going beyond the prior definition, which applied to physicians, attorneys, trustees, landlords, and other similar relationships, the law now prohibits harassment by individuals who “hold themselves out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.” Examples include investors, elected officials, lobbyists, directors, and producers.

The law also reduces the burden to establish a claim, removing the previous requirement that a plaintiff establish that he or she was “unable to easily terminate the relationship.” The law also allows the California Department of Fair Employment and Housing (“DFEH”) to prosecute non-employment based sexual harassment claims, and makes it unlawful to “deny or aid, incite, or conspire in the denial of rights of persons related to sexual harassment actions.”

Expanded Anti-Harassment Training

Under existing law, employers with fifty or more employees were required to provide two hours of anti-harassment training to supervisory employees every two years. Under SB 1343, any employer with five or more employees, including temporary and seasonal workers, must provide two hours of anti-harassment training to supervisors and one hour of training to non-supervisors by January 1, 2020, and then once every two years thereafter. The bill also requires the DFEH to develop these courses and to post them online.

Corporate Boards of Publicly Held Corporations Must Include Female Representatives

SB 826 requires all publicly-held domestic and foreign corporations with principal executive offices in California to have at least one female on their boards by the end of 2019. By the end of 2021, the minimum increases to one female for boards with four or fewer members, two females for boards with five members, and three females for boards with six or more members. “Female” refers to an individual’s gender identification, not designated sex at birth.

The bill directs the Secretary of State to publish online reports documenting compliance. In addition, the Secretary of State may issue fines of $100,000 for failure to file board member information, $100,000 for the first violation of the member requirement, and $300,000 for subsequent violations. Each position not appropriately filled constitutes a separate violation.

Salary History Ban and Pay Scale Disclosure Guidance

Labor Code Section 432.3, enacted in January 2018, requires employers to provide applicants, upon request, with the pay scale for a position. It also prohibits employers from asking about or relying on prior salary in hiring or compensation.

An amendment to this bill enacted in July 2018 provides some necessary clarifications. It defines “pay scale” as a “salary or hourly wage range,” and it clarifies that the salary history ban and pay scale requirement do not apply to current employees. It also explains that employers are not required to provide pay scale information until after the initial interview. Employers are also allowed to ask about salary expectations. Finally, it allows employers to make compensation decisions based on existing salaries, so long as any differential is justified by a bona-fide factor such as seniority or merit.

Limitations on Criminal History Inquiries

Existing law restricts employers from considering applicants’ and employees’ judicially dismissed or sealed convictions or participation in pretrial or post-trial diversion programs. SB 1412 narrows the scope of an exception to this general rule. The bill permits employers to seek information from the applicant or other sources only about an applicant’s “particular conviction,” rather than a “conviction” generally.

An employer may inquire about a “particular” conviction only if: 1) the employer is legally required to obtain information regarding the conviction; 2) the applicant would be required to possess or use a firearm; 3) an individual with that conviction is legally prohibited from holding the position; or 4) the employer is legally prohibited from hiring an applicant with that conviction.

The employer may inquire about the particular conviction under these circumstances even if it has been expunged, sealed, statutorily eradicated, or judicially dismissed. The law further states that it does not prohibit an employer from conducting criminal background checks or restricting employment based on criminal history when legally required to do so.

Paid Family Leave for Active Duty Families

SB 1123 extends California’s paid family leave program to families with members on active duty in the armed forces. Beginning on January 1, 2021, an individual may take up to six weeks of paid family leave a year when participating in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent.

Employment Record Inspection Rights

SB 1252 provides guidance regarding requests to inspect employment records. Employees have a right to receive a copy of their records, not merely inspect or copy them. An employer must deliver a copy within 21 days, and may charge the cost of reproduction to the employee. An employer who fails to provide an employee with a copy of his or her employment records within the 21-day time period will be subject to a $750 fine.

Expanded Lactation Accommodation Requirements

AB 1976 expands the existing lactation accommodation standards to now require that employers create a permanent lactation location in an area other than a bathroom. Before this change, employers were required to provide only an area other than a toilet stall. Employers may create a temporary location if they can demonstrate: 1) an inability to provide a permanent location due to operational, financial, or spatial constraints; 2) the temporary location is private and free from intrusion when needed for lactation; 3) the temporary location is only for lactation purposes when needed for that purpose; and 4) the temporary location otherwise meets state law requirements. If the requirements would create an “undue hardship”, however, the employer must make “reasonable efforts” to provide the employee with an area other than a toilet stall that is in close proximity to the employee’s work area where the employee can express milk in private.

California Construction Employers Temporarily Protected from PAGA Suits

California construction workers will no longer be able to bring suit against their employers under the Private Attorneys General Act of 2004 (“PAGA”) if they work under a collective bargaining agreement that meets certain requirements provided in AB 1654. To qualify, the agreement must: 1) provide for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for employees to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate; 2) provide for a grievance and binding arbitration procedure to redress labor code violations; 3) expressly waive PAGA’s requirements in clear and unambiguous terms; and 4) authorize the arbitrator to award any and all remedies available under law. This exception expires on the earlier of the collective bargaining agreement’s expiration date or the statute’s repeal date of January 1, 2028.

Petroleum Industry Employee Rest Breaks May be Interrupted

Although California law prohibits employers from requiring employees to work during their meal, rest, or recovery periods, AB 2605 creates an exception for certain workers in the petroleum industry who are covered by a qualifying collective bargaining agreement. Under this provision, employers may interrupt rest breaks taken by employees who hold safety-sensitive positions at petroleum facilities from their duties, to the extent the employee is required to carry and monitor a communication device and respond to emergencies or is required to remain on employer premises to monitor the premises and respond to emergencies. If a rest break is interrupted, an employer must promptly provide an additional rest break. If a rest break cannot be provided, the employer must pay the employee an hour of pay. This bill became effective immediately when it was signed by Governor Brown on September 20, 2018, and it will remain effective until the section is repealed in January 1, 2021.

Suggested Actions

In light of these changes, California employers should consider taking the following actions:

  • Train managers, recruiters, human resource professionals, and other relevant staff regarding these new requirements and restrictions.
  • Educate all employees, especially supervisory employees, about laws prohibiting harassment, including SB 1300’s expanded definition of harassment, and train employees on how to appropriately respond to complaints of harassment.
  • Update policies, procedures, and agreements in light of SB 1300’s new restrictions on non-disparagement agreements and releases and SB 820’s and AB 3109’s restrictions on confidentiality provisions in settlement agreements.
  • Update training policies, procedures, and materials to comply with SB 1343’s expanded requirements for sexual harassment training for all employees.
  • Consider updating procedures and policies regarding employment references to third parties to permit disclosures regarding eligibility for rehire. Employers should designate a single person or a human resources professional to provide references in order to ensure that disclosures fall within AB 2770’s defamation privilege.
  • Begin planning for SB 826’s requirements for female representation on corporate boards.
  • Ensure that application forms, candidate questionnaires, interview outlines and scripts, and other screening and hiring materials omit inquiries regarding salary history and inquiries regarding criminal history, consistent with applicable law.
  • Prepare policies and procedures for complying with the salary history ban’s pay scale disclosure requirements. Such policies and procedures should comply with the requirements described above.
  • Consider asking applicants about their salary expectations, rather than salary history. If an employee voluntarily offers salary information, contemporaneously document that the employee introduced the information into the discussion.
  • Review criminal history screening policies, procedures, and forms to ensure compliance with the restrictions on criminal history inquiries. Prepare policies for dealing with criminal history to avoid ad hoc decision-making by managers and consider involving human resource professionals.
  • Contemporaneously document any individualized assessments regarding an applicant’s suitability for employment based on criminal history information.
  • Update written policies regarding qualifying exigencies related to military service.
  • Ensure policies for responding to employee requests for records; permit employees to obtain copies of such records.
  • Ensure that there is an available space for lactation in the workplace that complies with the new requirements.
  • Reach out to us if you have any questions, concerns, or need guidance with respect to these new laws or your company’s obligations to comply with them.
Copyright 2018 K&L Gates.
This post was written by Spencer Hamer and Catherine C. Smith of K&L Gates.