Tag: Employment Law

U.S. Supreme Court: Request for Religious Accommodation Not Necessary to Trigger Discrimination Liability

The U.S. Supreme Court decided the widely publicized case filed by the Equal Employment Opportunity Commission (EEOC) against Abercrombie & Fitch (Abercrombie), in which a Muslim female applicant who wore a headscarf was denied employment with Abercrombie based on the company’s dress code policy. EEOC v. Abercrombie & Fitch, U.S. Supreme Court, No.14-86 (June 1, 2015).

Samantha Elauf, a practicing Muslim, applied for employment with Abercrombie. She came to the interview wearing a headscarf. The assistant store manager rated Elauf as qualified for the position, but expressed concern to her superiors that Elauf’s headscarf would violate Abercrombie’s Look Policy, which prohibits the wearing of “caps.” The term “caps” is not defined in the policy. The assistant manager also informed her superiors that she believed Elauf’s headscarf was worn pursuant to her religion. The district manager directed that Elauf be denied employment, because the headscarf would violate the Look Policy, just as any other headgear would, whether worn for religious reasons or not.

The EEOC filed suit against Abercrombie. The district court entered judgment in favor of Elauf, and a trial on damages resulted in a $20,000 award to Elauf. Abercrombie appealed to the Tenth Circuit, which reversed the district court and entered summary judgment in favor of Abercrombie. Elauf appealed to the U.S. Supreme Court.

Title VII makes it unlawful for an employer to deny employment to an applicant because the employer desires to avoid extending reasonable accommodation based on the applicant’s religious beliefs. In this case, Abercrombie argued that this prohibition applies only when the applicant requests a religious accommodation or otherwise notifies the employer of the need for an accommodation. In this case, Elauf did not at any time make a request for reasonable accommodation, and therefore, argued Abercrombie, she cannot prove that Abercrombie had knowledge of the need for accommodation, which should be a prerequisite to proving religious discrimination.

The Supreme Court disagreed. The Court held that an applicant or employee need not necessarily show that the employer had actual knowledge of the need for an accommodation, only that the need for an accommodation was a “motivating factor” in the employment decision. The Court drew a distinction between the statutory language of the Americans with Disabilities Act’s accommodation provisions, which discusses an employer’s obligations with respect to “known physical or mental limitations” (emphasis added), and with the language of Title VII’s religious accommodation provision, which is silent on the knowledge requirement. According to the Court, the rule for a failure to accommodate claim under Title VII’s religious discrimination provision is “straightforward”: an employer may not consider an applicant’s religious practice, confirmed or otherwise, as a factor in employment decisions. The Court’s opinion offers an example of an employer who assumes that an orthodox Jew who applies for employment will need Saturdays off for the Sabbath. If the employer acts on this assumption and denies the applicant employment because of it, Title VII would be violated, regardless of whether the applicant ever make a request for Saturdays off or otherwise stated a request for accommodation.

While the Court noted that an employee’s request for religious accommodation may make it easier to prove it was a motivating factor in the employer’s decision, it is not a necessary component to the claim. Thus, the Supreme Court reversed the Tenth Circuit’s decision awarding summary judgment to Abercrombie, despite the fact that Elauf never made a request for an accommodation.

Speculation About Accommodation May Be Enough

This decision has potentially far reaching effects. The Supreme Court has made clear that an individual need not use specific words or terminology relating to the need for religious accommodation, or even make a request at all, in order for liability for failure to accommodate to arise. Whether the need for accommodation is actually known, or merely speculated, assumed, or otherwise factored into an adverse employment decision, liability can arise — even if the need has not been expressed or substantiated at the time of the employment decision.

ARTICLE BY Julie Furer Stahr of Schiff Hardin LLP
© 2015 Schiff Hardin LLP

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.

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

Jackson Lewis P.C.

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

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

Proskauer Rose LLP, Law Firm

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?

Steptoe Johnson PLLC

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:

  1. Relate to a contract for the sale of goodwill or sale of property or a contract for employment;

  2. Be supported by adequate consideration; and,

  3. 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

Neal, Gerber & Eisenberg LLP

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

NLRB Issues Critical Guidance On Employer Handbooks, Rules and Policies, Including “Approved” Language

Epstein Becker & Green, P.C.

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issuedGeneral Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

As explained in the Memorandum, the Board’s legal standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a concerted nature intended to address issues with respect to employees’ terms and conditions of employment. As we have noted previously, this General Counsel and Board have consistently given these terms broad interpretations and have found many employer policies and procedures, in handbooks and elsewhere, that appear neutral and appropriate on their face, to violate the Act and interfere with employee rights.  Many of these cases have involved non-union workplaces where there is not a union present and there is no union activity in progress.

There are two sections to the Memo. Part 1 of the Memorandum, which begins at page 2 and runs to page 20, offers a recap of NLRB decisions concerning 8 broad categories of policies, with summaries of the Board’s holdings and examples of policy language that the NLRB has found to unlawfully interfere with employees’ Section 7 rights and policy language that the Board has found did not unlawfully interfere with employees’ rights.  Section 2 reports on the General Counsel’s settlement with Wendy’s International LLC following an investigation of charges in which the General Counsel found portions of Wendy’s employee handbook unlawfully overbroad, with an explanation as to why the General Counsel found the policies in question to interfere with employees’ rights under the Act and a description of the language Wendy’s adopted to replace the problematic policies as part of its settlement of the charges. Both parts of the Memorandum will be of interest to employers and attorneys who draft, apply and enforce handbooks and other workplace policy documents.

Part 1: Examples of Handbook Rules found by the Board to be Lawful and Unlawful in recent decisions

  • Employer Handbooks Rules Regarding Confidentiality – The Memorandum reviews the Board’s precedents holding that “Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as nonemployees such as union representatives.” Interestingly, the Memorandum also states that “broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.”  The Memorandum further “clarifies” by advising that “an otherwise unlawful confidentiality rule will be found lawful if, when viewed in context, employees would not reasonably understand the rule to prohibit Section 7 protected activity.”

  • Employer Handbooks Rules Regarding Employee Conduct toward the Company and Supervisors – As explained in the Memorandum, “Employees also have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees.”  The Memorandum offers an overview of decisional law, with particular attention to cases involving rules that “prohibit employees “from engaging in ‘disrespectful,’ ’negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or context.”  As further noted, employee criticism of the employer “will not lose the Act’s protection simply because the criticism is false or defamatory.”

  • Employer Handbooks Rules Regulating Conduct Towards Fellow Employees – This section of the Memorandum focusses on language and policies that the Board has found to interfere with the Section 7 right employees have ‘to argue and debate with each other  about unions, management, and their terms and conditions of employment,” which the General Counsel explains the Board has held will not lose their protection under the Act, “even if it includes ‘intemperate, abusive and inaccurate statements.” Of particular interest in this portion of the Memorandum is the examination of policies concerning harassment.  The Memorandum notes that “although employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7 protected subjects.”

  • Employer Handbooks Rules Regarding Employee Interaction With Third Parties – This section of the Memorandum focuses on employer policies and provisions that seek to regulate and restrict employee contact with and communications to the media relating to their employment.  The General Counsel notes that “(A)nother right employees have under Section 7 is the right to communicate with the new media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment,” and that rules “that reasonably would be read to restrict such communications are unlawful.” The General Counsel acknowledges however that “employers may lawfully control who makes official statements for the company,” any such rules must be drafted so as “to ensure that their rules would not reasonably be read to ban employees from speaking to the media or third parties on their own (or other employees”) behalf.

  • Employer Handbooks Rules Restricting Use of Company Logos, Copyrights and Trademarks – The Board has found many employer policies, whether contained in employee handbooks or elsewhere, that broadly prohibit employees from using logos, copyrights and  trademarks to unlawfully interfere with employees’ Section 7 rights.  While the General Counsel acknowledges that “copyright holders have a clear interest in protecting their intellectual property,” the Board has found, with the approval of such courts as the Fourth Circuit Court of Appeals, that “handbook rules cannot prohibit employees’ fair protected use of that property.”  In this regard the General Counsel states in the Memorandum that it is his office’s position that “employees have a right to use the name and logo on picket signs’ leaflets, and other protected materials,” and that “Employers’ proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.”

  • Employer Handbooks Rules Restricting Photography and Recording – While many handbooks and policies prohibit or seek to restrict employees from taking photographs or making recordings in the workplace and on employer policy, the Memorandum states that “Employees have Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures make recordings.”  The Memorandum further notes that such policies will be found to be overbroad “where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time.”

  • Employer Handbooks Rules Restricting Employees from Leaving Work – With respect to handbook or other policies that restrict employees from leaving the workplace or from failing to report when scheduled, the Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.”  Not all rules concerning absences and leaving the workstations are unlawful.  A rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”

  • Employer Conflict of Interest Rules – The Memorandum states that under Section 7 of the Act, employees have the right to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests.  It cites as examples of such activities that could arguably be in violation of broad conflict of interest policies as protests outside the employer’s business, organizing a boycott of the employer’s products and services and solicitation of support for a union while on non-work time.  The Memorandum notes that when a conflict of interest policy “includes examples of otherwise clarifies that it limited to legitimate business interests (note: as that term is defined by the General Counsel and the Board) employees will reasonably understand the rule to prohibit only unprotected activity.”

  • Part 2: The Wendy’s International LLC Handbook Cases

    The second part of the Memorandum relates to the Board’s settlement of a series of unfair labor practice charges against Wendy’s International LLC (Wendy’s) alleging that various provisions of the handbook were overbroad and unlawfully interfered with employees’ rights under the NLRA.  The company entered into an “informal, bilateral Board settlement agreement.  In this section, the GC explains why various provisions were found unlawful and then sets forth negotiated replacement policies that the GC found did not violate the Act.  While not a formal “safe harbor” since this is the position of the General Counsel and not the Board, it offers very good advice for employers and attorneys in this area.  The Wendy’s policies that the General Counsel argued violated employees’ Section 7 rights and the replacements that the General Counsel found acceptable concerned the following areas:

    • Handbook Disclosure Provision – The handbook in issue contained a broad prohibition against disclosure of the handbook and the information it contained without the company’s express prior written permission.  The General Counsel found this to be unlawful because it prohibited disclosure of employment practices to third parties such as a union or the NLRB.

    • Social Media Policy – While the General Counsel acknowledged that employers have “a legitimate interest in ensuring that employee communications are not construed as representing the employer’s official position,” the General Counsel found the company’s rule to be overbroad since it prohibited a much broader range of communications that would be protected by Section 7.  This included photography and recording and no retaliation provisions.

    • Conflict of Interest Policy

    • Company Confidential Information Provision

    • Employee Conduct

    • Walking Off the Job Without Authorization

    • No Distribution/No Solicitation Provision

    • Restaurant Telephone; Cell Phone; Camera Phone/Recording Devices Provision

    While Memorandum GC 15-04 arguably does not contain “new” information or changes in policy or case law, it should be useful for employers and practitioners (and employees) in that it provides a concise summary of the General Counsel’s views on this wide range of matters and examples of language that is likely to be found lawful in future proceedings.  OF course it is important to note that each charge is decided on its own facts and the actions and statements of employers and their supervisors in connection with the application and enforcement of the particular provision will almost always be relevant to the determination of whether the Board will issue a complaint on a particular ULP Charge.

    ARTICLE BY

    Steven M. Swirsky
    Adam C. Abrahms
    Epstein Becker & Green, P.C.

Statements of Samantha Elauf and David Lopez Following Oral Argument at the Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc.

U.S. Equal Employment Opportunity Commission Seal

Samantha Elauf filed the original charge of religious discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) that led to today’s argument in the Supreme Court. She has the following statement for the press:

I was born and raised in Tulsa, Oklahoma. When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion.  I had worked in two other retail stores and was excited to work at the Abercrombie store.  No one had ever told me that I could not wear a head scarf and sell clothing.  Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith.  This was shocking to me.

I am grateful to the EEOC for looking into my complaint and taking this religious discrimination case to the courts.  I am not only standing up for myself, but for all people who wish to adhere to their faith while at work. Observance of my faith should not prevent me from getting a job.

David Lopez, General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), made the following statement at the conclusion of the Supreme Court argument in EEOC v. Abercrombie & Fitch Stores, Inc., a case involving religious accommodation.

This year we celebrate the 50th Anniversary of the Equal Employment Opportunity Commission, established as part of Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination because of race, color, sex, national origin, and religion.  The prohibition against religious discrimination reflects this country’s historical tradition of religious freedom and religious tolerance. Since that time, the Commission has led the effort to enforce laws that prohibit religious discrimination for persons of all faiths. Today’s case is the latest effort to ensure all persons protected by  Title VII are not placed in the difficult position of choosing between adherence to one’s faith and a job.

Finally, I would be remiss not to recognize the courage and tenacity of Samantha Elauf.  Regardless of the outcome of this case, her effort to stand up for the important principles at issue is an inspiration.  Samantha now has a brief prepared statement that will be read by Christine Saah Nazer, EEOC spokesperson.

ARTICLE BY

U.S. Equal Employment Opportunity Commission

Statements of Samantha Elauf and David Lopez Following Oral Argument at the Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc.

U.S. Equal Employment Opportunity Commission Seal

Samantha Elauf filed the original charge of religious discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) that led to today’s argument in the Supreme Court. She has the following statement for the press:

I was born and raised in Tulsa, Oklahoma. When I applied for a position with Abercrombie Kids, I was a teenager who loved fashion.  I had worked in two other retail stores and was excited to work at the Abercrombie store.  No one had ever told me that I could not wear a head scarf and sell clothing.  Then I learned I was not hired by Abercrombie because I wear a head scarf, which is a symbol of modesty in my Muslim faith.  This was shocking to me.

I am grateful to the EEOC for looking into my complaint and taking this religious discrimination case to the courts.  I am not only standing up for myself, but for all people who wish to adhere to their faith while at work. Observance of my faith should not prevent me from getting a job.

David Lopez, General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), made the following statement at the conclusion of the Supreme Court argument in EEOC v. Abercrombie & Fitch Stores, Inc., a case involving religious accommodation.

This year we celebrate the 50th Anniversary of the Equal Employment Opportunity Commission, established as part of Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination because of race, color, sex, national origin, and religion.  The prohibition against religious discrimination reflects this country’s historical tradition of religious freedom and religious tolerance. Since that time, the Commission has led the effort to enforce laws that prohibit religious discrimination for persons of all faiths. Today’s case is the latest effort to ensure all persons protected by  Title VII are not placed in the difficult position of choosing between adherence to one’s faith and a job.

Finally, I would be remiss not to recognize the courage and tenacity of Samantha Elauf.  Regardless of the outcome of this case, her effort to stand up for the important principles at issue is an inspiration.  Samantha now has a brief prepared statement that will be read by Christine Saah Nazer, EEOC spokesperson.

ARTICLE BY

U.S. Equal Employment Opportunity Commission

Wal-Mart to Pay $150,000 to Settle EEOC Age and Disability Discrimination Suit

U.S. Equal Employment Opportunity Commission Seal

Keller Store Manager Was Harassed and Fired Because of His Age and Denied Accommodation for His Diabetes, Federal Agency Charged

Wal-Mart Stores of Texas, L.L.C. (Wal-Mart) has agreed to pay $150,000 and provide other significant relief to settle an age and disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged in its suit that Wal-Mart discriminated against the manager of the Keller, Texas Walmart store by subjecting him to harassment, discriminatory treatment, and discharge because of his age. The EEOC also charged that Wal-Mart refused to provide a reasonable accommodation for the man’s disability as federal law requires.

According to the EEOC’s suit, David Moorman was ridiculed with frequent taunts from his direct supervisor, including “old man” and “old food guy.” The EEOC further alleged that Wal-Mart ultimately fired Moorman because of his age. Such alleged conduct violates the Age Discrimination in Employment Act (ADEA), which prohibits discrimination on the basis of age 40 or older, including age-based harassment.

The EEOC’s suit also alleged that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his diabetes. Following his diagnosis and on the advice of his doctor, Moorman requested reassignment to a store co-manager or assistant manager position. According to the suit, Wal-Mart refused to engage in the interactive process of discussing Moorman’s requested accommodation, eventually rejecting his request. Under the Americans with Disabilities Act (ADA), Wal-Mart had an obligation to reasonably accommodate Moorman’s disability.

The EEOC filed suit on March 12, 2014, (Case No. 3:14-cv-00908 in U.S. District Court for the Northern District of Texas, Dallas Division) after first attempting to reach a pre-litigation settlement through its conciliation process.

“Mr. Moorman was subjected to taunts and bullying from his supervisor that made his working conditions intolerable,” said EEOC Senior Trial Attorney Joel Clark. “The EEOC remains committed to prosecuting the rights of workers through litigation in federal court.”

Under the terms of the two-year consent decree settling the case, Wal-Mart will pay $150,000 in relief to Moorman. In addition, Wal-Mart agreed to provide training for employees on the ADA and the ADEA. The training will include an instruction on the kind of conduct that may constitute unlawful discrimination or harassment, as well as an instruction on Wal-Mart’s procedures for handling requests for reasonable accommodations under the ADA. Wal-Mart will also report to the EEOC regarding its compliance with the consent decree and post a notice to employees about the settlement.

“The EEOC is pleased that Wal-Mart recognized the value of resolving this case without any further court action,” said EEOC Dallas District Director Janet Elizondo.

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U.S. Equal Employment Opportunity Commission
OF
U.S. Equal Employment Opportunity Commission