employment Archives - Page 10 of 23 - The National Law Forum

What Was Your Prior Salary? No Longer Question You Can Ask When Hiring in New York City

Last month, the New York City Council approved legislation that bars employers from asking prospective hires to disclose their past salary. In passing the measure, New York City joins Massachusetts (see our post here), Puerto Rico and the city of Philadelphia in banning the question from job interviews and on applications. (Also see our post here regarding a recent Ninth Circuit decision addressing pay history.) The law, known as Introduction 1253-A, makes it illegal for any employer or employment agency in New York City to ask about an applicant’s salary history, including benefits, or search any publicly available records to obtain any such information. The measure, aimed at tackling pay inequity, is intended to stop perpetuating any discrimination that women or people of color may have faced in the past and to end wage disparities between men and women. A study released earlier this month by the National Partnership for Women & Families, a Washington, DC-based advocacy group, shows that women in New York State earn 89 cents for every dollar that men are paid. The pay gap is wider among minority women, the study found. African American women in New York earn 66 cents for every dollar paid to non-Hispanic white men. Latina women earn 56 cents for every dollar.

The measure only applies to new hires, not to internal job candidates applying for a transfer or promotion given that their salary information may already be on file. It also excludes public employees whose salaries are determined by collective bargaining agreements. There are certain exceptions built into the bill whereby employers can consider salary history, including the hiring of internal candidates for different positions, workers who are covered by a collective bargaining agreement or employees who voluntarily give their salary history during an interview.

New York City Public Advocate Letitia James, who co-sponsored the bill last year, said the primary focus of the bill is to promote greater transparency in the hiring process. Although it doesn’t require employers to do so, James said the bill suggests to businesses that they post salaries for jobs instead of relying on workers’ past salary.

The City’s Commission on Human Rights will investigate and enforce the measure, imposing a civil penalty of no more than $125 for an unintentional violation or up to $250,000 for an intentional malicious violation. Those figures are in line with other forms of discrimination — including race, disability and sexual orientation bias — for which the commission issues fines.

Fatima Goss Graves, president-elect of the National Women’s Law Center, said in an email that the measure “stands to transform the way that companies operate around the country,” she said. “So many companies operate in multiple jurisdictions. If a company changes its practices in New York, it is likely to also make changes around the country.” I think what we’ll see is companies that do business in New York City just eliminate that from their applications entirely,” she said. “This will have wide-ranging influence.” Meanwhile, nearly 20 states, the District of Columbia and two cities (San Francisco and Pittsburgh) have introduced legislation that includes a provision against salary history information, according to data from the NWLC.

The new legislation is expected to go into effect later this year, or 180 days after Mayor de Blasio signs the bill. Employers in New York City need to review their applications and standard job questions to ensure they remove any questions about past salaries.

Religious Dress at UK Workplaces Revisited – is the fuss justified?

“Bosses can ban burkas, scarves, crosses” shouts the front page of last Tuesday’s Metro, followed by a commentary far too short to explain that this is almost always untrue.

This is the resurrection of an old debate concerning the extent of your right to manifest your religion at work through how you dress. When last seen, the European Court of Justice had decided in a Eweida v. British Airways that it would be religious discrimination to ban an employee from wearing a visible crucifix at work unless there was a good reason for it, for example health and safety. The two cases which led to yesterday’s headline (one of which – spoiler alert – said that bosses couldn’t ban religious dress) were considering slightly separate points. Bougnaoui v. ADDH considered whether it would be discriminatory for the employer to react to a customer complaint by banning the wearing of a Muslim head scarf, while Achbita v. G4S asked whether it would still be discriminatory if the employer banned all outward signs of religious or political belief.

In Bougnaoui the ECJ was clear – if you use the potentially discriminatory views of your customers as a ground for imposing dress restrictions on your employees, that will be unlawful. Ms Bougnaoui wore a headscarf at work but was asked to remove it after a customer complained. That was just visiting the customer’s views on the employer’s staff and so was unlawful.

However, in Achbita the employer maintained a written, comprehensive and consistent ban on the wearing of all religious and political symbols, regardless of the faith or political affiliation in question. It did this because it wished to present a picture of overt neutrality among its workforce. This was in turn a result of the nature of its business, supplying security and reception staff to a variety of Government and private sector clients, some in highly confidential and security-critical environments. It did not want those customers to have any reason, real or (particularly) perceived, to doubt the commitment, loyalty or intentions of the people G4S supplied to them.

The ECJ had to find that there was no direct discrimination on religious grounds since all religions and beliefs were treated exactly the same. Ms Achbita’s headscarf was no more or less welcome than would have been Ms Eweida’s little crucifix. It then asked whether G4S’s stance could constitute unlawful indirect discrimination, i.e. whether it was the imposition of a provision, criteria or practice (the ban on religious indicators in what you wear at work) which prejudiced more people with a particular characteristic than not (religion), affected the individual employee (Achbita’s headscarf) and wasn’t justifiable.

The question here therefore revolved around whether G4S’s ban was justifiable, i.e. a proportionate means of achieving a legitimate aim. The objective of overt neutrality was accepted as a legitimate aim given the very particular circumstances of the services G4S provided and to whom. This will obviously be very much the exception as corporate objectives go, hence the misleading nature of the Metro’s headline. But even given the legitimacy of the objective, was a blanket ban on religious or political wear a proportionate means of achieving it?

Reluctantly the ECJ decided that it was, largely since there was no other means of achieving that objective. Nonetheless, to satisfy that test G4S had to show that the policy was enforced regardless of religion and no matter how mainstream (and so probably uncontroversial) the political belief. That meant not just the items in the title but also what the employee manifested through badges worn and bags carried, etc. It meant showing there was rigorous enforcement of the rule – obviously you could not claim it as necessary if breaches were ignored. It meant also that G4S had to show that it had considered means by which the adverse impact of the rule had been minimised as far as practicable, for example by applying the rule only to those in sensitive public/client-facing roles and looking at the possibility of transferring affected staff out of those jobs where possible.

The ECJ’s decision has been greeted with predictable dismay by religious leaders. “It will lead to an increase in hate crime”, says one, and “shows that faith communities are no longer welcome”, says another, both equally without supporting evidence. The issue here however is not supressing religious belief at all, but in allowing businesses where it really matters (a tiny minority only) to provide a service where its customers do not have grounds to push back against individuals on perceived political or religious grounds. At one level, professional opportunity could thereby be said to be increased, not limited.

But I repeat – the businesses in which overt neutrality will be a legitimate aim will be very few in number indeed. These cases do not alter for a moment the basic rule that limiting religious manifestation in the workplace will be unlawful discrimination unless you have an exceptionally good reason to do so. But then you are left with the headline: “Bosses Can’t Generally Ban Burkas”, etc. and that somehow lacks the same punch.

ARTICLE BY David Whincup of Squire Patton Boggs (US) LLP

Three Employee-Friendly Bills That May Be Affected By Upcoming Elections

In the past few years, Democratic members of Congress have introduced several decidedly pro-employee bills, none of which have yet passed, but which may be impacted by the elections in November. Such bills were first introduced in the 113th Congress when Republicans controlled the House of Representatives and Democrats controlled the Senate. Versions of these bills were reintroduced in the 114th Congress, although Republicans control both the House and the Senate. The November election not only will decide the next President, but also may change the balance of power in both houses of Congress.

Healthy Families Act

Would allow employees of an employer with 15 or more employees to earn 7 days of sick time per year after 60 days of employment.
113th Congress: Introduced to the House and Senate on March 20, 2013. Co-sponsored by 134 Democrats in the House and 23 Democrats in the Senate.
114th Congress: Introduced to the House and Senate on February 12, 2015. Co-sponsored by 145 Democrats in the House and 31 Democrats and 2 Independents in the Senate.

Family and Medical Insurance Leave Act

Would create a trust fund within Social Security to collect fees and provide compensation to employees on FMLA.
113th Congress: Introduced to the House and Senate on December 12, 2013. Co-Sponsored by 101 Democrats in the House and 6 Democrats in the Senate.
114th Congress: Introduced to the House and Senate on March 18, 2015 with 134 Democrats co-sponsoring in the House and 20 Democrats and 1 Independent co-sponsoring in the Senate.

Family and Medical Leave Enhancement Act

Most recent version of this Act would extend FMLA coverage to employees at worksites with 15-49 employees, including part-time workers. The Act would also protect (1) parental involvement leave to participate in school activities or programs for children or grandchildren and (2) parental involvement leave to care for routine medical needs including: (a) medical and dental appointments of an employee’s spouse, child, or grandchild, and (b) needs related to elderly individuals, such as nursing and group home visits.
A version of this bill has been introduced to Congress each session since 1997.
The most recent version was introduced to the House on June 16, 2016 with 7 Democrats co-sponsoring.

Following the elections later this year, employers should be on the lookout for versions of these bills being reintroduced, potentially in a political climate where they have a stronger chance of passing.

ARTICLE BY LaToya Alexander of Polsinelli PC

Pokémon Go in the Workplace: Oh Look There’s a Pikachu!

Did you know that the world is now inhabited by creatures called Pokémon? (Or maybe they’ve always been there?) Some run across the plains; others fly through the skies; and some live in the mountains….and some, yes, some, are located right in your workplace.

Through the magic of downloading Pokémon Go to your smartphone, you too can see these creatures and catch them for some apparently critical scientific testing.

Employers not familiar with Pikachu, Charizard, and Lucario can rest assured – your employees are. In less than one week,Pokémon Go became the most downloaded smartphone videogame ever, and employers are clamoring for advice on how to deal with a workforce that already seems sufficiently and consistently distracted.

While employers may be used to seeing brief levels of high distraction during community events like March Madness, uncertainly surrounds this new obsession. And an obsession it seems to be: sometimes when you look around Manhattan, you think you are in the least threatening version of the Walking Dead. We even heard that someone just opened the first ever Pokémon-friendly hotel in Australia! And this may only be the beginning as “augmented reality”-based gaming technology will likely improve in the coming years.

So what should employers do in response?

The first thing we’d say is to keep some perspective. Before you do anything else, make a judgment call over whether you think the Pokémon Go craze will be short-lived – just a temporary blip on the employee-distraction radar, and if you think it will be, consider whether your planned reaction would really amount to an overreaction. Remember: everyone could not get enough of Angry Birds, Words with Friends, and Candy Crush. Is this just more of that? If so, perhaps a quick and friendly preemptive reminder to employees that working time does not mean training your Bulbasaur to fight a Charmelon. But if you think this is something different; something more serious, then a stronger communication/directive or an outright workplace ban may be in order.

The second thing we’d say is to consider converting this into an employee engagement opportunity. Determine whether embracing this latest fad rather than suppressing it will pay morale boosting dividends. There may be tremendous team-building and social engagement opportunities available, given the game’s team-based format. Further (and we never thought we’d write something like the following, but), consider whether incentivizing your employees to search for imaginary monsters is an effective employee wellness activity. (See: a more creative version of paying someone to walk 10,000 steps a day.)

Third, remind employees to play safely. This picture says it all. People are playing Pokémon Go while driving, and two men even fell off a 90-foot cliff in San Diego searching for Pokémon! The humorous and not-so-humorous Pokémon-related accident examples grow by the day. There have even been reports of employees leaning out of windows to get better reception and chasing Pokémon critters and nearly falling downstairs. And problems can and often will arise when employees encroach on another employee’s work space or enter dangerous workplace areas while playing. Employers therefore, should consider prohibiting their employees from playing the game on company premises or at least restrict it to certain areas and to certain times.

And the risk of an accident becomes even greater when employees operate company vehicles. Employers should remind employees that while the game creates an augmented reality, they live in plain old regular reality, so if they see an ultra-rare Articuno Pokemon in the center lane of the 405, ignore it and keep driving. At the same time, it’s not just the game-playing employee who creates the danger; often times, it is the game-playing civilian. So tell employees, like your delivery drivers, to be on the lookout for individuals not paying attention to their surroundings as they cross streets even if it seems ridiculously obvious that they should know this already.

Lastly, remind employees about your electronic use policies’ application toPokémon Go (or scramble to put some in place)! Within certain parameters, employers have widespread discretion to monitor employees’ internet use on employer-provided computers and devices, to track employees’ data usage on the company’s purchased bandwidth, and to block certain websites and traffic patterns. And this is no different when it comes to using employer-provided mobile devices where employees play Pokémon Go, or when employees are playing Pokémon Go in workplaces on work time. Employers therefore, should seize this opportunity to review existing acceptable use policies to ensure that the risks posed by this “phenomenon” are specifically addressed – and if your company does not have an electronic use or acceptable use policy, this is absolutely the time to get one in place. Some of the more immediate risks (beyond the loss of productivity) that should be addressed, include the following:

If using company-owned devices, a download of this app or any related app should be prohibited. Some of the Pokémon Go-related applications have been proven to contain malware and depending what is on the device, this may be creating a potential data leak (or even data breach) situation.
Depending on where employees might be wandering, they are recording what they see while playing Pokémon Go, and could create privacy issues or even create data breaches that may be reportable.
Registration using a company-provided email address should be prohibited. Collection of email addresses ofPokémon Go players have been reported to have been used in “phishing” involving the game and could put company information at risk.

Conclusion

In an age where technological innovation can negatively affect productivity by making it easier for employees to indulge in frivolous distractions (not to mention impact the overall quality of the labor pool when employers mistakenly hire candidates who have merely wandered into an interview in pursuit of an Ivysaur), employers can sometimes overlook the benefits of a tech-savvy workforce and the technology they have at their disposal. While employers should take steps to limit the employee distraction, safety, data breach and privacy-related concerns associated with Pokémon Go, they should also recognize the potential employee engagement opportunity that this novel game presents.

ARTICLE BY Michael S. Arnold, Cynthia J. Larose & Brent Douglas of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

To Be or Not To Be an Uber Employee: That Is [and will Remain] the Question

Federal judge probes deep on Uber’s proposed deal with drivers in 2 states as drivers in the other 48 sue, yet ride-sharing giant appears set to avoid trial on merits of misclassification issue

If you are waiting for an answer to the question of how workers in the “gig economy” should properly be classified, you probably should not hold your breath.

As the ride-sharing tech company Uber has grown into a megacorporation, on-demand workers have kept up a steady pace of lawsuits against it (and against its competitor, Lyft) on the theory that they are employees misclassified as independent contractors. While there is disagreement among courts, agencies, legal scholars and practitioners on the issue, most might agree on one thing: the traditional framework of employee vs. independent contractor does not account for today’s new tech-driven gig economy. Neither classification is a good fit for work performed on demand through a smartphone app that controls price and other operating standards. Yet a new, more fitting worker classification from Congress is highly unlikely. In effect, classifying workers in the gig economy will continue to present a legal quagmire for years to come.

From Uber and Lyft’s perspective, a legal quagmire (i.e., the status quo) appears to be the preferred course. After all, despite high litigation costs, the company has grown exponentially in recent years, expanding into 449 cities since it officially launched in 2011 and amassing a value most recently estimated at $68 billion. This success is attributable in part to Uber’s lucrative business model. The company avoids the costs of an employment relationship with millions of drivers while profiting from the service they provide via its smartphone app. It connects supply with demand (i.e., people who need rides) by providing a hassle-free platform for the transaction to take place. And by setting the price and imposing other usage requirements and “suggestions” for drivers using its app, Uber has developed a relatively uniform and reliable standard of service that has built brand trust from customers. On the flip side, it offers a relatively flexible means for almost anyone with a driver’s license and a car to earn additional income.

To maintain this advantageous operating model, Uber is trying to keep the misclassification issue from going to a jury. This means settling two class actions with some 385,000 California and Massachusetts drivers involving claims for business expenses and gratuities. Its proposed $100 million settlement to resolve both actions has been pending before the federal court in the Northern District of California since late April 2016. The court recently sent the parties scrambling to provide additional information which the court said it needs to determine whether the settlement is fair. To pre-approve the deal, the court has to conclude it is fair to all unnamed class members—i.e., all drivers in California and Massachusetts who have used the app since August 16, 2009. The court noted that a more probing inquiry is warranted here because the settlement seeks to (1) apply to drivers previously excluded from the class and (2) encompass claims not previously asserted in the case, but asserted and still pending in other lawsuits.

Under the settlement agreement, Uber would provide monetary and non-monetary relief, but it would not reclassify drivers. Specifically, Uber would pay out $84 million, and an additional $16 million if Uber’s future value (at its initial public offering) reaches 1.5 times its most recent valuation. Of the $84 million, $8.7 million would be taxable as wages. After shaving off sums for class administration, attorneys’ fees, and to compensate the named and contributing class members, the remaining fund would be split, with $5.5-$6 million going to Massachusetts drivers and $56-$66.9 million to California drivers. Drivers who drove the most would receive a few thousand dollars payout, while most drivers would receive a few hundred.

The settlement would not resolve the ultimate issue of whether Uber drivers are employees or independent contractors. Rather, it would allow Uber to continue operating in its current business model treating drivers as independent contractors. Yet at the same time, the settlement includes certain operational changes that would provide drivers with more job security than most at-will employees enjoy. For one, Uber agreed to write a comprehensive deactivation policy whereby it would only deactivate drivers from the app for sufficient cause, and it would share this list of reasons with drivers. Uber would also provide drivers with at least two advance warnings before they are deactivated from the app, with certain exceptions such as if a driver engages in illegal conduct. Uber also promises to provide the reason(s) for deactivation and develop an appeals process for drivers who believe they have been deactivated unfairly. Further, Uber agreed to recognize and fund a “drivers’ association” to enable dialogue between the company and its drivers. Uber also agreed to other measures such as providing more information about its rating system and making clear to customers that tips are not included in its fare price.

If the court denies approval of the settlement, this would be a major blow to the ride-sharing company. In the current proceedings, it would require Uber to offer more, else go to trial. The court’s refusal to approve this deal would also set a precedent for courts in subsequent class actions against Uber, such as one recently filed in Illinois federal court, where other judges may be inclined to take a similar approach to any proposed deal with other classes of drivers. Further, a finding that the proposed deal is not fair to unnamed class-members could embolden more drivers to sue and could tilt the scales in future settlement negotiations with other plaintiffs.

Even if the court in California approves this deal, Uber has a long road ahead. While this settlement may provide a temporary stopgap in California and Massachusetts, it creates an incentive for drivers elsewhere to sue. Less than two weeks after Uber proposed this $100 million settlement with the two states’ drivers, the company was hit with another putative class action – this time with drivers from the remaining 48 states. The new lawsuit filed in Illinois federal court likewise concerns worker classification and claims for tips, overtime, and expenses.

Meanwhile, Uber’s competitor Lyft recently achieved pre-approval of its settlement with California drivers in the federal class action of Cotter v. Lyft, Inc.—but only after it appeased the judge by increasing the value of the settlement from $12 million to $27 million. In addition to higher payouts for mileage reimbursements and other expenses, the settlement includes operational changes. Similar to Uber, Lyft agreed to changes that give drivers more job security, such as providing a finite list of reasons for a driver’s deactivation. Other changes give drivers more control over when, where, and for whom they drive, which makes the arrangement more reflective of a classic independent contractor relationship. The Uber court cited to Cotter in its recent order, and may continue to measure Uber’s proposed deal against this benchmark.

Uber’s implementation of arbitration clauses in its driver agreements should help it dodge a future of many more large-scale class actions by drivers of every other state. In Maryland and Florida, for example, two other attempted class actions with similar claims against Uber are going to arbitration. Even so, the classification of workers in the gig economy will remain a hot-button issue for the foreseeable future, and Uber seems poised to remain at the center of it.

ARTICLE BY Elizabeth Gotham of Honigman Miller Schwartz and Cohn LLP

EEOC Alleges Hospital’s Mandatory Flu Vaccine Policy Violates Title VII

As summer temperatures soar, one might think the last thing to worry about is the upcoming flu season. And while that may be true in most respects, the flu is on the minds of the Equal Employment Opportunity Commission (EEOC). A lawsuit filed by the EEOC sheds light on the issue for healthcare employers who impose mandatory flu vaccine requirements on employees as a condition of continued employment.

The EEOC alleges in EEOC v. Mission Hospital, Inc. – a lawsuit that includes class allegations – that Mission Hospital violated Title VII by failing to accommodate employees’ religious beliefs and by terminating employees in connection with the hospital’s mandatory flu vaccination program. In particular, the EEOC took issue with the hospital’s alleged strict enforcement of its deadlines, which required employees to request an exemption by Sept. 1 and, if the exemption request was denied, to obtain the vaccination by Dec. 1.

According to Lynette Barnes, regional attorney for the EEOC’s Charlotte District Office, “An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.”

The key takeaway here is that, similar to what is required under the Americans with Disabilities Act (when, for example, an employer is analyzing the application of a policy to a particular employee with a disability), employers should consider analyzing their duty to accommodate under Title VII based on the facts and circumstances of the particular case, as opposed to applying an (allegedly) inflexible rule without regard to the circumstances of the particular case. The other take-away here is that employers should consider basing this kind of employment decision on more than one reason – for example, a missed deadline plus a determination that granting the exemption would (or would not) be an undue burden (and why).

A copy of the EEOC’s lawsuit is found here and a copy of Mission Hospital’s answer is found here.

ARTICLE BY Norma W. Zeitler of Barnes & Thornburg LLP
© 2016 BARNES & THORNBURG LLP

EEOC Model Wellness Program Notice

On June 16th, the EEOC issued its model notice to be used in conjunction with wellness programs that ask disability related inquiries or require medical examinations. The notice requirement applies prospectively to employer wellness programs as of the first day of the plan year that begins on or after January 1, 2017, for the health plan used to determine the level of incentive permitted under the regulations. An employer’s HIPAA notice of privacy practices may suffice to satisfy the ADA notice requirements if it contains the ADA-required information. However, given the timing requirements for distribution of the HIPAA notice and the fact that the EEOC rules apply to wellness programs outside of the group health plan, a separate ADA notice may be required.

Questions and Answers: Sample Notice for Employees Regarding Employer Wellness Programs

Sample Notice for Employer-Sponsored Wellness Programs

ARTICLE BY Susan M. Nash of McDermott Will & Emery

SCOTUS Rejects a Rule Neither Employers nor Employees Wanted: Green v. Brennan Decision

In Monday’s Green v. Brennan ruling, the U.S. Supreme Court decided that the limitations period for constructive discharge runs from the date the employee gives notice of the intent to resign. The 7-1 outcome was not a surprise following the questioning by the justices during oral arguments. The justices held that the filing period begins when an employee resigns as a result of discriminatory behavior, not when an employer creates an environment so adversarial that an employee feels forced to resign, previously ruled in 2014 by the Tenth Circuit.

The case stems from an original complaint in 2008 by Green, a postmaster in Colorado. Green, who was passed over for a promotion, claimed someone less qualified received the position which caused him to file a discrimination complaint with the equal employment opportunity commission (EEOC).

The court was confronted with three alternative dates by which the limitations period that the EEOC must be contacted would begin to run:

The date Green signed a settlement agreement giving him the option to retire or take a position 300 miles away with a significant pay cut, Dec. 16, 2009, and also the date alleged to be the last act of discriminatory conduct compelling petitioner Green to resign
The date on which Green notified the respondent Postal Service of his intention to resign, Feb. 9, 2010, or,
The date Green’s resignation actually became effective, March 31, 2010.

The choice was determinative because the controlling statute of limitations required Green to contact an EEOC counselor within 45 days of the “matter alleged to be discriminatory,” a notably ambiguous requirement. Green contacted an EEOC counselor on March 22, 2010, 96 days after signing a settlement agreement and 41 days after submitting his notice of resignation. The circuits were split on whether the limitations period ran from the “last discriminatory act” or the date the employee resigns.

The rule represents both interpretive and practical considerations that should be viewed favorable to employers, including:

It places constructive discharge claims on equal footing with ordinary wrongful discharge claims that require both discrimination and notification of being fired
Nothing in the limitations regulation provided an “exception” to the ordinary rule
Practical consideration supported the rule applied because it made little sense to start the clock ticking before a plaintiff could actually file suit

Employers should welcome this outcome and breathe a sigh of relief because of the definitiveness and certainty it brings to both the accrual and repose of limitation periods applying to federal employment discrimination claims.

Article By Douglas D. Haloftis of Barnes & Thornburg LLP

Maryland Expands State Equal Pay Act

Also Broadens Employees’ Right to Discuss Wages

Maryland has now joined New York and several other states that have recently passed legislation expanding state equal pay laws and/or broadening the right of employees to discuss their wages with each other (often called “wage transparency”). The Equal Pay for Equal Work Act of 2016 (“Act”), signed by Governor Hogan on May 19, 2016 and set to take effect October 1, 2016, amends Maryland’s existing Equal Pay law (Md. Code, Labor and Employment, §3-301, et seq.), which applies to employers of any size, in several significant aspects.

First, as to the equal pay provisions, the Act:

Extends the protections of the law to differentials based on gender identity as well as sex.
Bars discrimination not only by paying less for work at the same establishment of comparable character or on the same operation, but also by ‘providing less favorable employment opportunities.”
Defines “providing less favorable employment opportunities” to include assigning or directing an employee into a less favorable career track; failing to provide information about promotions or advancement in the full range of career track offered by the employer; or otherwise limiting or depriving an employee of employment opportunities that would otherwise be available but for the employee’s sex or gender identity
Expands the definition of “same establishment” to include any workplace of the same employer located in the same county.
Adds a new exception for a system that measures performance based on quality or quantity of production.
Explicitly allows an employee to demonstrate that an employer’s reliance on one of the now seven exceptions is a pretext for discrimination.

Second, on the apparent theory that if employees gather more information on wages, employers will be more likely to decrease or eliminate wage disparities, the Act adds an entirely new provision that bars employers from prohibiting any employees from inquiring about, discussing, or disclosing the employee’s wages or those of another employee, or requesting that the employer provide a reason for why the employee’s wages are a condition of employment. It also bars any agreement to waive the employee’s right to disclose or discuss the employee’s wages. In particular, an employer may not take any adverse employment action against an employee for:

Inquiring about another employee’s wages;
Disclosing the employee’s own wages;
Discussing another employee’s wages if those wages have been disclosed voluntarily;
Asking the employer to provide a reason of the employee’s wages; or
Aiding or encouraging another employee’s exercise of rights under this law.

However, an employer may in a written policy provided to each employee establish reasonable workplace limitations on the time, place and manner for inquiries relating to employee wages, so long as it is consistent with standards adopted by the Commissioner of Labor and Industry and all other state and federal laws. (For example, under the National Labor Relations Act, rules limiting discussions to non-working time have been held valid). For example, a limitation may include prohibiting discussion or disclosure of another employee’s wages without that employee’s prior permission, except where the employee has access to that information as part of the employee’s essential job functions and uses it to respond to a complaint or charge, or in furtherance of an investigation, proceeding, hearing or action under the Act. Violation of such a policy may be a defense for adverse action.

The Act expressly does not, however, require an employee to disclose his or her wages; diminish employees’ rights to negotiate the terms and conditions of their employment, or the rights provided under any other provision of law or collective bargaining agreement; create an obligation on any employer or employee to disclose wages; permit disclosure without written consent of an employer’s proprietary information, trade secret information, or information otherwise subject to a legal privilege or protected by law; or permit disclosure of wage information to a competitor.

These provisions enlarging employee sharing of wage information are similar to rules that have long existed under the National Labor Relations Act for employees other than managers and supervisor, and recently promulgated by Executive Order 13665 (April 8, 2014) as to employees of federal contractors. These rights are now expanded to all Maryland employees.

The Act further expands the remedies for violation of the equal pay provisions to include injunctive relief and creates a cause of action under the disclosure provisions for injunctive relief and both actual damages and an additional equal amount as liquidated damages. Existing law allowing recovery of attorney’s fees and costs apply to both types of claims. Finally, similar to the provisions of federal Title VII law, the Act now extends the statute of limitations to three years after discovery of the act which a lawsuit is based, rather than just three years after the act itself.

Maryland employers should review any rules they have regarding employee discussions about their wages for compliance with the Act’s protections for such discussions.

Article By Brian W. Steinbach of Epstein Becker & Green, P.C.

OSHA Issues New Illness and Injury Recordkeeping Rule That Casts Doubt upon Commonplace Employer Drug Testing and Safety Incentive Policies

Announcing a series of requirements that will begin to take effect August 10, 2016, OSHA released, on May 11th, its final rule to “modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards.” Tellingly, OSHA acknowledges in its accompanying press release that the rule is intended to “nudge” employers to enhance methods to prevent workplace injuries and illnesses. Apparently, OSHA is proceeding under the assumption that all employers, regardless of past safety history, require an external push to enhance workplace safety efforts. Included within the rule are a number of alarming pronouncements—discussed more fully below—regarding routine employer safety practices such as drug testing and incentive policies that may necessitate changing long-established routines.

Overview of the New Injury and Illness Recording and Reporting Requirements

Signaling a stark departure from traditional injury recording and reporting practices whereby employers track and maintain such information internally, the new rule will require thousands of employers to electronically submit these records to OSHA each year. OSHA will then publish this data online in a format that anyone with access to the internet—including competitors, prospective employees, shareholders, union organizers and disgruntled former employees—can presumably search, filter and copy for their own use, including further public dissemination. The data submission obligations will be phased in over two years, as employers with 250 or more employees must submit the required 300A Annual Summary by July 1, 2017, and employers with 20 to 249 employees in “high-hazard” industries must submit their 2016 and 2017 300A Summaries by July 1, 2017 and 2018, respectively.

Employers operating in State Plan states are covered, too, as the OSHA-approved state programs must adopt “substantially identical” requirements within six months. Accordingly, employers in California, Connecticut, Indiana, Maryland, Michigan and Virginia—among others—should begin preparations to comply with the new rule.

Although a portion of the rule does not go into effect until next year, employers must comply beginning August 10, 2016 with requirements relating to employee involvement in employer recordkeeping systems and discrimination/retaliation prevention. Although much of the attention paid to the new rule has focused on the electronic submission requirements, OSHA’s commentary surrounding the discrimination prohibition suggests that this section may ultimately force employers to make changes to long-standing practices surrounding post-accident drug testing and safety incentive efforts.

The employee involvement portion of the rule, set forth at 29 C.F.R. § 1910.35, explicitly requires employers to “inform each employee how he or she is to report a work-related injury or illness” and “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” A procedure is not reasonable, according to the new rule, if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” Further, employers must inform employees that they have the right to report injuries and illnesses, in addition to advising them that their employer is “prohibited from discharging or in any manner discriminating against [them] for reporting work-related injuries or illnesses.”

OSHA Takes Aim at Post-Injury Drug Testing and Safety Incentive Policies

Taking a position in the final rule that is sure to alarm a wide range of employers, OSHA announced that “blanket post-injury drug testing policies deter proper reporting” of injuries. Although the rule does not make across-the-board drug testing a per se violation, OSHA instructs employers to utilize post-injury drug testing only where “there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” and only where “the drug test can accurately identify impairment caused by drug use.” OSHA suggests that employees who report bee stings, repetitive strain injuries or other injuries where drug use could not reasonably have contributed to the occurrence, should not be tested. Creating greater uncertainty, OSHA warns employers that even when the decision to conduct a post-injury drug test is reasonable, the agency may nevertheless conclude that the testing unlawfully deterred injury reporting and constituted retaliation if the drug testing procedure itself is punitive or embarrassing to the employee, whatever that means.

OSHA recognizes, however, that employers that conduct post-accident testing mandated by federal regulations (e.g., interstate transportation) or pursuant to state workers’ compensation laws, many of which include “drug-free workplace” incentive programs, are not affected by the new rule. As such, an employer’s efforts to comply with applicable federal regulations or state laws will not be viewed as retaliatory.

The new rule similarly takes aim at another behavior the agency has long sought to discourage—employer safety incentive and disincentive policies and practices. While this will not come as a surprise to most employers (particularly those who recall the “Fairfax Memo” issued in March, 2012, see https://www.osha.gov/as/opa/whistleblowermemo.html), the language found in the rule will likely force many employers back to the drawing board in an effort to develop new policies intended to enhance workplace safety without incurring the wrath of OSHA. In the meantime, employers would be well advised to avoid using an incentive program to “take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work related injury or illness.” One would assume that this could encompass the month-end pizza party promised to employees if there are no recordable injuries and then abruptly canceled because an employee reports an injury.

In contrast, OSHA instructs that if “an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate this provision.” The rule thus favors positive reinforcement, such as paying a bonus for serving on a safety committee or submitting a safety suggestion adopted by the company, at the same time that it prohibits the imposition of consequences for engaging in protected activities such as reporting an illness or injury.

What Should You Do Now?

Consider modifying your drug and alcohol testing policies to allow for discretion on obvious cases in which drug use or testing are clearly unrelated to an employee’s injuries and revisit the reasonableness of your drug testing procedures with your employment attorney. Be mindful, however, that with discretion comes the potential for inconsistent application of the policies and follow-on disparate treatment claims.
Examine your safety incentive and disincentive policies and practices with a critical eye, asking whether the policies and/or practices could be perceived as deterring or discouraging employees from reporting an injury or illness. Certain management bonus plans may similarly be viewed as incentivizing managers to discriminate against employees who report illnesses and injuries if the effect of doing so negatively impacts the manager’s bonus eligibility (i.e., where the bonus is tied to the OSHA recordable rates). If the potential for either conclusion exists, consider discontinuing or revising those policies and/or practices.
Begin preparations to switch from paper-based recordkeeping methods to an electronic system compatible with OSHA’s data submission portal.
Train the individuals responsible for injury and illness recordkeeping and reporting so they fully understand the new rule.

Article By Aaron R. Gelb, J. Kevin Hennessy, Caralyn M. Olie & Thomas H. Petrides of Vedder Price

Tag: employment

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