Are you looking for something new to end the year with?

Then I have two quick links to share with you this morning.

First, on December 7 from noon to 1 pm (ET, of course), I, along with Eric Meyer (The Employer Handbook Blog), Jeff Nowak (FMLA Insights), Jon Hyman (Ohio Employer’s Law Blog), Robin Shea (Employment & Labor Insider), and our fearless moderator, Suzanne Lucas (Evil HR Lady) will present The 2017 Employment Law Year in Review.

The event is free, but space is limited. Register now for our one-hour recap of all the big employment-law and HR-compliance news of 2017, along with some practical tips to help you prepare your workplace for 2018.

Click here to register:  https://register.gotowebinar.com/register/5767568894289723906

Second, I’ve gotten an early listen to a brand-new podcast, entitled “Hostile Work Environment.” Set up by two employment lawyers who have a great sense of humor and a terrific ability to tell a story, the podcast shares various cases with facts that are too fantastic to make up.

You can download it at all the usual podcast locations. Worth a listen if you’re an HR type or employment lawyer.

My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.

 

Did you ever have an employee post a status update from his termination meeting with HR?

I wrote about it a few years ago.  It seemed shocking then, and if anything, we’ve only seemed to be shocked more and more as each new tweet or blog post gets distributed with some outrageous behavior from an employee (or sometimes an employer!).

It used to be that companies would have weeks, if not days, to respond to publicity.  Now, it’s hours or even minutes.

Companies want to preserve their culture and reputation — and their corresponding products and services — more than ever. One misstep can get the online outrage machine going.  heck, even McDonalds’ got into a online snafu when it released (and then promptly sold out of) a unique retro szechuan sauce.

This Thursday, my colleague Jarad Lucan and I will be talking about these issues at our annual Labor & Employment Fall Seminar.  It’s nearly sold out, but you can still see about registering here.

The program session is entitled: Culture Shock: Preserving and Protecting Your Company’s Culture and Reputation in the Digital Age.

And the description is as follows:

In today’s social-media-obsessed digital age, your company and its culture may be put on display for the world to see in mere moments. Whether it’s a Google engineer’s memo claiming gender differences, the sexual harassment scandals at Fox News or the Weinstein Companies, social media rants by employees, or employees participating in hate riots, it has never been more incumbent upon employers to address these issues immediately and appropriately. This session will review state and federal laws and provide employers with steps they can take to create and foster positive company culture and mitigate legal risks.

Of course, it goes without saying that some cultures that have been exposed to the harsh light of social media deserve to be discarded.  Over 20 employees were dismissed at Uber following a detailed sexual harassment investigation into some 215 claims.

Come join us this Thursday and hear about other stories of employees (and employers) behaving badly online and elsewhere.

 

Late yesterday, various press reports signaled what could be the beginning of the end for 2011 Department of Labor guidance that had greatly expanded legal claims against restaurants.

The 2011 rule barred businesses (mainly restaurants) from including nontipped workers in their tip pools.  That practice – if done involuntarily – then entitles the servers or waitstaff who have contributed those tips to the tip pool to minimum wage for their hours (not the tip-credit minimum wage.)

As of this morning, the DOL had not released its’ rule publicly, but according to a Law 360 report the description “suggests it would roll back the DOL’s 2011 rule amending its interpretation of the Fair Labor Standards Act to blog businesses from giving a portion of service employees’ tips to traditionally nontipped workers, such as kitchen staff.”

The attack on this 2011 guidance is also making its way through the courts.  The U.S. Supreme Court is expected to decide soon whether to review a case out of the Ninth Circuit that upheld the tip pooling rule.

The timing of the DOL’s expected rollback is unclear, but it could have a significant impact on many cases pending in the court systems or being threatened now.  At the current rate, a change could be expected in the first quarter of 2018.

For restaurants and other employers such as hotels that have tipped employees, this change ought to be closely followed.  Until we see the scope of the proposed rule change, it is unclear what the full impact on existing cases will be but given past practices on situations like this, but it might just evaporate a whole host of lawsuits that have popped up.

Stay tuned.

A while back, I had a good discussion with a colleague on a topic with no real firm answers.

No, it wasn’t on whether the Yankees are better franchise than the Red Sox.  The answer to that is unequivocally yes.  (Sorry, Sox fans.)

Rather: When is a employee-related issue a legal one? Or alternatively, when can human resources handle the issue on it’s own?

What comes to mind at first is the old Justice Potter Stewart quote of, “I know it when I see it” but that seems unsatisfying.

For some smaller employers, the answer may lean more heavily towards “legal” in part because there may not be an in-house human resources professional to call on.

But on the flip side, there are some other employers that might rely heavily (perhaps overly so) on their HR contacts to handle matters, trying to avoid unnecessary legal expenses.

What I’ve concluded is what I’ve started with — there are no real answers to the question.

But I can outline a few (non-exclusive) times when a lawyer should probably get involved.

  1. You get a letter from a lawyer threatening legal action on behalf of an employee or, in the case of a non-compete, from a former employer.  Pretty self-evident; lawyer = legal issue.  I’m going to not even dwell on the obvious: an actual lawsuit being filed means an attorney ought to be contacted.
  2. You get a notice from a state or federal agency investigating wage/hour laws, anti-discrimination laws, workplace safety issues, or labor union-related issued. Anything from the DOL, CHRO, EEOC, OSHA, or NLRB (to name a few) has the potential to be a big deal. Things you say there can be used against you too.  The earlier the better.
    1. But unemployment compensation claims may not always rise to that level.  Some employers handle unemployment claims and appeals internally.  For those situations, it depends on the complexity of the situation.
  3. You have to conduct an investigation into a workplace issue, such as sexual harassment, AND you may want that investigation to be privileged and confidential.  Again, HR may be able to conduct a whole host of minor investigations but there are going to be some that involve sensitive issues, or perhaps raise company-wide concerns. Bring counsel involved and let them help to manage the investigation.
  4. You have a complex issue that doesn’t have a clear legal answer.  It’s pretty well-settled now that employers need to engage in interactive discussions with an employee regarding reasonable accommodations that they may need.  Qualified HR can handle those discussions.  But suppose the employee is injured on job, is out on workers’ compensation, has exhausted FMLA time and needs additional time off — what then?

But I’m interested hearing from other lawyers or human resources personnel. When is an issue a legal one and when is HR perfectly capable of addressing it? Leave your best tips in the comments below.

Back in 2011, I discussed a titillating case of strip club dancers (or, a decision says, “performers”, “entertainers”, “dancers” or even “exotic dancers” — although not “strippers”) who were trying to claim wages for the time they worked at a popular strip club in Connecticut.

The story at the time was that they were compelled to arbitrate their claims. 

So private arbitration should mean end of the public story, right?

Well, as it turns out, no. And the analysis of the case has some very real practical implications for employers.

I’ve been going to back through some older posts to do some followups. And in doing so, I discovered that this case had a public ending — except for the fact no one reported on it.

It seems that the dancers won big in an arbitration proceeding and then asked the court to “confirm” the award — making the whole thing public.  (You can read the arbitrator’s award here.)

And as a result, we get a revealing look at the efforts one club made to try to avoid having strippers be deemed “employees” and how it ultimately failed.

The strip club  — sorry, “adult entertainment establishment” as it called itself — had the strippers sign leases “renting” out the poles and space of the strip club. In doing so, the Club argued that these dancers were no more than tenants, and therefore, not entitled to wages, benefits or any of the normal protections that come with being an employee.

Under the “lease”, according to the decision, the dancers agreed to perform “semi-nude (topless) and/or nude dance entertainment” at the Club.”

In doing this work, dancers agreed to “perform consistent with the industry standards of a professional exotic dancer.”

(Aside: Professional exotic dancers have INDUSTRY standards?)

The Lease also provided that there will be set fees (called “entertainment fees”) for certain performances, “such  as couch and table dances,” and that dancers “may not charge more than the set fees.”

Oh, and they wouldn’t be paid any wages.

And here’s where it gets REALLY interesting.

If they ever DID claim wages, the lease provided that they would forfeit all of the entertainment fees they previously earned. And, to top it all off, should the dancers claim to be employees, they will also be liable for any attorneys’  fees, costs, or other damages incurred by the Club as a result of that claim.

But the arbitrator was having none of it.

He detailed the requirements of the strippers saying that there were four principal ways a dancer can “perform” — all of which indicated that they were tied to the Club (and therefore employees).

  • A “stage set”, in which the only income is the tips the customers choose to give her.
  • A “private dance” or “booth dance”, in which the Club sets the “mandatory entertainment fees”.  (A booth dance here cost $25, of which the dancer keeps $20 and pays $5 to the Club.)  Tips encouraged.
  • A “VIP” area in which the fee for that performance is $100 for 15 minutes, $200 for 30 minutes and $300 for an hour and in which the entire fee goes to the Club.  Tips encouraged as well.
  • A “Champagne Room” performance, in which the customer is charged $110 for one half hour and in which the entire fee goes to the Club.  Customer is free to tip the dancer.

At the end of a shift, the dancer must pay “rent” to the Club of $20 and a tip to the DJ.

The arbitrator said that the dancers were employees and therefore entitled to the protections under state and federal law.  Minimum wage was owed, for example. Moreover, the “lease” violated state law because it called for a refund of wages under Conn. Gen. Stat. Sec. 31-73.  

The arbitrator noted that while employers and employees have “wide latitude” to enter into wage agreements, that latitude does not extend to permitting parties to override or ignore the requirements of Connecticut law.

The arbitrator took particular note of the paragraphs that required the dancers to return “all” entertainment fees if they challenged their employment status.  These provisions are “clearly designed to penalize the employee for exercising her right to insist upon proper classification.  The inherent purpose of the Lease is to violate the law.”

The decision goes on to analyze the proper penalties and set-offs in such a case.  Here, the arbitrator again was not sympathetic to the employer — and for good reason.  The employer failed to prove it acted “in good faith” — and therefore the dancers were entitled to liquidated (or double) damages.

How much? Nearly $130,000 in damages for two strippers — plus attorneys’ fees.

The case is a great example of what happens on the fringes of wage and hour law. The vast majority of employers in this state play by the rules and wouldn’t even dream of cooking up a “lease” for its employees to sign.

But the law exists to protect the dancers too and here, there’s little doubt that justice has been well-served by the award here.

So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

“Let’s engage in a Halloween-type party where everybody would be having sex.”

Or perhaps, “So, are you going to wear a bikini for your Halloween costume?”

What is it about Halloween that brings out the creep factor in the workplace?

The first quote is from a real district court case earlier this year which documented a series of alleged comments made relating to a sexual harassment complaint.

(If you’re scratching your head at the reference to a “Halloween-type” party, I’m right there with you.)

The second is from a different case that is no less offensive in its descriptions of pervasive inappropriate conduct in the workplace.

(And, as if you needed confirmation, Princess Leia in a bikini from Return of the Jedi is not appropriate in the workplace, however cool Princess Leia is.)

Now, long time readers may recall a 2008 post about the perils of costumes in the workplace, and another post in 2010 about the perils of enabling sexual harassment when it comes to Halloween.

And yet, it continues.

Suzanne Lucas (a/k/a Evil Hr Lady) recently posted some tips about hosting an Office Halloween party.  Among them:

Costumes shouldn’t make fun of other cultures, the word “sexy” shouldn’t be attached to any workplace costume and the gore should be kept to a minimum. Remember, the goal is to have fun, not to offend. If you want to dress up as a sexy zombie, save that for your own Halloween party with personal friends.

But here’s my simple advice, be afraid. Be very very afraid. There are just way too many bad things that happen on Halloween with far more “tricks” than “treats”.

I realize that sounds like a no-fun lawyer, but how many more sexual harassment cases from Halloween do we really want or need? Do I need to keep writing these posts each Halloween?

Through a recent FOI request, I was able to take a peek at the latest case statistics coming out of the Commission on Human Rights and Opportunities. (The CHRO has since added them to the website as well.)

I’ve done these recaps in years before (here’s 2016 for example) and I think you can learn a lot not just on the latest statistics but when you compare them to prior years.

So, what do the numbers from July 1, 2016 to June 30, 2017 show?

Well, for the first time in several years, we’ve seen a noticeable decrease in the numbers of complaints filed.

In FY 16-17, 2376 total complaints were filed, down from 2616 the prior year – a 9 percent decrease.  Of course, it’s still up from FY 11-12 when just 1838 total complaints were filed.

And what about employment discrimination complaints in particular?

The report also shows a drop in the number of complaints being filed, 1936, as compared to 2160 in the prior fiscal year.  That represents over a 10 percent drop. Again, however, it’s still up from FY 2012 when just 1559 employment claims were filed.

After years of marked increases, it’s nice to confirm what we have been seeing internally — that discrimination claims seems to be on the decline.

It’s difficult to know exactly why; we had seen increases the last few years at a national EEOC level too, but these new statistics from the CHRO show that the trendline up has finally broken.

Certainly the improved economy seems one factor but it’ll be interesting to see if this trend continues.

I’ll have a deeper dive into the statistics in an upcoming post.

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions.

And it comes from an unexpected source: former Fox News anchor Gretchen Carlson.

Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions.

She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar.

I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it.

In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people start a new job.  She’s talked about it during Senate press conferences this year as well.

I’ll be interested in reading more about Carlson’s perspective in her new book being released today.

Carlson’s message should be well taken by employers; if employers are using these arbitration provisions merely as a means to allow a system of harassment to continue, then shame on them.

But here’s the issue: As with most things employment law related, it’s far more nuanced.

There are times when arbitration makes sense for BOTH the employer and employee. Litigation is expensive — very expensive, some of my clients would say — and is filled with uncertainty and time-consuming drama.  I talked more about this in a 2014 post.

Arbitration can be less expensive and can allow both sides to be heard by a neutral third party much more quickly and effectively than a court system.

And yes, it avoids some publicity but again, that can benefit employees too.

By filing in arbitration, rather than court, an employee’s claims won’t be public and won’t seen by future employers as a potential lawsuit waiting to happen.

The U.S. Supreme Court is set to review this once more in a trio of consolidated cases, including whether employers can force employees to sign away rights to pursue a class actions.

And we shall see if the Connecticut General Assembly revisits the issue in the upcoming session in January 2018.  Until then, employers should continue to monitor developments in this area and figure out if mandatory arbitration provisions are right for your business.