Landmark decision: A federal appeals court rules Title VII bars sexual orientation bias in the workplace

“..[I]t is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex…” wrote Chief Circuit Judge Diane P. Wood of the 7th Circuit Appeals Court,  wiping away prior ambiguity surrounding Title VII protections based on sexual orientation. The 8-3 decision, held in a rare en banc hearing, arose out of Indiana professor Kimberly Hively’s lawsuit against her former employer Ivy Tech Community College. Hively claimed her denial of promotions, tenure and her eventual termination were because she is a lesbian.

The 7th Circuit completely bypassed the issue of Congressional intent of the word “sex” in Title VII. Judge Posner opined that the court was not the “obedient servants of the 88th Congress (1963-1965)” and the court was “[T]aking advantage of what the last half century has taught.”

This case matters beyond Illinois, Indiana and Wisconsin. This decision reflects what many state and local government have already done to protect LGBT workers, and similar cases will be heard in other circuits.  Most importantly, it is a best practice to implement policies, procedures and training that prohibits discrimination based on sexual orientation in the workplace.

We can help. Contact us at info@foleylawpractice.com or call 508.548.4888 to update your handbook and policies. Visit http://www.foleylawpractice.com for more resources.

 

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The EEOC reaches out to young workers about religious discrimination.

Religious discrimination remains an issue in the American workplace. In fiscal year 2015, EEOC received 3,502 charges alleging discrimination on the basis of religion, with the top issues alleged being discharge, harassment, terms and conditions of employment, and reasonable accommodation.

The EEOC has issued a one page fact sheet “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.”

If you have young workers in your employ, check out the EEOC Fact sheet.

Questions? We can help. 508-548-4888 or info@foleylawpractice.com

 

 

 

 

 

Let Freedom Ring–Happy July 4th

May the sun in his course visit no land more free, more happy, more lovely, than this our own country! ~Daniel Webster

We have exciting news at Foley & Foley, PC –Attorney Mikaela McDermott will join our team July 12, 2016. She brings years of experience in public and private sector employment and labor law. She will make our strong team even stronger.

The Massachusetts legislature has been busy. Two bills that will impact employers are still in the works and may land on the Governor’s desk soon:

Noncompete reform

The Massachusetts House passed a comprehensive noncompete reform bill on June 29, 2016. Because the Senate passed a fairly similar measure last year, the bill is expected to be approved by the Senate before the session closes on July 31, 2016. Whether Governor Baker will sign the bill is unknown at this time. The major changes:

    • By far the most significant change would introduce what is referred to as a “Garden Leave” clause requirement. Under the current version of the law, employers would have a choice of paying either 50% of the employee’s salary for the length of the non-compete or “other mutually-agreed upon consideration… .”
    • Noncompete period is limited to 12 months in duration unless the employee has breached a fiduciary duty or taken property, in which case 24 months is allowed;
    • Noncompetes are not allowed for several categories of workers:
      • Employees terminated for cause or laid off;
      • Non-exempt (OT eligible) employees;
      • Ages 18 or younger; and
      • Undergraduate or graduate interns.
    • Noncompete must include a right to consult with counsel before signing, and must be provided to the employee by a formal offer or 10 business days before the start date, whichever is earlier.
    • Any noncompete entered during employment must be supported by additional consideration beyond continued employment.
    • A court may not strike out unlawful provisions of a noncompete in violation of this law–the entire agreement will be invalid, which is not the practice now.

Should this bill become law many current noncompetes in Massachusetts will need to be rewritten.

Pay Equity

The Senate Bill Proposal – 2119 “An Act to Establish Pay Equity” is gaining momentum. Attorney Mike Foley recently presented on this topic at a Government Affairs Committee of the New Bedford Chamber of Commerce – more about his presentation

Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation.

In Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief:

  • The Federal Equal Pay Act (FEPA);
  • Title VII of the Civil Rights Act of 1964 (Title VII);
  • The Massachusetts Equal Pay Act (MEPA); and
  • Chapter 151B of the General Laws of Massachusetts (151B).

Depending upon your perspective, here are the highlights or low lights regarding the pending pay equity law:

    • Significantly changes the definition of “comparable work” under MEPA. That critical phrase under the proposed law “shall solely mean work that is substantially similar that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.. .” The key question is how will this impact merit pay, commission pay and any pay system that is not seniority driven.
    • It would become unlawful for an employer to seek the salary history of any prospective employee.
    • Employers could not prevent employees from disclosing their wages, benefits or other compensation or inquiring about or discussing the wages of any other employee.

There is more to this far ranging bill and we will, of course, keep you informed.

As always, please contact us with any concerns or questions. We can help.


© 2016 FOLEY & FOLEY, PC, ALL RIGHTS RESERVED

Thanks DOL. Now what?

At last, the final version of the Department of Labor’s (DOL) overtime rule has been issued. The final rule will:

-Raise the salary threshold for overtime eligibility for “white collar” workers from $455/week to $913 per week or $47,476 per year, effecting a projected 4.2 million workers.
-Automatically update the salary threshold every three years, based on wage growth over time.
-Amend the highly compensated employees subject to a minimal dutes test salary from $100,000 to $134,004 per year.
-Go into effect December 1, 2016.
We won’t quote Joe Biden here, but this is a big….deal. With six months to prepare, do not wait until the last minute. Be sure your employees are properly classified with an employment audit. Running afoul of the Fair Labor Standards Act (FLSA) is expensive with big penalties, plus the possibility of class action lawsuits.

In other less shattering but important news:

The EEOC just released their final rules regarding employer wellness plans. The ten second version: the EEOC’s final rules describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The guidance applies to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (Affordable Care Act).

Time to take a closer look at your Wellness Plan. No good deed goes unpunished.

We can help. 508-548-4888

Understanding the Zone in the Workplace

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-Attorney Timothy G. Kenneally

Retaliation protection in the workplace is defined by the “zone of interests” standard. If an employee falls within the interests sought to be protected under the law (Title VII) that employee is shielded against retaliatory adverse employment action.

A recent decision by the Massachusetts Commission Against Discrimination (the “Commission”) in Schillace v. Enos Home Energy Therapy illustrates how the zone works. Schillace charge Enos with terminating her employment because her fiancé, who had also worked for Enos, had previously charged the company with retaliation.  The Commission concluded that the fiancé relationship was “a close personal association” for Schillace, and therefore she was protected against any adverse employment action motived by or related to her fiancé’s claim.  The Commission concluded that Schillace was entitled to back pay and damages for emotional distress due to the wrongful termination of her employment. In other words, she was in the zone of protection.

How should employers properly define the zone and react to it?  For starters, employers must acknowledge that the focus on a zone of interests, in practice, creates a unique type of protection for each employee.  This personalized zone is defined by any and all of the employee’s known close personal associations with members of protected classes. Close personal associations have been defined to include blood relatives, relatives by marriage, adoptive relations, and of course, a fiancé.  However, we hesitate to suggest that a Court or the Commission will not define the group more broadly to include other persons closely tied to the employee.

Before taking adverse employment action, employers must consider all of the employee’s known close personal associations.  Do any of those persons fall within protected classes?  Can the adverse action be viewed as retaliation related to a person associated with the employee?  Only through a measured and careful analysis, can an employer minimize its risk of running afoul of the ZONE.

If you have any questions about the zone of interests, feel free to contact me at tim@foleylawpractice.com.

 

Understanding Human Liability Management Systems

Human liability can occur in a variety of ways.  It can range from an accounting mistake that results in a small monetary loss, to a serious workplace accident that results in a life altering injury, to tracking errors within your company’s FMLA or integrated disability management systems.  Outcomes can be improved in all aspects of the workplace by understanding human liability traps and instituting appropriate best practices. We also believe it is prudent for all employers to incorporate these fundamental strategies into their OSHA recommended Health and Safety Protection Plan.

Below is a high level outline of the fundamentals behind Human Liability Management as a method for avoiding injuries, mistakes, and improving outcomes.  This document is not intended to be comprehensive training program or targeted legal advice, but to offer a basic understanding of the theory behind Human Liability Management Systems.  It is our belief that every organization can benefit from some or all of the systems outlined in this document.

Everyone is fallible.  In our experience, the most successful organizations understand:

  • Individual behavior is influenced by organizational processes and values;
  • Error likely situations are predictable, manageable, and preventable;
  • Events can be avoided by understanding the reasons mistakes occurred and applying lessons learned from past events;
  • People achieve their highest levels of performance based on positive recognition and reinforcement;
  • Leadership must equally value production and people.
  • Training is a necessary part of the system, but won’t fix problems by itself.
  • Sustainable improvement in human error management is not dependent solely on workers.

 

STRATEGIES FOR AVOIDING HUMAN LIABILITY AND IMPROVING OUTCOMES.

Recognize Human Error Traps

The first step to understanding human liability and improving outcomes is to identify traps. The following are common traps that directly lead to mistakes, injury or near-miss outcomes. These apply equally to every industry whether it is a manufacturing, healthcare, construction, office, or corporate settings.

  • Production pressure.
  • Distractions and interruptions.
  • Multiple tasks.
  • Bias for results (over confidence).  Thoughtless performance of tasks.
  • Vague or interpretive guidance.
  • First time performing task/infrequently performed tasks.
  • Change of duty/off normal.
  • Physical environment.

Understand Human Relations Fundamentals

The next step is to institute controls that will include and engage employees in ongoing safety/performance protocols.  Each employee must be empowered to engage in his/her own safety and/or performance.

  • Self-checking.  
  • Know when to stop.
  • Questioning attitude. Why am I doing this?  
  • Place keeping – Force to read through policy, and check sections when read.
  • Effective communication – If an employee is given instructions, the employee recites or writes backs the instruction given.
  • Job site review – policy/practices – snapshot of jobsite.  The employee engages in this practice every shift prior to starting work.  What are the risks present?  Can a solution be engineered to mitigate those risks?  In a corporate or office setting, this can be completed prior to starting a project.
  • Meeting attendance. Employees must be engaged in their own wellbeing and success. 

These fundamentals are not limited to safety and apply equally to security, quality, and performance functions in an office or corporate environment.

Understanding Human Reliability Defenses

These are practices and policies any company can engage in to create a defense against loss.   

    • Verification Practices – Peer checking. If an employee is unsure, he or she has someone to ask, “am I doing this correctly?”  
    • Procedure use and compliance.  Policies and procedures must be up to date and employees must know to use them.
    • Coaching (peer to peer) – Consider an observation program where employees are comfortable coaching each other. Hierarchy shouldn’t matter for effective peer coaching.
    • Pre-Job Brief – Here is what we want to accomplish during this shift, or for this project, here is what we want to avoid – provide opportunity for feedback.
    • Turnover – Make sure people handing off projects communicate well.

 

  • Walkdowns – This is a pre-job inspection – In the manufacturing setting allow employees to review the task or project before the start of their shift or the task for barriers and problems (e.g. insufficient overhead light, missing safety barrier, obstacles preventing safe completion of task, missing element needed).  In other settings, before starting a project or shift, each employee should complete a pre-job inventory to identify barriers for successful completion of the project or task.
  • Robust Barrier – Anything preventing interface with equipment employee will work on – post-its, alarms, reminders.  This will force employees to consider what they are about to do before they do it.

Developing Effective Trending

Trending is the theory that we can predict errors by trending low level mistakes that didn’t have big consequences.  The near misses are the mistakes that were caught before they resulted in a loss, or the injury that almost happened.  These are the “we got lucky” scenarios.  These offer incredible insight into areas of exposure for any company.  Each near miss is an opportunity to proactively evaluate high risk areas of liability.

  • Human error reviews can pinpoint error traps, missing individual fundamentals, and defenses before errors or incidents occur.
  • Effective trending needs to get inside the head of your personnel to understand what the involved personnel were thinking when the error occurred.  The purpose is not blame. It is to better understand the environment in which errors occur so that they can be eliminated in the future.
  • Observation Program – Watch people to see where errors are most likely to occur. Pay attention to the culture in the department.  Every department has a subculture defined as the way staff and managers interact, sometimes this culture is the source of errors.
  • Identify retraining and process improvements such as procedure quality and labeling.

Coaching

Coaching is the practice of conducting observations and comparing behaviors to existing standards and expectations.

Remember, individual behavior is influenced by leadership values.  Workers will value what owners and managers value.

The most effective managers coach regularly rather than waiting for yearly reviews.

Coaching Opportunities:  Each of these areas represents an opportunity for coaching.

  • Infrequent evolution.
  • High risk tasks.
  • Work performed by contractors.
  • Pre-job brief (observe them).
  • Component manipulations.
  • Morning meeting.
  • Leadership meetings.
  • Peer to peer coaching adds value.

Observation Program

A successful observation program enables employees to assess procedural compliance and record safety observations, and stop work that’s unsafe. An effective observation program will minimize errors by 60%.

This isn’t limited to safety.  An observation program can also assess compliance risks in a number of functions, by recording noncompliance observations, dangerous/counterproductive/risky behavior can be stopped before it results in a loss.

The following are some best practices for any observation program:

  • Make Behavior Based Observations – Don’t give statements like “performance declined,” instead, give behavior based observations that identify particular behavior that can improve.  
  • Make Sure All Documentation is Closed Loop – Don’t just document a problem.  Identify the problem, and then identify how it was dealt with.  This adds value because if the problem reoccurs, it is an opportunity to examine whether a different method of dealing with a problem is appropriate.  
  • Make Sure Observations Are Aligned with the Performance Challenge – Stay focused on the performance being measured and offer relevant observations.
  • Allow for Feedback – Allow an opportunity for feedback between the observations and outcomes.
  • Not Disciplinary – Employees have to be comfortable to make reports in order for a near miss observation program to be successful.  It is not as effective if it becomes a disciplinary model, instead it should be a form of coaching for improvement rather than coaching for discipline.

Conclusion

An effective human liability assessment will present an organization with an opportunity to correct a problem before it becomes a consequential incident. Near miss reporting of “we got lucky” scenarios represent an opportunity for growth.  Coaching and observation allow employees and management to recognize and proactively manage risk.

Employers throughout the country frequently ask our lawyers how they can better manage HR-related risk. Clients have told us that the strategies outlined above in combination with our law firm’s Employment Counsel On-Call Triage Service, Diagnostic Compliance Audit Service and Handbook Preparation and Updating Service create the Iron Dome of HR-related Risk Management protection. We stand ready to help. 508-548-4888

www.foleylawpractice.com

 

Get Ready to Update Your Discrimination Policies, California.

 

No this is not a cruel April Fool’s Day joke. As of April 1, revised California Fair Employment Housing Act (FEHA) regulations will take effect, with new anti-discrimination and anti-harassment obligations for California employers. If you have not already updated your Discrimination and Harassment Policies to track the amendments to FEHA, now is the time.

Our office has already updated and drafted a number of Harassment and Discrimination Policies in response to these new regulations. Feel free to contact us at any time.

The new regulations make it mandatory for every California employer employing five or more employees (regardless of location) to have a written anti-discrimination, harassment and retaliation policy. This means that out of state companies with 1-2 California employees may now be sued under FEHA.

Discrimination and Harassment policies must now include all of the following:

List all protected categories covered under the FEHA. These include:

  • 4o Age (40 and over)
  • Ancestry
  • Color
  • Religious Creed (including religious dress and grooming practices)
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical) including HIV and AIDS
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • Genetic Information
  • Military and Veteran Status
  • National Origin (including language use restrictions)
  • Race
  • Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
  •  Gender, Gender Identity, and Gender Expression
  •  Sexual Orientation

Specify that the law prohibits unlawful conduct by coworkers and third parties, as well as supervisors and managers;

Set forth a complaint process, that includes:

  • Timely investigations and response to complaints;
  • Impartial investigations by qualified personnel;
  • Means for tracking progress of investigation;
  • Appropriate remedial actions and resolution; and
  • Timely closure.

Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Complaint options should include:

  • Direct communication, either verbally or in writing, with a designated company representative, another supervisor or complaint hotline, so that the employee has options outside of his or her immediate supervisor;
  • Access to an ombudsperson; and/or
  • Identification of the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints;

Instruct supervisors to report all complaints of misconduct to designated company personnel.

Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation. If misconduct is found, appropriate remedial measures will be taken.

Specify that confidentiality will be maintained to the extent possible, although the policy should not indicate that the investigation will be completely confidential.

Clearly state that employees will not be retaliated against for lodging a complaint or participating in any workplace investigation.

Employers must distribute the updated policy through one or more of these methods:

  • Hard copy to all employees with an acknowledgement form for the employee to sign and return;
  • Email to employees, along with an acknowledgement return form;
  • Post on the company intranet, along with a tracking system that ensures all employees have read the policy and acknowledged receipt;
  • Discuss the policy with new hires or during orientation sessions; and/or
  • Other distribution methods that ensure employees receive and understand the policy.

Employers whose workforce at any facility or establishment contains 10 percent or more employees who speak a language other than English as their primary spoken language must translate the policy.

For employers with 50 or more employees:

The new regulations also update training and record keeping requirements under California’s existing supervisor harassment training provision. The following now apply:

  • Training must instruct supervisors of their obligation to report complaints of discrimination, harassment or retaliation to a designated company representative, and must review with supervisors the steps necessary to take appropriate remedial measures to correct harassing behavior.
  • The training must cover “abusive conduct,” including the definition of abusive conduct, the negative impact of abusive conduct, the elements of and examples of abusive conduct, and the fact that a single act will not constitute abusive conduct unless it is sufficiently severe and egregious. The regulations state that there is not a specific amount of time that must be spent on abusive conduct in the training but it should be covered in a meaningful manner.

o Employers must maintain training documentation for a minimum of two years.

  • Documentation includes names of the supervisors trained, training date, sign-in sheet, certificates of attendance or completion, type of training, copies of written or recorded training materials, and the name of the training provider.
  • For webinar training, employers must also retain a copy of the webinar, written materials used by the trainer, written questions submitted during the program, and written responses or guidance that the trainer provided during the webinar. For e-learning training, employers must retain written questions received and written responses or guidance provided.

 

Other updates to the FEHA regulations include:

New definitions of gender expression, gender identity, sex stereotype, and transgender;

  • “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
  • “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”

A woman/female disabled by pregnancy includes a transgender employee who is disabled by pregnancy;

Clarification of what constitutes actionable harassment and the basis for co-worker liability;

A new rule permitting the DFEH to recover “non-monetary preventative remedies” against an employer, regardless of whether the agency prevails on an underlying claim for discrimination, harassment or retaliation; and

A prohibition of discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if it is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law).

 

We recommend that California employers take the following immediate steps:

  • Ensure you have written policies that comply with the new regulations and that the policies are disseminated in one or more of the approved methods (in addition to Form DFEH-185).
  • Ensure proper complaint and investigation procedures are in place.
  • Ensure supervisors and human resources personnel receive proper training on the new regulations so that all inquiries and potential complaints can be addressed in a compliant manner.