Commentary & Opinion – Page 9

September 17, 2020

Coronavirus Update: The pandemic plight of working moms

There is no doubt that the COVID-19 pandemic has been tough on employees. A recent report published by Policy Matters Ohio illustrates just how tough it’s really been.

Ohio had fewer jobs in April 2020 (4,704,000) than at any time in the past 30 years.
At the height of COVID-related unemployment, 31.7% of Ohio workers were out of work because of employer layoffs, furloughs, and closures.
Unemployment peaked at 17.3%
While unemployment and jobless numbers are starting to rebound, there are still nearly 600,000 fewer jobs in Ohio now than at the start of millennium.

As bleak as these overall statistics are, I want to focus on another aspect of the report—the plight of working mothers.

According to the report, working moms have taken the brunt of the wave of employees working from home.

Working moms with young children reduced their work hours four to five times as much as fathers did nationally, widening the work hours gap between men and women by 20-50%.
The current recession has increased the gender pay gap by five percent, seven points higher than what we typically experience in other recessions (in which the gender pay gap is normally reduced by two percent).

What does this mean?

Men and women are about equally likely to be able to work from home, but the burden of new unpaid care work falls especially heavily on women.… Added child-caregiving responsibilities are competing with women’s paid work and in some cases forcing women out of the labor force altogether, with consequences for their careers that could be permanent. Women may never recover the career losses they face to support their families’ child care needs through the crisis. The pay gap with men, which has been narrowing over recent decades, could be wrenched open once more for years to come.

What is an employer to do?

Remind supervisors and managers that family responsibility discrimination is illegal. While Title VII does not expressly include “family responsibility” as a protected class, the EEOC has long held that Title VII’s prohibits discrimination against parents as parents if you are treating some more favorably than others (e.g., dads better than moms, or men better than moms). There are also, a few states that expressly prohibit parental discrimination. If, for example, you have to make decisions about layoffs, you should be considering whether working parents are disproportionately included.
Consider accommodations to aid working parents. Work from home is already an accommodation, but there are others that could help here. Modified work schedules (which the Department of Labor favors in its FFCRA guidance), designated breaks, and the provision of additional work supplies such as laptops and printers could all ease the burden on parents working from home. Our goal here should be helping employees figure out solutions to get their job done, not harming employees (and the business) by erecting barriers that prevent it.

September 16, 2020

Federal court holds state indefinite Covid-closure orders are unconstitutional

COVID-19, coronavirus, public health crisis

In County of Butler v. Wolf, Judge William S. Stickman IV of the United States District Court for the Western District of Pennsylvania (a recent appointee of President Trump) held that state-imposed shutdown orders that closed businesses, required people to stay home, and placed limits on public gatherings—all aimed at stopping the spread of the COVID-19 pandemic—were “well-intentioned” but unconstitutional.

At issue was a series of business closure and stay-at-home orders issued by Governor Tom Wolf of Pennsylvania shortly after the start of the COVID-19 pandemic.

Judge Stickman concluded these orders were unconstitutionally overboard.

The court concluded as follows:

Limitations on “events and gatherings” of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violate individuals’ First Amendment right of assembly and their related right of free speech.
Orders closing “non-life-sustaining” businesses and imposing a lockdown through stat-at-home orders violated individuals’ liberties guaranteed by the Due Process Clause of the Fourteenth Amendment.

In sum, the court did not believe that the ongoing pandemic sufficiently justified an infringement on constitutional liberties in the name of protecting public health and safety:

The Court closes this Opinion as it began, by recognizing that Defendants’ actions at issue here were undertaken with the good intention of addressing a public health emergency. But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a “new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by Defendants crossed those lines. It is the duty of the Court to declare those actions unconstitutional.

Just as important as the court’s overall holding is his dismissal of Jacobson v. Massachusetts—the century-old U.S. Supreme Court precedent that recognized the broad police power of the state to regulate to protect public health and safety—as old, stale, and no longer constitutionally relevant.

Jacobson was decided over a century ago. Since that time, there has been substantial development of federal constitutional law in the area of civil liberties. As a general matter, this development has seen a jurisprudential shift whereby federal courts have given greater deference to considerations of individual liberties, as weighed against the exercise of state police powers. That century of development has seen the creation of tiered levels of scrutiny for constitutional claims. They did not exist when Jacobson was decided. While Jacobson has been cited by some modem courts as ongoing support for a broad, hands-off deference to state authorities in matters of health and safety, other courts and commentators have questioned whether it remains instructive in light of the intervening jurisprudential developments.

County of Butler v. Wolf is narrow—it only applies to Pennsylvania law and then only in Western Pennsylvania. There is little doubt, however, that this case is headed for the Third Circuit Court of Appeals. This case, however, has the potential to have a broad national impact. This pandemic isn’t going away anytime soon, it is likely that we may face more closure orders and other restrictions as we head into winter, and other courts could seize on the rationale of this case to limit the authority of other states to regulate to protect the health and safety of the public. For this reason, County of Butler v. Wolf could end up as one of the most significant federal court decisions of 2020, and warrants close watching.

September 14, 2020September 14, 2020

DOL issues revised FFCRA regulations; what’s changed and what hasn’t?

employment law, labor law, overtime records

In early August, a New York federal district court judge issued an order invaliding several key provisions in the DOL’s FFCRA regulations. Last Friday evening, the DOL responded with revised regulations that left most of its prior regulations intact, while also make a few common-sense amendments.Here’s what the DOL did, and did not, change in response to the court’s order, and why.

1. The DOL reaffirmed that an employee may only take paid sick leave and expanded family and medical leave under the FFCRA if the employee has work from which to take leave, and if there is no work available, no leave may be taken.According to the DOL, this interpretation is entirely consistent with the statute’s requirement that an employer must provide its employees FFCRA leave to the extent that an employee is unable to work (or telework) due to a need for leave “because” of or “due to” a qualifying reason for leave. As summarized by the DOL, “[I]f there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee’s inability to work. Instead, the individual would have no work from which to take leave.” Thus, “an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work.” This interpretation avoids the perverse result of an employee being on furlough and not receiving a paycheck, but still qualifying for paid leave.

2. The DOL reaffirmed that where intermittent FFCRA leave is permitted (i.e., for leave taken to care for a son or daughter because their school or place of care is closed, or their child care provider is unavailable, because of COVID-19), an employee may only take such leave intermittently upon the approval of his or her employer.The DOL left these regulations untouched for two reasons. First, limiting intermittent leave to child-care-related absences furthers the policy of limiting employees who have potentially been exposed to COVID-19 from entering the workplace. Secondly, requiring employer approval is consistent with similar leave available under the FMLA, which should “avoid unduly disrupting the employer’s operation.

3. The DOL revised its overly broad definition of “health care provider” for purposes of the statutory exemption.This change is the most significant one in the revised regulations. The original regulations permitted an employer to exempt anyone who worked in healthcare or related to healthcare, whether or not they were an actual health care provider. Thus, maintenance workers, or workers for medical device or pharmaceutical companies, could be deemed “exempt” from the FFCRA. The DOL has now tightened the definition to mirror the definition of “health care provider” in the FMLA, and now covers only physicians and others who make medical diagnoses, and those capable of and employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

4. The DOL corrected an inconsistency about when an employee may be required to give notice to his or her employer of the need for expanded family and medical leave.The DOL amended the FFCRA’s regulations so that they are consistent with the FMLA’s requirements for advance notice. Now, notice of the need for expanded family and medical leave is required “as soon as practicable.” (The regulations previously prohibited advance notice for any leave under the FFCRA.)

5. The DOL clarified that the information the statute requires an employee to provide his or her employer to support a request for FFCRA leave must be given as soon as practicable.The regulations now provide that an employee is required to give the required documentation for FFCRA leave “as soon as practicable,” and not prior to taking the FFCRA leave.

These are common sense, business-friendly changes to the FFCRA’s regulations. Moreover, given that the Act sunsets on Dec. 31, 2020, it’s unlikely (but not impossible) that New York or another state will take another crack at striking down the revised regulations before the Act’s expiration.

September 10, 2020

Coronavirus Update: The coming wave of Covid-related age discrimination lawsuits

The EEOC has sued Ohio State University for age discrimination, alleging that the school discriminated against a 53-year-old human resources generalist because of his age by assigning a substantial substantial portion of his duties to a short-tenured co-worker 25 years his junior.

“If a termination is age-discriminatory, disguising it behind a supposed reduction in force will not change that,” says EEOC Regional Attorney Debra Lawrence in discussing the filing of the lawsuit.

What does this lawsuit, which challenges a termination that occurred all the way back in March 2018, have to do with the COVID-19 pandemic?

According to this article in the ABA Journal, it is reasonable to expect a flood of age discrimination lawsuits from COVID-19 and the economic downturn it has caused.

“My clients are being told they’re laid off because of COVID and are asking why the kid they trained for two years still has a job,” says Stephen Console of Console Mattiacci Law in Philadelphia, who’s filed about 30 age and disability discrimination cases with administrative agencies since the pandemic started. “The question is what criteria they’re using to say who stays and who goes.”

Employers need to be vigilant in laying off older workers. “High risk for Covid” and “highly compensated” might by proxies for age discrimination. Moreover, if your RIF includes most or all of your older workers and retains most or all of your younger workers, it’s going to look like you are using COVID-19 to mask a discriminatory intent. Simply, you cannot use a COVID-19 reduction in force to purge your workplace of older workers. The EEOC and the plaintiff’s bar are watching.

September 8, 2020October 7, 2021

Diversity training is the opposite of ‘anti-American’

Late last week, Russell Vought, the director of the Office of Management and Budget, issued a memo directing that from this point forward, the federal government will spend zero federal dollars for diversity training for its employees. Why? Because President Trump has concluded that diversity training is “divisive, anti-American propaganda.”

According to the memo, “All agencies are directed to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil.”

It continues, “[A]ll agencies should begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”

Diversity training is the opposite of anti-American, and canceling it will only serve to drive us further apart. We need to teach differences, not hide from them.

We as a nation are more divided than we have ever been during my lifetime. In fact, I’d argue that we are more divided than we’ve been since the Civil War.

Race continues to be the line that divides us the most. Ignoring this issue won’t fix the problem, and likely will only make it worse. We will not fix America’s race problem by pretending that it doesn’t exist. Not only does it exist, but it is perhaps that which defines us best as American. Our nation is one with an unnerving history of slavery, which has caused 155 years (and counting) of race relations problems.

Germany, for example, does not pretend that Holocaust never happened. Instead, it reckons with its horrific past by teaching the Holocaust in its schools and making illegal Nazi symbols and language. Yet, some of us Americans still want to whitewash our history and fly Confederate flags. We don’t fix out race problems by pretending they don’t exist or aren’t problems at all.

Employee diversity training is critically important, perhaps now more than ever. We all should be committed to the cause of fair and equal treatment of all Americans. Canceling diversity training, however, is a big step in the wrong direction away from the goal of equality for all.

September 1, 2020

Vaccines — can an employer require them; should an employer require them?

There are currently more than two dozen COVID-19 vaccines in development worldwide as pharmaceutical companies race to perfect a viable vaccination to halt the ongoing pandemic.

When (and it’s a big when) one or more vaccines becomes available, can an employer require it of their employees as a condition of employment?

When the EEOC initially published its guidelines on pandemic preparedness 11 years ago (in response to the H1N1, aka Swine Flu pandemic) it answered this question with a “yes.”

In response to the COVID-19 pandemic, the EEOC reissued its guidance.

May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.

ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Here’s the thing. While the EEOC says that employer can’t require “all” of its employee to take a vaccine, an employer actually can require a vaccination subject to reasonable accommodation exceptions for ADA disabilities and sincerely held religious beliefs.

But just because an employer can mandate vaccines for most employees doesn’t necessarily mean that it should. Instead, I fall back to the EEOC’s closing statement about “encouraging employees” to get vaccines.

Mandating what employee does with his or her body feels too invasive and Big-Brothery to me. I’d prefer that employers arm employees with the knowledge they need to make an informed choice about the benefits of inoculations, and then strongly encourage employees to make the scientifically and medically responsible choice.

August 31, 2020August 31, 2020

Court finds no cause of action when employer watches employee give a urine sample for a drug test

Is the privacy of an at-will private-sector employee invaded when a representative of the employer watches him or her give a urine sample for a workplace drug test?

On Aug. 27, in Lunsford v. Sterilite of Ohio, the Ohio Supreme Court answered this question in the negative.

The facts of the case are not complicated. Sterilite required “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. It sends an individual of the same sex to accompany the to-be-tested employee into a restroom to visually observe the employee producing the sample. Its goal is to prevent the employee from cheating the drug test.

Two years ago, the appellate court held that employees “have a reasonable expectation of privacy with regard to exposure of their genitals,” and that “the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.”

The Ohio Supreme Court, in a narrow 4-3 decision, disagreed.

[W]e recognize that workplace drug-testing policies implicate employees’ privacy interests.… [T]he facts in the complaint demonstrate appellees did consent to the use of the direct-observation method. …

[W]hen appellees individually reported for the collection of their urine samples, they were advised by the same-sex monitor that the direct observation method would be used. At that time appellees had a second opportunity—consent or refuse—and appellees consented by their action. …

Sterlite had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. Because Sterilite had the legal right to terminate appellees’ employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails. …

When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy.

In other words, employees voluntarily consented to the “direct observation” by submitting to the drug screen instead of quitting their jobs or refusing and being fired. While I certainly understand the at-will nature of their jobs, I’m troubled by the fact that direct observation was imposed across the board, without limitation for the specific interest the employer was trying to uphold (i.e., employee cheating).

Thus, what advice would I provide if a client asks me about implementing a “direct observation” policy?

I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
Make sure all employees have notice of the direct observation and when you might use it. Put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they can’t complain about any invasion of privacy (legal or illegal), as they’ve voluntarily given up that right.

Just because Ohio’s Supreme Court gave a thumbs-up to Sterilite’s policy in this case does not mean that the policy makes for a good HR practice that you should adopt. Instead, consider the specific goals you hope to advance with your drug-testing policy, and tailor it accordingly.

August 26, 2020

Coronavirus Update: New DOL guidance explains employers’ obligation to track compensable telework time

timeclock, wage and hour, schedule, timesheet rounding

With more employees working from home than ever before (thanks to COVID-19), employers are facing the new reality of tracking working time for remote workers and paying for that time.

The DOL recently published a new Field Assistance Bulletin explaining the obligation of employers to pay for non-exempt employees’ “working time” and the obligation of those employees to track this time. It’s not a change in the law, but instead a great reminder of the obligations the FLSA imposes on employers and employees.

An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. One way an employer may exercise such diligence is by providing a reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act.

What does this mean:

Generally an employer must pay a non-exempt employee for all time during which the employer knows, or should know through the exercise of reasonable diligence, the employee is working.
If an employer has reasonable reporting rules detailing an employee’s responsibility to report the employee’s working time, an employer must pay the employee for all such time reported.
However, if an employee fails to report time pursuant to those rules, the employer is excused from any obligation to pay for that unreported time. An employer is not required to undertake efforts efforts to investigate, uncover, and pay for unreported time.
An employer cannot, though, prevent or discourage employees from reporting working time to avoid paying for it.

What should you be doing now? Dust off your handbook and make sure it contains a policy explaining to employees their obligation to report working time and advising that they will not be paid for unreported time. Absent such a policy, you are responsible to exercise reasonable diligence to discover time employees are working, an exercise that will almost certainly miss time and result in exposure for unpaid time/overtime.

August 25, 2020August 25, 2020

Coronavirus update: This example of WFH is WTF

Alison Green, who pens the super engaging and helpful Ask A Manager blog, reached out to me to help with a reader question.

You should jump over to Alison’s post to read the whole bonkers scenario, but the TL;DR is that an employee’s spouse asked about the legality of an employer-installed app on her work-from-home husband’s phone that audio recorded everything happening in the home (whether work related or not).

My answer:

First things first. Legal or illegal I’d get away from that employer right now. Do not pass go. Do not collect $200. Just get your resume in order and start job hunting ASAP. This is a horrible HR practice that tells me this is not an employer I want to work for any longer

As for the legality of the practice, it depends on the state in which you live. Recording or otherwise listening to the conversations of others are covered and regulated by state wiretap statutes. These laws come in two flavor – one-party consent laws, and two-party consent laws.

Most state wiretap statutes are one-party consent laws. This means that as long as one of the parties to the conversation has consented to the recording, no law has been violated. In the scenario presented, I’d want to know whether the husband has consented (expressly or implicitly) to the recording. If so, in a one-party consent state, no statute has been violated. I would still, however, have concerns over a common law invasion of privacy tort claim since the employer is unreasonable intruding into the private lives of your family, legal wiretap notwithstanding.

A minority of states (11 to be precise — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington, plus Hawaii, which requires two-party consent if the recording device is in a private residence) have two-party consent laws. This means that unless all parties being listened to or recorded have consented to it, an illegal wiretap is occurring. If you are in one of these states, the recording described would likely be illegal, since the spouse and anyone else within earshot of the phone other than the employee would not have provided consent. In this case, I’d raise the issue with the company, and if you can’t get satisfaction, I’d talk to an attorney.

A recent story in the New York Times asked if COVID-19 has forever changed the office. It has, and largely for the better. For example, lots of companies who were resistant to work-from-home have had to bend.

But this example bends so far that it breaks the employer/employee relationship.

If you have so little trust in your employees that you need to monitor everything they do by eavesdropping on conversations in their homes, you shouldn’t be in the business of employing others. You are simply not suited to be an employer. The employer/employee relationship is one of mutual trust, and without that trust there is no relationship of value, period.

August 19, 2020

41,214 reasons not to fire employees who request FFCRA leave

A San Jose, California, manufacturer has reached an agreement with the Department of Labor’s Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA.

According to the DOL, “The employer’s action resulted in a violation of the FFCRA.”

No kidding!

In announcing this settlement, the DOL reminds employers that they should call the agency for assistance with FFCRA compliance, that it has online educational tools to help avoid violations, that its website contains information to help employers understand the FFCRA, and that it published an FFCRA poster to explain the Act’s requirements.

All of these statements are true. But should an employer really need a website or a poster to tell it not to retaliate against employees who ask for paid leave under a federal statute? 🤦‍♂️

Small employers, if you’re not paying attention to the FFCRA, you should be. The Department of Labor certainly is.