Category: Legal

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Employers Feeling Dazed and Confused By Marijuana Laws

marijuana, legal landscape, cannabis laws

In the past few years, “weed at work” has grown as a workplace issue.marijuana, legal landscape, cannabis laws

More and more Americans appear to be turning to marijuana as a way to treat various ailments, including epilepsy, migraines and anxiety. Moreover, public sentiment about marijuana has shifted, with polls showing that more people support marijuana legalization at the federal level. Yet, the issue might not be so easy for the nation’s employers. While marijuana remains illegal as a matter of federal law under the Controlled Substances Act, states are taking matters into their own hands by enacting medical and recreational marijuana laws.

Currently, 33 states, the District of Columbia and Puerto Rico have passed laws broadly legalizing marijuana in some form. As of Jan. 1, 2020, 11 states — Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington — and the District of Columbia have adopted laws legalizing marijuana for recreational use.

While most of these laws still allow employers latitude in enforcing their drug and alcohol testing and substance abuse policies, recent legal developments at the state and local level may be a sign that employee protections are on the horizon. For instance, Illinois’ new law is the most expansive recreational law to date and has created a lot of uncertainty for employers.

In addition, Nevada now prohibits employers from taking adverse action against applicants who test positive for marijuana with exceptions for, among others, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law. And, starting next year, New York City, with some similar exceptions, will bar employers from requiring any pre-​employment marijuana testing.

Also read: Managing People in the Growing Cannabis Industry

The issue becomes more complicated when applicants and employees use marijuana for medicinal purposes. Approximately a dozen states — including Arizona, Connecticut, Illinois, Massachusetts, Minnesota, New York, and Pennsylvania — have employment protections for medical marijuana users, with such protections directly in the statute or derived from case law. These laws generally protect off-duty medical marijuana use and prohibit employers from discriminating against individuals for either being a registered medical marijuana cardholder or testing positive for marijuana. In addition, an employer may (depending on the state at issue), have a duty to engage in an interactive process to determine whether a reasonable accommodation might be necessary.

Litigation involving employers and their responses to medical marijuana users continues to make the news. This summer, a New Jersey appellate court held that employers may have a duty under the state’s anti-discrimination law to accommodate an employee’s off-duty medical marijuana use.

And the American Civil Liberties Union recently filed suit against the District of Columbia Department of Public Works claiming that a worker was denied reasonable accommodation and placed on an indefinite leave of absence after disclosing that she was a medical marijuana cardholder under the District’s medical marijuana program. The worker at issue claimed that she had been prescribed medical marijuana for off-duty use only.

When she requested a temporary transfer to a clerical position during the fall leaf-raking season as an accommodation for her disability, she was purportedly denied the transfer, and after she disclosed that she possessed a medical marijuana card, she was allegedly placed on an unpaid leave of absence and told that she could not resume her duties as a sanitation worker until she successfully passed a drug test (which she would inevitably fail due to her medical marijuana use) because she was working in a position that the District considered to be “safety sensitive.”

This rapidly evolving legal landscape presents new challenges for employers, especially multistate employers. Employers must balance complying with conflicting federal, state and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights. Because of these changing laws and social norms, some employers are even considering eliminating preemployment testing of applicants for marijuana or marijuana testing altogether, while maintaining other drug testing requirements.

Employers also are now beginning to reconsider their practices as they relate to possible accommodations of medical marijuana users and whether to accept medical marijuana use as a medical explanation for a positive test result. That said, however, no state requires an employer to tolerate an employee being under the influence of or impaired by marijuana while they are at work or during work hours.

Because marijuana can remain in a person’s system for days and even weeks, the fact of a positive test result, without more, says nothing about impairment. On this point, earlier this year, an Arizona federal district court judge entered judgment against a national retailer for terminating the employment of a woman who had been prescribed medical marijuana because the employer had not established through expert evidence that the employee was actually impaired by marijuana at work despite high levels of marijuana in the results of her drug test.

Developing a well-defined employment policy on marijuana use can minimize the risk of harm from a workplace safety perspective and decrease the likelihood that drug testing and disciplinary action based on marijuana use will open the door to liability for adverse employment decisions. Employers operating in states where medical and recreational marijuana use is allowed should consider taking a fresh look at their substance abuse policies.

It is imperative that employers review the laws of the states in which they operate and work with employment counsel to help navigate this complex and rapidly evolving area of the law.

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Pro-Union Do’s and Don’ts

Jon Hyman The Practical Employer

Four former Google employees claim that their ex-employer fired them Thanksgiving week in retaliation for their efforts to organize a labor union.

The NLRB is now investigating the firings. For its part, Google denies that anti-union animus played any role in the firings. “We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.”

The NLRB will ultimately have the final word. Suffice it to say, however, an employer cannot terminate a pro-union employee if the employer’s anti-union animus is a substantial or motivating factor for the termination.

But that’s just the tip of the iceberg of an employer’s prohibited conduct when confronted with union organizing.

And my use of the idiom “tip of the iceberg” is no coincidence, as T.I.P.S. is the acronym commonly associated with the four main categories of employer prohibited conduct in a union organizing campaign.

Threaten: Employers cannot threaten employees, or, worse, carry out those threats against employees, because they support unions or unionizing. For example, a manager cannot tell employees he will lower their wages or demote them if they support the union. Or, in the Google example, fire employees.

Interrogate: Employers cannot ask employees about their own, or other employees’, support of unions or unionizing. For example, management cannot ask employees if they signed a union authorization card or how they intend to vote.

Promise: Employers cannot promise employees some reward for not supporting a union. For example, management cannot offer raises or bonus if the union loses.

Surveil: Employers cannot spy on union activity. For example, management cannot photograph or video record union activities or eavesdrop on employee conversations.

And, if it’s not already clear (Google), you cannot fire employees because they support the union.

Yet, just because an employer cannot engage in T.I.P.S. does not mean that an employer is powerless to oppose and fight a labor union that is trying to organize its employees. Indeed, an employer has its own legal rights under the National Labor Relations Act to a fair and balanced secret-ballot election prior to the NLRB certifying a labor union as the bargaining representative for its employees. An employer that does not take advantage of these rights is omitting valuable information and a valuable opportunity to communicate its beliefs.

What can an employer communicate to its employees?

What are your values as an employer?

What are the benefits of working for your company? Wages, benefits, steady work, responsive management, etc.

Explain to employees what union authorization cards, how the secret-ballot election process works, and that just because an employee signed an authorization card does not bind that employee to vote for the union in a secret election.

Remind employees that just as you will not retaliate against any employee who is pro-union, you will not tolerate any employee who retaliates against a co-worker for being pro-management.

Explain the meaning of “dues checkoff,” and let employees know that union dues will almost certainly be deducted from their paychecks whether or not they support the union or use its services.

Inform employees of the potential disadvantages of labor unions, such as the possibility of strikes and work stoppages, that in the event of a strike you might hire replacement workers to take their jobs, that a collective bargaining agreement might require promotions and raises to be granted on seniority and not merit, and that employees might lose direct access to management to adjust issues in favor of a formal grievance and arbitration process.

Tell employees of your prior experience with labor unions, and any facts you know about the particular union that it trying to organize them.

Remind employees of the advantages of your benefits package, especially as compared to union fringe benefits that they might have to accept in lieu of your traditional benefits (which will still be offered to anyone outside of the bargaining unit).

Finally, you are always free to express your hope that employees vote against this or any union.

These issues can be nuanced, and if handled incorrectly, can expose an employer to significant liability at the NLRB. When in doubt, there are professionals you can hire (labor lawyers or other consultants that specialized in union avoidance campaigns). The bottom line, however, is that you cannot ignore a union organizing drive, because if the only viewpoint your employees hear is that of the union, it’s not hard to guess how the election will turn out.

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The 2nd Nominee for the Worst Employer of 2020 Is… the Uncaring Chief

Jon Hyman The Practical Employer

Three posts into 2020 and we already have our second nominee for the year’s worst employer. And this one is just plain awful.

From Salt Lake City’s Fox 13 News:

A mother is filing a lawsuit against a Salt Lake City-based company after she claims they fired her once they learned her son had cancer.

Becky Claussen has worked for a Salt Lake City Company called The Summit Group for 13 years.

Working remotely in Virginia, Claussen said things changed after her 10-year-old son Cameron was diagnosed with Leukemia in April.…

Claussen took paid time off and when she went back to work, she said her job assignment changed and she received an email saying, “I think we both know you can’t perform the account manager position adequately under the new circumstances.”

In July, Claussen said her boss flew from Utah to Virginia to meet up.

“I went down to the hospital lobby and I met with him,” said Claussen. “That’s where he told me they were ending the business relationship.”

In that moment, Claussen said her boss fired her.

Returning to Cameron’s hospital room, Claussen explained what had happened—he then turned to her and said, “I’m sorry I got cancer cause it made you lose your job.”

If you fly across the country to fire an employee while she is in the hospital with her child battling Leukemia, you might be the worst employer of 2020.
*Silver lining: after five rounds of chemotherapy, the cancer is in remission.
**The company fully denies the allegations, stating, in part: “We are saddened about this situation. The allegation that we let someone go because of a family health situation is categorically untrue. We have been a small business operating in Utah for nearly 40 years and have countless examples of supporting both our employees and their families in the midst of various life trials. We also took reasonable steps to try to accommodate Becky, by granting all of her requests for time off and her request to be relieved of some of her job duties. We provided a flexible working schedule for her at her request. Becky confirmed to me via email that ‘you guys did what works for my family.’”
Other Nominees:
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’Twas the Employment Law Night Before Christmas

Jon Hyman The Practical Employer

In what will become an annual tradition for my last post of the year, I bring you the holiday classic, ’Twas the Employment Law Night before Christmas.

To all of my readers, thank you for a great 2019.
I’ll see everyone on Jan. 6, 2020, with fresh content to kick off the new year.

’Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

The workers were home all snug on their thrones;
While visions of deadlines danced on their iPhones;
And I at my desk, alone to deal with the crap,
For the one who’s in charge gets no holiday nap.

When out in the lot there arose such a clatter,
I sprang from my desk to see what was the matter;
Away to the door I flew in a hurried jolt,
Tore open the shutters and threw open the bolt.

The moon on the breast of the new-fallen snow,
Gave a lustre of midday to objects below,
When what to my wondering eyes did acquaint,
But a process server holding an eight-count complaint.

Count One alleged that we had discriminated,
On the basis of race by one irritated;
A denied promotion, gone to someone who’s white,
Said the lawsuit I read in the glow of the night.

Count Two, racial harassment, words she had o’erheard,
Does she know the ruckus she’s about to have stirred?
Oh, how she had pulled that nasty, evil trigger.
I’d never heard supervisors rhyme something with bigger.

Count Three, it’s not just racism she alleged,
Also sexism, to which management pledged.
The boys, she said, we paid so much more than the girls
Yet they do the same work as each work day unfurls.

Count Four, uh oh, #MeToo, sexual harassment;
Yes, it’s true, our managers often do torment.
But the touching and groping, alleged qui pro quo,
Never did anyone coerce being her beau.

Count Five, violation of the FMLA.
Retaliation for a leave; she said we must pay.
How many weeks after did we demote her? Three.
Is that enough temporal proximity?

Count Six, negligence from our data breach.
Lots of employee info, stole that cyber thief.
We should’ve invested in some tech best practices;
Cybersecurity relies on the law of averages.

Count Seven, wage and hour class action, oh crap!
Did we fall into an FLSA lawsuit trap?
Mis-classifications, non-exempt for exempt,
And off-the-clock work too, my butt cheeks were then clenched.

Ah, Count Eight, finally we can hope for success;
Intentional infliction / emotional distress.
With all of the awful conduct that she had claimed,
When’s the last time our workers we civility trained?

I spoke not a single word, went back my desk,
And yelled, with none to hear, “Do I ever get to rest?!”
I emailed our lawyer, thru my phone I exclaimed,
“How much trouble are we in? To me please explain!”

He sprang to his phone, gave to me this rejoinder.
“A lot; I’ll need a $20,000 retainer.”
But I also heard him proclaim, so as not to slight—
“Happy Christmas to all, and to all a good night!”

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NLRB Rolls Back 2 Key Obama Era Anti-management Decisions

Jon Hyman The Practical Employer

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

Apogee Retail is a much bigger deal than Caesars Entertainment. Purple Communications required employers to allow employees to use their email systems for union-related communications if they otherwise allowed employees to use the email systems for any other purpose. Because it’s still the employer’s system, however, the employer still has access to the communications. I question why any employee would want to use an employer’s email system to talk union business, as they should assume the employer is reading all of their union-related emails.

Apogee Retail, however, reverses the biggest tragedy of the Obama-era NLRB. As I wrote all the way back in 2012 criticizing Banner Estrella Medical Center:

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel. …

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

The Board concluded that determined that a confidentiality rule limited to the duration of an internal investigation is generally lawful.

Bravo NLRB (for now). Still, it’s best to save your policies that complied with Purple Communications and Banner Estrella Medical Center. All bets are off if a Democrat takes back the White House in 2020, and you just might need to dig them out.
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Court Finds That the ADA Does Not Protect Employee’s Dormant Genetic Condition

Genomic Medicine EmployersSherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

While “normal cell growth” is a major life activity the ADA protects, the court could not find that the BRCA1 gene is a physical impairment that substantially limits normal cell growth.

Although mindful that the ADA is to be broadly construed, the Court concludes that Plaintiff fails to state a claim upon which relief can be granted. Plaintiff has offered no statutory, regulatory, or caselaw support for her “legal conclusion couched as a factual allegation” that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth. And the Court’s own research has found none.

It is true that the Sixth Circuit has held that some conditions, even when dormant, may constitute a physical impairment.… But this is not a circumstance akin to remission of cancer. Rather, it is, presently, the absence of cancer.

The Court’s decision should not be read to trivialize Plaintiff’s legitimate fear of developing breast cancer or minimize the transformative measures she took to avoid it. It merely recognizes that this Court’s role is to interpret, not legislate. To expand the definition of physical impairment to include a condition that might lead to a disability in the future effectively puts every employee under ADAAA protection.

Whatever issues I have issues with this decision (and I have some big ones) could have been cured by pleading this case differently. I question why Darby pleaded her protected disability as an actual disability instead of a regarded as disability. I think she would have a had a much better chance at surviving dismissal if she framed her claim as one in which her employer terminated her based in its perception of her having a disability (which does not require any proof of any actual disability) instead of any actual disability itself.

Moreover, in many cases its largely irrelevant whether the ADA covers a dormant genetic disorder because another statute already does—GINA, the Genetic Information Nondiscrimination Act. GINA prevents employers from using genetic information in employment decisions. GINA likely wouldn’t have helped Sherryl Darby, because it does not appear the issue of her having the BRCA1 gene arose until her lawsuit (and long after her termination).

This case will be often be cited for the proposition that the law does not protect an employee’s dormant genetic condition. While that is true based on how Darby pleaded her claims in this case, employers should not treat Darby as a license to discriminate, as doing so will likely violate both the ADA and GINA in many cases.

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Does It Violate the ADA to Work an Employee in Excess of a Work Restriction?

Jon Hyman The Practical Employer

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.

In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.

Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.

In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.

Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.

What can we learn from this decision?

    1. An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
    2. Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
    3. An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.
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6 States Now Mandate Sexual Harassment Prevention Training

The #MeToo era has prompted an increasing number of states to mandate sexual harassment prevention training in the workplace. California, Connecticut, Delaware, Illinois, Maine and New York all have such laws in place.

Here is a look at the laws in these states, noting which employers are covered, deadlines for completion and other nuances.

California mandates training for employers with five or more employees. By January 2021, training must be provided to supervisory and non-supervisory employees within six months of employment or assuming a supervisory position. For seasonal/temporary employees or those hired to work for less than six months, training is mandated within 30 calendar days of hire or within 100 hours worked, whichever occurs first. Excepted are employees of temporary services employers, which must provide training to seasonal/temporary employees.

Supervisors must receive two hours of training, and nonsupervisory employees receive one hour in a classroom setting with an in-person trainer. An interactive method (such as a webinar or e-learning) is also permissible.

Employers may develop their own training modules or use the California Department of Fair Employment and Housing’s online training course. Employer-created training must be conducted by a trainer with expertise in the topic.

After Jan. 1, 2021, employers must provide training to each employee in California once every two years and maintain training documentation for at least two years.

Connecticut mandates training for employers with three or more employees. Those with fewer than three need only train supervisors. Existing employees must receive training by October 2020. Employees hired on or after Oct. 1, 2019, must receive training within six months of hire. Employers with fewer than three employees must train supervisors by October 2020. New supervisors must receive training within six months of assuming a supervisory position. Those hired on or after Oct. 1, 2019, also have six months to receive training.

Training must be two hours in a classroom-like setting and allow for questions. The Connecticut Commission on Human Rights and Opportunities is developing online training, but employers may develop their own curriculum.

Employers must provide updated training every 10 years. Training records should be maintained at least one year and, if a complaint is filed involving someone the employer trained, until that complaint is resolved.

Delaware mandates training for employers with 50 or more employees (not including applicants or independent contractors). Supervisory and nonsupervisory employees must receive training by January 1, 2020 or within one year of hire for new employees. No training is mandated for employees with less than six months of continuous employment or those employed by employment agencies.

While no minimum length or trainer requirements exist, training must be interactive and occur every two years. There is no recordkeeping requirement, but it is recommended employers retain documentation for two years.

In Illinois, beginning Jan. 1, 2020, employers with 15 or more employees, and all restaurant and bar employers (restaurants, coffee shops, cafeterias and sandwich stands that give or sell food to the public, guests or employees, as well as kitchen/catering facilities where food is prepared on premises and served elsewhere) must provide annual sexual harassment prevention training for all employees, regardless of classification.

The Illinois Department of Human Rights will offer a free model training program. While employers may use their own program, it must meet or exceed the minimum standards of the model program.

Restaurant and bar employers must include supplemental training material (to be prepared and released by IDHR in both Spanish and English) that addresses sexual harassment issues seen frequently in their industry, includes an explanation of manager liability and responsibility under the law.

Illinois does not have requirements for training format, trainers or retention of records.

Maine mandates training for employers with 15 or more employees. New employees must receive training within one year of hire, and supervisory and managerial employees must have it within one year of hire or starting a supervisory/managerial role.

Maine does not have requirements for format, trainers or frequency. Employers must keep records for at least three years.

New York mandates that as of Oct. 9, 2019, all employers must provide training to all employees who work any portion of time in New York, regardless of immigration status: exempt; non-exempt; part-time; seasonal; temporary; interns who work more than 80 hours in a calendar year and have worked at least 90 days; and independent contractors who have performed work for the employer for more than 80 hours in a calendar year and more than 90 days and have not received the training elsewhere. New employees should receive training as soon as possible if they start after the October deadline. 

New York employers must use the model sexual harassment prevention training program provided by the New York State Division of Human Rights and the New York Department of Labor, or establish a program that equals or exceeds the minimum standards of the program.

The training can be in person or online but must be interactive. Employees cannot merely watch a video or read a document without a component of feedback or interaction.

The state Division of Human Rights recommends a live trainer, but the trainer need not be certified. New York does not currently certify or license training providers. Employers may use third-party vendors or organizations or existing employees or managers to deliver the annual training. Employers are encouraged to keep records. New York City employers must keep records for three years.

While the states identified here have passed laws mandating sexual harassment prevention training in the workplace, employers should contact its counsel for additional information and to conduct trainings that comply with all applicable laws.

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#MeToo Does Not Always Equal #FireHim

Jon Hyman The Practical Employer

Just because an employee complains about harassment does not mean that if the allegations are founded the employer must fire the harasser.

Consider, for example, Abbood v. Texas Health & Human Servs. Comm. (5th Cir. 11/7/19).

Amanda Abbood, an employee of the Texas Health & Human Service Commission, complained to her supervisor that a co-worker, Matt Otts, had subjected her to sexually offensive and unwelcome conduct, including comments about her figure, discussing his marital problems and describing “movies on Netflix that have a highly sexual connotation.” When confronted, Otts admitted to the misconduct, but claimed he was just joking. Instead of firing Otts, the employer reprimanded him, counseled him, reassigned him to another unit and relocated his office away from Abbood.

Four months later, however, Abbood again complained about Otts, this time that he told her he wanted to “jump her bones.” This time, the employer immediately removed Otts from the building, placed him on emergency leave, and changed the office locks. After completing its investigation, the employer then fired Otts.

Abbood’s second complaint about Otts occurred the same day as she suffered her own workplace issue. She discovered a stray dog outside the office, and used the commission’s computer database to try to locate the owner. The employer fired Abbood for the inappropriate use of its data system, in violation of its Computer Use Agreement and a Data Broker Computer Security Agreement.

Abbood, however, alleged that she was fired because of her complaints about Otts, and that the employer acted inappropriately by not firing Otts after the first harassment investigation. The 5th Circuit Court of Appeals, however, disagreed.

HHSC is not liable under Title VII if it took “prompt remedial action” once it knew of Otts’s harassment. Abbood argues that Otts should have been fired when she first reported him in August 2016, and that HHSC’s response was ineffective because he harassed her again in December. But an employer “need not impose the most severe punishment” on an offending employee, so long as the remedial action is “reasonably calculated” to end the harassment. And [t]o be reasonably calculated to end the harassment, an employer’s actions need not end the harassment instantly.” “The test … is not whether the harassment stopped but whether the action taken by the employer was reasonably calculated to end the harassment.”

Here, the record reflects that HHSC took prompt remedial action.… When … Abbood complained a second time, Otts was immediately placed on emergency leave, the office locks were changed, and he was subsequently fired. These facts demonstrate that HHSC took prompt remedial action.

An employer’s obligation in responding to a harassment complaint is to investigate and, as the court points out, take “prompt remedial action” to reasonably ensure that the harassment stops. If it doesn’t stop (as was the case here), then remedial action must become more severe (as the employee didn’t get the message the first time).
For a first instance of harassment, however, while termination is a remedial option, is is not the only remedial option. As long as the employer acts reasonably and promptly under the circumstances, a court likely will not second-guess the employer’s handling and response.
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EEO-1 Reporting Update: How We Got Here and What You Need to Know

wage and hour law compliance, wages

Nov. 11, 2019 is the last day for employers to submit reports detailing their employee compensation data to the Equal Employment Opportunity Commission.

Under the new reporting requirement, employers with at least 100 employees must report information to the EEOC regarding employee wages and hours worked by job category, race, ethnicity and gender. The EEOC is continuing to collect this data for 2017 and 2018 in advance of the Nov. 11 deadline, but the new requirement appears to be short-lived. On Sept. 12, 2019, the EEOC announced that after this year’s deadline, employers will no longer be required to submit compensation data, also known as “Component 2” data.

The EEOC first proposed this additional collection of pay data in 2016, and the reports were slated to be due Mar. 31, 2018. In announcing the new requirement, EEOC Chair Jenny R. Yang explained that the collection of pay data was meant to “assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws.” The EEOC ultimately reversed course, explaining that the “unproven utility” of the pay data collection is “far outweighed by the burden imposed on employers that must comply with the reporting obligation.”

After Nov. 11, covered employers can return to the EEOC’s previous data collection practices, in which it has required employers to report demographic information (now called “Component 1” data) using the EEO-1 form. Since 1966, employers with more than 100 employees have been required to report the number of individuals employed by job category, race, ethnicity, and gender.

For federal agencies like the EEOC to collect information from the public, they need approval from the Office of Management and Budget, so the EEOC sought approval from the OMB to collect Component 2 data using a revised EEO-1 form.

In 2017, the OMB stayed the requirement to report Component 2 data. Thereafter, several advocacy organizations brought an action against the OMB to end the stay and reinstate the revised EEO-1 reporting requirements and collection of Component 2 data. On Mar. 4, 2019, the U.S. District Court for the District of Columbia ruled that the OMB failed to demonstrate good cause to uphold the stay and permitted the collection of Component 2 data using the revised EEO-1 form. While the Department of Justice filed an appeal on May 3, this did not stay the reporting requirement.

The initial deadline to collect Component 2 data was Sept. 30, 2019, but it has taken a substantial amount of effort for employers to provide the requested pay data information. Before the collection of Component 2 data was officially underway, the EEOC estimated that adding Component 2 data would increase the burden of EEO-1 reporting by 90 percent. Given the difficulty of completing this reporting, it comes as no surprise that the data collection and submission of the revised EEO-1 reports have not been seamless. As of Oct. 8, 2019, only 75.9 percent of covered employers had submitted the requested data by the initial deadline. This is far lower than the response rates for prior EEO-1 Component 1 data collections, which exceeded 90 percent.

It remains unclear how the newly collected Component 2 data will be used, especially since it only includes pay information for 2017 and 2018. The EEOC has stated that, as a general matter, EEO-1 data is used “for a variety of purposes including enforcement, self-assessment by employers, and research.” The EEOC has also published aggregated EEO-1 Component 1 data, in addition to periodic industry specific reports.

While any potential uses for the data are uncertain, the EEOC has implemented procedures “to ensure the protection of identifiable information of our survey respondents and maintain EEOC’s commitment to protect the data confidentiality.” This should allay concerns that an individual employer’s EEO-1 data could be made public.

As for lessons learned in the aftermath of this extensive data collection, employers could use the information gathered to conduct internal pay analyses. While employers will no longer be subject to this particular reporting requirement, prudent employers will still gather pay data by job category, race, ethnicity and gender to take proactive measures to avoid pay equity lawsuits.