Category: Legal

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Legal Briefing: Make The Right Call On On-Call Shifts

Multiple lawsuits have been filed recently in California against retailers including BCBG Max Azria, The Gap Inc. and Forever 21 alleging that they do not pay their employees reporting time pay when they are required to report for on-call shifts but ultimately aren’t put to work or allowed to work. The lawsuits allege that the retailers tell their employees to consider on-call shifts as regular shifts, but that the employees ultimately don’t work the shift and are not paid for their on-call time.

Although it is not required under the federal Fair Labor Standards Act, many states require that nonexempt employees be paid reporting time pay when they are required to report to work but aren’t put to work or work less than their scheduled day’s work. This reporting time pay compensates employees for the time that they are prevented from obtaining supplemental employment, etc. Robinson v. BCBG Max Azria Group LLC, Case No. BC597311, Superior Court of California, County of Los Angeles (Oct. 9, 2015); Kennedy v. Forever 21 Retail Inc., et al., Case No. BC597806, Superior Court of California, County of Los Angeles(Oct. 14, 2015).

Impact: Retailers or other employers using the practice of on-call shifts should carefully review each state’s laws where they do business to determine whether they require payment for such shifts, even if the employee ultimately does not work.

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Hotline Turf War: Compliance or HR’s Territory?

As an employer, what would you have if you could train 100 percent of your employees? Or if a direct line of communication with your employees was always open, or if every employee could sincerely attest to the values and principles of your organization?
 
Besides a highly engaged, informed and knowledgeable workforce, you would have an unequaled opportunity to strengthen your organization’s culture. But enhancing culture also takes an air of cooperation.
 
And at many large organizations, the relationship between human resources and the compliance function hasn’t exactly been a cozy one. Yet that connection is crucial to building a successful corporatewide culture. 
 
Every organization involved in health care, defense contracting, publicly traded equities or international trade is required to have a corporate compliance program. While the source of this requirement varies, the recipe for an effective compliance program is a constant. This recipe includes annual training for all employees, an anonymous hotline and attestation to a code of ethics. 
 
Sometimes known as the ethics or integrity function, responsibility for the compliance program usually falls to this team. While compliance functions were rare 20 years ago, they’re now an entrenched part of most large organizations. 
 
If compliance and HR were to work together to meet the requirements of an effective compliance program, there would be a unique opportunity to advance the organization’s culture. But instead of working together, there’s an uneasy peace at best.
 
Accepting this tenuous relationship locks HR out of the organization’s largest sustained culture effort. Compliance is left leading the organizational culture effort with little direct knowledge of how to do so.
 
The antipathy between compliance and HR starts with the handling of hotline calls, many of which concern HR-related issues. Nonetheless, compliance often wants to investigate the reported concerns. 
 
And, of course, HR views this as encroachment, planting the seeds of a bad relationship. In one large organization, the HR staff routinely referred to the compliance department as “Fortress Compliance.” The compliance staff paid them back by referring to “Fortress HR.”
 
No matter who is responsible for the uneasy turf war between compliance and HR, it’s in human resources’ best interests to take the lead in lowering the barrier. It is only by getting a consistent message across to employees that HR will be able to develop the organizational culture. There are three important strategies to bring HR and compliance together. 
 
1. Work Together on Compliance Training.
 
Compliance departments often struggle to meet the requirement that there be (the equivalent of) at least one hour of compliance training annually. Compliance professionals often have backgrounds in audit, law or law enforcement. 
 
The skills that make them successful in these fields ordinarily do not include the design and delivery of training. Even though they often lack training expertise, compliance professionals seldom seek help. They often develop a set of slides emphasizing that employees face dire consequences if caught breaking the rules.
They hope to motivate employees using fear as their primary tool. What they are actually cultivating is a don’t-get-caught mindset. This approach is not likely to promote compliance or the organization’s overall culture, which, hopefully, is not a culture of fear.
 
Because compliance struggles with the annual training, an offer of assistance from HR is likely to be welcome. Were there consultation between compliance and HR and potentially the learning and development department, this universal training could be used to build the organizational culture, including its compliance component. 
 
The first step is to set clear objectives for each year’s training. Too often the only objective for compliance training is to meet the requirement that the training be given. Once it’s clear what you want to accomplish, a training module can be designed that incorporates the organizational culture while conveying key compliance messages. Corporate compliance will make more sense to employees as part of what the organization is about. 
 
The Council of Ethical Organizations has conducted published survey research on compliance programs since 1986 (Editor’s note: the author is the CEO of this organization). This research shows that close to 90 percent of employees of organizations with compliance programs recall participating in annual compliance training six months after participating in the training. However, only 34 percent recall key themes of the training.
 
2. Cooperate on Hotline Calls.
 
No part of a compliance program stirs more controversy than the ubiquitous compliance hotline. This is a toll-free number that employees can call anonymously to report concerns. And they do call. Our data show that the number of hotline calls per year in large organizations is equal to about 3 percent of the total number of employees. And no one disputes that the majority of these calls address HR issues. 
 
A key goal of the hotline is to encourage employees to report concerns internally instead of becoming external whistleblowers. There are huge financial incentives for employees who become external whistleblowers in many industries. 
 
In a recent case, a whistleblower received $2.2 million for blowing the whistle on NuVasive Inc. allowing the government to recover $13.5 million. Some whistleblowers have made tens of millions of dollars by revealing their employers’ misdeeds, raising the stakes for keeping compliance concerns inside the company.
 
So the job is to engage employees in an internal process until you can determine if the concern is real. HR is used to working through issues with employees and can usually do so without turning employees into whistleblowers. If HR can persuade compliance that it can investigate calls to the hotline on HR issues, a great burden will be lifted from compliance. And HR can handle issues reported to the hotline in a manner likely to prevent external whistleblowing.
 
3. Create a Positive Code of Ethics.
 
Another component of a compliance program is the code of ethics. Most organizations require that all employees attest annually that they will read and comply with the code. The reason to have employees attest is to show that everyone is aware of the rules. 
 
However, this attestation is often a meaningless gesture. Why? In many cases, the reading level of the code exceeds the reading level of most of the employees to whom it applies.
 
Council of Ethical Organizations data reveal that while nearly 100 percent of employees acknowledge receiving the code of ethics, fewer than 20 percent actually read it. The document is often long, filled with legalese and HR jargon and contrary to the organization’s culture. 
 
The belief is that if you tell people that they are supposed to follow a few dozen laws, the company cannot be blamed when failures occur. Example: “We told them to follow the Dodd-Frank Act right there in the code of ethics.” A frivolous thought. A signed document that the employee cannot have understood is an ineffective legal excuse.
 
If HR and compliance collaborated on the code, it could be a useful document that fits the organization’s culture. For example, most HR professionals know that you bring a document to life with illustrations of situations that employees may actually encounter. And a code that fits the values and culture of an organization is more likely to make sense to employees.
 
It is time for HR and compliance to get on the same page. Both functions are trying to influence employees in areas that pose risk to the organization. In many cases, compliance approaches its domain of risk in ways that can potentially undermine efforts to develop the culture of the organization. 
 
Compliance gets away with this because there are certain things it must do every year to satisfy external regulatory requirements. It needs to do these things — but it need not do them poorly. Everyone wins when the silos in which compliance and HR so often exist are torn down. 
 
Compliance and HR professionals can also collaborate on internal investigations. Compliance is required to follow up on all credible reports it receives by means of the organization’s hotline or through direct reports to the department. This can be a heavy burden as the number of reports received annually is approximately 3 percent of the total employee population. 
 
Many of these reports — typically more than half — focus on HR issues. Employees try to achieve through the hotline what they cannot through traditional organizational processes. Compliance tends to want to investigate all of the reports, including the reports on HR issues. This is because those who report to compliance are entitled to do so anonymously and to have their concern investigated on a confidential basis. 
 
Compliance is fearful that HR will not honor these reporting conditions if allowed to investigate the HR concerns reported through compliance. But this assumes that HR cannot understand the unique conditions under which compliance reporting operates.
 
If compliance and HR can get past this issue, there is much to be gained on both sides. Compliance professionals often have forensic investigative skills not represented in a typical HR department, and HR often has more insight into the organization’s culture and processes and is also usually more knowledgeable than compliance when it comes to employment law. 
 
Even more important, HR knows how to investigate the many HR reports compliance receives. When compliance insists on investigating these reports on its own, it often creates more issues than it resolves. If compliance focuses on genuine compliance issues, it can do a better job addressing these issues while allowing HR to handle its own domain of concerns professionally.
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NLRB Provides Employers a Roadmap to a Legally Compliant Off-Duty Access Policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB muster?

According to the NLRB,“an employer’s rule barring off-duty employee access to its facility is lawful only if it is limited to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.” Because this policy checked each of these boxes, it passed muster under the NLRA.

Of course, having a lawful policy, and lawfully applying that policy, are completely different.

However, we agree with the judge that the Respondent’s policy was unlawfully applied in a manner that discriminated on the basis of union activity. The record reveals that the Respondent permitted off-duty employees to enter the Hospital for a variety of reasons unrelated to union activity (such as picking up paystubs, submit-ting scheduling requests, applying for a transfer, and attending social events such as retirement parties and wedding or baby showers).  But on at least two occasions, the Respondent applied its off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. This evidence supports a finding that the Respondent applied its off-duty access rule in a disparate manner, in violation of Section 8(a)(1).

What lessons can employers take away from this decision?

  1. If you’re looking to draft an employee off-duty access policy, you could do a whole lot worse than one the NLRB has already blessed as kosher.
  2. Once you implement that policy, make sure you do so fairly, consistently, and non-discriminatorily. Otherwise, your lawful policy might still draw the NLRB’s ire.
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NLRB Updates Its Policy Memo on E-signatures for Union Petitions

Earlier this year, the NLRB began accepting electronic signatures in support of an employee’s showing of interesting in support of a labor union. The board has begun accepting e-signed documents, provided that they meet the following four criteria.

1. Submissions supported by electronic signature must contain the following:

  • the signer’s name;
  • the signer’s email address or other known contact information (e.g., social media account);
  • the signer’s telephone number;
  • the language to which the signer has agreed (e.g., that the signer wishes to be represented by ABC Union for purposes of collective bargaining or no longer wishes to be represented by ABC Union for purposes of collective bargaining);
  • the date the electronic signature was submitted; and,
  • the name of the employer of the employee.

2. A party submitting either electronic or digital signatures must submit a declaration (1) identifying what electronic or digital signature technology was used and explaining how its controls ensure: (i) that the electronic or digital signature is that of the signatory employee, and (ii) that the employee herself signed the document; and (2) that the electronically transmitted information regarding what and when the employees signed is the same information seen and signed by the employees.

3. When the electronic signature technology being used does not support digital signatures that can be independently verified by a third party, the submitting party must submit evidence that, after the electronic signature was obtained, the submitting party promptly transmitted a communication stating and confirming all the information listed in 1a through 1f above (the “Confirmation Transmission”).

  • The Confirmation Transmission must be sent to an individual account (i.e., email address, text message via mobile phone, social media account, etc.) provided by the signer.
  • If any responses to the Confirmation Transmission are received by the time of submission to the NLRB of the showing of interest to support a petition, those responses must also be provided to the NLRB.

4. Submissions supported by electronic signature may include other information such as work location, classification, home address, and additional telephone numbers, but may not contain dates of birth, social security numbers, or other sensitive personal identifiers. Submissions with sensitive personal identifiers will not be accepted and will be returned to the petitioner. They will not be accepted until personal identifiers are redacted.

The NLRB has now updated these guidelines with examples of specific forms of what these e-signed documents should resemble. 

When you combine these e-signatures with the board’s recent ambush election rules, you can see why a well-planned union avoidance strategy is a must for any non-union employer that hopes to stay that way.

 
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The Other Side of the Coin on the Appropriate Response to Harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin — what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

The allegations of sexual harassment in Ellis v. Jungle Jim’s Market (Ohio Ct. App. 10/13/15) [pdf] are pretty egregious. Among the worst were Dana Ellis’s supervisor unzipping his pants and asking her to take a look, telling her he wanted to “bend [her] over and BF” her, sticking out his tongue and simulating licking her, and asking her what positions she likes to have sex in, if she likes oral sex, and if she swallows.

While those allegations are bad, the company’s response was even worse. When Ellis’s co-workers complained to the store manager, Cathy Dick (really her name),about the harassment, she merely provided the supervisor a warning and kept the employees working together.

With all that, however, the employer still could have prevailed in the case because the employer did not take a tangible employment action against Ellis. All it had to prove was (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

On prong “a”, this employer failed miserably, not only in the after-the-fact remediation of the harassment, but also in the before-the-fact preventative measures:

Although Jungle Jim’s had a sexual harassment policy in place at the time Ellis began her employment, there is an issue of fact as to whether Jungle Jim’s actively implemented the policy or trained its employees and supervisors on the policy. Evidence was introduced that when Ellis received the policy in October 2012, the policy was not up-to-date as it advised Ellis to report sexual harassment complaints to “Norma Sarosy,” who, according to Dick, had died in February 2012. Ellis was not provided with a revised copy of the policy informing her that Dick now chaired the committee responsible for investigating sexual harassment complaints. Dick also testified that prior to Ellis filing the present lawsuit, Jungle Jim’s did not provide any sort of training to its employees regarding harassment or discrimination, although she did speak with some managers about the issues in an effort to train them. Dick explained that although she had been placed in charge of training managers and investigating complaints about sexual harassment, she had not received any formal training or attended any seminars on the issue. Rather, her knowledge on the issue came from reading “two or three” books about harassment and discrimination over the last one to seven years.

In other words, no training equals big problems for an employer.

What does this case teach out about our anti-harassment programs? Merely having a policy is not enough.

If you do not train your supervisors, managers, and others in how to response to workplace harassment, you will have a difficult time avoiding liability when things go wrong. Anti-harassment training should be part of your onboarding process for all employees. It does not have to be a deep-dive on every nook and cranny of U.S. workplace harassment law for each hire (although that would be best).

At a minimum, however, you should have someone knowledgeable about harassment and your policy against it sit down with each new hire, explain your anti-harassment policy, and offer the opportunity to answer any questions. That, plus comprehensive annual harassment training for all employees, should mitigate against a court finding that you failed to actively implement your policy or train your employees and supervisors on it — a finding that could prove fatal to your defense.

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Is Digital ‘Shunning’ Illegal Retaliation?

Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.

Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee A complains to HR that Employee B is sexually harassing her, and, as soon as Employee B finds out about the complaint, he unfriends Employee A on Facebook. Does Employee A have a claim for retaliation based on the unfriending?

The answer is likely no.

As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material,” and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.

 
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Independence Days in Court

The topic du jour in employment law is the misclassification of employees as independent contractors. Generally speaking, in an employment relationship, the employer directs or controls the means and manner of accomplishing a given result. Independent contractors, on the other hand, are autonomous in determining the means by which a specific result is accomplished.

Claims of misclassification pose significant financial risk for companies using independent contractors. A finding that an employee was misclassified can result in an employer’s liability for the payment of minimum wages, overtime, workers’ compensation, statutory penalties and attorneys’ fees.

And class actions alleging intentional misclassification of independent contractors are on the rise. Companies that use independent contractors should carefully examine their written policies and practices to minimize the significant exposure that is certain to follow a successful misclassification claim.

Although short of an all-out declaration of war against companies using independent contractors, recent actions by state and federal regulators demonstrate a heightened scrutiny of independent contractor relationships. Ride-hailing company Uber Technology Inc.’s relationship with its drivers has been attacked in numerous class-action lawsuits brought by some of its drivers.

In July, however, state regulators also weighed in on the issue. The California Division of Labor Standards Enforcement ruled that a single Uber driver was an Uber employee and had been misclassified by the company as an independent contractor.

Uber has appealed the ruling, and a California trial court will reconsider the state’s finding. The case is likely to go to trial next year. Although the administrative finding has no legal effect beyond the one driver involved, the ruling has been widely covered by the press (and some have even predicted Uber’s demise). Although the state’s ruling affects only the claims of a single driver, its determination may have some persuasive value in the class-action lawsuits.

This past June, FedEx Corp. reached a $228 million class settlement with FedEx ground and home delivery drivers in California. The parties settled the decade-old case, which must be approved by the district court, after the 9th Circuit Court of Appeals ruled that FedEx had misclassified some of its drivers as independent contractors.

The claims against FedEx were litigated for more than a decade. Although misclassification claims are not new, government regulators are bringing far greater scrutiny to independent contractor relationships.

Under the Obama administration’s direction, the U.S. Labor Department has initiated investigations into restaurants, contractors, janitorial companies and other businesses that use the independent contractor structure. Just recently, the Labor Department’s Wage and Hour Division issued a formal “Interpretation” of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors.

This advisory opinion significantly expands the criteria to be applied in assessing whether an independent contractor is entitled to be paid as an employee. Under the government’s recent pronouncements, both the government and independent contractors will find it easier to challenge the classifications.

The introductory paragraph of the Labor Department’s interpretation speaks volumes to the apparent intention of its regulators to continue their attack on independent contractor relationships:

Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, in part reflecting larger restructuring of business organizations. When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance and workers’ compensation. Misclassification also results in lower tax revenues for government and an uneven playing field for employers who properly classify their workers. … Although independent contracting relationships can be advantageous for workers and businesses, some employees may be intentionally misclassified as a means to cut costs and avoid compliance with labor laws.

The government advisory concludes, “In sum, most workers are employees under the [federal law’s] broad definitions.”

Although the Labor Department’s interpretation is not binding, the interpretation signals the intention of the agency to continue its war on independent contractor classification. To be certain, the courts will look to the government advisory or guidance in misclassification lawsuits. And the Labor Department is not the only federal agency looking to get in on the action. The IRS has likewise indicated its intention to closely examine independent contractor relationships because of the potential that companies are intentionally avoiding payment of unemployment taxes and withholding payment of Social Security and Medicare taxes.

Joining the chorus, Democratic presidential candidate Hillary Clinton recently announced her intention to examine independent contractor relationships. “I will crack down on bosses who exploit employees by misclassifying them as contractors or even stealing their wages,” she said.

The attack on these relationships by plaintiffs’ lawyers and the government is certain to continue. Government investigations, administrative charges and class-action lawsuits are incredibly expensive to defend — even when the company wins.

If you use these relationships, you may wish to re-examine them. If they are appropriate, make sure that your written materials do not dictate the manner in which services are delivered.

James R. Evans is a partner in the Los Angeles office of Alston & Bird and a member of the firm’s Labor & Employment Group. To comment, email editors@workforce.com.

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Union Organizing as a Protected Class? Worst. Idea. EVER.

Raise your hand if you think that it needs to be easier for workers to unionize. If I could look through my computer screen, I’d see very few of my readers’ hands raised.

Two hands that would be raised, though, are those of Washington Sen. Patty Murray and Virginia Congressman Bobby Scott (both Democrats), who, last week, introduced and sponsored the Workplace Action for a Growing Economy (WAGE) Act.

What would the WAGE Act do?

  • Triple the back pay to employees fired or retaliated against for engaging in protected concerted activity.
  • Provide employees with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, in addition to injunctive relief.  
  • Clarify that joint employers are jointly responsible for violations affecting workers supplied by another employer.
  • Establish civil penalties up to $50,000 for employers that commit unfair labor practices, with double penalties for repeat violations.
  • Impose individual liability for employer violators on officers and directors. 
  • Allow the NLRB to issue a bargaining order upon finding that an employer prevented a free and fair election, provided that a majority of employees signed authorization cards within the previous 12 months.

What else do you need to know about the WAGE Act? It’s supported by the AFL-CIO, the Teamsters, the Communication Workers of America, The Leadership Conference on Civil and Human Rights, The Century Foundation, and other worker-rights groups.

AFL-CIO President Richard Trumka described the legislation: 

The WAGE Act puts corporations who abuse working people on notice that there will be real penalties for lawbreaking. Penalties like triple back pay, strong civil penalties and preliminary reinstatement.

Teamsters General President James P. Hoffa added:

For too long employers have manipulated and abused the system under the NLRA. The WAGE Act offers real reform to our current laws and provides worker protections through significant penalties that will discourage employers from acting illegally. It is long past time to bring our labor laws into the 21st century.

The act’s co-author, Senator Murray, continued:

Too often, as workers are underpaid, overworked and treated unfairly on the job, some companies are doing everything they can to prevent them from having a voice in the workplace. The WAGE Act would strengthen protections for all workers and it would finally crack down on employers who break the law when workers exercise their basic right to collective action.

This bill has no chance to become law. But that’s not the point. The labor movement is setting up the 2016 election to be a referendum on the American working class. This bill is a symptom of this problem, not the solution. Nevertheless, it illustrates the class divide that could lead to a greater resurgence of organized labor.

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Time Off for Religious Holidays

Today is Rosh Hashanah, the Jewish New Year, which means that many Jewish employees are taking the day off. Is an employer obligated, however, to grant a request for time off when requested for a religious observance?



Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.



Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.



In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.



In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical or other reasons.



Legalities aside, however, this issue asks a larger question: What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

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OSHA’s New Burden of Proof Is a Big Burden for Employers

Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.

Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies' alleged of retaliation.

Earlier this year, OSHA published a memorandum titled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”

What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.

If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50 percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.

As OSHA’s summarizes:

Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….

Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.