Workplace Romance is not Dead

By Kathleen Jennings (kjj@wimlaw.com)

With Valentine’s Day coming up in less than a week, it is a natural time for companies to review their workplace dating/relationship/fraternization policies. If your company does not have one, it is time to implement one in light of the #MeToo movement and increased awareness of all things harassment. If your company does have one, take the time to review it. Is it clear? Logical? How is it working?

Some employers have taken the step of banning all workplace dating as a way to prevent potential sexual harassment complaints. That seems a bit harsh, especially considering that a lot of people spend most of their time at work, and therefore, are likely to meet potential dates there. As a practical proposition, managing workplace romance does not necessarily mean prohibiting workplace romance. Employers may risk losing valuable workers if they do so. Furthermore, the stronger the prohibition, the more likely people will keep these relationships secret. And the employer who doesn’t know about these relationships runs a greater risk of sexual harassment complaints if the romance turns sour. If romances are prohibited, the employer does not really know what’s going on: a year after a consensual relationship breaks up, some employee walks into the office and says, “I’m being sexually harassed by my supervisor.” Employers should try to manage these relationships in a way that maintains a productive, happy workforce on the one hand, and doesn’t overly intrude into the employees’ private lives, on the other hand.

Facebook and Google have taken an interesting approach. Their policies allow an employee to ask a co-worker out one time. If they are turned down, they don’t get to ask again. Ambiguous answers such as “I’m busy” or “I can’t that night,” count as a “no.”

The relationships that do need to be banned or very carefully managed are those between supervisors and subordinates. Those are the relationships that are most likely to result in claims of harassment or favoritism. Even if both parties willingly enter into the relationship, if things end badly, the subordinate may later claim that he or she was coerced into the relationship by the person who had more power. Ugly.

Pro tip: Workplace romance happens. Therefore, a company should have a written policy in place that clearly spells out what types of behaviors and relationships are allowed and prohibited in the workplace. An effective policy can minimize the danger and damages of discrimination, harassment, and wrongful discharge lawsuits, as well as suits alleging an invasion of privacy.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Do You Know the Effect of the New Tax Law on the Tax Deductibility of Harassment Settlements?

By Kathleen Jennings (kjj@wimlaw.com)

I am not a tax lawyer, but I do need to concern myself with the general tax consequences of settlements of litigation that I handle on behalf of our clients. So I was fascinated to learn of in a little-known provision of the Tax Cuts and Jobs Act of 2017, a/k/a the new Tax Law (which was signed into law on December 22, 2017), that changes the tax consequences to employers of settlements in sexual harassment and sexual abuse cases. What does the New Tax Law change? It now prohibits tax deductions to companies for sexual harassment settlements that are confidential.

Under Section 13307 of the Tax Cuts and Jobs Act, employers no longer receive a business deduction for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement.” In plain English, this means that if an employer requires an employee to sign a nondisclosure agreement as a condition of a sexual harassment settlement, or the settlement agreement contains a confidentiality provision, then the employer cannot claim the settlement payment, nor the corresponding attorney’s fees as a business deduction. This provision applies to amounts paid or incurred after December 22, 2017.

Because the New Tax Law was hastily put together without anything in the way of public hearings, there are issues that will need to be resolved, such as:

  • What constitutes a “confidentiality provision?”
  • Can the parties separate out portions of a settlement payable to sexual harassment from those payable to other allegations to minimize the tax consequences?
  • Is the bar on deducting attorney’s fees “related to such a settlement or payment” to be read literally as meaning that only the fees relating to the settlement process are not deductible — as opposed to the fees incurred in all other aspects of the litigation that came before settlement?

One big question is whether this change in the tax law will act as a disincentive to employers to settle harassment cases. Companies may now balance the costs (including attorneys’ fees) of a trial (which will be tax deductible) against the lost tax deduction of a confidential settlement.

In all, this new law appears to be a heavy-handed approach to the recent publicity regarding sexual harassment and abuse and the #MeToo movement. Most of the time, companies insist upon confidentiality of settlements of harassment and other employment claims not to cover up bad behavior, but to prevent other employees and former employees from showing up to the company’s door with their hands out for money. And confidentiality benefits those employees who do not want to attract a bunch of newfound friends and relatives who also have their hands out for money.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

Once again, Retaliation is the Most Frequently Filed Charge With EEOC

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC released its fiscal year 2017 charge data, and once again, retaliation tops the list as the most frequently filed charge. Next on the list are are race, disability, and sex. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (.2 percent)

[These percentages add up to more than 100 because some charges allege multiple bases].

84,254 workplace discrimination charges were filed with the EEOC nationwide during fiscal year (FY) 2017. This is down from 91,503 charges of workplace discrimination filed in fiscal year 2016.

The EEOC also received 6,696 sexual harassment charges and claims that it obtained $46.3 million in monetary benefits for victims of sexual harassment. We expect the number of sexual harassment charges to increase in 2018 due to increased public awareness of sexual harassment.

Why is retaliation the most filed charge? For starters, it is very difficult to prevent an employee from claiming that he or she has been retaliated against after he or she has made a complaint or filed a charge of discrimination or harassment. From that point forward, that employee is likely to perceive anything bad that happens as retaliation for making that complaint or filing that charge, even if it isn’t. Any writeup, any poor performance evaluation, change in schedule, or even something as seemingly minor as moving an employee’s desk, even if completely justified, will be perceived as retaliation if it occurs after the employee has made a complaint or filed a charge.

Although an employer often cannot prevent an employee from alleging retaliation, it can take measures to build a strong defense to such a claim. Document the reasons for the action. Do not let a supervisor who is accused of harassment or discrimination be the sole decisionmaker for actions taken against the employee who made the complaint. At a minimum, add a level of review by another supervisor or manager or an HR professional. If there is a concern that an action may be considered retaliation, consult with legal counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

An Expensive Lesson in Religious Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A press release issued by the EEOC caught my eye this week because it involved the settlement of a lawsuit that would have been so easy to avoid. According to the press release, XPO Last Mile, Inc., a logistics company that specializes in the delivery of items such as office furniture, home furnishings and fitness equipment, will pay $94,541 and furnish significant relief to settle a federal religious discrimination lawsuit. What did this company do that resulted in the payment of an over $94,000 settlement? It rescinded a job offer to a Jewish employee who could not work on Rosh Hashanah.

According to the EEOC’s suit, XPO Last Mile’s operations manager offered an applicant a dispatcher/customer service position at its Elkridge, Md., office and told him his start date would be on Oct. 3, 2016. When the applicant told the operations manager he could not start work then because he celebrated the Jewish holiday Rosh Hashanah on that date, the operations manager replied that he thought it would be acceptable for the applicant to start on Oct. 4. Later that evening, however, the market vice president called and told the applicant that the company would not give him a religious accommodation.

The EEOC filed suit and alleged that XPO Last Mile violated federal law when it revoked its offer of employment because the applicant was unable to work on Rosh Hashanah due to his religious beliefs.

How could the company have avoided this lawsuit and the payment of an over $94,000 settlement? It should have given the employee the ability to not work on his religious holiday without the risk of losing his job. Even though he was newly hired, the employee was entitled to an accommodation of his sincerely held religious beliefs unless it would pose an undue hardship to the employer. It is hard to imagine that moving this guy’s start date one day due to a religious holiday would have been an undue hardship for the company. More likely, someone who is not well-versed in federal employment law got bent out of shape because a new hire was already “asking for a day off.” That person, and the company, have learned an expensive lesson.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Religious Accommodation: What is Reasonable? The Tenth Circuit Rejects the EEOC’s Proposed Standard.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Tenth Circuit Court of Appeals issued a decision in a case that involves workers who cannot work on certain days for religious reasons, and how an employer should go about accommodating such religious practices. The case, Tabura v. Kellogg USA, 10th Cir., No. 16-4135 (January 17, 2018), was filed by two Kellogg USA workers, who are Seventh-day Adventists, who said they were fired for not working Saturday shifts. The accommodation offered by Kellogg was a policy that allowed them to swap shifts with other workers. However, Kellogg assessed disciplinary points against any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. The plaintiffs were unable to find workers who would swap shifts with them, and eventually, they were terminated for missing too much work.

The lower court granted summary judgment in favor of Kellogg, and the Tenth Circuit reversed.

The case caught the attention of the EEOC, and the EEOC filed a brief in support of the plaintiffs. In its brief, the EEOC argued that the accommodation offered by Kellogg was not reasonable, and it further argued that to be reasonable, an accommodation must “eliminate” the conflict between the employee’s religious practice and his work requirements. The Court rejected the EEOC’s proposed rule, finding instead that the question of whether an accommodation is reasonable must be made on a case-by-case basis, grounded on the specific facts presented by a particular situation. The Tenth Circuit remanded the case back to the district court because it was unclear whether Kellogg satisfied its obligation to accommodate the workers’ religious practices due to the disputed facts surrounding the difficulty the plaintiffs had in arranging voluntary swaps with other, qualified employees.

The takeaway: Title VII requires that an employer, short of undue hardship, make reasonable accommodations to the religious needs of its employees. “Accommodate . . . means . . . allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). This is not a “one size fits all” rule. Ultimately, reasonableness is a fact-specific determination.
Relevant factors 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.

Some common methods of religious accommodation in the workplace include the following:

  • Scheduling Changes, Voluntary Substitutes, and Shift Swaps
  • Changing an employee’s job tasks or providing a lateral transfer
  • Making an exception to dress and grooming rules
  • Use of the work facility for a religious observance
  • Accommodations relating to payment of union dues or agency fees
  • Accommodating prayer, proselytizing, and other forms of religious expression

Ultimately, the determination of whether and how an employer can accommodate an employee’s sincerely held religious beliefs requires the balancing of many factors. We recommend that these decisions be made in consultation with qualified employment counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

So You Want to Hire an Unpaid Intern: the Department of Labor Has Some New Guidelines

By Kathleen J. Jennings (kjj@wimlaw.com)


The Department of Labor has issued new guidelines for employers that want to hire unpaid interns. These new guidelines are much less stringent than the previous Obama-era guidelines and should allow more employers to set up qualified unpaid internships.

Keep in mind that the FLSA requires “for-profit” employers to pay employees for their work. Interns and students, however, may not be “employees” under the FLSA—in which case the FLSA does not require compensation for their work. Application of the new guidelines will determine whether an intern should be paid or not.

The new DOL guidelines use a 7 factor “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA. This test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. The following seven factors are part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The “primary beneficiary test” is supposed to be a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.

Pro tip: When in doubt, it is always safer to go ahead and pay an intern at least the minimum wage.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Has Your State’s Minimum Wage Gone Up in 2018?

By Kathleen Jennings (kjj@wimlaw.com)

2018 has brought an increase in the minimum wage in some states and municipalities. (Georgia is not one of those states, however.) Below are the states that have increased their minimum wage, and , in some cases, the tipped minimum wage, in 2018:

Old Old New for 2018 New for 2018
State Categories Minimum Wage Tipped Minimum Wage Minimum Wage Tipped Minimum Wage
Alaska $9.80 $9.84
Arizona $10.00 $7.00 $10.50 $7.50
California
(26 or more employees) $10.50 $11.00
(25 or fewer employees) $10.00 $10.50
Colorado $9.30 $6.28 $10.20 $7.18
Florida $8.10 $5.08 $8.25 $5.23
Hawaii $9.25 $8.50 $10.10 $9.35
Maine $9.00 $5.00 $10.00 $5.00
Michigan $8.90 $3.38 $9.25 $3.52
Minnesota
(Large employer (annual gross revenue of $500,000 or more)) $9.50 $9.65
(Small employer (annual gross revenue of less than $500,000)) $7.75 $7.87
Missouri $7.70 $3.85 $7.85 $3.925
Montana $8.15 $8.30
New Jersey $8.44 $6.31 $8.60 $6.47
New York
(NYC – more than 10 employees) $11.00 $7.50* $13.00 $8.70
(NYC – 10 or fewer employees) $10.50 $7.50 $12.00 $8.00
(Nassau, Suffolk, & Westchester Counties) $10.00 $7.50 $11.00 $7.50
(The rest of the State) $9.70 $7.50 $10.40 $7.50
Ohio $8.15 $4.08 $8.30 $4.15
Rhode Island $9.60 $3.89 $10.10 $3.89
South Dakota $8.65 $4.325 $8.85 $4.425
Vermont $10.00 $5.00 $10.50 $5.25
Washington $11.00 $11.50

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.