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.

 

 

 

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.

OSHA Workplace Inspections Increase Slightly in 2017

OSHA

By Kathleen Jennings (kjj@wimlaw.com)

In fiscal 2017, Occupational Safety and Health Administration inspectors finished 32,396 inspections, according to agency data.  This is a slight increase from the 31,948 inspections completed in fiscal 2016 (which was the fewest inspections OSHA conducted in 20 years). In contrast, in both fiscal 2011 and 2012, OSHA conducted 40,600 inspections each year. So, while we saw a slight increase in the number of OSHA inspections this year, the overall number is still well below the peak Obama administration years.

What makes this slight increase in the number of OSHA inspections surprising is that OSHA has had to decrease its staff numbers due to a decline in its budget.  What seems to be happening is that OSHA has been concentrating its resources on the types of inspections that had the most impact, in terms of preventing fatalities, severe injuries, and work illnesses.

The industry that saw the greatest increase in inspections was construction, up 9% from 2016.  This may be due, in part, to a resurgence of construction in the economic recovery.

Due to a new fine structure, average fines were up in 2017.  The average fiscal 2017 fines were $65,228 for a willful violation, up 57 percent; $11,359 for a repeat violation, up 30 percent; and $3,553, for a serious violation, up 48 percent.

We expect to see a similar pattern for 2018.

We wish everyone a safe New Year!

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.

©2017 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.

 

 

Don’t Let Harassment Avoidance Turn Into Sex Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

Sexual harassment is still very much in the news, and discussion of this issue is not likely to end anytime soon. Today, we learned of another high-profile man who has been terminated from his job because of sexual harassment in the workplace. Not surprisingly, there is concern among some men that they will be unfairly targeted. Their solution: they will never, ever be alone with a woman at work. While this may be a creative way to prevent any “he said/she said” situations, it can also create another legal problem: sex discrimination. If this avoidance of female employees prevents those female employees from having the same access to management male employees, and also results in fewer opportunities for advancement for those female employees, then there could be grounds for those female employees to claim they are being discriminated against on the basis of sex. When a male manager refuses to have a meal alone with a female employee, or he refuses to travel on business with any female employees, but he does not hesitate to engage in those activities with male employees, that’s discrimination. Sorry guys, this is not a good solution.

Employees do fabricate complaints of harassment; they may be motivated by money, a desire to prevent termination of their employment, or malice against a particular supervisor or manager. Nevertheless, if a manager is afraid he will be accused of sexual harassment if he is ever alone with a female employee, this is an indication that there is a problem with that individual or the company’s culture.

For years, we have been teaching managers and supervisors how to make themselves “targets out of range.” In other words, do not engage in the kind of behavior in the workplace that can be used against you. As a general rule, the guy who is always telling dirty jokes is more likely to be accused of harassment than the guy who does not. Here’s a scenario: “Well, I did hear him tell some really off-color jokes, so it would not surprise me if he made that nasty comment about Mary’s breasts.” Don’t be that guy.

And don’t be that guy who refuses to be alone with any female employees. There is a middle ground: treat everyone with respect.

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.

©2017 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.

 

 

OSHA Delays Electronic Reporting Yet Again

By Kathleen Jennings (kjj@wimlaw.com)

In a notice published in the Federal Register last week, OSHA announced that the submission deadline for calendar year 2016 data on Form 300A under the rule entitled Improve Tracking of Workplace Injuries and Illnesses has been delayed until December 15, 2017, instead of December 1. According to OSHA, this delay will allow affected entities sufficient time to familiarize themselves with the electronic reporting system, which was not made available until August 1, 2017. OSHA has determined that the additional two-week delay to December 15, 2017 will help the Agency avoid further delays by ensuring that its electronic reporting system functions properly.

OSHA also states that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule and to seek comment on those provisions in that separate proposal; this final rule only delays the compliance date to submit employers’ 2016 Form 300A data. The separate rulemaking will afford OSHA the time necessary to give full reconsideration to substantive issues concerning the May 6, 2016, final rule. However, it gave no indication of which parts of the final rule it intends to change.

As we discussed in a previous post, the following employers must electronically submit information to OSHA by whatever deadline OSHA finally settles upon:

•Establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually.

•Establishments with 20 to 249 employees that conduct work in industries that OSHA considers “highly hazardous” must electronically submit to OSHA information from form 300A annually. These “high risk” industries include construction, manufacturing, wholesale trade, healthcare, utilities, agriculture, forestry, and more.

We recommend that those employers be prepared for some form of electronic reporting. We will continue to provide updates on this issue.

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.

©2017 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.

 

School’s Out? Tax Break for Tuition Reimbursement May End

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

Does your company offer tuition reimbursement as a benefit to employees? Tuition reimbursement can be the kind of benefit that is a win-win for the employer and the employee: the employee receives money to help further his or her education and enhance skills, and the employer receives a better educated, more skilled, and possibly even more loyal employee. As such, many employers consider a tuition reimbursement program to be a valuable tool in attracting and retaining quality employees.

There is also an incentive under the current tax law for tuition reimbursement: current tax law lets employers reimburse employees up to $5,250 per year for educational course work at the undergraduate and graduate level. The reimbursement is excluded from the workers’ taxable income.

However, the current draft tax bill, named the Tax Cuts and Jobs Act, now being considered by the House Ways and Means Committee, intends to end this tax break. This would mean that any tuition reimbursement provided by an employer would be included in the employee’s income for tax purposes. Employer groups are concerned that this added tax liability may deter some employees from taking classes. To express their displeasure at this proposed change, a coalition of 83 companies, associations, and institutions recently sent a letter to Ways and Means Committee Chairman Kevin Brady (R-Texas) and ranking member Rep. Richard Neal (D-Mass.) asking the lawmakers to amend the tax proposal not only to maintain the tuition reimbursement tax break, but to expand the $5,250 limit.

If your company currently offers a tuition reimbursement program, you will need to watch this tax bill carefully. We will provide updates as necessary.

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.

©2017 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.