Dance Like Everyone Is Watching—And Taking a Video

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

It’s holiday party season, so it is time for our annual reminder that what happens at the company holiday does not stay at the company holiday; rather, it may end up in an EEOC Charge or the statement of facts in a lawsuit if you are not careful.

It is easy to forget that the company holiday is an extension of the workplace because people may be all dressed up and partaking of adult beverages. Maybe there is even some music and dancing. Nevertheless, it is important for everyone, and especially your managers and supervisors, to remember that they must conduct themselves professionally at these functions. Any harassment directed at an employee at a company function can be actionable.

And they need to remember this: everyone at the party will have a camera on his or her person. At the first sign of any inappropriate behavior, you can count on at least one partygoer to whip out a smartphone and take a picture or video. Not only will this be embarrassing, it will be evidence. So dance like everyone is watching you—because they are!

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

©2019 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.

 

30 Years Ago, the U.S. Supreme Court Told Us That Gender Stereotyping is a Form of Sex Discrimination. So It’s Not a Good Idea to Conduct Employee Training That Reinforces Gender Stereotypes.

 

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

Yesterday, the Huffington Post ran a story about a 2018 leadership training program for female executives at Ernst & Young, one of the largest accounting firms in the world. Apparently, whoever designed this training is completely unaware of U.S. Supreme Court precedent dating back to 1989, namely, the landmark case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, Ms. Hopkins was denied a partnership in the accounting firm despite her professional accomplishments. She was told that in order to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” (490 U.S. 228, 235). In other words, act more like a stereotypical woman.

The Supreme Court, in a plurality opinion, held that sex stereotyping is a form of discrimination on the basis of sex under Title VII. To that end, Justice Brennan stated that:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'” (emphasis added)(citations omitted).

Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 1791, 104 L. Ed. 2d 268, 288 (1989). [Note that this decision is a foundation of the argument that Title VII covers discrimination against gay and transgender employees.]

Yet, here we are 30 years later, and here are examples of the “advice” given to the Ernst & Young female executives:

  • Be “polished,” have a “good haircut, manicured nails, well-cut attire that complements your body type”. But then, a warning: “Don’t flaunt your body ― sexuality scrambles the mind (for men and women).”
  • In the list of “Invisible Rules” for men and women: women often “speak briefly” and “often ramble and miss the point” in meetings. By comparison, a man will “speak at length ― because he really believes in his idea.” Women don’t interrupt effectively like men. Women “wait their turn (that never comes) and raise their hands.”
  • Women were advised not to directly confront men in meetings, because men perceive this as threatening. (Women do not.) Meet before (or after) the meeting instead.
  • If a woman is having a conversation with a man, she should cross her legs and sit at an angle to him. She should not talk to a man face-to-face. Men see that as threatening.
  • Women should not be too aggressive or outspoken.
  • And my personal favorite: Women were also told that their brains are smaller than men’s brains, and that women’s brains absorb information like pancakes soak up syrup so it’s hard for them to focus. Men’s brains are more like waffles. They’re better able to focus because the information collects in each little waffle square.

And if it wasn’t clear enough that women needed to conform to certain gender stereotypes, before the workshop, women were also given a “Masculine/Feminine Score Sheet,” which had them rate their adherence to stereotypical masculine and feminine characteristics both on the job and outside the office. The so-called masculine traits included “Acts as a Leader,” “Aggressive,” “Ambitious,” “Analytical,” “Has Leadership Abilities,” “Strong Personality” and “Willing to Take a Stand.” The so-called feminine traits included “Affectionate,” “Cheerful,” “Childlike,” “Compassionate,” “Gullible,” “Loves Children” and “Yielding.” None of the feminine traits involved leadership ― ostensibly a focus of the training.

Needless to say, these kinds of messages are exactly what the Supreme Court characterized as discrimination on the basis of sex. In 1989.

Pro Tip: if a company wants to provide advice and training to employees on how to climb the corporate ladder, the better approach is focus on the types of skills and abilities that will lead to success, without attributing them to a particular gender. The same approach should be used in hiring, evaluations, and promotions. And most important–have a competent employment lawyer review your materials. Otherwise, it is probable that your training materials are going to be Exhibit 1 at the trial of a discrimination case.

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

©2019 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.

 

 

 

The New Overtime Rule is Here!

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

Today, the U.S. Department of Labor announced the new Final Overtime Rule that raises the salaried exemption threshold. As you may recall, the Obama administration tried to raise the salary threshold for the overtime exemption for executive, administrative, and professional employees from $23,660/year ($455/week) to $47,892/year ($921/week). Employers were not pleased with an increase that large, and they fought it in the courts. The Obama overtime rule was eventually enjoined, then invalidated, and now the new administration has made the decision to increase the salary threshold, albeit by a smaller amount. Specifically, in the final rule announced today, the DOL is:

•    raising the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);

•    raising the total annual compensation level for “highly compensated employees (HCE)” from the currently-enforced level of $100,000 to $107,432 per year;

•    allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices; and

•    revising the special salary levels for workers in U.S. territories and in the motion picture industry.

The DOL projects that this new rule will make 1.3 million more American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA).

The final rule will be effective on January 1, 2020. Between now and then, employers need to review their workforce and determine if any employees will no longer meet the salaried exemption and thus, will be entitled to earn overtime. In fact, now is a good time for employers to review all exempt employees to ensure that they are being treated appropriately under the FLSA.

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

©2019 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.

 

 

 

Misclassification of Employees As Independent Contractors Does Not Violate NLRA, Says NLRB

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

The current National Labor Relations Board (NLRB) is the gift that keeps on giving to employers. Today, the NLRB issued a decision in which it held that an employer’s misclassification of its employees as independent contractors does not violate the National Labor Relations Act (NLRA). Velox Express, Inc., 368 NLRB No. 61 (8/29/19). This case drew the attention of numerous unions and employer associations, many of which submitted amicus briefs.

How is misclassification of employees an issue in labor law? The classification of employees as “independent contractors” effectively removes them from the jurisdiction of the NLRA and therefore, takes away their rights under Section 7. In the event of a union organizing campaign and election, the “independent contractors” would not be part of any proposed bargaining unit nor could they vote in the election. Employers are free to discipline or dismiss independent contractors for engaging in concerted activity for mutual aid or protection (such things as bringing group complaints about employee treatment to the attention of management or talking to other employees about bringing in a union). The Obama NLRB took the position that such misclassification did violate the NLRA, but the Republican majority of the current NLRB soundly rejected that interpretation.

Keep in mind that improper classification of employees as independent contractors can still have consequences—most notably with the federal Department of Labor.

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

©2019 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.

Get Off My Lawn: The NLRB Sets New Standard for Access to Employer Property By Off-duty Employees of Contractors

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

Last week, the National Labor Relations Board handed employers a victory in a case involving access to property. Bexar County Performing Arts Foundation, N.L.R.B., 16-CA-193636 (8/23/19). Specifically, the Board addressed whether and when a property owner must grant access to the off-duty employees of an onsite contractor to engage in Section 7 activity. Overruling precedent set during the Obama era, the Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. Therefore, a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, the Board stated that it considers contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, the Board will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.

This case involved the Tobin Center, a performing arts center, which houses three principal resident companies: the Symphony, Ballet San Antonio, and Opera San Antonio. When the Ballet San Antonio chose to use recorded music for its performances of Sleeping Beauty, the Symphony employees were not pleased because that meant lost work for them. The Union representing the Symphony employees decided to hand out leaflets on Tobin Center property before the four weekend performances of Sleeping Beauty. In response, the Tobin Center barred the Symphony employees and their sympathizers from leafletting on its property, and the Union filed a charge with the NLRB.

In its decision, the Board noted that the Symphony employees did not work on the Tobin Center’s property exclusively; they performed at other venues as well. Furthermore, the Symphony employees did not “regularly” work on the Tobin Center’s property because the Symphony itself did not regularly conduct business or perform services there. Finally, they had other alternative nontrespassory channels of communication to reach the general public: a public sidewalk across the street from the Tobin Center’s property. Accordingly, the Tobin Center lawfully denied the Symphony employees access to its property for their leafletting activities.

The current Republican majority Board has shown that it is willing to give employers greater control over their property in the face of union activity. This ruling follows the Board’s decision in June in which it overruled 38 year-old precedent and held that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. UPMC, N.L.R.B., 368 N.L.R.B. No. 2 (6/14/19). The Board has also announced that it will use its rulemaking power to clarify standards for union activity on employer property.

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

©2019 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.

 

NEW HORIZONS IN FMLA LEAVE: PARENT-TEACHER CONFERENCES?

By Elizabeth K. Dorminey (ekd@wimlaw.com)

Is a parent entitled to use FMLA leave to attend a special education parent-teacher conference? A recent Opinion Letter from the U.S. Department of Labor says “yes.”

In a letter published August 8, 2019 (FMLA2019-2-A), Wage and Hour Division Administrator Cheryl M. Stanton responded to a formal request for an opinion on this question. The writer explained that he was the father of two children with FMLA-qualifying serious health conditions. His wife’s employer had approved her taking FMLA leave intermittently to take the children to medical appointments but declined her request to take intermittent FMLA leave to attend Committee on Special Education (CSE) meetings to discuss the children’s Individualized Education Programs (IEP) at their school. The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and meetings are held four times a year to review their educational and medical needs, well-being, and progress. The writer wanted to know if his wife may insist on intermittent FMLA leave to attend these meetings.

Based on the facts provided in the letter, the Administrator concluded that the wife’s need to attend CSE/IEP meetings was a qualifying reason for taking intermittent FMLA leave. The Administrator found that the meetings were necessary to “care for a family member … with a serious health condition,” as defined in 29 C.F.R. § 825.100(a); and that “to care for” includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). That language usually is applied to making medical decisions on behalf of a hospitalized family member or arrangements to find suitable childcare for a child with a disability, even if the decisions do not involve a facility that provides medical treatment. In a previous opinion letter, WHD had found that an employee was entitled to take FMLA leave to attend meetings related to a parent’s health condition. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998).

Even though the CSE/IEP meetings are focused on education, not health care, the Administrator found that attending the meetings was essential to the wife’s ability to provide appropriate physical or psychological care to the children and that her participation would help her make medical decisions concerning the children’s care. Bottom line: the wife is entitled to claim intermittent FMLA leave to attend the meetings.

Point/Counterpoint

    This is an interesting and controversial letter and provoked considerable debate among the firm’s attorneys. Intermittent leave, often taken in small increments, can be an administrative challenge for employers who must track leave use and may need to reschedule other workers to cover for an absent employee. The FMLA’s focus has been on dealing with illness and disability, the exception being maternity leave or leave for adoption or foster placement, but this letter suggests that the “medical” aspect needs only to be incidental: the focus of these meetings was on the children’s education, not health care. Will this throw wide open the gates for employees to claim leave for a broader scope of activities, on the argument that they are tangentially related to health and well-being? When does an underlying “educational” issue becomes a health issue? Taking a child to the doctor for dyslexia testing or for counseling is covered by the FMLA. Shouldn’t meetings with teachers who will be implementing the doctors’ orders be covered as well?

Mandatory unpaid leave to attend parent-teacher conferences has been adopted in several States. Nevada requires an employer to grant unpaid leave to a parent, guardian, or custodian of a child who is enrolled in a public school for up to 4 hours each school year to attend parent-teacher conferences, school-related activities during regular school hours, to volunteer at school activities during regular school hours, and to attend school-sponsored events. California allows up to 40 hours of unpaid leave annually; the District of Columbia allows 24 hours each year. Illinois allows up to 8 hours each school year, in 4-hour increments, Massachusetts 12. Minnesota and Louisiana each allow 16; North Carolina matches Nevada at 4. Rhode Island offers 10. Vermont matches D.C. at 24.

CONCLUSION

While this is a somewhat unusual situation, it reminds us that employers need to be proactive in learning the facts surrounding an employee’s request for FMLA leave. The notice and certification requirements were meant to foster a dialogue between employer and employee to enable the employer to determine if a leave request meets the requirements under the Act. Employers should use those tools to carefully analyze FMLA-related leave requests. When an employer is in doubt as to whether a request for FMLA leave should be granted, it is best to contact knowledgeable legal counsel for advice.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 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.

The Importance of Verifying Employment Eligibility In a Legal Manner

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

There is a right way and a wrong way to verify employment eligibility of new employees. A McDonald’s franchisee will pay in excess of $91,000 in a settlement with the Department of Justice (DOJ) because it used the wrong way. Specifically, the company routinely required non-citizens to produce documents issued by the Homeland Security Department during the onboarding process, even after they produced valid, legally acceptable documents to prove they were authorized to work. According to the DOJ, the company’s practice came to the DOJ’s attention after an employee complained that she was required to produce a green card despite having shown her employer a valid driver’s license and unrestricted Social Security card.

This is the third immigration related settlement reached by DOJ in the past week, so it would be safe to say that DOJ is aggressively enforcing anti-discrimination laws related to immigration. At the same time, ICE is increasing its own workplace enforcement efforts to remove persons who are not eligible to work in the U.S. What this means for employers: it is extremely important to accurately and legally verify employment eligibility for all employees.

What is the right way to verify employment eligibility? The employer and employee must properly complete USCIS Form I-9. To establish both identity and employment authorization, a person must present to their employer a document or combination of documents from List A, which shows both identity and employment authorization; or one document from List B, which shows identity and one document from List C, which shows employment authorization.

LIST A: Documents That Establish Both Identity and Employment Authorization

All documents must be unexpired.

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  4. Employment Authorization Document (EAD) that contains a photograph (Form I-766). Form I-766 expired on its face combined with Form I-797 based on an automatic EAD extension in certain circumstances qualifies as unexpired Form I-766;
  5. For a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

    LIST B: Documents That Establish Identity

    All documents must be unexpired.

    For individuals 18 years of age or older:

  7. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  8. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  9. School ID card with a photograph
  10. Voter’s registration card
  11. U.S. military card or draft record
  12. Military dependent’s ID card
  13. U.S. Coast Guard Merchant Mariner Card
  14. Native American tribal document
  15. Driver’s license issued by a Canadian government authority

    For persons under age 18 who are unable to present a document listed above:

  16. School record or report card
  17. Clinic, doctor, or hospital record
  18. Day-care or nursery

     LIST C: Documents That Establish Employment Authorization

    All documents must be unexpired

  • A Social Security Account Number card unless the card includes one of the following restrictions:
    • NOT VALID FOR EMPLOYMENT
    • VALID FOR WORK ONLY WITH INS AUTHORIZATION
    • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
  • Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen Identification Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security.

    Are you completing Form I-9 correctly? Wimberly Lawson can audit your I-9 Forms and related documents to verify your compliance with federal law.

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

    ©2019 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.