A Warning About the WARN Act

 

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

The economic consequences of the COVID-19 pandemic have already been substantial, and they are not over by a long shot.  Unfortunately, employers are starting to consider furloughs and layoffs as a way to minimize or cut their economic losses.  Employers that are laying off workers or closing businesses must determine whether those events trigger notices required by the Worker Adjustment and Retraining Act (WARN).

The WARN Act requires employers to provide written notice at least 60 calendar days in advance of covered plant closings and mass layoffs.  A WARN notice is required when a business with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work fewer than 20 hours per week) is laying off at least 50 people at a single site of employment,  or employs 100 or more workers who work at least a combined 4,000 hours per week, and is a private for-profit business, private non-profit organization, or quasi-public entity separately organized from regular government.

WARN is triggered when a covered employer:

  • Closes a facility or discontinues an operating unit permanently or temporarily, affecting at least 50 employees, not counting part-time workers, at a single site of employment. A plant closing also occurs when an employer closes an operating unit that has fewer than 50 workers but that closing also involves the layoff of enough other workers to make the total number of layoffs 50 or more;
  • Lays off 500 or more workers (not counting part-time workers) at a single site of employment during a 30-day period; or lays off 50-499 workers (not counting part-time workers), and these layoffs constitute 33% of the employer’s total active workforce (not counting part-time workers) at the single site of employment;
  • Announces a temporary layoff of less than 6 months that meets either of the two criteria above and then decides to extend the layoff for more than 6 months. If the extension occurs for reasons that were not reasonably foreseeable at the time the layoff was originally announced, notice need only be given when the need for the extension becomes known. Any other case is treated as if notice was required for the original layoff; or
  • Reduces the hours of work for 50 or more workers by 50% or more for each month in any 6-month period. Thus, a plant closing or mass layoff need not be permanent to trigger WARN.

There are three exceptions to the WARN Notice requirement:  faltering company, unforeseeable business circumstances, and natural disaster.  It will be interesting to see if a pandemic could fall under either of the last two exceptions.

An employer who violates WARN is liable to each affected employee for an amount equal to back pay and benefits for the period of violation, up to 60 days. This liability may be reduced by any wages the employer pays over the notice period. WARN liability may also be reduced by any voluntary and unconditional payment not required by a legal obligation.

The Takeaway:  If a business is considering any furloughs or layoffs, it should consult with experienced labor counsel to determine if the WARN Act notice requirement is triggered.  Individual states may have their own requirements as well.

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.

©2020 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.

 

When Everyone Wants to Work from Home—How to Avoid Discrimination Claims

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

One of the CDC’s recommendations to employers faced with a potential coronavirus epidemic is to allow employees to work from home.  Technology makes it possible for many employees to work remotely, but not every job—or employee—is suited to telecommuting.  How does an employer make decisions as to who can and cannot work from home without creating grounds for complaints of discrimination?

  1. Determine which types of jobs are suited to telecommuting. Not every type of job is suited to telecommuting.  Production workers, packers, and anyone who must physically handle product probably cannot do those jobs remotely.  Jobs that allow employees to communicate with the office and one another via technology are best suited to telecommuting.
  2. Determine which employees in those jobs are suited to telecommuting. Here is where the employer needs to be careful.  Decisions about which employees can work from home should have a legitimate, non-discriminatory basis.  That means, for example, that the employer can’t prohibit women with young children from working from home (because they might be distracted).  Or conversely, only employees with young children can work from home, which potentially discriminates on the basis of age.  Ideally, employees should be selected based upon their performance record and attendance history. Think of it this way:  if an employee is goofing off at work in the office, he or she is even more likely to goof off at home, where there is no supervisor to keep an on them and plenty of distractions.   The employer should have documented performance evaluations and attendance records to back up its decisions.
  3. Reasonable Accommodations. If an employees has a medical condition that places him or her in a population that is more vulnerable to the coronavirus, and he or she asks to work from home in order to minimize exposure to the virus, the employer should engage in the interactive process to determine if allowing that employee to work from home is, in fact, a reasonable accommodation.  A major component of the analysis is whether the essential functions of the job can be performed from home.  If they cannot, and the employer denies the request from the employee to work from home, the employer should have documented reasons to support its decision.
  4. Have a written telecommuting policy and procedure. This policy should address issues such as eligibility, equipment, security, hours worked, and safety.  Remember that telecommuting employees who are not exempt from the overtime requirements of the Fair Labor Standards Act should be required to accurately record all hours worked.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She has been successfully telecommuting for several years.  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.

©2020 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.

 

Coronavirus: What Employers Need to Know

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

As we see reports of COVID-19 (commonly known as the coronavirus) in the US, employers are wondering what they should do to prepare for a possible outbreak.

First, and foremost:  DO NOT PANIC.

Second, learn how to wash your hands properly, and keep your hands away from the T-zone of your face (eyes, nose mouth).  Medical professionals say this is the best way to protect yourself from the spread of most airborne illnesses.

Next, regularly check in with the Centers for Disease Control (CDC) to get basic information about how businesses should respond to the coronavirus.  They have some excellent guidance, which includes the following:

  • Actively encourage sick employees to stay home:
    • Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
    • Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
    • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
    • Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
  • Separate sick employees:
    • CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees:
    • Place posters that encourage staying home when sickcough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
    • Provide tissues and no-touch disposal receptacles for use by employees.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
    • Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
    • Visit the coughing and sneezing etiquette and clean hands webpage for more information.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
    • No additional disinfection beyond routine cleaning is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

OSHA also has information on their website about coronavirus.

Try not to be overzealous about sending employees to the doctor just because they are coughing or sneezing.  People with chronic respiratory illnesses or allergies may already do these things, and you do not want to make them feel harassed.  At the same time, folks with chronic respiratory conditions are vulnerable populations, so if there is a legitimate concern that a person is sick, express that concern as one about the health of the employee.  However–do not seek health information about any chronic conditions.

Furthermore, if there is a large outbreak of disease, your FMLA and attendance policies are going to be sorely tested.  The CDC recommends some leniency in the requirements for doctors’ notes because the medical care providers may be overloaded.  If you make exceptions to policies, be consistent in those exceptions across the board.  In anticipation of increased absenteeism, consider cross-training employees so that gaps can be filled more quickly.

This is an evolving situation, and we will continue to provide guidance as things develop.

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.

©2020 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.

 

 

Hey Old Man, When Are You Going to Retire? And Other Things You Should Never Say At Work.

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Photo by Andrea Piacquadio on Pexels.com

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

You would think that it would be simple to terminate a worker who admits to sending sexually suggestive messages containing nude photos and disparaging jokes about “women libbers” and “gays” over the company’s email system. Well, when that worker’s managers constantly ask him about his retirement plans, make comments about getting rid of “older” and “senior” workers, and even lower the scores of older workers on performance evaluations so younger operators would have a better shot at promotions and bonuses, you have the classic question of fact to be decided by a jury:  was the worker terminated for violating the company’s policy against sexual harassment, or was he terminated because of his age (57)? Add to that a claim of harassment on the basis of age, and you have a recent case out of Louisiana, Venable v. EnLink Midstream Operating, LP , M.D. La., No. 3:18-cv-00847 (2/20/20).

Plaintiff Venable’s emails came to light during a company investigation of another employee.  Venable had sent emails that included a joke (entitled “Moose”) featuring a picture of a woman’s genitals, another joke (entitled “Will the US Dollar fall?”) depicting a picture of a dollar bill lodged in between a woman’s buttocks, and an email (entitled “Heterosexual Male Pride Day”) which disparaged “women libbers” and “gays” and featured a picture of a completely nude woman with her hands placed suggestively on her chest. He admitted to sending all of them, and he was terminated.

The Plaintiff, however, did not go away quietly.  He claimed that he was “systematically targeted” “because of his age in an effort to secure his termination.” Plaintiff said that he was repeatedly called an “old man” and “old fart” by much younger employees, and that throughout 2015-2017, manager began harassing Plaintiff because of his age, referring to him as “senior” operator, “old guy,” and “problem guy,” in a derogatory and intimidating manner.  Plaintiff further claimed that his immediate supervisor told him that upper management directed him to “get rid” of the “senior” operators, including Plaintiff.  Plaintiff also claimed that upper management directed Plaintiff’s supervisor to force Plaintiff into retirement by constantly asking when he would do so. Plaintiff claimed he felt targeted, threatened, and offended, and this caused him to begin making mistakes at work that he did not usually make. He eventually filed a lawsuit alleging violations of the Age Discrimination on Employment Act as well as the Louisiana Employment Discrimination Law.

The employer filed a motion for summary judgment, but it was denied on the ground that there were genuinely disputed facts regarding the employer’s motive in Plaintiff’s termination– was he fired due to the emails or due to his age?  A jury will have to figure that out.  On the claim of harassment on the basis of age, the Court also denied the employer’s motion for summary judgment, finding that the Ellerth/Faragher affirmative defense was not available to the employer because the Plaintiff was allegedly the victim of a tangible employment action – termination – by at least one of his alleged harassers.

We’ve said it before, and we’ll say it again:  comments about the age or retirement plans of workers over the age of 40 can lead to claims of age discrimination.  Moreover, employees can use these types of comments as a shield against employment actions such as a termination that otherwise has good grounds.

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.

©2020 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.

 

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.