Bad Questions, ADA Amendments and "Nazirites"
Clients, Colleagues and Friends,
With Labor Day on the horizon and new employment laws emerging almost weekly, mid-August is the perfect time for another Employment Law Update. There's plenty here to chew on here, including recent mandates on employment applications, wage payment disclosures and the Americans with Disabilities Act. And for fun, there's a digestive challenger involving Taco Bell that teaches a lesson on accommodating religious practices at work. We hope you enjoy this update - and the rest of your summer - and learn something, too.
Don't Go There - On Your Employment Application. Employers must be more careful than ever about what they ask on their employment applications and in job interviews, based on laws and initiatives that various local, state and federal authorities have recently approved or undertaken.
The City of Philadelphia enacted an ordinance last month that prohibits employers of ten or more employees in the City from asking about an applicant's criminal conviction record on a written employment application, or at any time before or during the first interview. The new law also bars employers from taking adverse actions against an individual because of an arrest or criminal charge that did not result in a conviction and is not currently pending. Employers can inquire into criminal convictions after the first interview or as part of the pre-hire background check, but not in earlier stages, unless otherwise required by law.
Several states, including California and Wisconsin, have similar laws. And the U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights also have warned against employers automatically excluding applicants because of criminal convictions, due to the disparate impact such a practice can have on racial minorities.
Other problematic areas of inquiry include asking disability-related questions (regulated under the Americans with Disabilities Act and state laws), asking questions about age (discouraged by the EEOC), asking for the applicant's gender, race or other protected status (prohibited by the Pennsylvania Human Relations Act and other laws), and advertising that discriminates against applicants who are unemployed (prohibited by a New Jersey law that took effect June 1, 2011, and also under consideration in a bill before Congress).
How is an employer to keep up with the cascade of new laws and initiatives? First, review your company's job application and interview process to ensure that the focus is on job-related issues and information (such as job skills, education, experience and reasons for past terminations), and not demographic data or irrelevant points that may reflect an applicant's protected status. Second, have the employment application and interview process updated and reviewed by counsel to ensure compliance with laws where your company recruits and hires employees. Third, train your managers and interviewing team on the rules of the process to ensure that a "stupid question" or comment doesn't land your company in court.
EEOC to Explain New Regulations on ADA Amendments. The EEOC recently clarified how it will interpret and apply the Americans with Disabilities Act Amendments Act (ADAAA), issuing 40 dense pages of new regulations this spring. The regulations are too extensive to be summarized here, but Flaster/Greenberg is teaming up with the EEOC to present a free seminar on the subject to our clients and friends on September 22 in our Philadelphia office. The goal will be to provide not only an overview of the EEOC's new guidelines, but also helpful advice and tips to comply with the new law and handle the most vexing ADAAA issues, such as reasonable accommodations, maximum leave rules, new protections for temporary conditions, and determining what constitutes a protected disability under the amended law.
A formal announcement will be issued shortly, but if you would like to participate, please let me know by reply email or phone call, and we'll reserve a place for you.
Show Me the Money, New York Says. Concerned that some companies are cheating employees out of their wages by misleading them about their rate of pay, or changing pay rates without notice, New York state has enacted the Wage Theft Prevention Act, which requires employers to give annual written notice to employees of their rate of pay, paydays and related information. The new law expands prior wage notice requirements in New York, and now requires that the notice be given annually (in addition to notice at the time of hire) and in the employee's primary language, as identified by the employee.
The new law requires that employers in New York give the annual notice to employees between January 1 and February 1, of each year, with the first notice due in 2012. For new employees, notice is required within 10 days of hire. Notice forms and further information about the law can be found at www.labor.ny.gov/workerprotection/laborstandards/workprot/lshmpg.shtm.
Penalties for violations can be stiff, including up to $2,500 for each week a violation occurs, payment of the employee's attorneys' fees and costs, and the potential for criminal sanctions against the company and any officers and agents who are responsible. Yonkers!
Put It in Reverse. Two recent cases challenge traditional notions of race discrimination and sexual harassment, and demonstrate that federal anti-discrimination laws are to be applied equally to all - regardless of race, sex or other protected status.
First, in Smith v. Lockheed-Martin Corp., the employer seemingly "did the right thing" by terminating a white plaintiff under its "zero tolerance policy" for sending a racially insensitive "joke" via company e-mail disparaging African Americans. The Court of Appeals for the 11th Circuit, however, allowed the fired employee to proceed with a claim of race discrimination because he produced evidence that Lockheed-Martin did not terminate black employees who, around the same time, e-mailed a video titled "How to Dance Like a White Guy," which included derogatory racial references about whites. The court stated that while a jury could believe the employer's argument that Smith was treated differently than the African American employees because he was a supervisor, and thus held to a higher standard, a reasonable jury also could accept Smith's argument that Lockheed-Martin applied a harsher standard to him because it wanted to demonstrate that "Lockheed and its staff were committed to curbing racism aimed at black employees" (emphasis added). If the race of the employees impacted the decision, that would be improper race discrimination, the court ruled. Fair enough - caution flags should go up whenever the race of any person involved seems to be driving a decision on discipline.
Second, in Mandel v. M&Q Packaging Corp., the U.S. District Court for the Middle District of Pennsylvania granted summary judgment against Shannon Mandel in her sexual harassment lawsuit, despite her claims that she was subjected to daily name-calling and sexual comments. Ms. Mandel's suit failed because the evidence showed that she made sexual jokes at work and sent e-mails containing sexual humor, and otherwise "actively participated in creating a work environment in which vulgarity and sexual innuendo were commonplace." An employee claiming sexual harassment is required to prove not only that the alleged harassment would offend a "reasonable female" in her position, but also that the alleged harassment subjectively offended or "detrimentally affected" her. Due to her own participation in the raunchy work environment, Ms. Mandel could not prevail.
From Hair to Eternity. The U.S. Equal Employment Opportunity Commission is asking Taco Bell to "think outside the [hair]bun," in a federal lawsuit filed in North Carolina. The EEOC sued Taco Bell's North Carolina affiliate for firing a six-year employee, Christopher Abbey, who refused to cut his hair - after growing it out for more than 10 years - in violation of Taco Bell's grooming policy.
Abbey's love of unshorn locks was based on his adherence to the Old Testament's "Nazirite" religion, which prohibits, among other things, the cutting or combing of hair, "believing that long hair is a way of showing . . . devotion to God." Taco Bell's termination of Abbey constituted discrimination based on religion and refusal to accommodate the sincerely held religious beliefs of an employee, according to the EEOC complaint.
The hairy facts of this lawsuit will not only cause customers to carefully inspect their next meal from Taco Bell, but also, they serve to highlight that employers cannot ignore a worker's request to accommodate his or her religion, even if the religion is exotic and the request may require straying from a neutral policy or rule. Grooming policies are among the most common sources of religious accommodation complaints. Under federal law, once an employee establishes that his or her sincerely held religious belief conflicts with a workplace rule or requirement, and the employer is made aware of that, the burden shifts to the employer to either offer a reasonable accommodation to the employee or to show that it is unable to do so without an "undue hardship." We'll stay tuned on this one, and try to let you know how it turns out.
Michael D. Homans is a shareholder at Flaster/Greenberg. He can be reached by email at michael.homans@flastergreenberg.com and by telephone at 215-279-9379.
This update is provided for general informational purposes only, not as legal advice. Please seek legal advice for any particular situation.
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