Hand Scanning and Religious Accommodation

Let’s say you decide to invest in new technology to track employee time and attendance. How would you respond if an employee refused to use the new technology based on their religious beliefs? Would you fire the employee, or permit the employee to keep track of their time some other way? The EEOC recently obtained a jury verdict of more than $580,000 against an employer who refused to accommodate an employee who asserted that biometric hand scanning violated his sincerely held religious beliefs as an Evangelical Christian. Specifically, the employee notified the employer that he believed there was a relationship between “hand-scanning technology and the ‘Mark of the Beast’ and the Antichrist discussed in the New Testament’s Book of Revelation” and requested an exemption from hand scanning. The employer refused to permit the employee to keep track of his attendance some other way, and threatened the employee with discipline, with the result that the employee was forced to retire. The EEOC press release does not discuss the employer’s arguments in response to the claim of failure to accommodate.


Interactive Process Required After 2 year Leave of Absence

A recent case from Hawaii is a reminder that employers must engage in the interactive process to determine whether a reasonable accommodation might allow an employee to return to work, even after the employee has been out for more than 2 years and, even where the “interactive process would have proved fruitless.” In the case, the employer had a policy that permitted employees to take up to 24 months of personal leave. The employee took leave because he was suffering from depression and anxiety as a result of various events at work (which were the subject of other claims). Before the end of the 24 months, the employee requested additional leave as a reasonable accommodation. The employer permitted the employee to extend his leave for a few more months, and then terminated the employee.

The court found that because the employer did not engage in the interactive process to try to determine if there was some reasonable accommodation which would allow the employee to return to work, and because there was no evidence to establish that no such reasonable accommodation was available, the employer was not entitled to summary judgment.

The case is Chan v. Wells Fargo Advisors, LLC, U.S.D.C. Hawaii, Case No.: 14-00344 SOM/KSC.

Bottom line: Even if an employee on leave related to a disability does not appear to be able to return to work when the leave ends, and even where an employer suspects that the employee will never be able to return to their job, employers must entertain requests for accommodations (including for additional leave) and make an affirmative effort to engage in the interactive process, unless there is clear evidence that no reasonable accommodation would allow the employee to perform their job.

EEOC guidelines on reasonable accommodation are here: http://www.eeoc.gov/policy/docs/accommodation.html#other

Ideal Age Range? Not so Ideal

The EEOC recently sued an employer for age discrimination after the employer rejected a 58-year-old applicant because he did not fall within the employer’s “ideal age range of 45 – 52.” How did the EEOC learn about the employer’s ideal age range? The employer actually sent the applicant an e-mail during the interview process in which it asked him whether he was within the company’s ideal age range and then rejected the employee when he disclosed he was 58.  It is unclear whether the employer will be able to prove the employee was rejected for reasons unrelated to age. It is clear, however, that no employer should ever state an ideal age range in writing unless it wants to spend some time in litigation.


Proposed Overtime Rules May Change How Employers do Business

As we blogged earlier this month, the DOL’s proposed rules on overtime exemptions will significantly narrow the number of employees who can be classified as exempt from overtime.  One result, as pointed out by Society for Human Resource Management, is that employers will have to strictly monitor after-hours use of email, text messaging and other remote communications by employees.  Previously exempt employees, who were not paid for time spent after work responding to emails or answering business related phone calls or text messages, will now have to be paid for that time (and paid overtime if the work sends them over 40 hours of work each week). Employers who continue to permit non-exempt employees to answer emails and text messages after work will also have to come up with a way to keep track of the time worked.  Accordingly, employers need to carefully evaluate whether re-classified employees should have 24 hour access to work email/voice mail (and, if so, which ones) and whether to automatically limit access.  Employers should also update written policies to make clear when after-hours use of electronic devices is permitted/prohibited, and consider educating supervisors about when they can/cannot contact non-exempt employees after hours.

For subscribers, SHRM’s article on Email Curfew is here: http://www.shrm.org/legalissues/federalresources/pages/e-mail-curfew.aspx

New DOL Guidance on Independent Contractors

As part of the DOL’s efforts to combat misclassification of workers, the DOL recently issued Administrator’s Interpretation 2015-1. The Interpretation analyzes in detail the factors in the “economic realities test” currently applied to whether a worker is an employee or a contractor with the goal “not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).  The Interpretation is a must read for any business that uses frequently uses contractors to provide services. http://hr.cch.com/ELD/AdministratorInterpretationonMisclassification.pdf

A Headscarf is not a Hoodie

The EEOC recently sued Rotten Ralph’s Restaurant for firing an employee for wearing a headscarf.  The employee notified the general manager that she covered her hair for religious reasons during the application process, was hired, and worked wearing a headscarf without incident.  However, when the general manager actually saw the employee wearing a headscarf at work, he allegedly told her she could not wear a “hoodie” and, when she reminded him that she wore it for religious reasons, terminated her employment.

In EEOC v. Abercrombie and Fitch, the Supreme Court held that an employer cannot refuse to hire an employee to avoid accommodating a religious practice (in that case, the employee’s headscarf would have violated Abercrombie’s appearance policy).  Here, there is no information from the EEOC about whether Rotten Ralph’s dress code prohibited hoodies.  Regardless, employers need to remember that the law requires reasonable accommodation of dress or grooming practices that arise from an employee’s religious beliefs, and that establishing an undue hardship as a basis to refuse to accommodate religious dress or grooming practices is often an uphill battle.


Chair for Disabled Employee vs. EEOC Lawsuit

Most employers would rather provide a chair to an employee as a reasonable accommodation than get sued by the EEOC.  In a recent EEOC lawsuit against Walmart, the EEOC alleged that after providing a chair and a modified schedule to an employee undergoing treatment for bone cancer, Walmart revoked the accommodation, began requiring the employee to “haul” a chair from another department if she wanted to sit, and then reassigned the employee to a position that required standing.  In addition, Walmart allowed a co-worker to, among other wrongful actions, imitate the employee’s limp, hide her chair, and call her “cripple” and “chemo brain.” http://www.eeoc.gov/eeoc/newsroom/release/7-1-15d.cfm

It is not clear what defenses, if any, Walmart has to the EEOC’s claims.  However, employers need to remember that the threshold to prove that an accommodation creates an undue hardship is high (and even higher when the accommodation has previously been provided and is being revoked).  Employers also need to remind supervisors to respond appropriately to complaints about teasing, especially where the subject matter of the teasing is an employee’s membership in a protected class.

New Overtime Rules will Reclassify Many Exempt Employees

Yesterday, the DOL and President Obama announced sweeping changes to the FLSA exemptions from overtime.  Generally, under current law, an employee may be exempt from overtime if the employee meets the duties test for the administrative or executive exemption and makes a salary of at least $455 per week ($23,660 annually).  The proposed rule would increase the minimum salary for exemptions to $970 per week ($50,440 annually).  That means that employees who earn less than $970 per week, regardless of their duties, will be entitled to overtime if they work more than 40 hours per week. It also means that, in anticipation of the final issuance of the new DOL regulations (expected in 2016), employers need to take a close look at how their management/supervisory employees are currently classified and make some preliminary decisions to re-classify exempt employees as non-exempt.

We will continue to follow developments of the new rules.

FAQs are here: http://www.dol.gov/whd/overtime/NPRM2015/faq.htm#9

DOL fact sheet is here: http://www.dol.gov/whd/overtime/NPRM2015/factsheet.htm

Updated Pregnancy Discrimination Guidance from the EEOC

As a result of the Supreme Court’s decision in Young v. UPS, the EEOC has issued updated guidelines on the Pregnancy discrimination Act and ADA as those laws apply to pregnant workers.

The updated guidelines are here: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

The Supreme Court’s decision in Young v. UPS is here: http://www.supremecourt.gov/opinions/14pdf/12-1226_k5fl.pdf

Governor Signs Oregon “Ban the Box” Law

This morning, Governor Kate Brown signed House Bill 3025, which makes it an unlawful employment practice to require job applicants: to disclose criminal convictions on employment applications; to exclude an applicant from an initial interview solely because of a past criminal conviction; or to require disclosure of past criminal convictions prior to an initial interview, or if no interview is conducted, to require an applicant to disclose a criminal conviction prior to a conditional offer of employment.  Employers may still consider criminal convictions when making hiring decisions (as opposed to during earlier stages of the hiring process).  Further, employers in certain regulated industries or where required by law, may still consider criminal convictions during the application process.

BOLI is charged with enforcement of the new law.