When resolving employment-related claims brought by former employees, employers frequently seek to include a provision that prohibits the former employee from disparaging the employer. Non-disparagement provisions in settlement agreements can be enforceable. However, because of the EEOC’s position that employees cannot be required to waive their rights to file a charge with the EEOC or their right to participate in a proceeding conducted by the EEOC, employers should not seek to prohibit disparagement in such a way as to suggest that an employee cannot participate or speak freely in the context of an administrative claim or proceeding. Where a non-disparagement provision is included in an agreement with a current employee, employers also need to draft the provision to avoid violation of Section 7 the NLRA, which prohibits restrictions on employees right to engage in concerted activity (which may include negative conversations about the employer).
Another EEOC lawsuit demonstrates the trouble employers can get into for failure to accommodate pregnant related disabilities under the ADA.
Earlier this week, the EEOC sued The Lash Group, a Charlotte, N.C.-based consulting company, alleging that it refused to provide a reasonable accommodation to an employee with post-partum depression and instead fired her because of her disability. The employee worked as a reimbursement case advocate when she went on maternity leave. The employee received short-term disability benefits while on maternity leave and advised the disability benefits carrier that she needed additional unpaid leave due to post-partum depression. The EEOC alleges that the employer initially fired the employee, but later extended her short-term disability leave. When the employee was medically released to return to work, she was not returned her to her position as a reimbursement case advocate because her position had been filled. The employer also refused to transfer her to vacant positions for which she was qualified as a reasonable accommodation and instead forced her to find and compete for vacant positions within the company. The employee allegedly applied for three vacant positions for which she was qualified, but The Lash Group instead terminated her because of her disability.
Employers must understand that while pregnancy itself is not a disability under the ADA, some pregnancy-related health conditions, such as post-partum depression, may constitute disabilities. Employees with these conditions are entitled to reasonable accommodations, which might include extending unpaid leave or transferring the employee to a vacant position for which she is qualified, unless the employer can prove that providing accommodation would pose an undue hardship.
In a lawsuit recently settled by the EEOC, the employer was alleged to have included a text box on an internal form that sought age-based information for certain applicants and allegedly resulted in the exclusion of qualified applicants over the age of 50 for territory manager positions. The EEOC does not specify what was in the text box other than “an age-based hiring consideration.” Nevertheless, the settlement is a reminder to employers to periodically review applications and other internal forms to make sure job criteria or other data collected does not result in screening out protected classes of applicants or employees. http://www.eeoc.gov/eeoc/newsroom/release/10-6-14c.cfm
Today the DOL announced that it would delay enforcement of the final rule requiring payment of minimum wage and overtime for home care workers until June 30, 2015. Thereafter, from July 1, 2015 to December 31, 2015, the DOL will exercise its discretion in bringing enforcement actions “giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance.” The final rule, which was issued on September 17, 2013, extends minimum wage and overtime protection to direct care workers employed by third-party employers (like home care agencies) and was scheduled to go into effect on January 1, 2015. http://social.dol.gov/blog/an-announcement-concerning-the-home-care-final-rule/
Jeff Brecht and I will be speaking about Workplace Harassment & Discipline. Specifically, we will cover the law on what constitutes harassment and what employers should do to prevent and address harassment claims. We will be speaking from 8:30 a.m. to 10:00 a.m. on Thursday, November 6, 2014. More information about the seminar can be found here: http://www.oregon.gov/boli/TA/docs/2014%20Conf%20Info%20Flyer.pdf
You can register for the seminar here: http://www.oregon.gov/boli/TA/docs/2014%20Conf%20Reg%20Form.pdf
Mark your calendar: Beginning January 1, 2015, Oregon’s minimum wage will increase to $9.25/hour and Washington’s minimum wage will increase to $9.47/hour.
Here is a summary of the issue to be considered by the Court from http://www.scotusblog.com/
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.
The appeal to the Supreme Court arises from a case, in which an applicant for employment who wore a headscarf alleged she was not hired because the headscarf conflicted with the store’s dress code. Abercrombie asserted, however, that because the applicant did not ask for a religious exemption from the dress code, it was not obligated to accommodate her. Hopefully, the Supreme Court’s decision will clarify what kind of notice an employee or applicant has to provide to an employer to establish the employee’s need for religious accommodation.
A recent EEOC lawsuit is a reminder that teasing an employee about their ancestry may constitute national origin discrimination. In the EEOC’s complaint against Rhino Eastern, a mining company, the EEOC alleged that supervisors and other employees subjected a Polish employee to degrading and humiliating comments, taunts and slurs based on his Polish ancestry. When the employee complained, the employer failed to prevent or correct the harassment and then fired the employee, allegedly for pretextual reasons. Employers need not maintain a humor free workplace, but jokes and teasing based on national origin (or any other protected classification) may be less amusing when accompanied by a lawsuit. More information about the EEOC’s lawsuit may be found here: http://www.eeoc.gov/eeoc/newsroom/release/9-30-14f.cfm
Today the DOL announced a final rule that raises the minimum wage for workers on federal service and construction contracts to $10.10/hr. The rule implements Executive Order 13658. The DOL News Release with a link to the final rule is here: http://www.dol.gov/opa/media/press/whd/WHD20141888.htm
Executive Order 13658 is here: http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03805.pdf
If it does, you are violating the Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from requesting or using genetic information in the hiring process. Practically, that means an employer cannot ask an employee or applicant if anyone in their family suffers from a disease or illness, and cannot require disclosure of this information as a condition of employment. In a case recently filed by the EEOC, the alleged GINA violation arose from the employer’s “Employee Health Assessment” form, which asked employees and applicants to “indicate any illnesses experienced by family members, including health conditions such as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer.” The employer required applicants to complete the form before being hired, and annually after being hired. It is unclear what defense the employer might raise. However, if you have questions about family health/medical history in your application or other documents that employees are required to complete, those questions should be deleted as soon as possible (i.e. NOW). http://www.eeoc.gov/eeoc/newsroom/release/9-17-14b.cfm