Be Careful Before Firing an Employee for Making a Political Statement

A few weeks ago, we posted that employers could fire Neo-Nazis who participated in the Charlottesville protests.  As we noted, we were just looking at First Amendment rights and that employees may have more protections under state laws.

My partner, Nancy Yaffe, has a written a thoughtful blog post on those state protections that might come into play.  For a more detailed discussions of those protections, please check out her blog post.

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Delay of EEO Gender Pay Equality Reporting Requirements Does Not Mean a Decrease in Enforcement

On Tuesday, the Office of Management and Budget notified the EEOC that it was delaying a rule finalized last year that would require large employers to report salaries of workers.  The rule was implemented to help combat gender pay inequality.

The rule would require any employer who must file an EEO-1 report, which is any private employer with 100 or more employees or federal contractor with 50 or more employees, to provide the previously required information about the number of its employees broken down by gender, race and ethnicity.  The second part of the rule would require employers to also submit W2 payroll data for its employees.

EEO-1 reports are filed in September of each year.  The rule was to go into effect for 2017.  Just days before the EEO-1 survey for 2017 with the new reporting requirements was scheduled to be opened, the OMB put on the brakes.

The EEOC, however, wants to make clear that this announcement does not mean that there will be a lack of enforcement in this area.  Law 360 is reporting that the EEOC Chair stressed Wednesday that gender pay inequality was still a “high priority.”

In the meantime, the 2017 EEO-1 online portal is temporarily off-line.  Employers will still have to provide the data required by the first part of the rule and should periodically check with the EEOC to see when the 2017 survey is issued.

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In the Aftermath of Hurricane Harvey Employers Should be Aware of Laws Protecting First Responders

The devastation in Texas is breathtakingly sad.  Although the storm has passed, recovery efforts continue.  For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts.  Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana.  As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid.  Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee.  Many other jurisdictions besides New Jersey provide similar protections.  Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports  and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

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Yes, Neo-Nazis at Charlottesville Can Be Legally Fired from their Jobs

First, let us start by saying that we are saddened by the tragic and violent events that occurred in Charlottesville over the weekend.  Our hearts go out to the families and friends of Heather Heyer,  Lt. H. Jay Cullen, and Berke M.M. Bates.

Second, let us address a question that is appearing on a lot of social media threads — can/should the Neo-Nazis who participated in Saturday’s protest be fired from their jobs?

“Should” they be fired is not really a question we can answer.  That is certainly up to each individual’s employer.

Can they legally be fired?  The short answer is yes.

It appears that many people who were outraged about Saturday’s rally by white supremacists have taken to using online sources to “out” the identities of those present at the rallies.  There is already a report of at least one employer who has terminated one of the individuals identified as being at the rally.

Generally speaking, the First Amendment protects speech from government action. Similarly, its right to free assembly is a right to be free from government interference. It simply does not apply to private employers.

Employees of public employers do have First Amendment rights, but those rights are not unfettered.  Without going into a dissertation on Constitutional law, the case law provides that speech is only protected if they are commenting as a private citizen on a matter of public concern.  See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968).

There certainly is an argument that raising a Nazi salute or chanting derogatory statements about Jews and people of color is not speaking about a matter of public concern.  Even if it is, the Pickering case requires courts to balance the interest of the employee in speaking against the employer’s interest in not undermining its mission.  Courts have held that permitting racist speech of employees causes the public to lose faith in the public employer and thus is not protected.

In short, if any private employer wishes to fire any of the individuals who have been identified as participating in the white supremacist rally, they can legally do so.  Likewise, public employers probably will also be able to do so without running afoul of the First Amendment.

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Governor Christie Vetoes Paid Family Leave Law

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

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Governor Christie Vetoes Paid Family Leave Law

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

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Medical Marijuana: When a Positive Drug Test may not be Grounds to Fire an Employee

In a portentous opinion, Massachusetts’ highest court held that a medical marijuana patient terminated for failing a drug screening could state a claim for disability discrimination against her employer.  Because many states’ medical marijuana laws contain the similar language to that which the court relied on, employers outside of Massachusetts should take note.

The facts are relatively unremarkable.  The plaintiff had told her prospective employer that she had been prescribed medical marijuana to treat her affliction with Crohn’s disease, but that she did not use it daily and would not use it before or during work.  On the evening of her first day of work, the company’s HR representative notified the plaintiff she was terminated for failing the pre-employment drug screening because the company “follow[ed] federal law, not state law.”  The plaintiff sued for, among other things, disability discrimination under state law.

In reversing the trial court’s dismissal of the discrimination claims, the Massachusetts Supreme Judicial Court premised its decision on a provision of the state’s medical marijuana law stating that a qualified person “shall not be . . . denied any right or privilege,” for use of medical marijuana.  Essentially, the Court held that because a waiver of the employer’s policy excluding persons who test positive for marijuana could have been a reasonable accommodation, the employer’s refusal to engage in the interactive process constituted a denial of the plaintiff’s rights not to be fired because of a disability and to require a reasonable accommodation under the state’s anti-discrimination law.

The Massachusetts court was not persuaded by the employer’s argument that its drug testing policy, not her disability, was the basis for the termination.  The Court analogized an employer policy prohibiting marijuana to one prohibiting insulin and explained that reliance on a company policy prohibiting any use of marijuana to terminate an employee whose disability is being treated with marijuana effectively denies such employee the opportunity of a reasonable accommodation.

Although no other high court had previously reached a similar conclusion, few cases have been brought under disability discrimination laws in states whose medical marijuana laws prohibit the denial of rights and privileges to patients.  For example, New Mexico’s law contains such a prohibition, but it only applies to practitioners.  New Jersey, on the other hand, clearly extends the prohibition to patients.

It is also significant that the Court also rejected the employer’s argument that the state’s medical marijuana law did not require “any accommodation of any on-site medical use of marijuana in any place of employment.”  Instead, the Court found that this statutory language implicitly recognized the existence of an accommodation for off-site medical marijuana use.  Again, many states’ medical marijuana laws are worded in a similar manner and are susceptible to a reading that would permit an accommodation that does not require an employer to tolerate on-the-job use.

Of course, because this was a motion to dismiss, the Court recognized that the employer could ultimately prevail on summary judgment by showing that a use accommodation would be an undue hardship.  Nonetheless, given that ninety percent of states have passed some form of medical marijuana law – a fact the Court cited in rejecting arguments that the federal scheduling of the drug demonstrates no recognized medical benefit – employers can bet that this case could inspire similar suits in states with similar statutory language.  Keep an eye on this space, and Fox’s Cannabis Law blog for further developments.

Today’s post comes to us courtesy of Justin Schwam, an associate in our Labor and Employment Group in the Morristown office

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Will Paid Family Leave Become the Law of the Land?

Included in President Trump’s 2018 budget proposal is a request for funding a paid leave program.  The program would require $19 billion from the budget and would provide that employees were entitled to 6 weeks of paid leave from work.

So far, Republicans have not warmed to the idea.

Yesterday, at least 100 Democrats wrote a letter to President Trump also expressing concerns over the proposal.  However, the Democrats are concerned that the proposal does not go far enough. Democrats are pushing for consideration of other Democrat-sponsored bills that would provide for 12 weeks’ paid leave, matching the FMLA leave entitlement.

At this stage, it really is too early to tell whether some form of paid family leave will wind up in the final budget or if it will become a casualty of the horse-trading that goes on when trying to reach a consensus on the budget.

We will be keeping an eye on this one.

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Arizona Sick Leave Law Goes in Effect July 1st: Are you ready?

In November, voters in Arizona approved a ballot initiative that would require employers to provide paid sick leave.  The law goes into effect tomorrow.

Under the law, Arizona employers with less than 15 employees will have to provide up to 24 hours of paid sick leave.  Employers with 15 or more employees will have to provide up to 40 hours of paid sick leave.

In anticipation of the law, the Arizona Industrial Commission has issued FAQs, which can be found here.  The FAQs do make one significant change from the text of the law.  The FAQs do make clear that when counting employees for purposes of determining how much leave is to be offered, employers need only count employees working in Arizona.  Don’t get too excited.  This could change as the Commission itself notes that there might be further legislative guidance on this issue.

Employers not only need to make sure that they are offering leave, they will need to provide notices to the employees and post posters in both Spanish and English.

Arizona’s law, like many others, contains a no retaliation provision.  However, this provision should give employers pause.  Under the law, if any adverse action is taken against an employee within 90 days of them using sick leave, there is a presumption that adverse action was retaliatory.  Employers will then bear the burden of proving by clear and convincing evidence that the action was for a legitimate purpose.

Employers should tread carefully before disciplining any employee who has recently used sick leave.

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USDOL Announces the Reinstatement of Issuance of Opinion Letters

The U.S. Department of Labor announced today that it will reinstate the issuance of opinion letters, a practice that was widespread under some prior administrations, but which it elected to forego during the Obama administration.  In an email announcement sent out today, the USDOL announced:

The U.S. Department of Labor will reinstate the issuance of opinion letters, U.S. Secretary of Labor Alexander Acosta announced today. The action allows the department’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.

An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion. The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.

“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

The division has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.

  

In the past, Republican administrations have often used the issuance of opinion letters to skirt the normal approval process for administrative regulation, which requires public comment.  It remains to be seen, but this will likely be a boon for employers and another setback for employees under the Trump administration.

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