Showing posts with label Mark Fijman's blog. Show all posts
Showing posts with label Mark Fijman's blog. Show all posts

Thursday, October 15, 2020

POT ON THE BALLOT COULD PUT EMPLOYER POLICIES OUT OF JOINT AND INTO THE COURTROOM


As this contentious presidential campaign season draws to a close on November 3, 2020, voters in five states also will be casting their ballots on legalization of marijuana. Arizona, Montana, New Jersey and South Dakota will decide whether to approve recreational marijuana, and Mississippi voters will choose whether to approve medical marijuana.
 
 However a recent federal court case in Pennsylvania, demonstrates the pitfalls and legal liabilities that employers can face in a state where marijuana is legal. In Hudnell v. Jefferson University Hospitals, Inc. (E.D. Pa. Sept. 25, 2020), a U.S. District Court allowed an employee fired for testing positive for marijuana to bring a lawsuit against her employer under Pennsylvania’s Medical Marijuana Act (“MMA”). 

 The plaintiff in the case, Donna Hudnell, was hired by Thomas Jefferson University Hospitals (“the Hospital”) as a security analyst in 2016. By 2018, she began experiencing severe back pain that limited her ability to work, walk and sleep. Recreational marijuana is illegal in Pennsylvania, but medical marijuana is legal under the state’s MMA. Patients prescribed medical marijuana are required to be certified by a physician and receive a medical marijuana card. Hudnell’s physician, who also worked at the Hospital, prescribed her medical marijuana to alleviate her back pain. However, her condition worsened and she was approved to work from home in May of 2019.

In October 2019, she asked to return to work and was required under the Hospital’s policies to take a drug test, because she had been out for more than 90 days. She gave the testing nurse copies of all her prescriptions, including her medical marijuana card. The nurse informed Hudnell that the card had expired in August. Hudnell responded she had renewed her card in August but her appointment with her physician for recertification was scheduled for five days later. Her physician at the Hospital re-certified her at that time.

However, the hospital subsequently terminated her under their drug testing policy, because at the time she was tested, and was positive for marijuana use, she did not have a valid and certified medical marijuana card. 

She subsequently sued the Hospital under Title VII of the Civil Rights of 1964, Pennsylvania’s Human Relations Act, and also alleged a claim under Pennsylvania’s MMA. Written into the MMA is a provision that “[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” 

In regard to Hudnell’s MMA claim, the Hospital asked the court to dismiss the claim on the basis that the MMA did not explicitly provide a private cause of action allowing an employee to file a lawsuit. The Hospital also argued the statute did not apply to her because she did not have a valid medical marijuana card when tested.
 
In ruling against the Hospital and finding Hudnell had a right to sue under the MMA, the federal court determined that there was an implied right of action because, without one, the anti-discrimination provision would have no practical effect, and allowed Hudnell’s litigation against the Hospital to proceed.

The lesson for employers in states that legalize marijuana, is that the language of these statutes can vary widely as to the protections afforded to employees, and employers may have to adjust their policies to comply, including reasonable accommodation under the Americans with Disabilities Act.  Employers may also need to reexamine their drug testing policies and also address safety and discipline issues in regard to employees being under the influence in the workplace.

Tuesday, September 10, 2019

Tattoos in the U.S. Now Mainstream and Workplace Tattoo Stigma Continues to Fade



According to a recent survey, the United States now holds the bronze medal for the most number of people with tattoos, with 46% of the American population having at least one tattoo.  The U.S. was beaten by Italy, with 48%, followed by Sweden with 47%.  However, according to the survey, Americans top the charts for people with multiple tattoos, men and women get tattoos at the same rate, and that tattoos are more popular among those with higher levels of education. 

What this means for employers, is that there is now an almost 50-50 chance that a job applicant will have one or more tattoos.  Traditionally, tattoos were viewed negatively during the hiring process and were not viewed as an asset in workplace advancement.  As recently as 2016, a survey of Human Resource managers cited tattoos as the third most likely physical attribute that limits career potential, and polling of millennials show that 70% will hide their tattoos in the workplace so as not to negatively impact their employment prospects.  However, a study by researchers from the University of Miami and University of Australia shows that such concerns may have little to no basis

In the study, entitled “Are Tattoos Associated with Employment and Wage Discrimination? Analyzing the Relationships between Body art and Labor Market Outcomes”, the researchers surveyed more than 2000 people in all 50 states, and found the  salaries and wages of tattooed employees were “statistically indistinguishable” from those of their non-tattooed counterparts.  The study suggests that employers recognize that by treating tattoos as a negative factor in hiring and employment decisions, they run the risk of missing out on well-qualified job candidates.  This is borne out in corporate America, where some of the country’s biggest employers are now considered “tattoo friendly”. 

From an employment law standpoint, employers generally retain broad discretion in making employment decisions based on tattoos, and whether having an “inked” employee is suitable to their particular company.  Likewise, tattoos that reflect offensive or discriminatory messages can be the basis for not hiring an applicant.    

However, under certain scenarios, restrictions on tattoos in the workplace could run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) and possibly constitute religious discrimination.  A good example of this is the lawsuit that was brought by the Equal Employment Opportunity Commission (“EEOC”)  against the Red Robin Gourmet Burgers chain of restaurants.  In EEOC v. Red Robin Gourmet Burgers, Inc., the EEOC alleged that the company religiously discriminated when they fired an employee for not covering up his tattoos and refusing to accommodate a religious practice.  Red Robin ultimately settled the lawsuit prior to trial for $150,000 and entered into a consent decree with the EEOC.

The case began when Edward Rangel was hired as a server at Red Robin’s Bellevue, Washington restaurant.  In the lawsuit, Rangel asserted he was an adherent of the Kemetic religion, an ancient Egyptian faith.  As part of his religious practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are liturgical verses from an Egyptian scripture.  According to the lawsuit, the inscriptions symbolized Rangel’s religious dedication and his religious practices made it a sin to intentionally conceal the religious inscriptions.

Rangel had the tattoos on his wrists when he was hired, and at that time, Red Robin has a dress code that prohibited employees from having visible tattoos.  The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them.

Rangel claimed he had repeatedly talked with management, giving detailed explanations of his faith and the need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives.  Title VII requires employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business.  Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its “wholesome image.”  Before the parties settled, Red Robin’s argument was rejected by the District Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.

The lesson to be learned from that case is that Title VII and the EEOC take a very broad view of religion and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice.  To that extent, tattoos that are part of a religious practice may need to be accommodated.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs.   

Purely decorative secular tattoos do not impose a duty of accommodation, and employees are free to make employment decisions on that basis or require employees to cover them up at work.  However, as indicated by the recent study, it appears that tattoos in the workplace are rapidly approaching the point of becoming a non-issue.

Friday, August 17, 2018

Study Shows Tattoos in the Workplace Becoming a Non-Issue but Can Still Pose Employment Law Issues for Employers



Traditionally, tattoos once identified their owners as rough characters.  This bodily artwork was generally and stereotypically associated with sailors, bikers, members of the military, or the result of an alcohol-assisted impulse purchase.  However, a glance around the average coffee shop or suburban mall clearly demonstrates that is no longer the case.  According to the Pew Research Center, nearly 40% of people born after 1980 have one or more tattoos, and 25% have a piercing someplace other than an earlobe.  According to tattoo industry estimates, 60 % of all tattoos are being done on women.  Surveys of millennials show that 70% will hide their tattoos in the workplace so as not to negatively impact their employment prospects.

However, a new study by researchers from the University of Miami and University of Australia shows that with changing societal norms, such concerns may have little to no basis.  In the study, entitled “Are Tattoos Associated with Employment and Wage Discrimination? Analyzing the Relationships between Body art and Labor Market Outcomes”, the researchers surveyed more than 2000 people in all 50 states, and found the  salaries and wages of tattooed employees were  “statistically indistinguishable” from those of their non-tattooed counterparts.  The study suggests that employers recognize that by treating tattoos as a negative factor in hiring and employment decisions, they run the risk of missing out on well-qualified job candidates.

From an employment law standpoint, employers generally retain broad discretion in making employment decisions based on tattoos, and whether having an “inked” employee is suitable to their particular company.  However, under certain scenarios, restrictions on tattoos in the workplace could run afoul of Title VII of the Civil Rights Act of 1964 (“Title VII”) and possibly constitute religious discrimination.  A good example of this is the lawsuit that was brought by the Equal Employment Opportunity Commission (“EEOC”)  against the Red Robin Gourmet Burgers chain of restaurants.  In EEOC v. Red Robin Gourmet Burgers, Inc., the EEOC alleged that the company religiously discriminated when they fired an employee for not covering up his tattoos and refusing to accommodate a religious practice.  Red Robin ultimately settled the lawsuit prior to trial for $150,000 and entered into a consent decree with the EEOC.

The case began when Edward Rangel was hired as a server at Red Robin’s Bellevue, Washington restaurant.  In the lawsuit, Rangel asserted he was an adherent of the Kemetic religion, an ancient Egyptian faith.  As part of his religious practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos. The inscriptions, less than a quarter-inch wide and encircling his wrists, are liturgical verses from an Egyptian scripture.  According to the lawsuit, the inscriptions symbolized Rangel’s religious dedication and his religious practices made it a sin to intentionally conceal the religious inscriptions.

Rangel had the tattoos on his wrists when he was hired, and at that time, Red Robin has a dress code that prohibited employees from having visible tattoos.  The EEOC said that although Rangel worked at Red Robin for approximately six months without a complaint from customers, co-workers or his immediate supervisors, a new manager saw the tattoos and fired Rangel for not concealing them.

Rangel claimed he had repeatedly talked with management, giving detailed explanations of his faith and the need for an accommodation. He sought an exemption from the dress code, but Red Robin refused to provide it or any alternatives.  Title VII requires employers to make reasonable accommodations to sincerely held religious beliefs unless it would cause undue hardship to the business.  Throughout the suit Red Robin maintained that allowing any exceptions to its dress code policy would undermine its “wholesome image.”  Before the parties settled, Red Robin’s argument was rejected by the District Court, which held that Red Robin was required to support its undue hardship claim with more than hypothetical hardships based on unproven assumptions.

The lesson to be learned from that case is that Title VII and the EEOC take a very broad view of religion and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice.  To that extent, tattoos that are part of a religious practice may need to be accommodated.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs. 

Purely decorative secular tattoos do not impose a duty of accommodation, and employees are free to make employment decisions on that basis or require employees to cover them up at work.  However, as indicated by the recent study, it appears that tattoos in the workplace are rapidly approaching the point of becoming a non-issue.  






Thursday, January 25, 2018

DOL Reduces the Risk of Employers Offering Unpaid Internships

Employers interviewing for their upcoming summer internship programs now have more flexibility and less risk of wage and hour litigation due to a significant policy turnaround by the U.S. Department of Labor (DOL).

 
Traditionally, unpaid internships offered college students the opportunity to gain real-life business experience in their chosen career, while for-profit employers received the benefit of additional assistance in the workplace, as well as an opportunity to assess potential new employees.
 
However, in 2010, this symbiotic relationship was complicated by the DOL’s institution of a strict six-factor test to determine if the individual was properly classified as an unpaid intern or an employee entitled to wages and overtime under the Fair Labor Standards Act (FLSA).

 
Under the former DOL test, all of the following criteria must have been met to be considered an intern by the FLSA: (1) the internship is similar to training that would be given in an educational environment, (2) the internship experience is for the benefit of the intern, (3) the intern does not displace regular employees and works under close supervision of existing staff, (4) the employer does not gain an immediate advantage from the intern's activities (and the employer’s operations may actually be impeded or hindered by the intern’s activities), (5) the intern is not guaranteed a job at the end of the program, and (6) the employer and the intern each understand that the internship is unpaid.

The 2010 test resulted in current and former interns bringing class action lawsuits against companies such as Viacom, 21st Century Fox, and fashion giant Gucci, resulting in large dollar settlements. While some companies reacted by creating internships that paid at least the minimum wage, many other companies simply eliminated internship programs out of fear of litigation.

 
In January 2018, the DOL released Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act, which scrapped the old test, in favor of the court-favored “primary beneficiary test” to determine if an individual is an intern or an employee under the FLSA. The new seven-factor test is as follows:
 
1.         The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, expressed or implied, suggests that the intern is an employee—and vice versa.

2.         The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

3.         The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4.         The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5.         The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6.         The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7.         The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA depends on the circumstances of each case.
If analysis of these circumstances reveals that an intern or student is actually an employee, he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.
 
Employers should carefully assess their internship programs under the new criteria, and if needed, seek advice of counsel in regard to any use of unpaid interns.

 
 


Sunday, October 2, 2016

EEOC PAYS SETTLEMENT FOR VIOLATING OVERTIME RULES AND THE NLRB PAYS THE PRICE FOR “ADMINISTRATIVE HUBRIS”



Welcome back to another episode of “Federal Employment Agencies Behaving Badly” and in this week’s episode, we’ll start off with the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing the nation’s anti-discrimination laws.  While the EEOC does not enforce the Fair Labor Standards Act (“FLSA”) and the laws regarding overtime pay, it is required to comply with the FLSA as it relates to the agency’s own employees. As a reminder of this fact, the EEOC has now agreed to pay a $1.53 Million settlement for failing to properly pay overtime to its employees.
The case began back in 2006, and in 2009, an arbitration ruling found the EEOC had violated the FLSA by requiring investigators, mediators and paralegals to work during lunch hours, on weekends, or after hours, and then forcing them to accept compensatory time instead of the overtime pay they were entitled to for their overtime errors.  EEOC employees described what they were subjected to as “forced volunteering.”  The ruling held:
There is an entitlement to overtime, whereas compensatory time operates as an alternative, should the employees request it . . .  Put another way, it is incorrect to view the FLSA as providing non-exempt employees with the option of selecting either overtime or compensatory time. The right is to overtime; compensatory time is the option.”

The arbitration ruling seven years ago urged the EEOC and the union representing the federal employees to reach a settlement, however, an agreement was not reached until September 22, 2016. 
Despite the settlement, the union was critical of the EEOC’s role in the long delay toward resolving the dispute.  According to National Council of EEOC Locals, No. 216 President Gabrielle Martin “It has been very frustrating to employees that this case has gone on for a decade during which employees retired or unfortunately passed away . . . It is a sad irony that the agency charged with preventing discrimination against workers violated the rights of its employees.”
Our next segment deals with the National Labor Relations Board (“NLRB”), which is the federal agency charged with enforcing U.S. labor law and investigating and remedying unfair labor practices.  A federal appeals court judge has now ordered the agency to pay a company nearly $18,000.00 in legal fees for engaging in “bad faith litigation” and engaging in “administrative hubris”
In Heartland Plymouth Court MI, LLC v. NLRB, a company sought legal fees after it had successfully appealed an NLRB ruling that incorrectly found the company had violated a collective bargaining agreement by reducing employee hours.  In the opinion, Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit found that the NLRB had taken positions unsupported by the law, which placed the employer in the untenable position of having to incur the costs of an unjustified settlement demand, or the legal costs of appealing the NLRB’s improper ruling:
  Facts may be stubborn things, but the Board’s longstanding “nonacquiescence” towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: “We don’t care what the law says, if you want to beat us, you will have to fight us.”  It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs.
 
Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 



Saturday, September 24, 2016

THE EEOC GETS A DREAD (LOCKS) RULING


Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.
 
However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 
The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees to be “dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines . . . [H]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 
In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 
In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 
The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.
This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.
The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.
In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:
Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.
Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 
Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.
A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  
 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks!