Category Archives: Employment Law

Seventh Circuit Rules: Sexual Orientation Discrimination Illegal Under Title VII

Earlier this week, the U.S. Court of Appeals for the Seventh Circuit became the highest court in the country to rule that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964. While Title VII does not explicitly include sexual orientation as a protected class, the court held that discriminating on the basis of sexual preference is a form of gender stereotyping that qualifies as illegal “sex” (or gender-based) discrimination.

Title VII has long prohibited employers with 15 or more employees from discriminating on the basis of certain characteristics, such as sex. Over the years, some courts have expanded the definition of what qualifies as sex discrimination. For example, the Supreme Court has held that same-sex harassment is illegal (a man harassing another man, or a woman harassing another woman).  And some federal circuit and district courts have held that discrimination based on gender stereotypes—such as a woman not being feminine enough or a man being too effeminate—qualifies as illegal sex discrimination.

Based on these legal precedents, the Equal Employment Opportunity Commission (EEOC) has started to pursue claims against employers for discriminating against gay and lesbian employees. However, the EEOC’s interpretation is not authoritative, and not all courts agree that sexual orientation discrimination is prohibited by Title VII.

The U.S. Court of Appeals for the Seventh Circuit recently sided with the EEOC, holding that sexual orientation discrimination is a form of illegal sex discrimination until Title VII. This decision is contrary to the recent holdings of the Eleventh and Second Circuits, which decided that sexual orientation discrimination is not illegal under Title VII. As a result, there is now a split of authority among federal appeals courts—which could mean that the issue will make its way up to the Supreme Court.

Several states and cities already expressly prohibit sexual orientation discrimination. To learn more, see our state articles on employment discrimination.

EEOC Offers New Online System for Discrimination & Harassment Charges

Last week, the Equal Employment Opportunity Commission (EEOC) launched a new online tool to help employees who are considering filing discrimination or harassment charges. The Online Inquiry and Appointment System is available in five EEOC locations to start, with the goal of making it available nationwide by late 2017.

Filing an EEOC claim is a long-standing prerequisite to filing a discrimination or harassment lawsuit under federal law. Historically, the claims filing process has been initiated in person, by mail, or by phone. An EEOC representative would then contact the employee for an intake interview and draw up a formal charge for the employee to sign.

Employees can now get the process started online if they live within 100 miles of one of the following five cities: Charlotte, Chicago, New Orleans, Phoenix, and Seattle. They can use the system to submit an online inquiry and schedule an intake interview by phone or in person. Employees who don’t live near these five cities can still use the online tool to determine whether they have a potential claim and mail in an intake questionnaire. Either way, the employee typically must sign a formal charge drafted by the EEOC in order to complete the process.

The EEOC anticipates that the online tool will make it easier for employees to file claims and streamline the claim filing process. The EEOC also hopes that the system will cut down on administrative time. The EEOC reports that less than half of current inquiries lead to formal charges because they don’t meet the legal requirements. The online tool helps weed out claims that don’t fall under the EEOC’s jurisdiction—for example, because the type of discrimination is not illegal under federal law or because the employer is too small. To learn more, visit the EEOC’s Online Inquiry System page.

Minimum Wage Increases for 2017

With the start of the new year, the minimum wage has increased in 19 states (along with a few increases scheduled for later in the year). The federal minimum wage remains at $7.25; this is the lowest hourly amount that employers can pay employees in the United States. However, if a state has a higher minimum wage, the employer must pay the higher amount. Likewise, if a city or county has a higher minimum wage than the federal or state rate, the employer must pay the higher amount.

As of January 1, 2017, the minimum wage increased to the following amounts:

  • Alaska: $9.80
  • Arizona: $10
  • Arkansas: $8.50
  • California: $10 (employers with up to 25 employees) and $10.50 (employers with 26 or more employees)
  • Colorado: $9.30
  • Connecticut: $10.10
  • Florida: $8.10
  • Hawaii: $9.25
  • Maine: $9
  • Massachusetts: $11
  • Michigan: $8.90
  • Missouri: $7.70
  • Montana: $8.15
  • New Jersey: $8.44
  • New York: $9.70
  • Ohio: $8.15
  • South Dakota: $8.65
  • Vermont: $10
  • Washington: $11

On July 1, 2017, the minimum wage will increase in the following states:

  • Maryland: $9.25
  • Oregon: $10.25

On December 31, 2017, the minimum wage will increase in the following state:

  • New York: $10.40

Employers and employees should check with their city or county to find out if there is a local minimum wage. For more information about the rules in your state, see Your Right to Minimum Wage.

Fewer Employees Will Qualify as Exempt From Federal Overtime Laws Under New Rule

Last Overtime2summer, the Department of Labor (DOL) issued a proposed rule that would increase the minimum salary requirement for workers to qualify as exempt from federal overtime rules. The DOL recently finalized the rule, which will go into effect on December 1, 2016. The DOL estimates that 4.2 million workers will now be eligible for overtime pay as a result of the changes.

Federal law requires employers to pay employees time-and-a-half when they work more than 40 hours in a workweek. However, employers can avoid paying overtime if employees fall within certain exemption categories. Some of the most common exemptions are the “white collar” exemptions for executive, administrative, and professional workers. In addition to meeting other requirements particular to each exemption, these employees must all be paid a minimum salary. The minimum salary has remained at $455 per week (or $23,660 annually) for many years.

Under the new rules, the minimum salary will increase to $913 per week for the white collar exemptions, which is the equivalent of $47,476 per year. The minimum salary will be automatically adjusted every three years, beginning on January 1, 2020, to make sure that it is consistent with increases or decreases in workers’ average weekly earnings in the U.S.

The new rule also increases the minimum salary necessary to qualify for the highly compensated employee exemption. This exemption is reserved for employees who perform office or nonmanual work and perform at least one of the duties required by the executive, administrative, or professional exemptions. The minimum salary will increase from $100,000 to $134,004 on December 1, 2016 and will receive automatic updates every three years as well.

In the past, employers could only count regular wages towards the salary threshold requirement. However, the new rule allows employers to count commissions and nondiscretionary bonuses (bonuses for meeting production goals, for example) towards up to 10% of the salary requirement, as long as such payments are made on at least a quarterly basis.

San Francisco Becomes First City to Provide Fully Paid Parental Leave

Earlier this weeFamily Leavek, San Francisco became the first city to require private employers to provide paid parental leave to their employees. The law is the first of its kind; no other federal, state, or local law requires employers to fund time off for parents to care for a new child.

California is one of a few states that already provides some paid leave to parents taking leave after the birth or adoption of a child. However, the pay is partial and funded by employee payroll withholdings. California parents can receive 55% of their usual wages (subject to a maximum set by California law) for up to six weeks from the state.

San Francisco’s new law would require private employers in the city with 20 or more employees to make up the 45% difference in wages, so that eligible employees can collect 100% of their wages for six weeks of parental leave.

Employees must meet the following eligibility requirements to qualify for fully paid leave:

The law also includes an anti-retaliation provision, which prohibits employers from taking negative action against employees who exercise their right to paid leave.

The law, which San Francisco Mayor Ed Lee is expected to sign, would be phased-in starting next year. Business with 50 or more employees would need to comply by January 1, 2017, businesses with 35 to 49 employees would need to comply by July 1, 2017, and businesses with 20 to 34 employees would need to comply by January 1, 2018.