President Pledges Help to Long-Term Unemployed

unemployedPresident Obama’s State of the Union message last week got lots of attention, mostly because of his pledge to work around Congress if necessary to achieve his policy goals. Among the President’s aims is to reduce unemployment and boost employee earning power. To that end, he announced in his speech that he would require federal contractors to pay their employees a minimum wage of $10.10 an hour. That figure didn’t come out of thin air: It’s the same minimum wage Democrats in the Senate are seeking for all employees.

A couple of days ago, the President announced another initiative in his “Year of Action.” He will require the federal government to take steps to avoid discriminating against the long-term unemployed in hiring. The White House had already released a “Best Practices” guide for companies seeking to avoid this type of discrimination; according to the White House’s press release, more than 300 companies have signed on. Now, by the President’s Executive Order, federal agencies will also have to comply with these practices, which include screening job ads for language that discourages the unemployed, reviewing interviewing and hiring practices to make sure current employment isn’t weighted unfairly, and casting a wide net in recruitment and hiring efforts. The President also announced a new grant program for partnerships between employers and nonprofit groups that seek to prepare the long-term unemployed to return to the workforce and help them find jobs.

A few states prohibit discrimination against the unemployed. Once New Jersey, Oregon, and the District of Columbia passed these laws, it started to look like momentum was building in the states. However, subsequent efforts have stalled out or — in California — faced a veto. (Find current state law information at the Discrimination Against the Unemployed page at the website of the National Conference of State Legislators.)

Currently, federal law doesn’t prohibit this type of discrimination by private employers, but the Equal Employment Opportunity Commission held hearings a couple of years ago on the topic. Might the President’s move rekindle some interest?

 

Will Congress Change the Tip Credit?

waiterThe federal minimum wage law has a special exception for servers, bartenders, and other employees who receive tips: These tipped employees can be paid much less than the minimum wage per hour (in most states), as long as they earn enough in tips to bring their hourly total up to at least the full minimum. Right now, the federal minimum wage is $7.25 an hour. But federal law allows employers to pay tipped employees as little as $2.13 an hour!

This practice of paying tipped employees less is called taking a “tip credit,” meaning the employer gets to credit part of the employee’s tips against its minimum wage obligation. Not all states allow a tip credit: California, for example, requires employers to pay tipped employees the full state minimum wage. And some states allow a lower tip credit, requiring employers to pay more per hour than federal law would mandate. (The more protective law governs in wage and hour matters.)

That measly $2.13 took effect back when the minimum wage was $4.25 an hour. In other words, the tip credit was supposed to be half of the minimum wage. But as the minimum wage increased, the wage for tipped employees stayed the same, part of a compromise to get the wage hikes passed. Now, Congress is contemplating raising both the minimum wage and the amount tipped employees must be paid. According to an article in today’s New York Times (“Proposal to Raise Tip Wages Resisted“), Senator Tom Harkin has introduced a bill that would raise the minimum wage to $10.10 and the tipped employee wage by 95 cents per year until it reaches $7.10. Further increases would be tied to inflation.

As is perhaps evident from the title of the article, this proposal is facing plenty of pushback, primarily from restaurant owners. And of course, it’s unclear how Congress would agree on a minimum wage and tipped employees wage increase when they can’t pass a farm bill or extend unemployment benefits. But at least this problem has hit the radar of the U.S. Senate and the nation’s paper of record.

Want to know more about your state’s law on tips, including tip credits, tip pooling, and who gets to keep those mandatory service charges the house tacks on to the bill? We’ve got a set of articles — one for each state and the District of Columbia — on this very topic; select your state from the list at State Laws for Tipped Employees.

Smells Like a Lawsuit

Sexual harassment, like so many other experiences, is in the eye of the beholder. What feels like offensive misconduct to one person might seem like harmless workplace antics to another. That’s why the law imposes both an objective and a subjective standard in harassment cases. Courts and juries must look both at whether the behavior was objectively hostile, offensive, or abusive, and at whether the victim actually perceived it that way. And, when applying the objective test, it isn’t enough to ask whether we, as judges or members of a jury, would find the conduct offensive. We must ask whether a reasonable person in the victim’s situation would feel harassed. Because sexual harassment is still overwhelmingly an offense men perpetrate against women, this standard is in most cases referred to as the “reasonable woman” standard.

A recent case from Texas makes clear how important this distinction can be. A federal appeals court reinstated a lawsuit that had been thrown out, finding that the female plaintiff deserved a trial on her allegations of sexual harassment and retaliation. At the most general level, she claimed that she was fired after four days on the job as a leasing manager in an apartment complex, after she complained that two coworkers sniffed her. The district (trial) court found that she hadn’t shown that this was objectively offensive, in part because neither coworker had physically touched her.

What do you think so far? If you’re thinking the trial court might have been right, consider these additional facts: She worked in a small office. The two men would come in, sometimes together, crowd and hover over her as she sat at her desk, and sniff her in a sexually suggestive manner. They did it 12 times over the course of a few days. They also sniffed her as she left the bathroom. One of the men sat across from her and stared at her for several minutes, wearing shorts and visibly aroused. When she complained in a staff meeting, one of the men claimed to have a medical condition and the other said he “needed to get a release.” When she complained to a manager, she was told, “you know how men are like when they get out of prison”; one of the men had a prison record. Then she was fired.

Does this sound more menacing now? To me, this case illustrates how important it is to apply the objective standard in a manner that captures the entirety of the victim’s experience. “Two coworkers sniffed me” sounds like the beginning of a comedy routine. But when you widen the frame to include the physical surroundings, sexual comments, air of menace, and complete lack of concern for her complaints, it looks a lot more like harassment.

It’s Evaluation Season! Don’t Forget the Maternity Projection Chart

storkManagers, do you enjoy giving employee evaluations? Many managers  don’t: They find it difficult to give constructive criticism, fit employee accomplishments and areas for improvements into their company’s evaluation form, or make time to sort back through their documentation for the year, complete the form, and meet with employees about it. But imagine how you would feel if the company’s evaluation form also included questions about the employee’s “maternity plans.” And then you had to use that information to help generate a “maternity projection chart,” purporting to calculate the likelihood that a particular female employee would have a child soon based on her age, marital status, and maternal status.

According to a complaint filed in a federal district court in New York, that’s what happened at the Institute for Integrative Nutrition. (Hat tip to the Employment Law Daily; they have also posted a copy of the court’s decision in favor of the employees.) The employees alleged not only that the chart was created, and that it included information only on female employees, but also that the employer used it in making employment decisions.

This is one of the stranger allegations in the case, but by no means the only allegations the employees made about discrimination, retaliation, and violation of FMLA rights at the Institute. Each of the named plaintiffs (they are bringing a class action) had quite a tale to tell, including comments by the company’s owner that “women’s priorities shift when they become mothers,” that one expecting employee should speak to her partner about whether it was “worth it,” because he “had never met a new mom that didn’t underestimate the sleep, time, exhaustion from a new baby,” and that he wouldn’t consider another woman for a promotion because she was “getting married, and her head was in another place.” Once they revealed their pregnancies or went out on leave, the women claimed that they faced different treatment, demotion, and ultimately discharge.

No judge or jury has determined whether these allegations are correct, because the case came up on a motion to dismiss. In other words, the employer was arguing that some of the employees’ claims were so weak that it should not even have to respond to them, right out of the gates. In fairness, the court tossed one allegation by one employee. (Her retaliation claim was thrown out because she didn’t allege that she had complained of discrimination before being mistreated.)  Otherwise, though, the employees won. Based on the allegations, it’s no surprise. What surprised me is that the employer found it worth arguing about, given the strength of the allegations.

 

Will Emergency Unemployment Compensation Benefits Expire?

unemployedThere was a sobering article in the New York Times this morning, “Extension of Benefits for Jobless Set to End.” Since the economy tanked in 2008, the federal government has made additional unemployment benefits available through the Emergency Unemployment Compensation (EUC) program. This program supplements the benefits available in each state to provide additional weeks of compensation.

Today, most states provide a maximum of 26 weeks of unemployment benefits to those who lose their jobs through no fault of their own. (A few states — including Florida, Georgia, and North Carolina — have cut back and offer fewer than 26 weeks.) A permanent federal program, in place since 1970, offers extended benefits in states where the unemployment rate is both high and increasing. Although a number of states still have relatively high unemployment rates, those rates have been high for a while now. As a result, these states don’t have increasing unemployment rates. Therefore, according to the Center on Budget and Policy Priorities (CBPP), no state currently provides benefits under the extended benefit program.

That leaves the EUC program as the only source of extended benefits for the long-term unemployed. The EUC program offers 14 to 47 additional weeks of benefits. (The number of weeks depends on the state’s unemployment rate; there’s an up-to-date chart of each state’s benefit offerings at “How Many Weeks of Unemployment Compensation Are Available?” at the CBPP’s website.) However, the entire EUC program is set to expire at the end of the year.

Congress has had to vote on this program a number of times in the past five years, and each time it has extended the program. As you may recall, however, this has been a particularly rough year for partisan fights over government funding. Congress still has to come up with a budget, as it agreed to do in ending the shutdown. As a result, the Times predicts that Congress is unlikely to continue the EUC program past the end of the year, with the result that 1.3 million people will immediately lose access to these additional benefits.

Senate May Finally Pass ENDA

prideflagToday, the Senate is expected to take up the Employment Nondiscrimination Act, known informally as ENDA. This bill would outlaw workplace discrimination on the basis of sexual orientation and gender identity, by adding those protected traits to Title VII.

Wikipedia tells us that the first Congressional effort to prohibit job discrimination against gay men and lesbians happened in 1974; In many Congressional sessions since, some version of ENDA has been introduced and gone nowhere. The House of Representatives managed to pass a version of the law in 2007, but the cost of passage was high for some: The version that finally passed had no protections based on gender identity. And no version of ENDA has ever passed the Senate.

This week, vote counters believe that will all change. According to New York Times reporting on the Senate vote, all 55 democratic senators are expected to vote for the bill, four more Republicans are on board, and only one more vote is required to invoke cloture (end the debate) and hold an up-or-down vote. When you consider that one of the official undecideds is Rob Portman, who announced his support for gay marriage because his son is gay, chances for passage look pretty good. (And in the nontraditional marriage department, Cindy McCain apparently sent her husband, Senator John McCain, a postcard urging him to vote for the bill; this prompted a strained formal response from the Senator’s office that he “enjoys and appreciates having discussions on the important issues of the day with all the members of his family.”)

What will happen in the House is anybody’s guess. But there are signs of trouble for opponents of the bill, who are having to reach deep into their bag of tricks to articulate reasons to oppose the law. Members of Congress told the Times that they are having to respond to arguments that the law would unfairly force Christian bookstores to hire drag performers and require schools to allow male teachers to wear dresses in the classroom. (A brief aside: What kid would not love this?) When the counterarguments reach this level, you know momentum in favor of the bill has reached critical mass.

 

Working for Lady Gaga: It’s a Full-Time Job

towelsLast week, Lady Gaga settled an overtime lawsuit brought against her by a former assistant. The settlement is confidential (so far), but the complaint took an interesting approach. In most overtime cases, the employee claims to have worked a certain number of extra hours, such as two hours per day or ten hours per week. Or, the employee claims to have had to work through lunch, which adds up to half an hour per day for the length of the employee’s tenure.

According to the lawsuit, Gaga kept her assistant quite a bit busier than that. Her assistant, Jennifer O’Neill, requested overtime for every single hour of every single day she worked for Gaga. According to the complaint, O’Neill had to be available from “the earliest waking hour,” be “responsive to the slightest need throughout the day,” and address “spontaneous random matters in the middle of the night.”

How random and slight? Among O’Neill’s tasks were reconciling Gaga’s credit card statements, ensuring that she had a fresh towel immediately upon finishing her shower, and according to the Hollywood Reporter, sleeping in Gaga’s bed and being awakened throughout the night to change the CD.

The case settled after a judge refused to dismiss the lawsuit, finding that a jury would have to decide how many of those alleged “on call” hours were work for which O’Neill should have been compensated. According to CNN, the case was set to go to trial next week.

How Must an Employee Request a Religious Accommodation?

goatsTitle VII gives employees the right to reasonable workplace accommodations to allow them to practice their religious beliefs. Unless accommodating an employee’s religion would pose an undue hardship, an employer must allow an employee to attend religious rites or ceremonies, honor a Sabbath, wear religious garb, or otherwise follow the tenets of his or her faith. This might require changes to work schedules, uniform rules, or procedures for requesting for time off, but Congress has determined that religious practice is sufficiently important to impose these minor burdens on employers. (For more information — and answers to commonly asked questions — about religious discrimination and accommodation, check out our Religious Discrimination page.)

So far, so good. But an employer can grant an accommodation only if it knows about the employee’s need for one. That’s why the burden of requesting an accommodation in the first place — and providing enough information so the employer knows the request is religious in nature — falls on the employee. As is true of most employment laws that require employee notice, no “magic words” are required. An employee need not say explicitly, “I am requesting a religious accommodation pursuant to Title VII.” On the other hand, the employee has to provide enough information to let the employer know that (1) the employee needs an exception or change to the usual rules, and (2) that need arises from a religious belief.

An interesting case from the federal Court of Appeals for the Seventh Circuit shows how tricky this can get when the employee’s religious beliefs are not mainstream or known to the employer. An employee, Sikuru Adeyeye, asked for five weeks of unpaid leave to attend his father’s funeral ceremony in Nigeria. His employer, Heartland Sweeteners, said no. Adeyeye then asked for three weeks of unpaid leave along with a week of vacation he had already earned. He left to attend the funeral, and was fired upon his return for violating the company’s attendance policy.

Adeyeye sued, claiming that the company failed to grant him a religious accommodation. The company argued that it didn’t know his request for time off had a religious basis. The Appeals Court found in Adeyeye’s favor on the notice issue, finding that the language he used in his written requests for time off was enough to clue the company in. Here’s what the first note said:

I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rite[s] that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to [k]ill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children’s life. I will appreciate if this request is approved.

Adeyeye said his request was based on “custom and tradition,” not religion. Weighing heavily on the other side of the balance: ritual slaughter of goats! The Court found that the goats, possibility of spiritual death if the ritual was not followed, and mention of rites and ceremonies was sufficient to put the company on notice.

Hat tip: Triggering the Duty of Religious Accommodation, over on Workplace Prof blog, which compares this case to yet another controversy over Abercrombie & Fitch’s “Look Policy,” this time involving an applicant who was denied a job after she showed up for an interview wearing a headscarf.

 

Lost in the Congressional Debate: The Self-Employed and Obamacare

pillsIn case you haven’t heard (!), many members of Congress seem to believe that every single member of “the American People” stands vehemently opposed to the Affordable Care Act. Various Republican politicians have compared Obamacare to a disaster, a train wreck, and yes, slavery. But here’s an interesting dilemma for the GOP: The group with whom the Republicans want to identify so often — entrepreneurs and independent business people — will benefit significantly from the law.

According to a study on the Affordable Care Act and entrepreneurship conducted by several nonpartisan groups (including the Center on Health Insurance Reforms), Obamacare is expected to swell the ranks of the unemployed. The study predicts that more than 1.5 million people will go into business for themselves as a result of the law, a more than 10% increase. Why? Because they will no longer be stuck in jobs they would prefer to leave just to get health insurance.

There are legitimate debates as to whether the coverage offered through the new health care exchanges is truly affordable, and even the law’s most fervent supporters agree that the initial rollout of the online marketplaces has been a parade of technical glitches. However, no one can dispute that Obamacare makes it possible for many people to purchase health care who were previously priced out of the market or couldn’t even find a plan that would take them at any cost. Those who stayed in unsatisfying jobs to keep their benefits (a phenomenon known as “job lock”) will now be free to move on, purchase their own benefits on the exchange, and take the plunge to start their own businesses.

Employers who are planning to cut back on employee benefits might also see a lesson here. For companies that are planning to cut employee hours to less than 30 (to avoid having to provide benefits under Obamacare) or otherwise try to get around the law, there may well be an initial cost savings. But these strategies will also remove one of the strongest incentives for employees to stay at their jobs. And, the employees most likely to leave and start their own businesses are often the very employees the company would most like to keep: the self-motivated, self-directed, business-minded cohort.

 

 

California Law Affirms that Sexual Harassment Doesn’t Have to Be Sexy

In August, California amended its sexual harassment laws to add this sentence to the state’s Fair Employment and Housing Act:

“Sexually harassing conduct need not be motivated by sexual desire.”

The legislature was responding to a decision by a California appeals court in a same-sex harassment case. The plaintiff employee in that case, Patrick Kelley, alleged that his male supervisor called him a bitch and a punk, made crude comments about having sex with him, and laughed when another employee did the same. This behavior followed Kelley to other worksites after he asked to be transferred, as the story spread among his coworkers. The Court tossed Kelley’s claim because he couldn’t prove that his supervisor acted out of genuine sexual desire or interest. In other words, the case turned on whether Kelley’s supervisor actually, in his heart, wanted to have sex with Kelley (in ways he graphically described), or just said so in front of others in order to demean him.

If all sexual harassment cases turned on the question of sexual interest, you can imagine the problems of proof. How do you show that a harasser “really” felt desire toward his victim? Would the harasser’s sexual orientation be an issue in the case? Setting that aside, sexual interest shouldn’t matter. It’s just as illegal for a supervisor to make demeaning, sexist comments as to make unwanted sexual propositions (whether or not the harasser “genuinely” wanted to follow through on them). The reason why sexual harassment is illegal is that it limits job opportunities. When all is said and done, sexual harassment is about power, not desire.

In the context of opposite-sex harassment, there are certainly some ugly cases involving sexual come-ons, groping, and even assault. But some of the ugliest situations arise when women enter traditionally male fields. In these cases, there are no expressions of “desire” or “sexual interest.” Instead, women are threatened (with rape, assault, and more), endangered, and frightened. Their tools and vehicles are sabotaged; they are called horrible names; they are stranded without support. Although some courts had trouble seeing the harassment when it was so decidedly unsexy, most have now come around.

At least in opposite-sex cases. That the California case issued its decision in a same-sex case isn’t surprising. Courts have not known what to do with homophobic behavior on male-dominated worksites. Is it okay if none of the employees are actually gay? Or if the supervisor threatens to have sex with all the guys, not just those who are ridiculed in gendered ways? If there are no women present, is this behavior really “sex-based”? But the answer seems pretty simple. In this case, Kelley’s work environment was poisoned by a supervisor’s crude sexual comments and behavior. Those comments were sex-based, in that they were about Kelley’s masculinity and sexual orientation. The case shouldn’t have turned on whether the supervisor was sincere when he said he want to have sex with him.