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.

State Minimum Wage Increases for 2014

Last week, California Governor Jerry Brown signed a bill that will increase the state’s minimum wage to $9 on July 1, 2014, and $10 at the beginning of 2016. (The state’s current minimum wage is $8.) So far, three other states have passed minimum wage increases that will take effect in 2014: Connecticut’s wage will increase to $8.70 for 2014, then $9 for 2015; New York’s wage will increase to $8 at the end of this year, then $8.75 at the end of 2014, then $9 at the end of 2015; and Rhode Island’s minimum will hit $8 at the beginning of 2014. (Nolo has minimum wage information for all 50 states and the District of Columbia at our Wage & Hour page.)

The federal minimum wage, currently $7.25 an hour, is now lower than the minimum wage in more than a third of the states. About half of the states have the same minimum wage as the federal government, and a handful of states either have a lower minimum wage or have no minimum wage at all. As a practical matter, this final group of states also uses the federal minimum wage. The federal wage rate is a floor, not a ceiling. States are free to adopt a higher minimum wage, and employers within the state must pay the higher rate. But in states with a lower minimum wage, employers must generally comply with the federal law unless they are so small and local as to not be subject to the Fair Labor Standards Act.

States generally adopt higher minimum wage rates to try to bring wages into line with the cost of living. But, according to the Center for Poverty Research at U.C. Davis, the federal minimum wage is not cutting the mustard. A full-time employee who works 40 hours a week for a full year, without taking a single unpaid day off, earns about $15,000 annually, just a few thousand dollars above the poverty level for a single person (and well below the poverty level for a family with one or more children).

President Obama has called for an increase in the federal minimum wage to $9; he also appointed a Secretary of Labor, Thomas Perez, who supports raising the minimum wage. However, based on the current climate in Congress (which today is on the verge of shutting the government down), it doesn’t seem likely that a federal wage increase will happen any time soon. And that means the real action will remain at the state and local level.

Hey, Wellness Programs: Reward Healthy Employees, Too

fitnessWorkplace wellness programs are booming: According to a recent study commissioned by Congress and conducted by the RAND Corporation, workplace wellness is a $6 billion industry (annually), with programs hawked by an estimated 500 vendors. (Unfortunately, Forbes reports that the study also reveals pretty minimal health benefits to employees and statistically insignificant cost savings for employers who adopt workplace wellness programs.)

The Affordable Care Act, better known as Obamacare, allows employers to adopt workplace wellness programs and reward employees who meet certain health goals. Understandably, the government has largely been concerned with making sure that employers don’t discriminate against employees whose medical conditions make it inadvisable to participate in certain activities or adopt certain health targets. (You can learn more about the final regulations on avoiding discrimination in our article, Final Rules for Wellness Programs Under Obamacare.)

Don’t get me wrong: I’m all in favor of employers offering programs to help employees improve their fitness, lower their cholesterol, lose weight, or stop smoking. And I understand that financial incentives are an effective motivation for most of us. But what about employees who are already fit and healthy? Many wellness plans offer an initial incentive to employees for taking a health assessment and participating in biometric screening, activities that are equally available to all. Beyond these measurements, however, some wellness plans offer additional rewards only to employees who need to change their behavior by, for example, participating in coaching programs, meeting certain health targets (such as achieving a particular BMI or cholesterol level), or participating in programs to monitor chronic health conditions, such as diabetes or hypertension. Employees who don’t need these types of assistance aren’t eligible for rewards.

Of course, good health is its own reward. But if money is being handed out, shouldn’t some of it go to the employees who are costing the company the least in insurance premiums? That’s what Eagle County, Colorado decided. According to an article at Workforce.com, the county’s HR director decided to reward the 25% of the county’s employees whom she described as “uber-athletes” with perfect health scores. She wanted to reward these employees and give them an incentive to motivate their coworkers. So, she gave them premium discounts on their health insurance and started paying their entrance fees for races and competitions; in exchange, they agreed to participate in workplace fitness teams, such as walking programs. Everyone wins, and the employees who are already costing the company less get to share a bit in the savings.

Controversy Over Criminal Background Checks

prisonLast year, the Equal Employment Opportunity Commission (EEOC) issued policy guidance on criminal background checks. The guidance pointed out that a blanket policy of refusing to hire anyone with an arrest record or a criminal conviction could have a disparate impact, based on our country’s racially skewed criminal justice system. The guidance cautioned against blanket or “bright line” policies that exclude everyone with any conviction, and provided three factors employers should consider in deciding whether to exclude a particular applicant based on a criminal record:

  • the nature and seriousness of the crime
  • how much time has passed since the offense, and
  • the nature of the job (how much supervision the employee will have, where the job is performed, and so on).

The EEOC also suggested that employers give applicants an opportunity to provide mitigating evidence. (See our article describing the guidance, Getting Hired With an Arrest or Conviction Record.)

Last month, the EEOC filed two lawsuits against employers alleging that their policies of excluding certain applicants with criminal records constituted disparate impact race discrimination. These lawsuits didn’t go unnoticed: Just a few days ago, the Attorneys General of nine states banded together to ask the EEOC to withdraw these lawsuits and dump its policy guidance. Among other things, the AGs argued that the EEOC was improperly intruding into state law, which in some cases require employers in certain fields to exclude applicants based on criminal history alone, and that conducting the individual inquiry into the facts behind every applicant’s record was too time-consuming and expensive. Essentially, the AGs believe it should be legal to have a blanket policy of excluding any applicant who is convicted of particular crimes. (You can read the letter through a link in this Mondaq article, State Attorney Generals Challenge EEOC Criminal Background Check Lawsuits.)

We’re a long way from knowing how this is going to play out. In the meantime, however, our country’s Attorney General, Eric Holder, has announced a policy change that could take care of some of the problem for future generations. He announced that the federal government will take steps to get out from under lengthy mandatory minimum sentences for drug offenses, to reduce the incarceration rate and to make alternatives, such as treatment programs, available to offenders. (The sentencing laws remain on the books; the administration’s strategy for avoiding them includes not listing drug quantities, which trigger the mandatory sentences, in indictments of lower level offenders.)

Employer Mandate: Headed to the Supreme Court?

supctThe past month has been chock full of developments on the employer mandate front, and there may be more to come. Last month, the federal Court of Appeals for the Fourth Circuit upheld the mandate, which requires larger employers to provide affordable healthcare coverage to full-time employees or pay a fine. (The opinion is Liberty University v. Jacob Lew et al.; there’s a nice explanatory piece about it over on SCOTUSBLOG.) The Fourth Circuit’s opinion upheld the employer mandate as a valid exercise of Congress’s powers to tax and to regulate interstate commerce.

Just a few days later, the Obama administration announced that it was postponing the employer mandate for a year, until the beginning of 2015.

Then yesterday, the Fourth Circuit issued a stay in the mandate case, to give Liberty University time to file a petition for certiorari asking the Supreme Court to hear the dispute. No tea leaves yet on whether the Court will agree to hear the case or how they will decide it if they take it up. Still, what a difference a month makes in the life of a new government program.

Wage and Hour Violations at Restaurants

A couple of days ago, the New York Times published an article about wage and hour violations at Urasawa, a very trendy — and expensive — sushi restaurant in Beverly Hills. According to the article, workers were not paid overtime and not allowed to take legally required breaks. An employee interviewed for the article also noted that he was required to buy his own $700 set of knives, at a time when he was earning between $9 and $11 an hour. (Although the article didn’t mention it, this is a separate violation of California law, which requires employers to bear the cost of uniforms, tools, and other items necessary for employees to do their jobs.)

Restaurants are too frequently in violation of wage and hour laws, from overtime and break rules to minimum wage, uniform, and tip requirements. If the violator is extremely upscale, like the restaurant cited in the Times article, employees are often willing to put up with substandard conditions in exchange for the opportunity to gain the experience and cachet that stem from working at a trendy spot. (Apparently, diners are also willing to put up with a lot to eat there, from a $1,000 price tag for dinner for two to rules about how the food must be treated that would make Sienfeld’s Soup Nazi blush.) At the other end of the spectrum, employees working at fast-food franchises and low-budget eateries often don’t know their rights and work for an owner who is operating on a financial shoestring.

In recent years, the Department of Labor has taken steps to remedy this situation, from revising the regulations on tip credits to partnering with the Subway restaurant chain to make sure that employees know their rights. Let’s hope it works! Because I don’t know about you, but for my own selfish reasons, I’d prefer to have my food prepared by workers who are allowed to go to the bathroom when they need to.