A job description is a useful tool for employers from hiring through termination of employment.  Often times, though, job descriptions are not given the time and attention they deserve. This is unfortunate because job descriptions are the cornerstone of employee discipline and evaluation, and are often cited in litigation.  A job description does more than set forth an employee’s basic job duties. In today’s world of increased litigation brought under the Fair Labor Standards Act (“FLSA”) and the Americans with Disabilities Act (“ADA”), the job description continues to be a pivotal document. A job description that adequately and accurately describes the duties actually performed by employees will help protect an employer much more than a vague over-scoping job description. When it comes to claims brought pursuant to the FLSA, ADA, or other statutes, it does not matter how carefully worded or creative the job description is—the question will always be “does this description adequately reflect the duties actually performed by the employee?” Here are eight items to consider when drafting or revising job descriptions. The listed job duties should reflect the actual duties performed by the employee.  In wage and hour litigation, which is an increasing focus of the plaintiffs’ bar, job descriptions are not determinative of whether an employee is exempt or non-exempt. Rather, the fact finder looks at the duties actually performed by the employee. However, if a job description adequately reflects the duties actually performed by an employee, more credence is given to the employer’s paperwork and bolsters the employer’s credibility. Identify the essential functions of the job. Discrimination claims under the ADA have been at a steady rise. In all ADA litigation, the question is “can the employee perform the ‘essential functions of the job?’” It is not uncommon in litigation for the essential functions of the job to be at issue. Specifically identifying the essential functions of the job in a job description allows an employer to demonstrate that the employee was on notice of  the essential functions, and allows it to have a resource any time it is engaging in the interactive process to determine whether a reasonable accommodation is available.  Be precise. When describing the essential functions of a job and the job duties within a job description, it is important to be as precise as possible. This again ensures that expectations are clearly communicated to the employee, and that there are no surprises as to expectations. This includes ensuring that any physical requirements (e.g., lifting restrictions, standing requirements, etc.) adequately reflect the position’s physical requirements. Creating physical requirements that are in excess of the job’s actual requirements lead to disputes regarding proper accommodations, as well as arguments that the requirement has a discriminatory effect on individuals with disabilities. Administrative agencies have recently taken to scrutinizing physical requirements even more than past years during investigations to ensure that the requirements are narrowly tailored to the position in question. Audit positions and update regularly. Often times, as a company grows, some job positions’ duties and roles change (e.g., duties expand, a position is turned into two positions, etc.). Thus, it is important for employers to regularly audit job descriptions by comparing them to the duties actually performed by the employees. This ensures accuracy and helps demonstrate that the employer is aware of changes. If a job description no longer reflects the duties actually performed by an employee, they should be revised accordingly. The job description should be parallel to the standards on which the employee is being evaluated. Job descriptions should reflect the duties for which the employee is being evaluated. This gives the employee notice of the company’s expectations and helps mitigate any excuses by an employee that they “did not know” the expectations put upon them. This also assists with informal and formal discipline between evaluation periods. Use language to reflect duties that fall under an exempt status. The FLSA’s exemptions are a hot topic of litigation. Misclassification claims are rampant in federal courts. If, after performing an audit, it is determined that an employee is exempt under the FLSA, it is recommended to craft and use language directly from the FLSA’s regulations and statutory language to describe the duties actually performed by the employee. This helps tie the employee’s duties to the FLSA exemption relied upon. Have an attorney review. FLSA exemptions and identifying appropriate duties as “essential functions” is a tricky task – particularly with the rate the law has been changing. It is suggested to have job descriptions reviewed by legal counsel to ensure they are sufficient and that employees are properly classified. Periodic review and audit of job descriptions by legal counsel can also provide defenses against certain damage and liability claims brought in litigation. Obtain the employee’s signature. Having an employee acknowledge, in writing, that he or she has received and understands the contents of the job description – as well as the corresponding expectations – helps avoid later arguments that the employee did not know the expectations placed on him or her. Taking the time to craft a well thought out and accurate job description will always pay dividends. It not only communicates performance expectations to the employee, but it assists the company in disciplining, evaluating, terminating, and/or accommodating employees. Job descriptions are also essential in helping set the ground work for defenses in litigation, including claims brought under the FLSA and the ADA. If it has been a while since you reviewed your job descriptions and determined whether they need to be revised, it is highly recommended that you do so in the near future.

Individuals who identify as transgender are protected under California’s Fair Employment & Housing Act (Cal. Govt. Code §12940)(“FEHA”).  FEHA protection was extended in 2012 to include gender identity and gender expression categories, and defines “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  Transgender worker rights have received increased attention in recent months as employers attempt to put into place compliant procedures that are sensitive to transgender workers.  On February 17, 2016, the California Department of Fair Employment and Housing (“DFEH”) issued guidelines on transgender rights in the workplace.  As this cutting edge area of law continues to develop, employers would be wise to follow the DFEH common sense recommendations which are summarized below: Do Not Ask Discriminatory Questions Finding the right employee can be a challenge for employers.   Interviews of prospective candidates can provide helpful insight as to whether the particular candidate is right for the position.  Employers may ask about an employee’s employment history, and may still ask for personal references and other non-discriminatory questions of prospective employees.  However, an employer should not ask questions designed to detect a person’s sexual orientation or gender identity.  The following questions have been identified by the DFEH as off-limits: Do not ask about marital status, spouse’s name or relation of household members to one another; and Do not ask questions about a person’s body or whether they plan to have surgery because the information is generally prohibited by the Health Insurance Portability and Accountability Act (HIPAA). Apply Dress Codes and Grooming Standards Equally The DFEH reminds employers that California law explicitly prohibits an employer from denying an employee the right to dress in a manner suitable for that employee’s gender identity.  Any employer who requires a dress code must enforce it in a non-discriminatory manner.  For example, a transgender man must be allowed to dress in the same manner as a non-transgender man.  Additionally, transgender persons should be treated equally as are non-transgender persons. Employee Locker Rooms/Restrooms According to the DFEH, employees in California have the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.  Where possible, employers should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy.  This can be used by a transgender employee or a non-transgender employee who does not want to share a restroom or locker room with a transgender co-worker.  Summary It is important to note that FEHA protects transgender employees and those employees who may not be transgender, but may not comport with traditional or stereotypical gender roles. The DFEH’s guidance reminds California employers that a transgender person does not need to have sex reassignment surgery, or complete any particular step in a gender transition to be protected by the law.  An employer may not condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition. Ultimately, while not the binding authority, the DFEH’s message is clear—employers should avoid discriminatory conduct, apply procedures consistently, and follow transgender employee’s lead with respect to their gender identity and expression.  The DFEH guidelines are consistent with the Equal Employment Opportunity Commission’s interpretation that Title VII prohibits discrimination based on sexual orientation and gender identity. Employers should continue to monitor PolsinelliAtWork.com and the DFEH website for updates, and to consult with an experienced labor and employment attorney for further guidance in complying with these cutting-edge issues.

Over the past several years, the line between independent contractors and employees has blurred.  The Department of Labor’s zeal to convert independent contractors to employees has led to a significant increase in the number of misclassification investigations, and the collection of millions of dollars in back wages, penalties, and interest (i.e., $74 million in fiscal year 2015 alone). Under the guise of fighting for a worker’s minimum wage, overtime compensation, family and medical leave, unemployment insurance, and safe workplaces, independent contractors have greatly benefitted by this increased oversight. Recently, bona fide independent contractors received a similar “gift” from the judiciary, when the Fifth Circuit Court of Appeals (composing the states of Texas, Louisiana, and Mississippi) held that independent contractors working for companies receiving federal assistance may bring disability discrimination lawsuits under the Rehabilitation Act, 29 U.S.C. §701, et seq. In Flynn v. Distinctive Home Care, Inc., Case No. 15-50314 (5th Cir. Feb. 1, 2016), a federal contractor at Lackland Air Force Base learned of several patient complaints about an independent contractor pediatrician, which the pediatrician attributed to her recently diagnosed Autism Spectrum Disorder-Mild (formerly known as Asperger’s Syndrome). The federal contractor denied the pediatrician disability accommodations and terminated her contract. The pediatrician sued the federal contractor under the Rehabilitation Act for wrongful termination, hostile work environment, and failure to provide reasonable disability accommodations. The district court held that the pediatrician could not sue for discrimination under the Rehabilitation Act because she was an independent contractor, not an employee. On appeal, the Fifth Circuit reversed and remanded. Following the lead of the Ninth Circuit Court of Appeals (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, along with territories Guam and the Northern Mariana Islands), it distinguished the Rehabilitation Act from the Americans with Disabilities Act (“ADA”), the similar statute that protects disabled employees from discrimination in the private sector. Whereas the ADA provides for discrimination claims relating to “terms, conditions, and privileges of employment,” Section 504 of the Rehabilitation Act bans discrimination “under any program or activity receiving federal assistance.” This language showed that Congress did not intend for the Rehabilitation Act to require Defendant to be Plaintiff’s “employer.” The Fifth Circuit disagreed, however, with a similar case in the Eighth Circuit (representing the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota), which required a defendant to “employ” a plaintiff in order to have standing under the Rehabilitation Act. This may set the stage for possible Supreme Court review to resolve the circuit split, something that it declined to do the last time it considered this issue in 2010. Businesses that receive federal funds and operate within the Fifth or Ninth Circuits should review their independent contractor policies and ensure compliance with the ADA/Rehabilitation Act, as if those contractors were employees. Businesses in other states outside the Eighth Circuit should consider doing so as well, to reduce the risk of future claims.

On January 21, 2016, the EEOC issued for public comment its proposed enforcement guidance on retaliation, which has not changed since 1998.  Upon a close look, the EEOC is doing much more than “updating” its guidance based upon recent court opinions.  The guidance takes an interpretive and liberal view, consistent with the EEOC’s efforts to expand protections for employees, well beyond case law precedent. Here are five things the proposed guidance does that employers should be prepared to address: 1.  Expands the definition of “participation” protected activity.  According to the EEOC’s proposed guidance, internal complaints and participating in internal investigations will be treated as protected “opposition” to unlawful activity and protected “participation” in an EEO proceeding.  The Supreme Court in Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tenn. declined to answer whether such activity is protected under the “participation” clause.  And, despite listing courts that have rejected this interpretation, the EEOC plans to apply it.  To be protected under the “opposition” clause, an employee must have a reasonable good-faith belief that the conduct complained about is unlawful.  By contrast, the “participation” clause does not have such a requirement.  By interpreting internal complaints and investigations to constitute “participation,” the EEOC has essentially removed this important distinction. 2.  Instructs that employer-side employees are protected.  The proposed guidance maintains that employees who give information in support of employers (i.e., do not oppose unlawful conduct) are protected by the participation and opposition clauses.  Employers should be on guard because it is counterintuitive to reasons an employee might seek protection from retaliation. 3.  Lowers the bar for harassment complaints.  The EEOC’s guidance seeks to lower the bar for when harassment complaints constitute protected activity.  Now, “reporting even a single incident” of alleged harassment is protected if the employee reasonably believes that a hostile work environment may occur in the future—i.e., a complaint does not have to rise to the level of “severe or pervasive.”  It may behoove employers to investigate such complaints as well, as the EEOC’s guidance explains that failure to investigate can constitute a materially adverse action. 4.   Rejects the “manager rule.”The proposed guidance rejects what has been adopted by some courts as the “manager rule.”  This concept requires that managers who are responsible for investigating EEO violations or enforcing EEO policies step outside of their management role to engage in protected activity.  The EEOC’s interpretation requires employers to be more alert when handling personnel issues for managers in such roles. 5.  Promotes agency comingling. The EEOC’s proposed guidance encourages cooperation with other enforcement agencies, such as the Wage and Hour Division of the DOL, the OFCCP, and the NLRB.  Employers should be prepared to handle inquiries from other agencies if charge allegations develop beyond EEO matters, and narrowly respond to charges and requests for information. Although the EEOC’s guidance is not binding law, it instructs the EEOC’s personnel when processing and investigating charges, including making cause determinations and pursuing litigation.  If this guidance is officially adopted, employers should review their retaliation policies, procedures, and training and balance this new guidance with well-established legal precedent.

When purchasing the assets of a business with unions, employers have long enjoyed much leeway in establishing initial terms and conditions of employment without having to collectively bargain those terms.  This may be about to change, and employers should approach such transactions cautiously. In NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972) (“Burns”), the United States Supreme Court held that when “a majority of the employees hired by the new employer” work for the previous employer and were unionized, the new employer had to recognize and bargain with the established union.  This general rule, however, does not apply to an asset purchase.  An asset purchaser can set its own initialterms and conditions of employment, although it must bargain with the union over subsequent changes. The Court in Burns created an important exception to the general rule for asset purchasers, known as the “perfectly clear” doctrine.  An asset purchaser must bargain with the union from the outset when “it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms.”  (emphasis added).  The Supreme Court in Burns did not further define when the “perfectly clear” doctrine applies. In Spruce Up Corporation, 209 NLRB 194 (1974) (“Spruce Up”), the National Labor Relations Board (“NLRB”) limited the “perfectly clear” doctrine: to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer … has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment. (emphasis added).  Under Spruce Up, asset purchasers have significant discretion to set employment terms and conditions. The NLRB is now poised to specifically address and possibly overrule Spruce Up. Recently, the General Counsel argued that Spruce Up should be overturned.  The Administrative Law Judge ruled that an employer was a perfectly clear successor, though he declined to follow the request of the General Counsel to overturn Spruce Up.  The NLRB affirmed this decision, though it did not address Spruce Up. Current NLRB law regarding Spruce Up is poised to change, and employers contemplating the purchase of the assets of unionized business should carefully weigh how they go about extending employment offers and setting initial terms and conditions of employment.

Under the Affordable Care Act (ACA), employers with at least 50 full-time employees (“FTEs) must generally offer qualifying health insurance to all employees who work at least 30 hours or more per week. A company that fails to satisfy this so-called “employer mandate” faces the possibility of significant penalties under the ACA. As a result, the ACA amplifies many risks for companies with respect to their employment classifications and the delivery of health care benefits to their employees. ACA Implications for Employers In response to these uncertainties, some employers have gone so far as to reduce the hourly work schedules of some employees to less than 30 hours per week to avoid any additional costs under the ACA employer mandate.  In what is believed to be a case of first impression (and was  discussed in our previous blog post), the plaintiffs in Marin v. Dave & Buster's, Inc., S.D.N.Y., No. 1:15-cv-036081 challenged their employer over the reductions to their work schedules by filing a class action suit in federal court in May 2015. Specifically, current and former employees alleged that Dave & Buster’s, the national restaurant chain, violated the protections under Section 510 of the Employee Retirement Income Security Act (“ERISA”) by intentionally interfering with their eligibility for benefits under the company’s health plan. They also claimed damages for lost wages and demanded the restoration of their health coverage, as well as reimbursement of their out-of-pocket medical costs. In response to the lawsuit, Dave & Buster’s filed a motion to dismiss and argued that the plaintiffs’ ERISA Section 510 claim failed as a matter of law because there was no guaranteed “accrued benefit” over future health insurance coverage for hours not yet worked.  On February 9, 2016, the United States District Court for the Southern District of New York denied the company’s motion to dismiss.  The court found that the complaint “sufficiently and plausibly” alleged enough facts to support a possible finding that Dave & Buster’s intentionally interfered with the plaintiffs’ rights to receive benefits under the company’s health plan. The court noted that the complaint referenced specific e-mails and other communications that the plaintiffs allegedly received when their work schedules were reduced, as well as public statements by senior executives and disclosures in the company’s securities filings, which overtly explained that the workforce management protocols were instituted to thwart the potential impact of the ACA on the company’s bottom line. While the decision on the motion to dismiss does not necessarily mean that the employer will ultimately lose, it does signal the court’s willingness to allow the plaintiffs to develop their legal theories in subsequent court filings. One can also question the impact to the court, at least initially, of the company’s open and obvious disclosures about its reasoning for reducing the employees’ work schedules.  Based on the strong wording of the court’s ruling, however, these obvious and seemingly bold statements certainly did not help the company’s request for an early exit from this case.  As a result, the court may eventually allow robust discovery which could, of course, be cumbersome and expensive for the company. Takeaways for Employers In light of this case development, companies that are subject to the ACA employer mandate should review their compliance strategies now to address any risks with their employment classifications and the delivery of future health care benefits to their FTEs, and also take heed in the manner as to how they communicate any reductions in employees’ work schedules.

In the second of our webinars on The Ruby Files: Managing the Challenging Employee, we continue to follow Ruby as her changing circumstances present her employers with a variety of legal complications. Still employed by a major hospital, Ruby has developed carpal tunnel syndrome and persistent migraines, which she claims interfere with her ability to work and requests ADA accommodations as well as FMLA time off. Her employer initiates the accommodation interactive process, but before this process can proceed, Ruby’s supervisors report performance problems and that Ruby is posting on Facebook about her alleged medical conditions. Ruby is terminated for poor performance, after which her attorney sends the hospital a demand letter. The company responds with a notice that her claims are subject to an arbitration agreement. Polsinelli’s Labor & Employment and Health Care attorneys will cover the legal hot buttons covered in this webinar, specifically: ADA accommodations and FMLA time off requests Requirements for documentation of alleged medical conditions How to properly document performance issues Progressive discipline policies Termination of an employee for performance with a medical condition seeking an accommodation Management of post-separation allegations Register for the webinar HERE, or learn more about the series HERE.

A policy that prohibits employees from recording conversations without the knowledge or consent of others may violate the National Labor Relations Act. In addition, a policy that prohibits employees from taking photos at work may violate the Act too. In a recent decision, the National Labor Relations Board ruled that Whole Foods’ ban on all recordings or photography at work was illegal because it inhibited employees in making, recording or taking pictures regarding workplace safety, discriminatory conduct or harassment, which they have the right to do under the Act. Whole Foods Market Group, Inc., 363 NLRB No. 87 (2015) One challenged policy stated “[i]n order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust,” the use of any recording device in meetings was prohibited unless prior management approval or the consent of all parties was obtained. The employer argued that the policies at issue were specifically created to advance its “core values” and “culture” that all employees feel free to “speak up and speak out” on many issues. In addition, the employer argued that its internal appeal process for employment termination decisions would be harmed without its no-recording policy. Under this process, a terminated employee could request a review of the decision by a five-member panel of “peers,” which met and reviewed documents provided by the employee, discussed the discipline and voted on whether to uphold or overturn the termination decision. Whole Foods asserted that the no-recording policy was also essential for the handling of employee requests to the Team Member Emergency Fund. The requests often involved confidential matters, including financial need, family illness or death, or personal crisis. In a 2-1 decision, the Board rejected Whole Foods’ arguments. The Board stated that employees would reasonably construe the rules to prohibit them from engaging in protected concerted activity. The Board noted that activities such as secretly taking pictures or making audio or video recordings in the workplace, as well as the posting of photos and recordings on social media, are protected under the Act if “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present,” and found no overriding employer interest existed. Many states have laws regarding making, recording or taking videos of others. Some states require that all parties involved must consent to the recordings/videos (“two party consent”); other states require that only one party consent (“one party consent”), such as the person making the recording or video. Employers have the right to craft policies consistent with applicable state (and local) laws. Employers should consider engaging experienced counsel to ensure that any workplace recording policy complies with both applicable state and local laws, and the NLRB’s evolving standards.

Employer-sponsored wellness programs have served as an excellent resource to assist employers in cutting the cost of providing health care for employees, improving employee productivity and increasing company stock performance. Often, wellness programs include health assessments and biometric testing. Recently, through both lawsuits and the issuance of regulations, wellness programs have been under attack by the EEOC as violating the ADA. However, in a win for wellness programs (as well as employees and employers), the U.S. District Court for the Western District of Wisconsin, in EEOC v. Flambeau, Inc., Case No. 3:14-cv-00638-bbc (W.D. Wis. Dec. 31, 2015),  struck down the EEOC’s efforts by ruling that wellness programs that are part of a bona fide health plan are protected from ADA application. In Flambeau, the Court held that a voluntary wellness plan, which required employees to complete a preliminary health assessment and biometric testing to participate in an employer-sponsored group health plan, was protected under the ADA’s “safe harbor” provision, which exempts bona fide benefit plans. The Court held that because the information was: 1) collected in an aggregate form; 2) anonymous; and 3) for the purpose of administering a self-funded, self-insured health insurance plan, the ADA safe harbor applied. This decision follows the Eleventh Circuit’s decision in Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012), which held that an employer’s wellness program fit within the ADA’s safe harbor provision. These cases are a big step forward for employers that provide group health plans to their employees. The cases demonstrate that the courts support an employer’s right to institute voluntary wellness programs for the purpose of collecting information about health risks existing among their workforce without violating the ADA. Further, these decisions allow an employer to link participation in these voluntary programs to their employees’ ability to participate in employer-sponsored group health plans. The ability to institute these programs may help employers to predict and underwrite the costs of health insurance programs, as well as provide more effective programming to assist employees in improving their health and meeting their goals. In turn, this will have a beneficial effect on employee productivity and company performance. Under the decisions in Flambeauand Seff, a wellness program meets the ADA safe harbor provision if: The employee’s participation in the program is voluntary (though an employee’s participation in the program may be required for participation in the benefit plan); The wellness program is part of a “bona fide” benefit plan; Information is collected anonymously; The information collected is obtained in an aggregate form (other than information regarding an employee’s tobacco use); and The purpose of the program is to assist in the administration of an employer-sponsored group health plan, including calculating costs, selecting premiums and adjusting co-pays. To avoid potential ADA violations, employers should carefully consider whether and how their wellness programs are tied to their major medical and other “bona fide benefit plans.”  It is unlikely that the EEOC will stop challenging wellness programs, but court decisions are encouraging.  We will be monitoring this matter for further developments.

"Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned," spoken by Perez in Act 3, Scene 2, The Mourning Bride (1697).  William Congreve's words (often misattributed to Shakespeare) might be paraphrased in the workplace to "Hell hath no fury like an office romance gone bad."  As Valentine's Day approaches, it is a good time for employers to review and revisit their office romance policies. While an actionable hostile environment exists only if the complainant can prove the conduct is "unwelcome," many office romances do not last and, if they end badly, create the potential for allegations of sexual harassment and retaliation that can adversely affect office morale and result in litigation. According to a 2015 CareerBuilder survey, 37 percent of workers have dated a co-worker and, of those, 25 percent have dated someone higher in the organization, including a boss.  These numbers are not surprising given the amount of time employees spend at work as compared to at home or engaged in other activities.  While employers undoubtedly desire a workplace with a culture of compatibility, rancor - and potential liability - can develop from romantic relationships.   Even when a supervisor is consensually involved with a subordinate employee, other members of the team may believe that their co-worker is receiving special treatment with respect to work assignments or other terms and conditions of employment.  While such a relationship is not illegal, it can create feelings of ill-will among co-workers that may affect corporate culture.  Perhaps more dangerous, however, is the potential liability if the relationship sours and the subordinate employee claims that the relationship was actually not consensual, but coerced, resulting in allegations of quid pro quo harassment, a hostile work environment and/or claims of retaliation.       Employers should consider implementing policies outlining permissible and prohibited conduct concerning dating relationships with co-workers.  These policies may prohibit relationships between those in supervisory/subordinate relationships, or between workers and vendors or clients.  The policy should reference the company's anti-harassment policy and remind employees how to report unwanted conduct.  The policy should detail alternatives if employees do engage in a relationship (such as the possibility of transfer to a new position with no reporting relationship or, if the policy is violated, discipline or discharge).   And, although it may not be particularly romantic, companies should consider the use of "love contracts" for those situations where employees (especially those in supervisory/subordinate situations) are engaged in consensual relationships.  These contracts can be signed by all involved and remind both employees of the conduct that is appropriate in the workplace, and have both employees acknowledge that the relationship is consensual. 

An internet news search containing the keywords “FCRA Settlement 2016” returns over 1,800 results in less than a second. Just a few weeks from Valentine’s Day, it’s clear that plaintiffs’ love letters to the 45-year-old federal law are still being answered at an alarming rate. The FCRA governs an employer’s use of so-called “consumer reports” (e.g., criminal background checks, credit reports, etc.) for employment purposes. Essentially, the FCRA sets out a list of steps that employers must follow if they wish to take an “adverse action” against an applicant or employee based on information contained in the consumer report. Yet a simple question remains: “Why?” Why do plaintiffs’ attorneys so regularly file monetarily successful claims – especially class action claims – against employers under the FCRA? Three features of the FCRA answer that question and can guide employers seeking to minimize the risk of an FCRA violation. 1. The FCRA is Confusing And not just to laypeople! – the United States Supreme Court has poetically criticized the FCRA as “less-than-pellucid.” Plaintiffs’ attorneys have exploited this uncertainty to great effect. 2. Classes are Frequently Certified The most common FCRA class action lawsuits allege some kind of technical deficiency in the employer’s “Disclosure and Authorization” form. Because many employers use boilerplate language in forms distributed to all applicants, Plaintiffs argue that a procedural violation is more likely to affect an entire group of employees or job applicants in a uniform way than in other employment contexts, which depend more on individualized facts and circumstances. An employer’s dutiful consistency can be a hindrance if an unlawful Disclosure and Authorization form is utilized. 3. Costs and Fees are a Breeze FCRA violations are broken down into two camps – “willful noncompliance” and “negligent noncompliance.” Though plaintiffs must meet the stricter “willful” standard if they want to pursue statutory and punitive damages, simple negligence will work for an award of actual damages, costs, and attorney’s fees. This relatively low bar gives plaintiffs’ attorneys a financial incentive to doggedly pursue even the most seemingly minor violations.       Though “certainty” and “the FCRA” can seem fundamentally incompatible, gaining an understanding of plaintiffs’ motivations can be the first step in preventing them from making an employer another costly statistic in a Google search.

Many employers work with consumer reporting agencies to conduct background checks on applicants and current employees.  When a background check report raises a red flag on an applicant or employee, employers must be careful to comply with the federal Fair Credit Reporting Act (“FCRA”) and applicable state law prior to taking any adverse employment action.  Before obtaining a background check on an applicant or employee through a consumer reporting agency, the employer must obtain the individual’s written consent through a disclosure and authorization form. In the event that the background check identifies information that causes an employer to make an adverse employment decision, such as rejecting an applicant or terminating an employee, the employer should follow these steps. 1.  Send the applicant or employee a pre-adverse action notice, including a copy of the background check report and the Consumer Financial Protection Bureau’s A Summary of Your Rights Under the Fair Credit Reporting Actform.  The pre-adverse action notice should indicate that information in the report could negatively impact the individual’s employment or opportunity for employment with the employer. 2.  Allow the applicant or employee at least five business days to dispute or correct any negative information contained in the background check report. 3.  If the applicant or employee fails to dispute the negative information in the background check report, the employer may take adverse action against the individual.  The employer must again provide notice to the applicant or employee indicating that due in whole, or in part to, information contained in the background check report, the employer is taking the adverse action (such as rejecting an applicant or terminating an employee).  The adverse action notice must also contain the following: The name, address, and phone number of the consumer reporting company that supplied the report (and, if a national consumer reporting agency, a toll free number); A statement that the consumer reporting agency that supplied the report did not make the decision to take the unfavorable action and cannot give specific reasons for it; A notice of the person's right to dispute the accuracy or completeness of any information the consumer reporting company furnished; and A statement of the applicant’s or employee’s right to receive an additional free report from the consumer reporting agency if the person asks for it within sixty days. In addition, employers should also be vigilant of the federal Equal Employment Opportunity Commission’s guidance on using arrest and conviction records to make employment decisions, as well as any applicable state and local laws, such as ban the box laws or ordinances.

Most likely, you have heard employment attorneys speak about the importance of documenting employee performance, behavior and discipline.  Because such documentation can be key evidence when defending against a claim or litigation brought by a current or former employee, employers should be vigilant when training on effective documentation.  Here are six best practices to consider:     Best Practice No. 1: Consider WHO will be reading the documentation The potential audience of documentation should be considered when framing the scope of and the manner in which the documentation is prepared. Documentation may be read internally within the company, by an administrative (state or federal) agency investigator in response to an employee claim or agency audit, by a current/former employee’s attorney to draft a demand letter or by a judge and jury in litigation. In addition, be sure to include legal counsel on any communications addressing legal issues or the advice or instruction of counsel to maintain the attorney-client privilege of such matters.   Best Practice No. 2: Consider WHAT events to document There are a number of opportunities where creating effective documentation can later serve to protect the company if a conflict arises: (1) counseling, discipline and termination of employment; (2) discrimination  and harassment complaints; (3) promotions and demotions; (4) events that could lead to adverse employment actions (e.g., attendance, co-worker altercations, customer complaints, insubordination and layoff/RIFs); (5) the interactive process for ADA accommodation requests; (6) EEO or harassment training provided to employees; and (7) other situations - use business judgment and common sense. Best Practice No. 3: Consider WHEN to document (and when to destroy) Employment-related documentation should be created contemporaneously to the event (at or very near the time the event occurs). Documentation can also be in the form of a supervisor’s log that may involve more frequent, brief entries. Any follow-up discussions on issues previously documented should also be memorialized. For the destruction of documentation, it is important to have a well-organized, well-publicized (to managers and HR) document retention policy and timeline, which addresses exceptions for the receipt of a claim, litigation, a government investigation or audit or the instruction of legal counsel. Best Practice No. 4: Consider WHERE to maintain the documentation Employment documentation should be maintained in a secured location. In most cases, the documentation should be stored in the employee’s personnel file (or a separate medical file, if related to medical issues). If supervisors maintain files separate from central personnel records, care should be given to document forwarding practices and procedures to ensure that documentation is not lost when a supervisor or employee terminates employment. Best Practice No. 5: Consider WHY you are preparing the documentation It is more difficult to refute a fact if there is a contemporaneous writing to support it.  Although preparing documentation may be a time-consuming process, there are a number of tangible benefits to consistent documentation processes. Today, there are an increasing number of discrimination charges being filed (that may lead to lawsuits) and audits conducted by agencies. Memory lapses and time lags can diminish the accuracy of information that may be needed later. Written documentation may bolster the credibility of testimony. Detailed documentation also can serve as evidence to counter allegations of pretext and inferences of discrimination, which may be instrumental in supporting the summary judgment of claims in litigation. Best Practice No. 6: Consider HOW to prepare the documentation If the employment documentation is handwritten, ensure it is legible. Typed or electronic documentation is preferred, because its text can be readily searched. Standardized forms generated using performance management software can reduce reliance on email and other more transitory forms of communication, and reduce the associated burdens of preservation and searching. When preparing the documentation, give careful thought to the language used. Below is a suggested list of “dos” and “don’ts”: DON’T use: Editorial comments / personal opinions (e.g., “Employee gave more whiny excuses about doctor’s appointments”) Unsupported conclusions / accusations (e.g., “Employee is a drunk”) Derogatory comments Generalities (e.g., “Employee has a bad attitude”) Legal terms / labels (e.g., “Employee engaged in sexual harassment”) Absolutes (e.g., “Employee always misses deadlines”) Proxy adjectives (e.g., “too emotional”) Hedge language (e.g., “Employee seems to be making mistakes”) Abbreviations Sarcasm Promissory language (e.g., placing Employee on “six months’ probation”) Speculation Excuses for the Employee (e.g., “We know Employee tried his best, but . . .”) Inaccurate statements, even if they are to be “nice” (e.g., providing “restructuring” as reason for discharge when it is really for cause) Confusing language, spelling and grammar errors DO use: Date (including year) Specific facts (e.g., “Employee is disrespectful to her co-workers and said.…”) Accurate and honest statements Explanations regarding document’s purpose Direct quotes Witnesses / others involved Meeting attendees (names and titles) Reference to Company rules, policies, procedures for support Confirm Employee’s access to Company policies and procedures Drafter’s printed name, signature and title For disciplinary documents, previous counseling that may not have been documented For disciplinary documents, Employee’s signature (or reference refusal to sign) and any comments Be direct (e.g., include specific expectations of the Company and why the Employee said they are not meeting those expectations) Action plan / next steps (e.g., specific changes Employee needs to make, goals and how Employee is going to achieve those goals, consequences for failing to achieve goals) Finally, when in doubt about taking adverse employment action, consider seeking the advice of counsel.

The first webinar is now available in our year-long analysis of Ruby R. Breaker, a fictitious employee whose workplace behavior is based on real life employment situations.  Listen here. "Non-Exempt and the DOL Audit? It Really Isn’t a Question" follows Ruby as she applies to work at a hospital, is hired as a Unit Manager, and is classified as an exempt manager. Her job description includes duties such as helping the employees she supervises, but Ruby ends up spending most of her time performing clerical duties. Frustrated, Ruby calls the Department of Labor (“DOL”) to complain about not getting paid over-time, and a subsequent DOL investigation of the hospital ensues. Meanwhile, Ruby requests time off from work during the work day to attend in-vitro fertilization appointments, claiming FMLA and ADA coverage.  Polsinelli’s Labor and Employment and Health Care attorneys dissect interactions between Ruby and her manager, and provide take-aways that can be applied to your business. More on "The Ruby Files": Over the course of 2016, we will follow Ruby throughout a period in her career during which she will work for various industries, including health care and technology. Ruby will claim to be misclassified, constructively discharged, and sexually harassed. Ruby will present additional challenges to her employers, raising current issues with which all employers can identify. This will be an advanced series which will delve into real life, complex issues with legal analysis and practical solutions.  Learn more about the series and upcoming dates here.

When an employee threatens a discrimination claim, many fundamental questions immediately come to mind.  What type of discrimination is alleged?  Is this discrimination under federal or state law, or is it a claim that derives from contractual language?  What is the proper venue to resolve this claim?  And, what if there is a contract, policy or industry-specific statute that provides a mechanism for discrimination dispute resolution? This last question is of significant importance and can sometimes be rather complex in its analysis.  To address these issues, we will break down the analysis over the course of multiple blog entries.  We begin with how a contract, such as a Collective Bargaining Agreement (“CBA”), can impact the resolution of a federal statutory discrimination claim.  As can be anticipated, most employees will solidly insist on the right to file his or her federal discrimination claim in a court of competent jurisdiction, but under certain circumstances, CBA language to the contrary may trump that right. For an employer to require an employee to follow the CBA dictated dispute resolution procedure for a federal discrimination claim, specific contractual requirements must be met.  In the landmark 2009 U.S. Supreme Court case 14 Penn Plaza v. Pyett, the Court concluded that a CBA’s discrimination resolution provision is enforceable as long as the CBA’s language “clearly and unmistakably” requires the employee to resolve his or her federal statutory discrimination claim by other dispute resolution techniques in lieu of a judicial remedy. What does it mean to “clearly and unmistakably” require an employee to waive his/her right to judicial recourse and instead submit to alternative resolution?  Many federal courts have concluded that for a CBA’s waiver of an employee’s right to a judicial forum for federal statutory discrimination claims to be clear and unmistakable, the CBA must at least identify by name the specific federal statutes the CBA purports to incorporate in its dispute resolution clause.  Regardless, federal courts across the country have set the bar high when enforcing a CBA’s dispute resolution clause over an employee’s right to file in federal court, and have demanded that a CBA have a high level of specificity in exactly what is being waived by an employee. Employers with a CBA should ensure that the dispute resolution language is clear with respect to the types of claims it seeks to address, including specific reference to the applicable federal statutes.  We will continue to explore how this principle relates to state law discrimination claims and how other industry-specific statutes may impact discrimination dispute resolution. 

Employers that choose to do business with the federal government now have another pay regulation to mind.  The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) recently issued a Final Rule that prohibits federal contractors and their subcontractors from barring employees from discussing, disclosing or inquiring about compensation.  Per the OFCCP, the Final Rule goes into effect on January 11, 2016 and is aimed at eliminating any purported “culture of secrecy” regarding employee pay. What the Rule Covers The Final Rule prohibits covered employers from enacting policies or practices that would prevent applicants or employees from freely discussing their pay with each other.  Specifically, the Final Rule prohibits a covered employer from discriminating or retaliating against employees or applicants for discussing pay.  A covered employer cannot refuse to hire an applicant for asking about employee pay.  Nor may a covered employer discipline or discharge an employee for asking about pay or discussing pay with other employees.  However, the OFCCP has made it clear that covered employers will not be required to disclose information regarding employee pay to either applicants or employees. What Businesses are Covered? The OFCCP’s Final Rule will cover almost any entity that chooses to do business with the federal government.  Specifically, the Final Rule applies to: Businesses operating under a federal contract or sub-contract valued above $10,000; Businesses that operate under federal contracts or sub-contracts that, in the aggregate, are valued above $10,000; Businesses in possession of a governmental bill of lading; Businesses that serve as depositories of federal funds; or Businesses that act as issuing and paying agencies for U.S. savings bonds and notes in any amount. The rule also covers businesses that modify existing covered contracts on or after January 11, 2016. Actions Covered Employers Must Take The Final Rule also requires covered employers to disseminate a “Pay Transparency Policy Statement” to their employees.  The statement must be included in an employee handbook or manual (if one exists), and must also be either posted electronically or posted physically in a place where it will be seen by employees and applicants. In light of these significant changes, covered employers would do well to speak with a labor and employment attorney to ensure compliance with the OFCCP’s new Final Rule.  If 2015 is anything to go by, 2016 will see increased investigation and enforcement rates by the OFCCP.

Employers routinely include arbitration provisions in employment agreements in an effort to manage risks associated with costly litigation.  Specifically, class arbitration waivers have become increasingly popular.  As every savvy employer knows, each state in which an employer operates may have very different state laws regarding arbitration and waiver provisions in employment contracts.  In years past, the United States Supreme Court has dealt with mandatory arbitration provisions and class and collective action waivers and affirmed their validity in various contexts.  The latest Supreme Court decision on topic, DirecTV, Inc. v. Imburgia, does not arise in the employment context, but its ruling is far reaching and beneficial for employers. In DirecTV, the Court, in a 6-3 decision, reversed a California appellate court and held that the Federal Arbitration Act (FAA) preempts state law even when the contract in question expressly provided that the enforceability of the class action waiver shall be determined under the “law of your state.”  Specifically, the contract at issue stated if the “law of your state” makes the waiver of class arbitration unenforceable, then the entire arbitration provision “is unenforceable.”  The contract also provided that the arbitration provision “shall be governed by the Federal Arbitration Act.” Under the law of the State of California, waiver provisions of class arbitrations were in fact unenforceable, in apparent conflict with the Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion that the Federal Arbitration Act preempts and invalidates that rule.   The California trial court and Court of Appeals hung their hats on the fact that, under California law—as applied pursuant to the contract—the wavier of class arbitration was unenforceable, and therefore, the arbitration provision was entirely unenforceable.  The state courts reasoned that the parties were free to choose what law would govern the arbitration provision, including California law, as if it had not been preempted. While parties to a contract, generally, are still free to determine which state’s law applies, that applicable state law must be valid law and not otherwise in conflict with relevant federal law, or here, the FAA.  The Supreme Court ultimately held the California courts’ interpretation of “law of your state” and ruling showed a hostility toward arbitration that was inconsistent with the FAA. Legally, employers should continue to review the language of their employment agreements, which commonly contain class arbitration waivers, and ensure that it is consistent with the FAA, and that it does not otherwise invoke state law which may be inconsistent with the FAA.  Employers can take some comfort in the policy favoring arbitration, including class action waivers, evidenced by the Supreme Court in the DirecTV opinion.

On Monday January 11, 2016, the United States Supreme Court heard argument in the case of Friedrichs v. California Teachers Association and, although nothing is certain until the Court issues its opinion, it appears likely that the Court will overturn precedent and hold that public employees cannot be forced to pay any amounts to unions, even if those payments are earmarked to pay for the costs of collective bargaining as opposed to political activities like campaign contributions. Although the outcome of this case will not directly impact private sector employment, the discussion surrounding Friedrichsaffords an opportunity to remind private sector employers that, even in non-right to work states, employees cannot be forced to become union members. The plaintiffs in Friedrichsargued convincingly that when the employer is a governmental entity, collective bargaining itself is political speech and that forced participation in that speech violates public employees’ First Amendment rights. If the Court rules as expected, the case will have significant implications for public employers and for the unions that rely upon the dues and agency fees paid by public employees. Regarding the private sector, the United States Supreme Court has long held that no private sector employee can be forced to join a union and pay full dues. Rather, employees in non-right to work states who work under the terms of a collective bargaining agreement that contains a union security clause can only be compelled to become core financial members and pay to a union only those amounts attributable to collective bargaining activities, as opposed to political activities. In addition, core financial members are not subject to union discipline. Private sector employers should not assist, and should scrupulously avoid the appearance of assisting, their employees in withdrawing their union membership in favor of core financial member status, as such activities could constitute unfair labor practices. There are, of course, many excellent free resources available on the internet for private sector union environment employees to learn about their right to resist union membership and assert their rights to free association and free speech.

Many of us like to make New Year’s resolutions, and I am no exception. This year I have resolved to dust off all of the exercise equipment in my house and get into shape. I seem to have this resolution every year (with not the greatest success!), and for the last several years I have offered the same New Year’s resolution to employers, which is to get ahead of the curve on the H-1B visa process rather than waiting until the last minute. The H-1B is the main work visa for U.S. employers to employ highly skilled foreign professionals. The filing window for H-1Bs opens each year on April 1, and this past year on the first day of filing, employers filed 235,000 applications for the available 85,000 H-1Bs. The demand for H-1Bs in 2015 was unprecedented, with employers having less than a 40% chance of winning the H-1B lottery and securing H-1B visas for essential employees. As the economy continues to improve we expect an even greater demand for H-1Bs in 2016, so we again suggest that employers begin planning now to maximize their chances of winning the lottery and to explore other possible work visa options. Why now? The H-1B application process involves two distinct steps. First, the employer files a labor condition application (“LCA”) with the U.S. Department of Labor. The LCA requires the employer to attest to the wages to be paid to the foreign worker, that the employer is providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is not a strike or lockout in the occupational classification at the place of employment and that the employer has provided notice of the filing of the LCA. Second, after the LCA is certified by the DOL, the employer files a petition with U.S. Citizenship and Immigration Services seeking approval to employ the foreign worker in H-1B status. An employer cannot file the H-1B petition without first obtaining DOL certification of the LCA. Delays often occur in the LCA process. Although the DOL generally adjudicates LCA applications within seven business days, the sheer number of LCA applications filed at the start of the H-1B filing window often stresses the DOL’s systems. Some employers have been completely shut out of the H-1B lottery due to delays in obtaining LCA approval which prevents the timely filing of the H-1B petition. Getting started on the LCA and H-1B process well in advance of the April 1 filing date, rather than waiting to start until the last two weeks in March, allows employers to overcome potential DOL processing delays. Because employers’ odds of winning the H-1B lottery continue to shrink, we also suggest exploring other work visa options. For example, many foreign students in the U.S. obtain 12 months of employment authorization upon graduation from college. In certain circumstances, foreign students with STEM degrees from a U.S. college are eligible for an additional 17 months of employment authorization (a total of 29 months). Moreover, under a proposed regulation currently being reviewed, the STEM work authorization would be extended to 24 months, providing qualified foreign students a total of 36 months of uninterrupted work authorization. Such a lengthy term of work authorization would provide employers several attempts in the H-1B lottery. Another option to explore is the TN visa, which is available to Canadian and Mexican citizens working in a professional occupation covered by the NAFTA Treaty. The H-1B cap remains a continuing challenge for employers looking to lock up key talent to help their company grow its business. With some advance planning, companies can at least try to tilt the odds a little in their favor.

When employers consider potential discrimination claims to avoid, the analysis should not stop with Title VII, the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”).  Hiding in plain sight, but not to be overlooked, is ERISA Section 510, 29 U.S.C. § 1140. ERISA Section 510, 29 U.S.C. § 1140, provides: “[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan…” ERISA Section 3(7), 29 U.S.C. § 1002(7), defines a “participant” as “any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.” Discrimination claims under ERISA Section 510 occur most often when an employer has terminated an employee, and the employee claims that the termination was to prevent the employee from making a claim under a benefit plan or becoming eligible for benefits under a benefit plan. Although discrimination claims brought under ERISA Section 510 face different substantive requirements than discrimination claims brought under Title VII, the ADEA, and the ADA, they are similarly analyzed under the familiar McDonnell Douglas three-stage burden-shifting paradigm. To prevail under ERISA Section 510, an employee must prove that the employer’s adverse employment action was taken with the specific intent to interfere with the employee’s rights or benefits under an ERISA plan.  This means that the loss of benefits was the reason behind the adverse employment action, not merely a consequence of the action.  As with other employment discrimination causes of action, if the employee can make an initial showing of a prima facie case for intentional interference, then the employer must come forward  with a legitimate, non-discriminatory basis for their action.  If the employer succeeds, then the ERISA Section 510 plaintiff is “required to present evidence that [an employer] acted with ‘specific intent’ to interfere with their rights” to overcome an employer's legitimate, non-discriminatory reason.  This specific intent can be shown with circumstantial evidence, but must be more specific than mere conjecture. ERISA Section 510 claims have become more prevalent.  Employers contemplating layoffs or terminations of employees with benefits subject to ERISA should consult with counsel to identify and mitigate the risk of ERISA Section 510 claims.

In December 2012, the EEOC adopted its Strategic Enforcement Plan for Fiscal Years 2013-2016 (the “SEP”), in which it highlighted the agency’s enforcement priorities for the coming three years.  Now two years into the plan, the EEOC continues to refine its strategic enforcement efforts and employers are responding to them. The EEOC’s SEP identified six priorities: Eliminating Barriers in Recruitment and Hiring. Protecting Immigrant, Migrant and Other Vulnerable Workers. Addressing Emerging and Developing Issues. Enforcing Equal Pay Laws. Preserving Access to the Legal System. Preventing Harassment Through Systemic Enforcement and Targeted Outreach. In 2015, the EEOC continued its effort to pursue these stated priorities through systemic investigations and litigation arising from those investigations, despite a mixed record of success in the courts.  For example: Background Check Litigation: Despite some notable setbacks, such as the Fourth Circuit’s affirmance of summary judgment against the EEOC and scathing rebuke of its litigation conduct in EEOC v. Freeman, the EEOC has continued to pursue cases involving background checks in furtherance of its stated priority of eliminating barriers in hiring.  Pregnancy and Disability Discrimination:Following the United States Supreme Court’s decision in Young v. UPS, the EEOC reissued its pregnancy discrimination guidance, noting that the “Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.”  The EEOC also noted that the ADAAA does not require an impairment to “last a particular length of time to be considered substantially limiting,” thereby potentially including pregnancy.  The EEOC filed numerous ADA lawsuits in 2015, particularly focusing on reasonable accommodation issues. Equal Pay: Although the EEOC continues to assert its pronounced attention to alleged violations of the Equal Pay Act, it has not expended litigation resources commensurate with its statements.  The EEOC may well monitor developments in equal pay protection under state law (e.g.,California’s Equal Pay Act, effective January 1, 2016) to assess the value of its own litigation efforts. Sexual Orientation or Gender Identity Discrimination:In an effort to address “emerging and developing issues,” the EEOC continues to include sexual orientation or gender identity discrimination in its definition of discrimination based on sex.  In its August 2015 fact sheet, the EEOC identified numerous private sector lawsuits initiated by the EEOC or in which the EEOC filed amicus briefs, addressing LGBT-discrimination-related issues. The EEOC appears poised in 2016 to continue pursuing the SEP aggressively through the use of systemic investigations.  Employers can expect the EEOC to seek to expand investigations of individual charges, particularly in substantive areas aligning with the SEP.  Although the United States Supreme Court ruled in Mach Mining, LLC v. EEOC (2015) that the EEOC’s pre-suit obligation to attempt to conciliate alleged unlawful workplace practices is subject to judicial review, the EEOC will continue to test the limits of judicial review of EEOC’s investigations and attempts to conciliate.  As the new year begins, employers must remain vigilant when challenging failures by the EEOC to conciliate or properly investigate charges and pay particular attention to charges alleging disability, pregnancy and sexual orientation or gender identity discrimination.

On December 21, 2015, an Illinois jury awarded Miller UK Ltd. $73.6 million against Caterpillar Inc.  Miller supplied couplers for Caterpillar’s equipment, and the jury concluded that Caterpillar used its leverage as Miller’s largest customer to demand access to information that Caterpillar then used to manufacturer its own version of the coupler.  As a result of the alleged theft, Miller claimed it had to terminate roughly seventy-five percent of its workforce, close an office, and scale back a new business venture.  This lawsuit was not between an employer and an employee, but it holds important lessons for employers that operate in industries and environments with valuable trade secrets. 1.   Audit Non-Disclosure Agreements Trade secrets laws across the country provide a layer of protection for misappropriated trade secrets.  Non-disclosure and confidentiality agreements can often provide additional protection, by catching disclosures that would not be covered by trade secrets laws. In the New Year, audit company records to confirm that any company or person who has access to the company’s trade secrets and proprietary information has signed a non-disclosure or confidentiality agreement.  If any of these parties did not sign an agreement during the contracting process, get an agreement in place immediately. 2.  Review Materials In the New Year, review the company’s handbooks, policies, offer letters, and employment agreements to ensure that they prohibit theft and misappropriation of trade secrets and proprietary information from third parties (and not just the company). Not only will this hopefully prevent employees from engaging in misconduct for which the company could be held liable (i.e. engaging in misappropriation), it could help the company avoid being held liable for any misconduct that does occur. 3.  Audit Restrictive Covenants To the extent that your company has trade secrets and proprietary information that can be protected through restrictive covenants under applicable law, in the New Year, audit the company’s agreements with employees to ensure that all employees who have access to that information have signed the required restrictive covenants.  If an employee has not signed an agreement, identify what legal consideration will be required to obtain enforceable restrictive covenants. For those employees who have signed restrictive covenants, confirm that the company has signed (if required) and that the company records consist of both the employee’s signature and the body of the agreement that the employee signed.  Finally, review the company’s form restrictive covenants to ensure that they have kept up with the growth and development of the company (i.e. that they protect all of the company’s trade secrets and proprietary information) and with the latest developments in the law. 4.  Resolve In the New Year, resolve to follow the three steps above at least once per year.  As the verdict demonstrates, an ounce of prevention is worth a pound of cure.  Following a regular maintenance schedule is the best way for a company to minimize the risks associated with trade secrets and proprietary information.

One “casual” Friday afternoon, one of your employees walks by wearing a cap emblazoned “America: Love it or Leave it.”  You groan inwardly; not another supporter of “that” candidate, you ask yourself.  You can’t resist and blurt out, “Great hat.; why do you hate immigrants?”  The employee casts you a shocked look but walks away silently.  You then proudly boast on your candidate’s Facebook page how you “stood up” to an oppressor. The following Wednesday, you have to write up that same employee for her third unexcused absence in six months.  But, when you ask her to sign the warning, she accuses you of singling her out unfairly because she is a “proud white woman Tea Partier.”  She refuses to sign the warning, storms out of your office and files a complaint against you with HR. Should you be concerned?  Did you cross a legal line?  Are you now at risk?  The short answer: Possibly. “Political activity” and “political affiliation” are only protected statuses for certain employees and in certain locations.  Courts have held the First Amendment protects public employees from their employers using political affiliation on which to base employment decisions.  The Civil Service Reform Act of 1978 expressly prohibits political affiliation discrimination toward federal employees.  Moreover, some states (such as California, Louisiana, New York) and the District of Columbia, as well as cities (such as Lansing, Michigan; Madison, Wisconsin and Seattle, Washington), protect political affiliation similar to protections afforded race, sex, age and disability, even—importantly—for private sector employees. Well, that’s good, you think.  You don’t work in any of those locations, so you’ll probably not have to worry about what you said.  Not necessarily.  Just because you don’t work in the federal sector or in the private sector in a state or municipality that protects private sector employees from political affiliation discrimination doesn’t mean you have carte blanche to speak your mind freely whenever a subordinate employee declares her support for a political candidate, party or cause. Looming even for non-unionized employers is the National Labor Relations Act.  Under the NLRA, even non-unionized employees have the right to discuss workplace terms and conditions of employment.  Where a conversation between employees about a particular political candidate or party, for instance, turns to how that candidate or party might improve or degrade terms or conditions of employment, such a conversation may rise to the level of that protected by the NLRA. Beyond that, expressing any type of political opinion to subordinate employees may leave supervisors and managers exposed to claims they are biased against employees on the basis of other protected statues, such as race, national origin, sex or religion.  As this current election cycle illustrates, political candidates have races, nationalities, religions and other protected characteristics; most, as we have already seen, whether at the national, state or local level, also voice strong opinions about race relations, foreign policy, religious freedom, Second Amendment rights, immigration, LGBT rights and issues and other political issues directly related to characteristics protected by federal, state or local workplace discrimination laws. So, dropping into a political debate with a subordinate employee about a candidate, party, cause or political issue risks allowing the employee to associate your expressed opinions with some type of prohibited discriminatory bias.  Doing so during the heat of a presidential election cycle only increases that risk. How can you limit exposure to such claims?  Foremost, ensure you know whether any federal, state or local law specifically protects your employees from political affiliation or activities discrimination.  If such a law applies to your organization, ensure you understand what it covers (only political activities, expressed political beliefs, or more broadly protecting political affiliation or ideology) and what it does not. Further, be sure to educate supervisors and managers. Training can be an important line of defense, by limiting potential exposure before it even has a chance to evolve. Even where no such laws apply to your workplace, remind yourself and your supervisors and managers how easily a stated political opinion can be viewed as a form of prohibited workplace animus or bias (“She supports that candidate who opposes immigrants, so she must want to fire me so I can be deported.”).  Encourage supervisors and managers (and yourself) to resist the siren call of being drawn into workplace political discussions, specifically with subordinate employees.  Perhaps take the opportunity to ask HR to conduct additional supervisor/manager workplace training.  It’s a long time until the next election.  It always is.

As we head into 2016, it is a good time to review and revise leave and certification policies under the Family and Medical Leave Act (“FMLA”), to limit the risk of FMLA abuse by employees.  Below are nine tips to consider: Conduct an FMLA Audit. Identify FMLA abuse concerns from managers. Give policies, practices and forms to legal to review to make sure your company is following best legal practices. Enforce consequences if the initial certification is not returned within 15 days. All medical certifications are required to be returned within 15 calendar days (unless the leave is unforeseeable and it is not practicable to do so). If the employee fails to return the certification, the employer may deny FMLA leave so long as the employer has advised the employee in writing at the time of the employer’s request for the certification of the consequence of failing to return the certification on time.  Be sure this is enforced uniformly.   Second (and third) opinions. Unfortunately, sometimes an employee’s health care provider will sign off on fraudulent leave requests. In that situation, an employer has the option to seek a second opinion at its own expense. If there is a conflict between the first and second opinions, the employer may require the opinion of a third medical provider at the employer’s expense. Require periodic updates. Managing FMLA leave is easier when employers maintain a line of communication during leave. The regulations allow employers to require “periodic” updates from employees while on leave regarding their intent to return to work, so long as the company communicates this obligation to the employee. Consider implementing a requirement that employees update the employer on their intent to return to work every 30 days. Call-in policies. Implement a policy requiring employees to call-in for time off (including intermittent FMLA leave) in a certain manner. Enforce consequences for failure to follow such policies. Re-Certifications. The FMLA regulations generally allow employers to obtain re-certifications every 30 days, but employers may request them sooner if an employee requests an extension of FMLA leave, the circumstances contemplated in the certification have changed (for example duration or frequency of absences), or the employer receives information that casts doubt on the employee’s need for leave. While an employer may have to wait longer to obtain a re-certification if the duration provided on the previous certification is longer than 30 days, an employer is able to request a re-certification at least every six months. Pay. The FMLA regulations make clear that employees (including exempt employees) need not be paid for periods of FMLA leave, even for partial days.  Consider using a private investigator.  There have been numerous cases where courts have found for an employer when they uncovered abuse through use of a private investigator.   Consider seeking advice of counsel. When in doubt about how to proceed with an employee’s questionable request or exercise of leave, seek advice of counsel. Missteps can be costly and subject employers to claims of interference and retaliation.

Monday, October 5, 2015, marked the beginning of this year’s term of the United States Supreme Court.  This year, the Supreme Court has already granted review in several employment-related cases.  A brief summary of some of these cases and how the Court’s decision may impact employers is provided below. TYSON FOODS V. BOUAPHAKEO,(14-1146) (Decision below: 765 F.3d 791 (8th Cir. 2014)) The Supreme Court has been asked to decide whether a class action may be certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, (i) where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample, or (ii) where the class contains hundreds of members who were not injured and have no legal right to any damages. The plaintiff employees alleged that Tyson failed to compensate them fully for time spent donning and doffing personal protective equipment and walking to and from their workstations.  There were differences in how much time each employee spent on these tasks, and there were employees who did not spend any uncompensated time on these tasks. This case is of great interest to employers who risk exposure to class or collective action claims for unpaid wages and employment discrimination.  The Supreme Court may build upon its position (articulated in previous cases) that certification requirements are stringent and that differences between individual class members cannot be ignored or treated lightly, by applying those principles to the damages element of wage claims.  Caselaw interpreting the procedural requirements for maintaining a class or collective action may ultimately impact the viability of class and collective action claims under local, state, and federal overtime laws and other employment laws. GREEN V. BRENNAN, POSTMASTER GEN.,(14-613) (Decision below: 760 F.3d 1135 (10th Cir. 2014)) The Court has been asked to consider whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation.  There is a sharp split among the United States Courts of Appeals on this issue. Employment discrimination plaintiffs must generally exhaust their administrative remedies prior to filing a lawsuit.  To exhaust administrative remedies, plaintiffs must file a Charge of Discrimination with the EEOC or appropriate agency within a prescribed number of days following the date of an alleged discriminatory act.  In Green, the 10th Circuit found that some act of discrimination by an employer, rather than just an employee’s resignation, must occur within the limitations period for a constructive discharge plaintiff to appropriately exhaust administrative remedies.  Because Green had filed a Charge of Discrimination more than 45 days (the limitations period for federal employees) after the date of any alleged discriminatory act, his claim was time-barred (even though Green had resigned during the limitations period). If the Supreme Court affirms the 10th Circuit, some employees will have a more limited time to bring constructive discharge claims. FRIEDRICHS V. CALIFORNIA TEACHERS ASSOC.,(14-915) (Decision below:  2014 WL 10076847 (9th Cir. Nov. 18, 2014)) The parties have asked the Court to answer the following questions concerning public-sector union agency fees: Whether Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), should be overruled and public-sector "agency shop" arrangements invalidated under the First Amendment. Whether it violates the First Amendment to require public employees to affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. The underlying case involves California public school districts and agency-shop arrangements that may be established between the labor organizations that represent the districts’ employees and the school districts.  The arrangements require that all employees be required to either join the union or pay their fair share of service fees, referred to as an “agency fee” (usually the same amount as union dues).  Under California law, the unions’ use of agency fees is limited to activities “germane” to collective bargaining.  Each year the unions send a notice to all non-members setting forth both the agency fee and the non-chargeable portion of the fee applicable to activities that are not germane to collective bargaining.  If non-members do not want to pay the non-chargeable portion, they must notify the union after receipt of the notice.   The plaintiffs inFriedrichs allege that the agency-shop arrangement violates their rights to free speech and association under the First and Fourteenth Amendment to the United States Constitution by requiring them to make financial contributions to support unions and requiring them to participate in “opt out” procedures to avoid making financial contributions in support of non-chargeable union expenditures. This case is of interest to public employers with a workforce subject to agency-shop arrangements.  The Court’s ruling may ultimately impact the existence of labor unions and the unions’ power in such workplaces. MHN GOVERNMENT SERVICES V. ZABOROWSKI,(14-1458) (Decision Below: 601 Fed. Appx. 461 (9th Cir. 2014)) The parties dispute whether California’s arbitration-only severability rule is preempted by the Federal Arbitration Act (“FAA”). MHN Government Services (“MHN”) moved to compel arbitration after being sued for alleged violations of the Fair Labor Standards Act for failing to pay proper overtime compensation.  The California district court found that the multiple aspects of the arbitration provision were either procedurally or substantively unconscionable.  Under California’s applicable severance principles, the court declined to sever the unconscionable portions of the arbitration provision as they caused the entire agreement to be permeated with unconscionability.  The Ninth Circuit Court of Appeals affirmed. This case is of relevance to California employers because it addresses whether California’s applicable severability principles are preempted in favor of the FAA.  More specifically, given the mandates of the FAA, the Court must determine whether the California severability principles are impermissibly unfavorable to arbitration particularly when the arbitration agreements contain express severability provisions. The Supreme Court’s decision will determine whether California and other states with similar principles will be brought in line with the prior opinions of the Supreme Court and four other courts of appeals.

Are over-the-road trucking companies required to account for drivers’ sleeper berth time when determining whether the drivers are paid minimum wage?  According to the United States District Court for the District of Nebraska, sleeper berth time is compensable time, and therefore, must be taken into account for purposes of determining drivers’ minimum wage. On August 3, 2015, the court in Petrone v. Werner Enterprises, Inc., Case No. 8:12CV307, granted summary judgment in favor of a class of drivers who claimed that the company did not compensate an amount equal to minimum wage for all compensable time.  At issue was whether over-the-road truck drivers must be compensated for time spent in the sleeper berth.  The question appears to be succinctly answered in the employer’s favor in the Department of Labor regulation, 29 C.F.R. § 785.41, which states: Any work which an employee is required to perform while traveling must, of course, be counted as hours worked.  An employee who drivers a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.(Emphasis added). Plaintiffs, however, pointed to another DOL regulation, 29 C.F.R. § 785.22(a), claiming that it required the company to compensate drivers for sleeper berth time.  Section 785.22(a) provides: Where an employee is required to beon duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep.  If sleeping period is of more than 8 hours, only 8 hours will be credited.  Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.(Emphasis added). Attempting to meld together the inconsistency of these regulations, the court found that section 785.41 “allows an employer to exclude a bona fide sleeping period for drivers … when adequate sleeping periods are provided,” but that “Section 785.22 limits the bona fide sleeping period exclusion to a maximum of 8 hours per 24 hour period.”  But, to reach this conclusion, the court concluded that the drivers were “on duty for 24 hours or more,” as required under Section 785.22(a). The Petronecourt’s decision thus leads to the conclusion that drivers on the road more than 24 hours at a time must be compensated for 16 hours per day. The court granted the company permission to seek appeal to the 8th Circuit Court of Appeals, finding that its decision is a controlling question of law about which there is substantial ground for difference of opinion.  On September 25, 2015, the 8th Circuit declined to take the matter on interlocutory appeal.  The case will likely proceed to a trial on damages soon. The only other case to evaluate the applicability of Sections 785.22(a) and 785.41 to over-the-road truck drivers is Nance v. May Trucking Co., Case No. 3:12-cv-01655, from the United States District Court for the District of Oregon.  There, the court reached precisely the opposite result, finding that sleeper berth time is not compensable under the DOL regulations. What now?  The Petrone and Nance decisions are irreconcilable.  While the Nancecase is the more logical and reasoned approach, several cases are pending in federal courts throughout the country, and a consensus may be forthcoming.  In the meantime, over-the-road trucking companies should discuss with counsel the applicability of and solutions to these decisions as to their particular circumstances.

On August 27, 2015, the National Labor Relations Board, according to its own press release, “refined its standard for determining joint employer status” in the Browning-Ferris Industries of California decision.  In reality, the NLRB did far more than “refine its standard.”  The NLRB has, in fact, completely overhauled its joint employer test to the detriment of businesses that contract with third parties for the provision of labor. Under the new standard, a provider of contract labor and its customer will be considered joint employers even if the customer does not actually exercise control over the terms and conditions of the contract laborers’ employment, but only reserves to itself the right to exercise such control.  Although avoiding such a determination under the National Labor Relations Act should be sufficient motivation for companies that utilize contract laborers to take steps to avoid a joint employer determination, it is likely that other government agencies and plaintiffs’ attorneys will attempt to generalize the Browning-Ferris test to other statutory schemes—including the Fair Labor Standards Act and its state equivalents. There are several practical steps that customers of providers of contract labor can take to reduce the likelihood of a finding of joint employer status: Review their written agreements to determine whether those agreements contain provisions that expressly reserve to the customer the right to exercise control over the terms and conditions of the contract laborers’ employment. If possible, renegotiate their agreements to include terms that expressly disavow any such reservation of rights.  Irrespective of the contents of their contract labor agreements, contract labor customers should review the policies under which contract laborers perform services in their facilities. Perhaps most importantly, conduct an audit on the implementation of those policies to ensure that their employees are not engaging in conduct with respect to the supervision of contract laborers that could contribute to the potential for a finding of joint employer status. In addition to these steps, businesses that utilize contract laborers should continuously reevaluate, based upon developments such as the Browning-Ferris holding, whether the benefits of utilizing contract laborers outweigh the potential risks.

Employers across the country may soon have to think twice before firing an employee who chooses to “fight” rather than take “flight” when faced with threats of violence at work.  In a recent decision, Ray v. Wal-Mart Stores, Inc.,  the Supreme Court of Utah held that workers who defend themselves or others from violent attackers at work can sue their employers for wrongful termination if they are fired for defending themselves.  The case stems from the termination of five employees who chose to defend themselves instead of de-escalating and avoiding an altercation with armed shoplifters.  The employer claimed the employees violated company policy of disengaging, withdrawing and alerting authorities. The Utah court determined public policy favors an employee’s right to defend him or herself in dangerous situations, and the public policy outweighs the employer’s rights to fire at-will employees without cause.  Under the at-will employment doctrine, an employer has broad discretion to manage its workforce and may fire an employee for any reason not prohibited by law, subject to several exceptions, including when an employee‘s termination violates a clear and substantial public policy.  An at-will employee whose employment has been terminated in violation of a clear and substantial public policy may sue for wrongful termination. The Court highlighted the following three points: Utah law strongly supports the right of self-defense while recognizing circumstances in which a person may have a duty to withdraw; A policy favoring the right of self-defense is also of broad public importance because it protects human life while deterring crime; and Despite the strong interests employers have in maintaining a safe workplace through de-escalation policies, the right of individuals to defend themselves against imminent bodily injury or death is simply more compelling where the employee cannot safely withdraw. The Utah ruling is consistent with persuasive authority from other jurisdictions, specifically West Virginia.  Wal-Mart, however, argued several courts from other states have refused to extend the public policy exception to include self-defense, including courts in Pennsylvania, Maryland, North Carolina, and two federal district courts. The ruling has significant impact on businesses in Utah and potentially businesses nationwide should other states follow the reasoning adopted in Utah and West Virginia.  Employers should be cognizant of an action taken against an employee who chooses self-defense in light of an employer’s stated policy to the contrary.

On September 25 USCIS rolled back the program granting certain foreign nationals the ability to file to adjust status to permanent resident (Form I-485).  Previously, USCIS had announced a coordinated effort with the Department of State (DOS) to revise the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The earlier pronouncement and announced filing dates would have permitted many employment based Chinese, Indian, and Filipino immigrants to file to adjust status.  A foreign national filing to adjust status is eligible for temporary work and travel benefits while the case is processed, and spouses and dependent children are able to file for these benefits as well.  Over the past two weeks many foreign nationals and their families have been busy preparing applications in anticipation of the I-485 filing window opening on October 1. Unfortunately for many of these individuals, the rollback announced on September 25 will delay their ability to file for permanent residence and to receive work and travel authorization.  For example, the original pronouncement would have allowed Indian nationals with advanced degrees (EB2 category) to file to adjust status if their priority date was prior to October 1, 2011.  Under the new cutoff dates announced on September 25, only those Indians in the EB2 category with priority dates before July 1, 2009 may file.  Similar rollbacks in the I-485 filing dates are present for Chinese and Filipino professionals. Although many employment based immigrants will be disappointed to learn of the filing delay, we are hopeful the filing dates will advance over the coming months as USCIS and DOS work out the kinks in the new program.  Check back with us as we will continue to monitor developments in this important area that impacts so many employees who have been waiting years to complete the permanent immigration process.

An estimated nine million people in the United States identify as lesbian, gay, bisexual, or transgender, and many of these individuals are in the workforce.  Despite Americans’ growing acceptance and support for LGBT rights, many LGBT individuals risk facing discrimination in the workplace.  Title VII of the Civil Rights Act of 1964, which protects employees from discrimination based on sex, race, color, national origin, and religion, does not explicitly protect employees from discrimination based on sexual orientation or gender identity.  The United States Equal Employment Opportunity Commission, however, has advanced the position that Title VII’s prohibitions on employment discrimination encompass sexual orientation and gender identity discrimination (and has instituted multiple lawsuits targeting LGBT discrimination pursuant to a strategic enforcement plan). Although the status of employment discrimination protections for LGBT individuals is not settled under federal law, employers should be aware of the many state laws and local ordinances that do explicitly protect LGBT individuals from employment discrimination.  In many cases, these state laws and local ordinances apply to a greater number of employers than Title VII, which applies to employers with fifteen or more employees.  For example, the California Fair Employment and Housing Act protects California employees from discrimination based on sexual orientation and gender identity and applies to employers with five or more employees in the state. Over 200 cities and counties prohibit discrimination based on sexual orientation and/or gender identity in private employment. These local ordinances provide protection to employees, even in states that have traditionally been hostile to LGBT individual rights.  For example, in Texas, where the state legislature recently considered over 20 bills that would have curtailed LGBT rights in some fashion (none of which were actually passed), the cities of Austin, Dallas, Fort Worth, Houston, and Plano have passed ordinances protecting employees from discrimination based on sexual orientation and gender identity.  These city ordinances protect approximately 21% of the Texas population.  Although employees generally cannot institute lawsuits against employers based on violations of local ordinances, an employer can be subject to fines and even jail time for such violations. Even though federal law does not explicitly prohibit sexual orientation and gender identity discrimination in employment, employers should be cognizant of the state laws and local ordinances that apply to them.  Employers may consider adding “gender identity” and “sexual orientation” as protected categories in employee handbooks and other employment policies to ensure compliance with any applicable state and local law.

On September 10, the Office of Federal Contract Compliance Programs (OFCCP) published a Final Rule prohibiting discrimination for compensation disclosure and discussion.  The Final Rule follows Executive Order 13665, which was signed by the President in April 2014.  The Final Rule amends the existing Equal Opportunity Clause under Executive Order 11246 to prohibit discrimination against an employee or applicant for inquiring about, discussing or disclosing their own compensation or that of another employee or applicant. The Final Rule also requires contractors and subcontractors to add prescribed language to their employee policies. While Section 7 of the National Labor Relations Act (NLRA) already prohibits employers from restricting employee discussion of compensation, there are differences in scope of the restrictions.  Unlike the NLRA, this new Executive Order extends protections to supervisors and managers. The Final Rule includes two defenses to a claim of discrimination for compensation disclosure:  a general defense provision that the OFCCP is referring to as the “workplace rule” and an “essential job functions” defense.  The “workplace rule” allows employers to discipline, discharge or otherwise take adverse action against an employee for violating a work rule, policy or agreement that does not prohibit employees or applicants from disclosing or discussing compensation.  For example, if an employee exceeds a break time while discussing compensation, the employer could discipline or discharge the employee for violating the break time rule, but not for discussing compensation. The “essential job functions” defense protects a contractor from liability for taking adverse action against an employee whose essential job functions include access to compensation data and who discloses such compensation to individuals who do not have access.  For example, a contractor could take adverse action if a human resources employee with access to compensation data disclosed such data.  This defense makes clear that employees with access to their employer’s confidential pay data cannot share such confidential information. Effective Date:  The Final Rule takes effect with the Company’s first new federal contract or modification of an existing contract on or after January 11, 2016.  In other words, the effective date will vary for each contractor. In order to avoid missing the effective date, contractors and subcontractors should consider taking the following action items on or before January 11, 2016. Action Items:  To comply with the new rule contractors and subcontractors should do the following by their organization’s effective date: Update Equal Opportunity Clause in contracts and purchase orders to include non-discrimination for inquiring about, discussing or disclosing compensation. Add a “Pay Transparency Statement” to the contractor’s employee manual or handbook.  Contractors may create a separate standalone policy regarding pay disclosure discrimination or could also add this language to an existing policy.  The language of the statement is prescribed by the OFCCP as follows: The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor’s legal duty to furnish information.

In an active year for federal contractors and subcontractors, President Obama continued the trend of mandating certain policies by fittingly signing a new executive order on Labor Day.  While federal legislation has yet to be implemented that would require all employers to provide paid sick leave, at least 25 other jurisdictions throughout the county have. Now, under the executive order, federal contractors and subcontractors across the country will have to offer their employees paid sick leave. This new executive order requires contracting agencies and federal contractors and subcontractors to incorporate into their contracts and subcontracts as a condition of payment a clause that provides for  all employees performing any of the contract or subcontract earn at least 1 hour of paid sick leave for every 30 hours worked. Under the executive order, sick leave may be used by covered employees for 4 different broadly defined reasons: The employee’s own physical or mental illness, injury, or medical condition; The employee obtaining diagnosis, care, or preventive care from a health care provider; The employee caring for a child, parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who needs care for either paragraphs 1 or 2 above or “is otherwise in need of care”; or Domestic violence, sexual assault, or stalking if the leave is for the purposes described in paragraphs 1 or 2 above. Although final regulations will give more guidance on the order, the order itself explains many details.  Notably, the order makes clear that an employer’s existing paid leave policy that is made available to all covered employees will satisfy the requirements of the order so long as: (1) the amount of paid leave meets or exceeds 1 hour of paid sick leave for every 30 hours worked and (2) the leave may be used for the same reasons and under the same conditions of the order. The executive order also answers some questions about how an employer is required to handle remaining sick leave at the end of a year and at the end of employment.  The order specifies that accrued leave shall carry over to the next year and shall be reinstated to the employee if he or she is rehired within 12 months of a job separation.  At separation of employment, an employer is not required to pay an employee for accrued, but unused sick leave under the order.  State or local law, however, may require such payment. Fortunately, the order gives federal contractors and subcontractors time to consider and implement the requirement.  The final regulations implementing the order are not required to be issued until September 30, 2016, and the requirements of the order are not required to be entered into contracts and subcontracts until January 1, 2017. We will continue to monitor the issuance of implementing regulations for this order and new paid sick leave laws for other jurisdictions across the country, including California.

On August 31, 2015, the California Senate unanimously passed (39-0) Senate Bill 358, the California Fair Pay Act (CFPA), and sent the bill to the desk of Governor Jerry Brown, who intends to sign it into law.  The purpose of the CFPA is to strengthen the 1949 California Equal Pay Act by closing gaps in the existing law, which have resulted in a significant differential in pay for women as opposed to men. As of 2013 in California, women made only 84 cents for every dollar earned by a man. The CFPA substantially broadens and strengthens protections for women in the workforce.  The bill’s primary provision calls for women to be paid the same as men for “substantially similar work” rather than the “same” job, subject to a few limited exceptions.  Now, employers (and courts) will be required to look more critically at factors such as the similarities in skill, responsibility, and effort required to perform a job when determining whether men and women should be paid the same when engaged in similar jobs.   Other changes to the law include increasing recording keeping requirements from two to three years and adding an anti-retaliation provision to protect employees who inquire about how much their co-workers earn.  Importantly, the CFPA also does away with the same location requirement. Specific Amendments to Law The CFPA amends a number of sections of the 1949 Act, California Labor Code section 1197.5, which generally attempts to prohibit employers from paying women less than men to do the same job.  Over the past several decades, ambiguities in section 1197.5 have been relied on to justify different pay for men and women who performed substantially similar, if not identical, jobs.  For example, section 1197.5 applies only to individuals working “in the same establishment,” which means that women working at a company’s Sacramento facility is not able to compare her pay to a man working in the same job at the company’s Long Beach location.   Section 1197.5 also does not expressly prohibit retaliation against employees who ask how much money other employees make.  This has prevented many women from learning whether they are being paid comparably to men holding the same job. Critical to getting employer (and employer-friendly legislators) support was retaining a form of the “business necessity” exception.  This provision provides employers necessary flexibility, enabling them to adjust pay for men and women when the specific nature of a particular job has requirements that differ for men and women.  Employers are likewise still permitted to differentiate pay based on seniority and merit.  However, they must evaluate employees performing substantially similar work in a nondiscriminatory way and maintain gender-neutral metrics to determine merit, productivity, and other bonuses.  Gone is the former ambiguous “bona fide factor other than sex” justification to pay different wages.  It has been replaced by a number of specific affirmative defenses that employers must meet in order to justify different pay. Moving Forward Because California has had gender pay protections since 1949, many employers have already taken steps to ensure that male and female employees are compensated equally for the same work.  The CFPA does, however, broaden and expand same-pay protections to employees in a range of differently titled jobs provided the duties they perform are substantially similar to other jobs.  This means that employers will need to do diligence and confirm, or update, their current policies and practices. Wage Audits: Employers should review job descriptions and audit wages paid to male and female employees with “substantially similar” jobs, as determined through a review of job descriptions, to ensure that all employees with similar responsibilities are being compensated equally. Handbooks: Employers should update employee handbooks with an appropriate non-discrimination provision relating to wages and include language that informs employees that they will not be retaliated against for inquiring about wages paid to them or other employees. Retention Policies: Records retention policies should be updated to reflect a three year hold on pay-related records for employees. HR Training: Training should occur for all decision makers, particularly for those who make hiring decisions, to inform and educate them as to the details of these amendments. A copy of the legislation is available here.  Polsinelli’s Labor & Employment practice will report on additional updates after this law goes into effect. For more information on how these amendments may impact your business, please contact the authors or your Polsinelli attorney.

Sweeping changes to the Department of Labor’s wage and hour regulations, which extended the federal minimum wage and overtime requirements to home health workers, were recently upheld by the United States Court of Appeals for the District of Columbia Circuit. The Fair Labor Standards Act (FLSA) exempts several categories of workers from the overtime pay requirements, including exemptions for executives, administrative, professional and outside sales employees, as well as an exemption known as the “companionship services” exemption. Prior to the new regulations, employers of home health care workers —which included third party providers of home health care workers as well as the individuals who retain such workers—were not required to pay overtime where the employee was a live-in domestic service worker or a worker who provided “companionship services” to the elderly, sick or disabled. After more than four decades of recognizing these workers as exempt, the new regulations narrow the scope of the FLSA’s exemption for domestic-service workers who provide either companionship services or live-in care for the elderly, ill or disabled. Pursuant to the new regulations, third-party employers of companionship services and live-in employees can no longer classify these workers as statutorily exempt under the FLSA. In addition, the new regulations include a revised,  narrower definition of “companionship-services,” which further limits the scope of the FLSA’s “companionship services” exemption. According to the DOL’s new definition: “Employees providing ‘companionship services’ as defined by the FLSA need not be paid the minimum wage or overtime. Trained personnel such as nurses, whether registered or practical, are not exempt from minimum wage or overtime under the exemption for companions, but registered nurses may be exempt as professionals.”  Ambiguities between these roles may be fertile grounds for investigations and litigation. In 2014, the Home Care Association of America, a group of trade associations representing third-party agencies that employ home case workers, sued the DOL to prevent the new regulations from going into effect. The trial court ruled against the DOL, finding that the new regulations relating to third-party agencies conflicted with Congressional intent, and that the DOL overstepped its authority by attempting to administratively change longstanding interpretations of “companionship services” as applied under the FLSA. The DOL appealed, and on August 21, 2015, a panel of the D.C. Circuit reversed the lower court. The panel in Home Care Association of America v. Weil, No. 15-5018 (D.C. Cir. Aug. 21, 2015),  relied on prior U.S. Supreme Court precedent, Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007), which permits the court to defer to agency discretion in its rule making role when neither the statute nor its legislative history expressly addresses the issues at hand: the interpretation of “companionship services” and the treatment of third-party employment under the FLSA. The panel also rejected public policy arguments from the agencies that the new regulation ignores the economic realities faced by the home health industry, and that the consequences of the new regulations will include making home-health care less affordable for individuals, increased institutionalization, and a decline in the quality of care. The DOL’s final rule was to take effect on January 1, 2015, with DOL enforcement beginning on June 30, 2015. Given the Court’s recent ruling, it is unclear when the regulations will be effective or when the DOL will begin enforcement. The Home Care Association of America has moved to stay the D.C. Circuit’s mandate pending further appeal to the United States Supreme Court.  In opposition to the motion to stay, the EEOC has represented that it will not seek to enforce the regulations until 30 days after issuance of the mandate. In the meantime, third-party employers of home-health care workers should take affirmative steps to review the classification of their employees for compliance with the FLSA and any state law minimum wage, overtime and recordkeeping requirements. In so doing, third-party home-health providers will improve their ability to avoid the very complex and expensive specter of a collective action under the FLSA or state law equivalent.

Wearable technology in the workplace has evolved far beyond 20th-century relics such as wireless headsets and walkie-talkies. Employers now can track and analyze proprietary measures of worker productivity and other results-driven metrics through devices worn on the wrist or elsewhere on the body. Leveraging robust streams of real-time data can implicate various employment laws and associated legal responsibilities to employees. In addition, collected data may be subject to a preservation duty, discoverable in litigation, and, in some cases, relevant to legal claims by employees. Wearable technology can both foster and challenge employment law compliance. The Americans with Disabilities Act (ADA) requires employers to engage in an interactive process with qualified employees, to identify appropriate disability accommodations. Employers who aggregate data on employee productivity through wearable technology may use such metrics to assess whether an employee’s desired accommodation or any accommodation, is reasonable. Data could also be used to document that a desired accommodation poses an undue burden on business operations. On the other hand, an employee may rely on productivity data to argue that a termination decision for poor performance was pretext for unlawful discrimination or retaliation. Employers that rely on objective productivity data to make day-to-day personnel decisions should do so consistently and document any deviations by identifying other legitimate business reasons.  Moreover, should an employer rely on an employee’s objective data for a personnel decision, the employer may be obligated to preserve and produce the data of other employees for comparison purposes. Technology that tracks employee movements is potentially problematic in the context of protected concerted activities. Employees have the right to gather to discuss unionization, or other terms and conditions of work, on breaks and outside working hours, without employer interference or coercion. To reduce the risk of a claim of interference or chilling of protected activities, employers should disable or require employees to surrender wearable technology outside of working time. Finally, employers should exercise extreme caution before using wearable technology to assess employee productivity by gathering biometric data. Such data most likely must be gathered and stored in accordance with HIPAA regulations governing protected health information, and its use in employment decisions may trigger the requirements of the ADA and the Genetic Information Nondiscrimination Act (GINA). While there are endless possibilities for leveraging technology to assess employee productivity, care must be taken to implement advancements without discriminating against or disparately impacting protected individuals. For an additional examination of wearable technology and the implications on cybersecurity from the perspective of Polsinelli’s Privacy and Data Security attorneys, please visit the Polsinelli on Privacy blog here.

On September 1, 2015, United States District Court Judge Edward Chen certified a class of Uber drivers who claim that the ridesharing and technology company misclassified them as independent contractors and deprived them of tips that Uber advertised but never paid.  Throughout this and other challenges to its business model, Uber has maintained that it properly classifies its drivers as independent contractors, pointing primarily to the fact that drivers can work whenever and wherever they want, for however long they want.  In this case, Uber argued that due to its “unique relationship” with each individual driver, the Court would be unable to make class-wide determinations as to whether each driver is properly classified. Ruling for the plaintiffs, Judge Chen concluded that UberX, UberBlack, and UberSUV drivers who signed up directly with Uber under their individual names from August 16, 2009, to the present, satisfied the requirements of Federal Rule of Civil Procedure 23(b)(3) to proceed as a class on the claims that they were misclassified as independent contractors and deprived of tips.   In his order, Judge Chen drove straight through Uber’s “unique relationship” argument: “On the one hand, Uber argues that it has properly classified every single driver as an independent contractor; on the other, Uber argues that individual issues with respect to each driver’s unique relationship with Uber so predominate that this Court (unlike, apparently, Uber itself) cannot make a classwide determination of its drivers’ proper job classification.” Highlighting the “inherent tension” of Uber’s position, the finding that dominated the decision is that Uber retained the right to control the drivers in every essential function of the business—even when it did not actually exercise that control.  From its exclusive right to control driver training, the fares charged to passengers, and the “star” ranking system, to Uber’s uniform policies against drivers accepting tips and permitting drivers to work as much or as little as they wanted, the Court concluded that Uber’s right to control these elements of its relationship with drivers could be answered the same way for every driver. While the decision is a challenge to Uber, all was far from lost for the company.  Uber prevailed in convincing Judge Chen that the drivers’ claims for expense reimbursement, e.g., gas, car maintenance, water, were too individualized for class treatment.  The Court also excluded from the class thousands of drivers who work for intermediate companies (not directly for Uber), and those who signed and did not opt out of a 2014 arbitration clause.  The Court did, however, give the drivers 35 days to amend their pleading to make a showing to warrant class certification of additional claims or subclasses. The Road Ahead In the context of this case, the decision means that the stakes for Uber to prevail on the merits increases significantly. Under Uber’s current business model, it avoids paying employment taxes, expensive driver benefits, reimbursing driver expenses, and being obligated to follow most of California’s employment laws. Uber’s $50 Billion valuation does not seem to be affected by one ruling on the merits but a case can be made that such an outcome could make operating the ridesharing company more expensive and significantly less profitable. On the other hand, Uber is one of the most successful disruptive technologies of the new millennia. The Court’s Order is the latest in a series of decisions attempting to determine worker status in today’s On-Demand Economy. In June, a California Public Utilities Commission hearing officer ruled that Uber driver Barbara Ann Berwick was an employee, which obligated the company reimburse her $4,152 in expenses relating to her driving. And last week, the National Labor Relations Board (NLRB), in an unprecedented decision, found that companies who use temporary workers from staffing agencies may be considered joint employers for purposes of collective bargaining (read here for Polsinelli’s take on the ruling). Like in the On-Demand Economy cases, the NLRB held that the power of an employer to control its workforce, rather than the power actually exercised, is the correct analysis for assessing the employer/employee relationship. These, and other related cases, are charting an unpredictable, and oftentimes incompatible, course for businesses to navigate their relationships with workers in the new On-Demand Economy. The uncertainty of the current state of the law with regard to workers in the On-Demand Economy leads to what we consider the most pressing question: What will the state and federal legislatures do? While courts and quasi-judicial bodies interpret the current laws, the real responsibility for moving ahead in the On-Demand Economy lies with state and federal government. The economy has evolved beyond the parameters of a two classification worker model of (a) employees or (b) independent contractors. As individuals continue to sign up to drive for Uber and Lyft, deliver food for Eat24 or Caviar, and act as personal shoppers for Instacart, companies need clear guidance and predictable rules and regulations to follow to grow these in-demand businesses. The case is O’Connor, et al. v. Uber Technologies, Inc., No. C-13-3826-EMC, and the class certification order is available here.

As announced on September 9th, effective October 1st U.S. Citizenship and Immigration Services (USCIS) is changing procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will allow many applicants to file applications to adjust status sooner than expected, and enable these applicants to obtain important temporary benefits, such as employment authorization and advance parole. What is Changing: Each month two separate charts per visa preference category will be posted in the Department of State’s Visa Bulletin: Application Final Action Dates (dates when visas may finally be issued); and Dates for Filing Applications (earliest dates when applicants may be able to apply). Applicants can use these charts to determine when to file their Form I-485, Application to Adjust Status with USCIS.  However, once filed the application to adjust status cannot be approved until the Application Final Date is reached. Impact on Foreign Workers: Many foreign nationals have been waiting years for visas numbers to become available so they may file applications to adjust status.  The long wait causes uncertainty and family pressures, and this new initiative will make it easier for foreign workers to remain in and contribute to the US by relieving these tensions.  Not only will qualifying workers be able to file to adjust status, spouses and children under the age of 21 may also file to adjust status along with the principal applicant and obtain work authorization.  Everyday living will become easier for these families, as spouses might choose to enter the workforce and children will find it easier to attend college, obtain driver’s licenses, and have a summer job.   For these workers and families, setting down permanent roots in the US may become a much more attainable reality.

One of your most valued employees walks in the door of your office and announces that she is transgender, and is starting the process of transitioning from a male to a female.  Of course, you want to support your employee.  You don’t have any intention to treat your employee any different as she goes through the transition process.  You already know from reading recent blog posts by Mary Kathryn Curry and Chris Johnson that the Equal Employment Opportunity Commission is expanding its definition of what constitutes illegal sex discrimination under Title VII, and that momentum is gathering behind the EEOC’s view, underscored by the Supreme Court’s ruling in Obergefell v. Hodgesthat legalized same sex marriage nationwide.  Plus, you know that there are numerous states and local jurisdictions that prohibit discrimination on the basis of gender identity. But how do you address the questions that may be raised by other employees?  More importantly, how do you handle the basic question of which restroom your employee is supposed to use – the men’s or ladies’ restroom? The Occupational Safety and Health Commission attempted to answer this question recently when it issued “A Guide to Restroom Access for Transgender Workers.”  OSHA announced the core principle that “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  According to OSHA, a biological male who identifies as a female should be allowed to use the ladies’ restroom and a biological female who identifies as a male should be allowed to use the men’s room.  OSHA makes clear, however, that restroom selection should not be viewed as a requirement but, instead, should be the employee’s choice. OSHA offers additional options for employers.  One option is to provide single-occupancy, gender-neutral (unisex) restroom facilities.  Another option is multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.  However, OSHA warned that the transgender employee must not be forced to use any one particular restroom.  In fact, OSHA noted that forcing employees to use a gender-neutral or other specific restroom “singles those employees out and may make them fear for their own physical safety.”  According to OSHA, if an employee is not comfortable using the restroom of his/her choice, he/she may refrain from using any restroom at work which could result in health problems for that employee. The Guide notes that OSHA’s Sanitation Standard, 29 C.F.R. 1910.141, requires employers to provide their employees with restroom facilities and protects employees from health effects created when none are available.  Simply telling your employee to use a specific restroom or forcing the employee to use a segregated restroom is not sufficient and would violate the standard. OSHA’s guide is also helpful as it describes other federal, state and local laws that address transgender equality.  You can access OSHA’s guide at https://www.osha.gov/Publications/OSHA3795.pdf.

Thanks to a revised guidance memo from U.S. Citizenship and Immigration Service (USCIS), the summer scramble to file H-1B amendments spurred by the April 9, 2015 Administrative Appeals office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) is over, or at least now it is in slow motion. After issuing draft guidance on June 9th, USCIS revisited and amended some of the new guidelines and filing deadlines associated with H-1B worksite changes.  While Simeio remains a precedent decision, despite requests from business groups to downgrade the decision to a non-precedent case, at least now H-1B employers have a little more time to ensure compliance – if they can correctly decipher the updated guidelines.  The revised final guidance issued on July 21, 2015 extended the deadline for filing H-1B amendments to rectify previous violations in worksite changes from August 15, 2015 to January 15, 2016.  The more interesting or curious part of the memo relates to the consequences an employer may face if amendments are not filed for violations taking place prior to the Simeio decision.  The first round of the memo required amendments and clearly applied Simeioretroactively across the board.  The final version includes a more ambivalent “guideline,” indicating that the USCIS would “generally” not take adverse actions against employers failing to file amended petitions for violations prior to April 9, 2015.  Meanwhile, this final version of the memo also provides a “safe harbor period” for H-1B employers with pre-Simeioviolations who still “choose” to file amended H-1B petitions, as long as the amendment is filed by January 15, 2016.  This leaves one to wonder, if no adverse action will be taken, why is a “safer harbor” necessary? To amend or not to amend—which route an H-1B employer will take or should take—will depend on several factors, including, among others, the number of amendments that need to be filed, ability to identify past violations, man power, and funding.  Serious consideration should be given to filing amendments for past violations, as the USCIS can amend its guidance at any time (something we have seen often).   In light of USCIS’ Fraud Detection unit conducting work site visits for H-1B workers, the Simeiodecision, and this new policy guidance, we can expect to see more on-site visits and greater scrutiny of H-1B usage by employers.  With that in mind, compliance at all levels is becoming ever more important.  For H-1B employers that have not started an internal review, with this final guidance memo, now might be a good time.

The National Labor Relations Board has ruled, once again, that an employer failed to show “an overwhelming community of interest” between employees in the small (i.e., “micro”) bargaining unit sought by the union.  Few, if any, employers have successfully challenged a union-proposed bargaining unit on this standard established by the Board’s watershed 2011 Specialty Healthcare decision.   The recent case of DPI Secuprint Inc., 362 NLRB No. 172 (August 20, 2015), underscores the employer’s high burden on this issue.  It may be advisable in many cases to focus resources elsewhere when opposing a union petition. In DPI Secuprint Inc., the union petitioned for a bargaining unit at a commercial printing company that included 14 of 20 hourly employees, excluding three offset-press operators and three offset-press feeder-tenders.  The employer challenged the exclusion of these employees on the grounds that they shared an “overwhelming community of interest” with the other hourly employees.  The Acting Regional Director found that the unit requested by the union was an appropriate unit.  He found that there was functional integration among the departments of the petitioned-for employees because each one handled “an aspect of producing a single product.”  He also found:  “a high degree of contact among the petitioned-for employees; some ad hoc job interchange; that although the skills and functions of the various petitioned-for employees differ, none requires any prior training; that all of the unit employees had at least a common second-level supervisor; and, the petitioned-for employees share roughly similar wages, hours, benefits, and working conditions.” The Acting Regional Director rejected the employer’s argument that the offset-press employees should be included in the unit, finding that the offset-press employees are more highly skilled and take longer to train than the unit employees, they work different schedules and that they are treated differently when work is slow; the offset-press employees are allowed to stay on the job while the other employees are sent home.  Thus, they did not share an overwhelming community of interest with the employees in the petitioned-for unit. He also rejected the employer’s argument that well-established Board precedent requires that the offset-press employees be included in the unit.  The employer cited two decisions in which the Board held that a unit limited to offset-press employees was not appropriate because it excluded prepress employees. (AGI Klearfold LLC, 350 NLRB 538 (2007), Moore Business Forms, Inc., 216 NLRB 833 (1975)) He found that AGI Klearfold only requires the Board to give “appropriate weight” to the traditional lithographic unit that includes both offset-press and prepress employees.  He also stated that in AGI Klearfold  and Moore Business Forms there was regular contact between the offset-press employees and the petitioned-for employees. On appeal, a Board majority (Chairman Pearce and Member Hirozawa) upheld the Acting Regional Director’s decision.  The majority reiterated that a proposed unit will not be rejected simply because a more appropriate unit exists.  According to the Board majority, although the offset-press employees shared some community-of-interested factors with the petitioned-for employees, including common supervision, functional integration, the same benefits and “roughly similar pay rates,” these factors did not establish an overwhelming community of interest. Following Specialty Healthcare, it appears to be extremely difficult for an employer to meet the “overwhelming community of interest” standard.  It appears that a union will get whatever unit it desires, unless it makes a blunder and seeks a unit that includes only part of a job classification, department or function.  Since union election win rates increase as the size of the bargaining unit decreases, prevention of union organizing may be the only practically viable alternative for some employers.