Under the federal Fair Labor Standard Act, employees are entitled to be paid time and a half their regular rate of pay for all hours worked over 40 in a workweek. Private employees cannot elect, nor can private employers offer, “comp time” in lieu of overtime pay. Private employers can offer (or may be able to require) time off within a single workweek to offset longer-than-normal hours or to prevent an employee from exceeding the 40-hour threshold in a single workweek, but private employers cannot not offer true comp time to employees to offset overtime. Unlike the private sector, under some circumstances, public sector employees can elect “comp time” in lieu of overtime pay. On May 2, in a vote along party lines, the U.S. House of Representatives voted to extend to private employers the ability to offer employees the option to elect comp time in lieu of overtime, something that has been in place for a number of years for public employers. The Society for Human Resource Management (SHRM) and the White House both support the bill, but the bill may face a filibuster by Democrats in the Senate. Here are links to an article from SHRM and an article from CNN on the bill and the House action.
The Louisiana Environmental Whistleblower Statute, La. R.S. 30:2027, protects employees who, in good faith, disclose, or threaten to disclose, acts they reasonably believe to be in violation of an environmental law, rule, or regulation. It also protects employees who testify or provide information to a public body about such acts. An employer may not retaliate against an employee who engages in activity protected by the statute. The statute provides for the trebling of certain damages awarded to a prevailing plaintiff.
Last week, the Louisiana First Circuit Court of Appeal reversed a $750,000 judgment against the Louisiana Department of Natural Resources (“DNR”), finding that the plaintiffs were independent contractors of the State – not employees – and, therefore, outside the scope of the statute’s protection.
Earlier in the suit, the jury found that the plaintiffs were employees of DNR; that they reported what they believed to be environmental violations; and as a result of their reports, DNR retaliated against them. The jury awarded the plaintiffs $250,000 in lost wages, which was then tripled to $750,000 by the statute’s trebling provision. On appeal, the court found that the plaintiffs were independent contractors, rather than employees of DNR. As a result of this finding, the plaintiffs were outside the scope of La. R.S. 30:2027, and the case was dismissed.
It appears that an announcement regarding the U.S. Department of Justice’s investigation into the shooting death of Alton Sterling may be forthcoming, and many employers in the Baton Rouge-area are considering how the city and their employees may react. As a general practice, employers should take steps to remind employees to treat one another with dignity and respect, both in personal interactions and social media, and remind employees regarding workplace policies that demonstrate these values. Employers should anticipate issues so that the employer places itself in a position to diffuse issues before they arise.
In charged and emotional situations, like the news related to the Sterling shooting, employees and others often flock to social media to share views and experiences, vent frustrations, or to express support for a position to which they are aligned. Employees often fail to consider that what they say or do on social media may lead to hurt feelings or spark disagreements in the workplace, or that their personal commentary can potentially negatively reflect on their employers.
An employer cannot prevent its employees from expressing personal or political views on social media during the employee’s off-duty time and when an employee uses his or her personal devices. Yet, there are countless instances in which an employee’s personal posts have come to an employer’s attention, through another employee or a member of the public urging the employer to take some kind of action in response to the post.
Depending on its substance, on-line commentary – even commentary that includes vulgar language or profanity – may (in some instances) be protected by law. Therefore, if an employee posts what could be perceived as objectionable or antagonistic content on social media regarding the Sterling investigation, employers should remain calm and must consider the substance of the post.
In instances where a member of the public complains to an employer about an employee’s post or negatively comments about an employee’s post, it may be appropriate for the employer to designate a spokesperson to respond on the employer’s behalf with a short statement acknowledging the inquiry or comment, thanking the commentator for bringing the matter to the employer’s attention, stating that the employer takes all inquiries and complaints seriously, and stating that the employer will look into the issue further. It may also be appropriate to suggest that the commentator contact the employer’s spokesperson by telephone to further discuss the matter and attempt to resolve the issue. In many instances, it is better to take the merits of the discussion off-line, rather than to prolong the on-line life of a thorny issue raised in a post.
On April 4, 2017, the Seventh Circuit Court of Appeals ruled that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.
As previously noted, there has been much debate among the courts regarding the meaning of the term “sex” under Title VII and whether discrimination based on sexual orientation and/or transgender status falls within the scope of Title VII’s protection. With yesterday’s 8-3 ruling, the Seventh Circuit became the first appellate court to interpret Title VII’s prohibition on discrimination based on “sex” as barring discrimination based on sexual orientation. The ruling is consistent with the Equal Employment Opportunity Commission’s interpretation of Title VII and is particularly significant given that the Seventh Circuit is considered among the relatively conservative federal appellate courts. Additional information regarding the decision can be found here.
This decision is only binding on employers in the Seventh Circuit (which encompasses Illinois, Indiana, and Wisconsin). Courts in other jurisdictions have reached the opposite conclusion. For example, just a few weeks ago, a panel of the Eleventh Circuit Court of Appeals, another conservative jurisdiction, ruled that Title VII does not protect employees from discrimination on the basis of sexual orientation. The Supreme Court may ultimately weigh-in on this issue to resolve the emerging split among the appellate courts.
The Fifth Circuit (which encompasses courts in Louisiana, Mississippi, and Texas) has not held that Title VII prohibits discrimination based on sexual orientation. Nevertheless, all employers should be aware of this decision. It is likely that attorneys, advocates, and federal agencies will rely on this ruling in an effort to expand the scope of Title VII in other jurisdictions.
Social media use by employees, and employers’ social media policies, continue to appear in the legal headlines. Much of the recent news coverage has touched on action by the National Labor Relations Board (NLRB) and its assessment of employer social media policies. However, recent legal action in Pennsylvania does not address the NLRB and its actions, but returns to somewhat traditional litigation. The Charlotte Observer recently reported on a lawsuit filed by two American Airlines flight attendants who claimed they were subjected to sexual and gender harassment through social media. The plaintiffs alleged that they reported the conduct to human resources, but that American Airlines failed to take action, and failed to enforce its own social media policy. Although the allegations include the use of technology as tools of alleged abusive behavior, the underlying employee conduct appears to be typical of the kind of conduct that leads to litigation. For more on the suit, click here.
As with any change in administration, this is a time of uncertainty. One example is the rights of transgender individuals to access certain restrooms in the workplace, which, based on recent events, will likely continue to be a source of uncertainty for many employers.
Federal law does not expressly prohibit discrimination based on transgender status. Title VII is the federal employment law that prohibits discrimination based upon “sex” (among other protected characteristics). The EEOC and some courts have interpreted “sex” under Title VII to include “gender identity.” Under that interpretation, transgender individuals could be protected under Title VII. Other courts have refused to adopt an expansive interpretation of “sex” and have left it to Congress to create transgender employee protections legislatively.
A case filed by a transgender male student against the Gloucester, Virginia school board over his use of the boys’ restroom, G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., was on the trajectory to provide guidance on the issue of restroom access. Grimm filed suit seeking to use school restrooms that aligned with his gender identity, rather than the restroom that corresponded with his birth sex. Additional background information regarding the Grimm case can be found here. Grimm is not a Title VII case, but concerns a different federal law, Title IX, which governs protections for students and employees in educational settings. Although different laws, courts often look to Title VII to interpret Title IX, and, at times, vice versa. Therefore, many predicted a decision in the Grimm case would have ripple effects into the employment arena and implications beyond restroom access issues.
However, on Monday, the Supreme Court announced it would not hear the case, and the case was sent back to the lower court. That announcement came in the wake of a February 22, 2017 joint memorandum issued by the Department of Justice and the Department of Education, which revoked the Obama administration’s federal guidelines on transgender students’ use of restrooms. As a result, the case law remains unsettled. Employers should be aware of how the courts in their jurisdiction(s) interpret Title VII, as well as any state laws, regarding transgender rights and structure their policies and practices accordingly.
The IRS has sent an urgent alert to employers this month that a W-2 phishing scam that many companies fell victim to in 2016 is back in full force for 2017. The IRS warns that this scam is emerging earlier this year and is targeting school districts, tribal organizations, and nonprofits in addition to businesses.
The “W-2 Scam” is carried out by persons who disguise (“spoof”) an email to make it look like it came from a top executive or the receiver’s business colleague. The dummy email is sent to (typically) the organization’s accounting and human resources department, and will ask for a list—or the copies themselves—of the company’s W-2 tax forms, employee’s dates of birth, and Social Security Numbers. If the unsuspecting victim responds with this information, the sender can use this data to file false tax returns, generate revenue on the black market, and perpetuate identity theft.
While this email can take many forms, some example phrasing for the email includes:
- “Please send me the individual 2016 W-2 (PDF) and earnings summary of all W-2s of our company staff for a quick review”
- “Hope you had a nice weekend. Do you have PDF copies of the employee’s W-2s? Could you please send to me for a quick review?”
- “I need you to email me the list of individual W-2 copies of all employees’ wages and income tax statements for 2016 tax year in PDF file format for quick review. Prepare the list and send to me ASAP. I will brief you more about this later.”
The IRS warning indicates that these phishing emails are also including requests for wire transfers this year.
The Security Summit (which comprises the IRS, state tax agencies, and members of the tax industry) recommend that employers and employees stay vigilant of this threat. Employers may consider doing additional training with employees on recognizing these phishing emails.
The IRS instructs any organization that receives a W-2 scam to forward that email to firstname.lastname@example.org and place “W2 Scam” in the subject line. Organizations that receive the scams or fall victim to the scam can file a complaint with the Internet Crime Compliance Center (IC3), which is operated by the Federal Bureau of Investigation. Organizations should also consider contacting an attorney with experience in data management to assist in the response to affected persons.
Last week, thousands of employees throughout the county skipped work as part of “a day without immigrants” demonstration. The employees were protesting the Trump administration’s recent actions regarding immigration. The stated intent was to negatively impact the nation’s economy in an effort to highlight the contributions of immigrant labor. Restaurants were the primary target. Businesses from New York to San Francisco were forced to temporarily close as employees either failed to report to work or “walked out.” In many cases, the protesting employees included both immigrants and their co-workers.
Several employers embraced the protests and promised not to discipline the participating employees. However, many employers took the opposite approach. According to various media reports, hundreds of employees in a number of different cities were terminated after they refused to report to work. With reports that additional demonstrations are likely, employers should prepare for the possibility that one or more employees might choose to participate.
As an initial matter, an employer should communicate its expectations to its employees in advance of any demonstration. If possible, this communication should be documented by internal memo, email, or even text message. Employees should also be reminded of any applicable attendance policies.
While the refusal to report to work is a legitimate non-discriminatory basis to terminate an employee, an employer must be consistent in its response. An employer that terminates some employees, while excusing the absences of others, may face a claim of disparate treatment. Those employers with a unionized workforce should consult labor counsel with regard to any collectively bargained rights.
Finally, affected employers should prepare for media coverage and press inquiries. The demonstrations have already garnered international attention as the debate regarding the Trump administration’s immigration policies shows no signs of slowing down. Employers should clearly define who within its organization may respond to media inquiries and what information will be shared. Any comments made following an employee’s termination will almost certainly be used in any resulting legal action.
Disability access lawsuits have become a cottage industry and they have found their way into Louisiana, Texas and Arkansas. Most are brought by the serial litigants working with same law firm. These plaintiffs visit a business for the primary purpose of discovering an Americans with Disabilities Act (ADA) accessibility violation and then file a federal court lawsuit without giving the property owner, tenant or business advance notice of their complaint or an opportunity to fix the problems.
Now we are seeing a growing trend of “drive by” or “Google” disability access lawsuits. The tag “drive-by” lawsuit came about due to accusations in many of these cases that either the plaintiff, or their lawyer, simply drove by the business, observed an alleged violation, and then filed suit. The tag “Google lawsuit” arose from the belief of several business owners who have been sued that the ADA violations (such as the failure to have a lift seat at a hotel swimming pool) were discovered using Google earth. In “drive-by” or “Google” lawsuits, the plaintiff almost always seeks attorneys’ fees, expert witness fees, and other litigation costs, as well as other concessions from the business they have sued. Under federal law, business owners often have to pay both sets of attorneys’ fees, and if they do not settle, or make the corrections to their property demanded in the suit, it may end up costing them many thousands of dollars more, leading to accusations that these suits are simply money-making ventures for the plaintiff bar.
The ADA was passed by Congress in 1990. Every private business in the United States open to the public must comply with the ADA. This includes restaurants, bars, convenience stores, hospitals, hotels, shopping centers, and other retail locations. The accessibility requirements of the ADA are very specific, and extensive. There are thousands of requirements to be found in the 275-page ADA manual, which has specific requirements for things such as the slope and length of wheelchair ramps, the location and signage for handicap parking spots, and the height and location of door handles, sinks, toilets, and grab rails.
ADA access litigation is not limited to parking lots, sidewalks, restrooms and other alleged physical barriers in a “brick and mortar” establishment. A growing number of lawsuits are being filed claiming that the business’ Web site does not provide adequate accessibility to the visually or hearing impaired. Since 2010, the United States Department of Justice (DOJ) has delayed issuing specific regulatory guidance directly addressing the accessibility standards for commercial Web sites. That does not mean that businesses do not have to try to comply with the general requirements of the ADA, nor does it prevent DOJ enforcement or suits by private plaintiffs.
Numerous ADA access lawsuits have been filed in federal court in Shreveport. One of the recently filed claims is a class-action filed by a registered sex offender against a local municipality, claiming that the office where he is required to register as a sex offender is now violating the ADA by not providing him with a sign language interpreter.
So what should a business owner do to avoid this expensive headache? A good starting point is to make your business an unattractive target. Visit your location to see if there are any obvious ADA violations that would catch the attention of a “drive-by” plaintiff. For example, look for un-ramped entrance steps, poorly maintained routes from handicap parking spaces to the entrance, handicap parking spaces with no access aisle, and observe the slope of your handicap parking spaces. If you can see a slope, it is probably non-compliant. And if you can see the slope, you can bet the plaintiff driving by will too.
Today, the United States Supreme Court decided to consider three decisions involving class-action waivers in employee arbitration agreements. As background, many employers require employees to sign arbitration agreements. In these agreements, employees give up the right to sue their employer and agree that all employment related claims will be subject to arbitration. Many of these agreements contain class-action waivers, in which employees will agree only to bring employment related claims against the employer individually. Essentially, by signing these agreements, employees waive their right to start or join class or collective actions. These waivers are particularly important given the recent increase in class or collective employment suits brought against employers under the Fair Labor Standards Act (FLSA) and anti-discrimination laws. These suits can be very costly and frustrating for employers. The federal Fifth Circuit, which is the appeals court for federal courts in Louisiana, Mississippi, and Texas, upheld such a class-action waiver in NLRB v. Murphy Oil. However, in two separate cases, the Seventh and Ninth Circuits, which are the appeals courts for federal courts in Illinois, Indiana, Wisconsin, Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, held that such waivers violate the National Labor Relations Act’s (NLRA) protection of concerted activity. The inconsistent law in this area has been troubling for employers with arbitration agreements, especially those operating in multiple jurisdictions. Hopefully, the Supreme Court’s decision will provide needed clarity for employers who opt to have these agreements.