Date: January 7, 2016
Only a week into the new year and there are already a number of employment matters of note:
Employers with employees in Pittsburgh will be happy to learn that a Common Pleas Judge in Allegheny County has declared that City’s Paid Leave Ordinance unenforceable as beyond the City’s Home Rule Charter powers. The grounds for overturning the Ordinance appears to be specific to Pittsburgh and my analysis of the opinion leads me to conclude that Philadelphia’s similar paid leave Ordinance is not subject to being overturned on the same basis. So, Philadelphia employers should be certain that their paid leave policies are correctly stated in employment manuals and that they have properly posted announcement of employees’ rights to paid leave.
In that same vein, New Jersey employers need to be alert to paid leave obligations. In late December, New Brunswick enacted a paid leave Ordinance, joining 11 other New Jersey municipalities with similar ordinances. New Jersey employers with employees in multiple municipalities having adopted such ordinances need to be alert to differences in each. For example, the New Brunswick Ordinance differs from the other 11 by directing that paid leave be available for needs arising from sexual assault and domestic violence. Additionally, the New Jersey Senate passed a sick leave bill in December which, should it become law, would prohibit additional cities from adopting sick leave ordinances.
The EEOC has achieved it first successes in arguing that discrimination based on a person’s sexual preference is a direct form of sex discrimination. Federal District Courts in both California and Missouri have refused to dismiss sex discrimination cases based on sexual preference. These cases stand in rather marked contrast to a large body of case law going the other way. Employers should understand, however, that sex discrimination claims involving gays have long been permitted under a theory of sex-stereotyping; that is, discriminating, for example, not on the basis of a man being gay but on the basis of that man not being perceived as “manly enough.” The takeaway for employers is that their policies and practices clearly should prohibit discrimination on the basis of sexual preference. The fact that such cases might be successfully defended is not a reason to incur the enormous costs of having to do so.
Continuing its assault on the ability of Employers to manage their workplace, the NLRB ruled in Whole Foods Market, Inc., that an employer policy that broadly prohibited employees from recording conversations in the workplace constituted an unfair labor practice because it “would reasonably tend to chill employees in the exercise of their Section 7 rights” to engage in collective action over the terms of their employment. The rule at issue prohibited recording any conversation, phone call, images or company meetings with a camera of recording device without management approval.” This is a complex area and employers who wish to have a “no recording” policy need to consult with counsel to draft and enforce policies that will pass muster not, only under the National Labor Relations Act, but other statutes that might be implicated.
For example, there is precedent to the effect that an employee who records conversations while gathering information to be used under a Whistleblower statute engages in protected activity under such statutes. Anti-discrimination laws routinely prohibit retaliation against employees who oppose discrimination. Federal courts have gone in different directions on the issue of whether recording conversations in violation of an employer’s policy was a lawful basis for an adverse employment action where the recording related to claims of unlawful discrimination or whether such action constituted unlawful retaliation under relevant statutes.
Most of the employer policies on this subject that I have reviewed would not likely pass muster today. Employers having such policies should be encouraged to review and revise them so that they are tailored to real needs and drafted to avoid, as much as possible, running afoul of the law. Although many states have statutes that prohibit recording conversations without the consent of one or, in some cases, all of the participants, those statutes usually have exceptions where there is no reasonable expectation of privacy. In this day of the ubiquitous cell phone, the issue arises just when, where and how much privacy reasonably can be expected anywhere.
Lastly, employers need to remember that their obligation to make reasonable accommodations extends to the application process. A McDonald’s restaurant was recently sued under the ADA for cancelling a job interview with a candidate after the candidate informed the manager that he was deaf and would need a sign language interpreter for the interview. Employers must make reasonable accommodations to a qualified applicant with a disability that will enable the applicant to have an equal opportunity to compete for the position. The test of reasonableness of the accommodation is the same as for an actual employee. The accommodation need not be the one preferred by the applicant so long as it effectively enables the applicant to equally participate in the process and the accommodation cannot pose an undue hardship to the employer. To be an “undue hardship” the accommodation must rise to the level of being a significant expense or burden. Employers who provide reasonable accommodations should be aware that there are tax credits and deductions available for same.