Ninth Circuit Rules in Favor of Employees in Two Sexual Harassment Cases

On March 24, 2017, the Ninth Circuit determined in Anderson v. CRST International, Inc., et al, No. 15-55556 that a jury could find that an employer’s remedy in response to a female truck driver’s sexual harassment complaint was not enough even though the employer separated her from the offending co-worker. The Ninth Circuit explained: “[] Anderson presents evidence that CRST never actually investigated her complaint and never informed Vegtel of the fact that he was prohibited from driving with female truck drivers in the future.” This holding leaves open an interesting question of the extent of an employer’s obligation to inform an employee of the reparative action taken. Most employers refuse to share that information with complaining employees, citing to confidentiality of personnel records. That approach can now be challenged with this precedent.

The Ninth Circuit also reversed summary judgment because of the way that the employer treated the female truck driver after she complained, holding that a jury could find retaliation because the employer failed to reassign her to a new truck route after the incident while providing her with an ambiguous email with a list of other female truck drivers with whom she could work. The Ninth Circuit made clear that “an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position.”

Also, on February 23, 2017, the Ninth Circuit determined in Zetwick v. County of Yolo, No. 14-17341 that a jury could find that a male sheriff created a hostile or abusive work environment through his conduct of hugging and kissing female employees more frequently and in a different way than male employees. The Ninth Circuit rejected the argument that hugging could only constitute “ordinary workplace socializing.” This case also highlights that applying Title VII is not a “mathematically precise test” but, rather, a Court must truly consider the totality of the circumstances.

11th Circuit Finds Title VII Does Not Protect Against Sexual Orientation Bias

The 11th Circuit in Evans v. Georgia Regional Hospital, Case No. 4:15-cv-00103-JRH-GRS (March 10, 2017) finds that Title VII doesn’t protect sexual orientation bias. This is in contrast to the EEOC’s interpretation, which is stated on its website as: “While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

Labor & Employment Law Developments Under the Trump Administration

National Labor Relations Board (NLRB): On January 25, 2017, Philip A. Miscimarra (R) appointed as acting chair to the NLRB. People’s World website reports that prior to 2013, Miscimarra worked for several law firms with a reputation for union-busting and as an NLRB Board member, he “consistently dissented from rulings favoring working people that have been handed down by the (pro-union Democrat) Board majority.”

Equal Employment Opportunity Commission (EEOC): On January 25, 2017, Victoria Lipnic appointed to serve as acting chair of the EEOC. According to a Law360 article, Lipnic voted against the EEOC’s 2015 decision finding that sexual orientation discrimination is gender discrimination under Title VII. She also voted against the EEOC’s 2014 pregnancy discrimination guidance.

U.S. Supreme Court: On January 31, 2017, Trump nominated Judge Neil Gorsuch to fill the open seat. According to an AFL-CIO blog article, Gorsuch “has ruled against protecting the health and safety of workers, made it harder to have discrimination-free workplaces and argued for corporations’ misconduct to be protected from correction by investors and consumers.”

Federal Right-to-Work/Right-to-Shirk Law: On February 1, 2017, Republicans in Congress announce plan to introduce Right-to-Work/ Right-to-Shirk Law and implement it nationwide. This would be a blow to the labor movement and the communities in which union members reside because unions would be required to provide representation to all employees in the unit regardless of whether they pay union dues. For more information from the AFL-CIO: Deceptive Right to Work Laws Hurt Everyone

U.S. Secretary of Labor: Trump initially nominated Andrew Puzder as U.S. Secretary of Labor. Mr. Puzder has repeatedly violated labor laws and is a vocal opponent of workers’ rights, describing the ideal worker as a machine: “They’re always polite, they always upsell, they never take a vacation, never show up late, there’s never a slip-and-fall, or an age, sex, or race discrimination case.” But, as of February 15, 2017, Puzder withdrew his nomination. Luckily, in his place, Trump picked former US Attorney Acosta as a nominee for U.S. Secretary of Labor on February 16, 2017. Richard Trumka, president of the AFL-CIO, has stated “in one day, we’ve gone from a fast-food chain C.E.O. [Puzder] who routinely violates labor law to a public servant with experience enforcing it.” View Article

SCOTUS to Decide Whether Title IX Compliance Requires Treating Transgender Students Consistent with Gender Identity

SCOTUS will hear oral arguments in Gloucester County School Board v. G.G. on March 28, 2017. The Department of Education issued a letter providing guidance that Title IX compliance requires schools to generally treat transgender students consistent with their gender identity … or schools could lose federal funding. The Gloucester County school board appealed of a lower court decision affirming transgender students’ access to facilities appropriate for their gender identity. Documents and update on the case can be found here: http://www.scotusblog.com/case-files/cases/gloucester-county-school-board-v-g-g/.

Latest development:

On March 6, 2017, the Supreme Court announced that it is sending the case to the Fourth Circuit Court of Appeals to be reconsidered in light of the Department of Justice and Education’s rescission of Title IX guidance that clarified protections for transgender students.

Texas Court Prohibits Implementation of ACA Protections for the Transgender Community and Women Seeking Abortions

On December 31, 2016, Judge Reed O’Connor of the United States District Court for the Northern District of Texas entered an injunction to apply nationwide in Franciscan Alliance v. Burwell, Case No. No. 7:16-cv-00108-O. The order prohibits the Department of Health and Human Services (HHS) from enforcing the portions of the nondiscrimination rule under ACA Sec. 1557 that prohibit discrimination on the basis of “gender identity” or “termination of pregnancy.” The court left untouched the portions of the rule that prohibit discrimination on the basis of disability, race, color, age, national origin, or sex other than gender identity. The decision can be found here: http://courthousenews.com/wp-content/uploads/2017/01/Texas-rule.pdf. On January 9, 2017, the ACLU filed a request for a formal ruling on their intervention in the case, which was apparently ignored by the Court earlier in the litigation, and a request for a stay pending the appeal they would file if intervention is granted. We will keep watch on any appeal of this decision.

EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions

In December 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang. “Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

Oregon Could Become First Fair Scheduling State

Oregon is teed up to consider statewide legislation that would require employers to end the abusive practice of unpaid on-call hours and “random scheduling” and require compensation for shifts canceled at the last minute. The bill for Fair Scheduling, proposed by Sen. Michael Dembrow in late September 2016, is supported by Commissioner Steve Novick and could go into effect after September 2017.

Visit http://pamplinmedia.com/but/239-news/327482-206939-oregon-could-become-first-fair-scheduling-state for more information and http://www.portlandoregon.gov/novick/article/568951 to read testimony from real people impacted by random and last minute scheduling.

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues after Public Input Process

On August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation. The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Since EEOC’s 1998 Compliance Manual section on retaliation, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali-ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.

EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the agency is available at www.eeoc.gov.

Summary of Recent FLSA Amendments

In May 2016, the Department of Labor enacted several important changes to the Fair Labor Standards Act (FLSA) relating to overtime-exempt employees. These amendments substantially expand the number of salaried workers that will be able to claim overtime wages. These new rules go into effect on December 1, 2016. It is important for unions and employees to understand these changes in order to ensure that employers can be held accountable to pay their workers fairly. The most important changes are:

1. An increase in the salary threshold for Executive, Administrative, Professional and Computer (“EAP”) employees (from $23,660 to $47,476). This means employees making less than $47,476 cannot be FLSA-exempt regardless of their duties.

2. An increase in the salary threshold for Highly Compensated Employees (HCE) (from $100,000 to $134,004). This means employees making more than $134,004 are FLSA-exempt under a relaxed “duties” test – only minimal involvement in EAP-related duties is required.

3. The creation of an automatic updating mechanic to increase these levels in the coming years.

4. Under the new rules, the employer may count nondiscretionary bonuses and incentive payments towards salary thresholds, but they may not count for more than 10% of the total.

More specific detail on each of these changes follows:

1. Salary Threshold for Executive, Administrative, Professional and Computer employees

One of the largest categories of overtime-exempt employees are Executive, Administrative, Professional and Computer employees. Each of the exemptions is intended to cover salaried employees in highly-skilled or managerial positions and each of these four categories has a slightly different “duties test.” However, the tests do not apply unless the employee meets the salary basis test as well. The salary basis test has two components: (1) the employee must be paid on a salaried, not an hourly, basis, and (2) the salary paid must exceed a minimum threshold.

The rules for salary basis payment have not changed. Generally speaking, the salaried employee must receive as pay a predetermined amount of compensation, which cannot be reduced because of variations in the quality or quantity of the employee’s work. An employee’s salary under these exemptions must be paid each week an employee works, regardless of the number of hours worked each day (exempt employees do not need to be paid in a week in which no work is performed). Reductions in pay for part-day absences destroys the exempt status of the employee, even if the employee otherwise satisfies the applicable duties test. An hourly employee can be docked pay for each hour missed.

Since 2004, the salary threshold to meet any of these exemptions has remained at $23,660 per year ($455 per week). The 2016 FLSA amendments raise this salary threshold to $47,476 ($913 per week). This salary level change will open up overtime eligibility to many more employees.

2. Salary Threshold for Highly Compensated Employees

In addition to the salary-based overtime exemptions for EAP employees, prior to December 1, 2017 there is an exemption for employees who earn more than $100,000 per year. The HCE exemption has substantially lower standards for evaluating the duties of the employee, known as a “minimal duties test.” An HCE overtime-exempt employee has to simply be in a position where the employee’s primary duty includes performing office or non-manual work and the employee customarily or regularly performs at least one of the exempt duties of an EAP overtime-exempt employee.

The 2016 FLSA amendments raise this salary threshold from $100,000 per year to $134,004 per year. The types of pay that can meet this threshold are wider than that of the EAP exemption — the total annual compensation may consist of commissions, nondiscretionary bonuses and other nondiscretionary compensation; though medical, retirement and fringe benefits are not included. The rise in the HCE threshold will render more highly-compensated employees eligible for overtime, provided they are not exempt under the traditional duties tests for Executive, Administrative, Professional and Computer (“EAP”) employees.

3. Automatic Updating

Prior to the 2016 FLSA amendments, there was no formula or structure to update the overtime-exempt salary thresholds; the levels remained stagnant since 2004. With the passage of the 2016 FLSA amendments, the EAP salary threshold is now set at the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage Census Region (currently the South; $47,476 per year) and the HCE salary threshold is set to equal the 90th percentile of earnings of full-time salaried workers nationally ($134,004 per year). Rather than waiting for the Department of Labor to choose when to update this level in the future, these levels are slated to update automatically every three years based on the 40/90 percentile bases. The Department of Labor is required to public the upcoming salary thresholds 150 days before their effective date.

4. Inclusion of Nondiscretionary Bonuses and Incentive Payments for EAP Employees

Prior to the 2016 FLSA amendments employers were not allowed to include nondiscretionary bonuses and incentive payments, such as commissions, in calculating the annual salary of an EAP overtime-exempt employee. After December 1, 2016, employers will be permitted to use nondiscretionary bonuses and incentive pay in the calculation of an employee’s annual salary, however, nondiscretionary bonuses and incentive pay is capped at 10 percent of the required salary threshold. Discretionary bonuses, such as an unannounced holiday bonus, or a bonus that is at the subjective discretion of a manager, do not count toward the EAP overtime pay threshold.

Table Comparison of Prior Regulations & New Final Rule