Offensive, Discriminatory Costumes At Work: From the Racist to the Racy

Halloween is a good time for children and adults alike. But what the holiday represents to children can be far different than what adults look forward to come the end of October. Typically, adults perceive Halloween as an opportunity to get creative with their costumes while taking advantage of the fact that it is easier to get away with wearing an outfit which may not be considered appropriate at any other time of year. In one’s free time and in the company of their friends and family, surely this mindset should not be a problem, most of the time. Frequently however, employees attending Halloween parties at the office or at a work function take it too far by wearing costumes which could easily offend a co-worker. In doing so, one can open themselves or their employers up to liability for harassment and discrimination and and can be disciplined or terminated.

Costumes which should not be worn to work include those that are overly violent, gruesome, controversial, insensitive or grotesque. Some examples include bloody zombies, terrorists, police brutality victims, ebola patients, etc.

Other categories of costumes which will not be tolerated in the office or at a work event range from the racist to the racy. Obviously, if you dress as a nazi or kkk clan member, and the employer allows it, that can be considered blatant and willful discrimination based on race, color, national origin, etc. Likewise, inappropriate, sexually lewd or explicit costumes will lead to allegations of sexual harassment.

Another issue to consider is those employees who may be religious. If employees dress as the anti-christ, or a character from the Book of Mormon, it may lead to some claiming discrimination based on religion.

From an employer’s point of view, one need not be the costume police. An employer does not have to give a list of costumes which will not be tolerated. If you are going to have an event, tell employees that they are to use proper judgment and common sense; that any costumes deemed to be offensive or inappropriate, will lead to a supervisor inevitably telling the employee to change. It is always helpful to encourage employees to ask questions in advance. If there is an HR Department, it may be a good idea for them to speak to an HR rep before they show up in a hazmat suit, as not everyone will find that to be funny or appropriate. It is also important that employers have a policy as it relates to social media. Posting photos of Halloween costumes at work can lead to a negative perception of the company among other unintended legal consequences.

For questions or concerns relating to discrimination, sexual harassment, other workplace, or labor and employment issues, call Gilbert Law Group: (631)630-0100.

Waiting to Work or Waiting to Leave: Paid Time?

The decades-long battle for pay during down time or time employees prepare to work, wait to work, or wait to leave work continues. Whether working to wait before leaving for the day or waiting to work before clocking in are instances of paid time is the issue. U.S. Supreme Court justices expressed doubts recently during arguments over whether federal law requires that workers be paid for the time they take to go through security checkpoints to prevent employee theft at Amazon. Previously, the Supreme Court held that employees must be paid for the time they take to put on protective gear, but not for the waiting time associated with taking it off. Also, the Court has ruled that butchers must be paid for the time it takes to sharpen their knives as it is an essential duty to working at a meatpacking plant.

This most recent dispute involves two former employees at a Nevada warehouse who claim that their employer, Integrity Staffing Solutions, Inc., required them to wait up to 25 minutes in security lines at the end of every shift. Integrity provides workers who fill customer orders for Amazon at warehouses. The intermediate appeals court had ruled that the work was payable as the anti-theft screenings were necessary to the workers’ primary work at the warehouse, and it was done for the employer’s benefit. However, certain Supreme Court justices disagreed with the workers’ attorney who argued that the work was compensable under the Fair Labor Standards Act (FLSA), as walking through security was a principal activity of the employees’ job duties.

Chief Justice Roberts responded, “But no one’s principal activity is going through security screenings.It may be part of that… but that doesn’t make it a principal activity.” Justice Scalia opined that the security check “is not indispensable to [the warehouse work].” In reply, the workers’ attorney argued that the screening was a “discrete act” that only occurred after the workers had clocked out and handed in their tools. He stated, “It’s work because you are told to do it.”

The Obama administration is siding with the employer. The Justice Department attorney argued that the security screenings were not “integral and indispensable to the workers’ jobs.”

It will be interesting to see how the Supreme Court decides this hot-button workplace wage issue. Stay tuned.

Should you have wage and hour questions or issues, please contact the Gilbert Law Group: 631.630.0100.

Sex Discrimination and Frozen Eggs In the Workplace

Discrimination because of sex related to pregnancy is unlawful under both Federal and State law. See, Civil Rights Act of 1964, § 701(k), 42 U.S.C.A. § 2000e(k), McKinneys Executive Law § 296 et seq. This is a form of discrimination that can be considered both sex discrimination and/or disability discrimination.

Pregnancy in the workplace was in the news this past week as several large employers made headlines for their respective policies relating to egg freezing. Indeed, companies are offering to pay for women to freeze their ova so that they can work through their most productive and fertile years, without losing the ability to have children.

First, it was announced that Facebook and Apple will begin offering insurance coverage for female employees to freeze their eggs for later fertilization and implantation, a procedure that can cost as much as $20,000. Then Citigroup announced the same plan.

This is naturally controversial.  While some women will be grateful for the fully paid-for benefit, others, as noted in this New York Times blog post, could perceive this as putting pressure on women to stay childless as long as they want to advance their careers.

This issue has not been litigated as of yet mostly because these work policies are germinal and have just been implemented. While there is nothing facially unlawful about these policies, it could become evidence in a lawsuit brought by a woman who is turned down for a promotion, terminated, or harassed because of pregnancy, or because of actual or perceived “maternal” responsibilities.

Call Gilbert Law Group today for counsel related to pregnancy issues in the workplace, sex discrimination, or disability discrimination: (631)630-0100

Just Cause and Wrongful Termination: Mutually Beneficial

When one hears the terms “just cause provision” or “wrongful termination,” the natural reaction is to associate these terms with protecting employees from being unfairly fired, harassed with unwarranted discipline, or discriminated against by their employers. This is a rather narrow view however, of the true effect of these types of provisions.

A just cause provision is a contract clause which is frequently included in employment contracts. Typically, for an employee to be terminated, or in some cases disciplined, a just cause provision requires  that the employer  supply a legitimate reason related to that employee’s work.

Although it may seem counter-intuitive, a just cause provision can provide an employer with just as much insulation from unwanted problems as it does employees.

For example, after it was found that a former head basketball coach at a small college verbally abused his players, assistant coaches, and employees, the institution terminated the coach’s contract. As it relates to employment law, such abuse would surely qualify as “just cause.” At the time of termination, the coach had three years left on his contract and was reportedly going to be paid nearly $1.2 million. Unfortunately, the coach’s contract failed to include a “for cause” termination clause that would have allowed the college to terminate him for this type of behavior. As such, when the coach threatened a wrongful termination and breach of contract lawsuit, the college was forced to pay a sizable settlement.

Indeed, when an employee with a multi-year contract is terminated with no just cause provision, the employer may be liable for a “wrongful termination” and the the remaining term of the contract.

As such, if found in a situation like this, it is critical that you seek expert counsel.

Call Gilbert Law Group today: 631.630.0100

Labor Law Update: Independent Contractor Status

The National Labor Relations Board has “redefined” the test it uses for determining whether workers performing services for an employer are to be considered employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx Home Delivery, 361 NLRB No. 55 (2014). This is a significant decision because of its broad application in labor law in determining the status of workers in both representation cases and in unfair labor practice cases.

The Board took the opportunity in this case to make some key legal points about the evidence of economic opportunity for gain or loss from the perspective of the worker:

(1)  The multifactor test articulated in the Restatement (Second) of Agency § 220 (1958) has traditionally been employed by the NLRB and the courts in making and reviewing employee/independent contractor determinations under the NLRA. The Board stated that it would simply consider entrepreneurial opportunity along with the Restatement factors, but would not grant it overriding “animating” importance, as it accused the DC Circuit of doing.

(2)  The Board further held that any claimed entrepreneurial opportunity of the individuals in question must be real, not merely theoretical.  The Board will look at employer imposed and other structural factors which act as an impediment to the genuine existence of entrepreneurial opportunity.  Further, in representation cases, the Board will consider evidence regarding only the individuals in question (here, those in a requested bargaining unit), and not system wide or extra-unit evidence.  (It is to be expected that a similar limitation will be imposed in unfair labor practice proceedings where no bargaining unit issue is in play.)

(3)  Finally, Board said that it will look at the work being done by the individuals in question and ask whether they are truly performing it in the same way as a bona fide independent business would.

Can An Employee be Fired for Marijuana Use?

With marijuana use becoming legal in an increasing number of states, the courts will become the battleground for deciding whether an employee may be fired for marijuana use. In fact, Colorado’s highest court will decide that very issue in a state where both medicinal and recreational marijuana use have been legalized. The issue: whether a workers’ off-duty, off work-site use of medical marijuana is protected by law. The facts: Brandon Coats is a quadraplegic medical marijuana patient who was terminated from Dish Network after failing a drug test in 2010. Coats never got high at work, but pot’s intoxicating chemical, THC, can stay in the system for weeks. The employer claims that it has a zero-tolerance drug-free workplace policy, and it is therefore irrelevant if Coats was impaired at work.

Coats, 35, was paralyzed in a car accident as a teenager. In 2009, he found that pot helped dissipate violent muscle spasms. Coats was a telephone operator for Dish for three years before he failed a random drug test. He told his supervisors in advance that he would probably fail the test. The lower courts upheld the firing, holding that pot use cannot be considered lawful so long as it violates federal law.

Aside from the narrow issue of state law, there are several important issues in this case. Colorado, like New York and several other states, has a Legal Activities Law which prevents employers from discriminating against employees who engage in off-duty, off work-site activities which are legal. New York also recently made legal the medicinal use of marijuana under certain conditions. Also, under the Americans With Disabilities Act (ADA) as well as New York’s Human Rights Law, Dish’s termination of Coats may constitute unlawful disability discrimination based on his disability.  There is also the issue of reasonable accommodation of Coats’ disability.

It would appear that where workers are employed in nonhazardous jobs, unless there is some negative impact in the workplace, an employee’s marijuana use may not serve as a basis for discharge. Negative impacts may include smoking or ingesting at work, impairment or being ‘hung over’ at work, poor performance linked to the use, or time and attendance issues.

Also, if the employer receives federal funding, condoning known pot use may jeopardize a federal subsidized project, contract, continued receipt of federal funds, or status as a federal agency employer inasmuch as federal law still prohibits pot use.

This case clearly has nationwide implications as it will impact how companies and other employers treat employees who use the drug both medically and recreationally. It will therefore be interesting to see how Colorado’s Supreme Court rules. Stay tuned.

Non-Compete Agreements and Preparing to Compete

Have you ever left a job because you were offered a better position or compensation by a competitor within the same industry? Many people are required to sign an agreement restricting their ability to work in competition to their current employer. These non-compete agreements, when presented at time of hire, during employment, or upon termination, resignation, or layoff, are based on the possibility that an employee might gain a competitive advantage by using knowledge of their former employer’s operations.

As a result, when an individual has decided to leave his or her current employment and transition to a position working for a company which directly competes with his or her current employer, there are contractual issues which must be considered.

During the term of a post-employment non-competition covenant, what are considered to be lawful acts in preparing to transition to working for a competitor and what is unlawful? Where does one draw the line separating lawful non-competitive preparatory planning to compete and prohibited direct competition? There is no definitive answer. Recent New York State case law has shed some light on the issue, however.

“Although an employee may, of course, make preparations to compete with his employer while still working for the employer, he or she may not do so at the employer’s expense, and may not use the employer’s resources, time, facilities, or confidential information.” Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F.Supp.2d 489 (S.D.N.Y. 2011).

Some examples of unlawful competitive actions include when an employee copies his employer’s business records for his own use; charges expenses to his employer that were incurred while acting in furtherance of his own self-interest; actively diverts his employer’s business for his own personal benefits or the benefit of others; or conspires to bring about the mass resignation of his employer’s key employees.

Although case law varies to some extent, it is clear that the language of the restrictive covenant (the non-compete) will dictate in determining what activities are considered impermissible competition.

Therefore, employers who desire to prevent departing employees from gaining a competitive advantage while still employed as well as employees who wish to learn what acts they are permitted to do in preparing to transition to a job with a competitor would greatly benefit from seeking counsel with the experience and knowledge to properly advise them of their rights.

EEOC Files First Ever Sex Discrimination Suit On Behalf of Transgender Employee

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee based on his or her race, color, sex, religion or national origin (see 42 U.S.C. § 2000e-2).

The U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today that a Detroit-based funeral home operator discriminated based on sex in violation of federal law by firing a Garden City, Michigan, funeral director/embalmer due to the fact that she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

In December 2012, the EEOC adopted a Strategic Enforcement Plan (SEP) for sex discrimination to include “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions…” as a top Commission enforcement policy.

Harris is a funeral home company with multiple establishments in and around the Detroit area. Amiee Stephens had been employed by Harris as a Funeral Director/Embalmer since October 2007. During her tenure, she had always adequately performed the duties of that position.  In 2013, she gave Harris a letter explaining she had decided to undergo a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, compatible with her gender identity as a woman.  Two weeks later, Harris’ owner fired Stephens, telling her that what she was “proposing to do” was intolerable.

The Commission has relied on rationale from well-settled Supreme Court precedent regarding sex discrimination. The Commission and the Court recognize that when an employer considers an employee’s sex in taking an adverse action – for example, if an employer terminates a transgender employee based on its judgment that the employee does not conform to the employer’s stereotypes regarding how someone “born” that sex should live or look – the employer will violate Title VII.

source:http://www.eeoc.gov/eeoc/newsroom/release/9-25-14d.cfm

Welcome to the Gilbert Law Group’s Labor and Employment Law Blog

Welcome! This blog will disseminate and discuss current events and developments within the labor employment sector. We will provide commentary on happenings in  the courts, economy, and local community which will have a real impact on businesses and careers. When looking for content on labor news, employment legislation, or current events, Gilbert Law Group’s Labor and Employment Law Blog is your one-stop site for everything Labor and Employment and Workplace Law.

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