Monday, June 19, 2017 Corporate Counsel

Rooms: 314-315 Hot Topics in Employment Law:

What to Worry About Now

2:05 p.m. – 3:05 p.m.

Presented by Espnola Cartmill

Belin McCormick PC 666 Walnut St, Suite 200

Des Moines, IA 50309 Phone: 515-283-4674

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HOT TOPICS IN EMPLOYMENT LAW: WHAT TO WORRY ABOUT NOW

Nola Cartmill

DISCRIMINATION AND HARASSMENT

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Laws Prohibiting Discrimination and Harassment

• Title VII of the Civil Rights Act of 1964• Pregnancy Discrimination Act• Equal Pay Act of 1963 (EPA)• Age Discrimination in Employment Act of 1967

(ADEA)• Americans with Disabilities Act of 1990 (ADA)• Americans with Disabilities Act Amendments Act of

2008 (ADAAA)• Genetic Information Nondiscrimination Act of 2008

(GINA)• Iowa Civil Rights Act

Laws Prohibiting Discrimination and Harassment

• Federal Law – Title VII “It shall be an unlawful employment practice for an

employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin....”

• An employer can discriminate by making an adverse employment decision based on an employee’s (or applicant’s) protected status (i.e., race, color, religion, sex, national origin).

• An employer can also violate the law if the employer engages in unlawful harassment.

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Laws Prohibiting Discrimination and Harassment

• The Iowa Civil Rights Act goes further, explicitly, than Title VII and makes it an unfair or discriminatory practice for any person: “...To refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability of such applicant or employee, unless based upon the nature of the occupation.”

Examples of Harassment• Same-sex harassment Sexual orientation harassment Sexual harassment of same-sex individual

(sexual stereotypes) Transgender harassment

• Political Harassment

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Same-Sex Harassment• Sexual Harassment of Same-Sex Individual

Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).Held same-sex sexual harassment is actionable under Title VII.

Plaintiff must show: The harassment was motivated by sexual desire, making the sexual orientation of

the harasser relevant;

The harasser possessed a general hostility towards the general presence of his/her own gender in the workplace; or

Comparative evidence shows that, in a mixed workplace, the harasser treated members of one sex differently.

Robertson v. Siouxland Cmty. Health Ctr., 938 F. Supp. 2d 831 (N.D. Iowa 2013) Female HR director complained the female CEO subjected her to

unwelcome sexual comments, questions, conversations, emails, texts and jokes.

LGBTQ Claims

• In 2012, the EEOC included “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top Commission enforcement priority.

• Since then, there have been multiple cases seeking to cover such claims under Title VII.

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Sexual Orientation• Despite no explicit protection in Title VII, the courts

have recognized harassment/discrimination claims based on a plaintiff’s sexual orientation: Boutillier v. Hartford Pub. Schs., 2016 WL 6818348

(D. Conn. Nov. 17, 2016)Court concluded “sexual orientation cannot be extricated

from sex” and “sexual orientation [is] within the penumbra of sex discrimination.”

EEOC v. Scott Med. Health Ctr., P.C., 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016) In denying employer’s motion to dismiss, court stated that, in

its view, a line between sex discrimination and sexual orientation discrimination is “a distinction without a difference.”

Transgender Employees• Despite no explicit protection in Title VII, the courts also have

recognized harassment/discrimination claims brought by transgender employees: Glen v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

Court upheld summary judgment for transgender plaintiff who was terminated because employer feared potential lawsuits if she used the women’s restroom.

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). Court held Title VII prohibits discrimination against transgender

individuals based on gender stereotyping. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005).

Court held male to female transsexual police officer who claimed he was demoted because of his failure to conform to sex stereotypes stated a claim of sex discrimination under Title VII.

Schwenck v. Hartford, 204 F.3d 1187 (9th Cir. 2000). Court held that a transgender woman stated a claim of sex

discrimination under the Gender Motivated Violence Act based on the perception that she was a “man who ‘failed to act like one.’”

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Transgender Employees• One of the hottest topics in this area of the

law is “the bathroom epidemic”: Which bathroom should a transgender employee

use?Lusardi v. Department of the Army, EEOC Appeal No.

0120133395, 2015 WL 1607756 (Mar. 27, 2015). EEOC held that denying an employee equal access to a

common restroom corresponding to the employee’s gender identity is sex discrimination.

G.G., ex rel. Grimm v. Gloucester County Sch. Bd., 2016 WL 1567467 (4th Cir. 2016). Court held educational institutions must give transgender

students restroom and locker access consistent with their gender identity.

Transgender Employees• President Trump’s withdrawal of guidance

regarding restroom use in schools What does that mean for employers?Will the EEOC reverse its guidance and rulings?Will employers be allowed to require transgender

employees to use a single-user restroom?Will employers be allowed to require transgender

employees to use the restroom corresponding to their biological sex?Will employers be allowed to require proof of surgery or

medical procedure before deciding which restroom transgender employees may use?

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Political Disagreements• In June 2016, the Society for Human

Resources Management released a survey showing 26% of employers saying there was greater political volatility in the office compared with previous election cycles. Only 5% of employers said there was less

tension.• Although the election might be over, many of

you still might be dealing with post-election disagreements among employees.

• So what can you do to avoid such disagreements?

Political Disagreements• Ban political speech at work?

NLRA Restricts an employer’s right to limit non-supervisory employees’

communications about wages, hours and other terms or conditions of employment.

Not just applicable to unionized employers. First Amendment rights

Contrary to popular belief, the Constitution allows private companies to regulate speech, even to bar political discussion entirely.

But see above…. Only political speech with which you disagree

Federal election laws allow corporations to persuade a “restricted class” of individuals to vote for or against a political candidate.

State laws, however, may provide additional prohibitions.

• Terminate employees who talk politics? Only when it could be construed as discriminatory?

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Political Disagreements

• What do you do when political dialogue crosses the line into discrimination/ harassment? Treat any discrimination/harassment

complaint based on discussion about politics or an individual’s political views the same as you would treat any other complaint.

Transgender Employees -How to Handle Transition

• Your employee announces they plan to transition from one sex to the other. How do you handle the logistics? Announce to other employees/clients/customers

Send out an email/letter?What should it say? An example:

Dear ____,

I am writing to share some exciting news from [name of Company]. Our [title of employee], _______, is now going by the name _____ and using male/female pronouns. ______'s new email address is ____________ (previously _______________). Please update your records with his/her new contact information. _________ looks forward to continuing to work with you.

If you have any questions, please don’t hesitate to reach out to me directly.

Change email address/name plates?

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Political Disagreements -Prevention

• Possible steps to take: Implement a non-solicitation policy; Implement an electronic communications policy; Actively and consistently enforce a comprehensive anti-

harassment and anti-discrimination policy; Remind managers and supervisors to avoid political

conversations with subordinates; Remind managers to report employee complaints; Seek legal counsel before disciplining an employee for

his/her political activities; Advise employees that all workplace speech should be

respectful and tolerant of others’ views; and/or Most importantly, be sensitive to potential discrimination,

harassment and retaliation issues.

Internet and Social Media• Technology presents special opportunities for

discrimination, harassment and other workplace issues.

• There are three primary problems employers face involving social media in the workplace:1. You will learn too much.2. You will learn too little.3. Your employees will not work.

• Hopefully, you will never face the fourth problem: you say too much.

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Social Media Use• Social media presence is almost always a

subject of litigation:Produce all information and/or documents provided or available to you when you use the “download your information” functionality on Facebook. To access the “download your information” functionality, follow this path: Go to your homepage and hit the “settings” symbol in the upper right corner, then click “Account Settings,” then click “Download a copy of your Facebook data,” which is at the bottom of the information on that page, then click “Start my archive.”

Social Media Use• Pax Dickinson, Business Insider Chief

Technology Officer

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Social Media Use• You should remind employees of these

three rules about their social media presence:1. Assume other employees will see it

(especially their profile picture);

2. Remember their employment can be affected by their conduct, even if it is outside of work; and

3. Know that their social media presence will be scrutinized in the event of litigation.

Learning Too Much• 58% of people have a profile on a social network. 56% of people have a Facebook profile.

• Facebook has approximately 1.3 billion users. 640,000,000 minutes are spent on Facebook each

month. 48% of 18-34 year olds check Facebook when they

wake up. 28% of 18-34 year olds check it before they get out of

bed.

• Average of 58 million tweets per day.• People spend 3.25 billion hours each month

watching videos on YouTube.

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Learning Too Much• You cannot use the Internet or social

media to learn anything about an employee that you should not ask in an interview (i.e., religion, disability, age, national origin, sexual orientation, etc.). YOU DO NOT WANT TO KNOW!!

• The Internet can expose you to problems GINA ADA Touchy religious/political issues

Learning Too Much• Example: A supervisor has interviewed two

applicants for a position and is trying to decide between the two of them. Both are qualified and both interviewed well, but the supervisor is leaning toward Applicant #2. The supervisor Googles both applicants. The supervisor discovers Applicant #1 has a blog called “My Transition from Male to Female.” Upon reading the blog, the supervisor discovers the applicant is transgender and is currently undergoing medical treatment to complete her transition.

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Learning Too Much

• Be cautious with use of social media and technology as it relates to employees or prospective employees.

• Once you have information, you cannot unlearn it. Be aware of how your decisions may look in

light of the information you now have.

On the Other Hand… • You cannot ignore social media or other

technological communication. Employees can discriminate by social media, text,

internet posting, etc.

Employees can harass through social media, etc.

Employees can breach employer confidentiality policies online.

• If you become aware of issues online or via social media, you should address them just as you would other issues in the workplace.

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On the Other Hand…

• Example #3: An HR professional gets along well with supervisors at the company and “follows” them on Twitter. After Employee X accepts the follow request, the HR professional sees Employee X’s most recent post:

“Is it me or are there gays everywhere? #Burn #Die #MakesMeSick”

DRUG TESTING

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Alcohol and Drug Use Statistics• 8.7% of full-time workers aged 18-64 used

alcohol heavily in the last month.• 8.6% of full-time workers used illicit drugs in

the past month.• 9.5% of full-time workers were dependent on

or abused alcohol or illicit drugs in the past year.

Source: National Survey on Drug Use and Health-Annual Average from 2008-2012

States with Drug Testing Laws• The majority of states have laws governing drug

testing by private employers. Indeed, several states tie private employer drug

testing to workers’ compensation insurance discounts.• There are, however, a few exceptions: California, Colorado, Massachusetts, North Dakota,

Oregon and West Virginia do not have drug testing statutes but have special rules an employer should consider.

Delaware, Illinois, Indiana, Kansas, Michigan, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, South Dakota, Texas, Washington and Wisconsin do not have drug testing statutes or special rules.

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Iowa’s Drug Testing Statute

• Iowa has one of the most detailed drug testing statutes in the country. It is Section 730.5 of the Iowa Code.

• It applies to all private employers.

• It does not apply to drug and alcohol tests required by federal statutes, regulations or orders.

Types of Testing Permitted• Pre-employment testing• Unannounced random testing of certain

pools of employees• Reasonable suspicion testing• Post-accident testing• Testing of employees while in, and after

completion of, drug or alcohol rehabilitation

• Testing required by federal law

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Required Policies

• Must have a written policy provided to every employee subject to testing.

• The policy must provide uniform requirements describing what action, disciplinary or rehabilitative, the employer can take against an employee or a prospective employee upon receipt of a positive test or a refusal to test.

• It is very important to ensure any testing is carried out within the terms of the policy.

What Can You Do With a Positive Test?

• If you receive a positive, confirmed drug test for an employee, you must follow the following procedure: Notify the employee by certified mail of the result of the test and his/her right to request and

obtain a confirmatory test of the second sample, provided that the fee is payable by the employee for reimbursement of expenses associated with the second test;

The employee may, in-person or by certified mail, request a second test by an approved laboratory if the employee pays for the test within seven days; and

If the second test does not confirm the initial test, the employer must reimburse the employee the testing fee, and the initial test cannot be taken into consideration for purposes of discipline.

• If an employee has a confirmed positive alcohol test which violates the employer’s policy, the policy must provide for rehabilitation of the employee if: The employer has at least 50 employees; The employee has been employed for at least 12 of the last 18 months; The employee agrees to rehabilitation; and The employee has not previously violated the employer’s policy.

• If you receive a positive, confirmed drug or alcohol test for an applicant, you must give the applicant notification of the results of the test, including the name and address of the medical review officer who confirmed the test result, but you do not have to give them an opportunity for a second test.

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Other Requirements• Drug and Alcohol Education

Employees must establish a drug and alcohol awareness program. This requirement can be met by either giving employees notice of

the benefits and services available under an employee assistance program (EAP) or maintaining a resource file describing employee assistance services available through outside organizations.

• Supervisor Training Employers must ensure supervisory personnel attend a minimum of

two hours of initial training and a minimum of one hour of annual training thereafter, which includes information concerning: Recognition of evidence of employee drug and alcohol abuse; Documentation and corroboration of employee alcohol and drug abuse;

and Referral of employees who abuse drugs or alcohol to an EAP or the

resource file for employee assistance services.

DOT Testing• The complexity of DOT testing makes

complying with the Iowa statute a walk in the park.

• You should note, however, that if you have drivers who operate commercial motor vehicles, they are likely subject to DOT drug testing requirements, which are materially different from Iowa’s statute.

• You will need a separate policy for DOT testing.

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Marijuana Legalization Implications

• To date, seven states have legalized the recreational use of marijuana (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington and the District of Columbia).

• Twenty-six states and the District of Columbia have legalized the use and possession of marijuana for medical use.

Marijuana Legalization Implications• This legalization has created new issues for

employers.• Many courts have decided these new issues in favor

of employers:• Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015) (finding an employer

who terminated a quadriplegic employee who tested positive for marijuana did not violate Colorado’s lawful activities statute because medical marijuana is illegal under federal law).

• Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012) (holding Michigan’s medical marijuana statute only provides a defense against criminal prosecution and other adverse action by the state but does not regulate private employment).

• Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010) (holding that an employer has no obligation to accommodate an employee’s use of medical marijuana because the use of marijuana is illegal under federal law).

• Curry v. MillerCoors, Inc., 2013 WL 4494307 (D. Colo. Aug. 21, 2013) (ruling in favor of an employer on a disability discrimination claim after the employer discharged the employee for violating the employer’s drug policy).

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Marijuana Legalization Implications

• But there is some evidence that the tides could change: In 2014, Nevada amended its medical

marijuana law to require that employers make reasonable accommodations for an employee who holds a valid registry card and uses marijuana for medical purposes.

OSHA Implications• On May 12, 2016, OSHA published its final

rule on electronic reporting of workplace injuries and illnesses.

• Effective August 10, 2016, employers must: Establish “a reasonable procedure” for

employees to report work-related injuries and illnesses promptly and accurately; Ensure the procedure does not deter or

discourage a reasonable employee from accurately reporting a workplace injury or illness; and Not retaliate against an employee for reporting an

injury or illness.

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OSHA Implications• Drug testing No specific provision Commentary suggests greater scrutiny of post-

accident testing “[I]f an injury of illness is very unlikely to have been caused

by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

Takeaway: “[D]rug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

OSHA Implications

• What should you do? Review drug testing policy

Consider abandoning post-accident testing

Examine testing procedures

Continue to comply with state and federal law

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Defend trade secrets act

Defend Trade Secrets Act• Gives federal civil protection to trade secrets.• Provides immunity to whistleblowers who

disclose trade secrets in confidence to federal, state or local government officials or to government attorneys when made: to investigate or report a suspected violation of

the law; or in a complaint or other document filed in a lawsuit

as long as the filing is under seal.• Must include notice of whistleblower immunity

in contracts regarding trade secrets or other confidential information.

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OVERTIME EXEMPTIONS

Fair labor standards act

FLSA Overtime Exemptions

• There is lots of uncertainty.

• A couple things to keep in mind when assessing your options: The injunction is temporary; and

States may take matters into their own hands.

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Nola CartmillBelin McCormick, P.C.666 Walnut Street, Suite 2000Des Moines, IA 50309-3989Phone: (515) 283-4674Email: efcartmill@belinmccormick.com