Employment Law Update - Fall 2015

December 3, 2015, 4:23 PM

U.S. SUPREME COURT RULES EMPLOYER MUST PROVIDE RELIGIOUS ACCOMMODATION NOT REQUESTED BY APPLICANT

Coming at the end of this year’s U.S. Supreme Court Term was a somewhat ordinary dress code case that contains a very important warning for all employers and human resources professionals. In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court handled the case of an otherwise-qualified Muslim applicant, Samantha Elauf, who was not hired because the employer feared she would request an accommodation – to wear a headscarf, or hijab, while she was working. The Supreme Court held that Abercrombie could not refuse to hire a qualified Muslim applicant because wearing a hijab violated Abercrombie’s “no caps” policy, designed to emphasize the Abercrombie & Fitch “look.”

What makes this case scary, however, is what did not happen. The dress code was never mentioned during the job interview. Neither was the hijab. And the applicant apparently never mentioned her religion, or that wearing the hijab was a religious requirement (rather than a casual fashion statement), and she never requested a religious accommodation. Rather, the interviewer assumed that the scarf was a religious garment and assumed that the applicant would request an accommodation. The interviewer then discussed the matter with a district manager, who told her wearing the scarf would violate the company’s “look” policy, and instructed the interviewer not to hire Ms. Elauf.

But more was going on here. The company took the position that it could not have violated its duty to accommodate the applicant’s religion, since the applicant never requested an accommodation. The Supreme Court had no sympathy in ruling that the employer violates Title VII if it acts with the motive of avoiding an accommodation, even if it had no knowledge an accommodation would be requested. Since Abercrombie at least suspected the religious nature of the hijab, and was motivated not to hire her because she might request an accommodation, Ms. Elauf was the victim of religious discrimination since Title VII gives religious practices favored treatment. In other words, it is possible to discriminate on the basis of religion even when no religious accommodation has been refused, or even requested.

PRESIDENT OBAMA REQUIRES PAID SICK LEAVE

On Labor Day – September 7, 2015 – President Obama issued an Executive Order requiring federal contractors to provide additional benefits to their employees. The “Establishing Paid Sick Leave for Federal Contractors” Executive Order provides that employees working on federal contracts (including any subcontracts) must earn at least one (1) hour of paid sick leave for every 30 hours worked, which can be used by employees to care for themselves or a family member. Of course, federal contractors may provide for more generous leave, but they may not establish a cap on the accrual of paid sick leave at less than 56 hours. Furthermore, employees must be allowed to carry over their unused leave from year to year and, if separated from employment, are entitled to reinstatement of any unused leave if rehired within twelve (12) months. The requirements of this Executive Order will apply to new contracts issued after January 1, 2017, and the Department of Labor has been tasked with issuing regulations by September 30, 2016 to implement the requirements.

Although the Executive Order only applies to federal contractors, private sector employers should be wary. For years, the government has used federal contractors to test employment measures that might have broader application. In fact, during his announcement of the Executive Order, President Obama called for Congress to pass the Healthy Families Act, which would require all employers with 15 or more employees to provide paid sick leave, and to pass legislation providing paid family and medical leave to employees to care for a new child or for the serious health condition of the employee or a family member.

EEOC DEPUTY DISTRICT DIRECTOR TO SPEAK AT NOVEMBER K&C SEMINAR

Thomas M. Colclough, the Deputy District Director/Charlotte for the U.S. Equal Employment Opportunity Commission (EEOC) has agreed to participate in the November 19th showing of the 32nd Annual Employment Law Update. Mr. Colclough will be the featured luncheon speaker during which he will provide practical tips to attendees on how companies can avoid discrimination liability and effectively manage increasingly diverse workforces. Mr. Colclough has also agreed to participate in workshops during the day-long program. To help further provide the EEOC’s perspective, the new Director of the Norfolk EEOC office, Norberto Rosa-Ramos, will be introduced to the crowd by Mr. Colclough and will also participate in a number of workshops.

At the end of the day, Mr. Colclough will provide attendees with valuable information regarding what areas the EEOC will emphasize in enforcing anti-discrimination laws during the upcoming year. Then the new Norfolk Director, Mr. Rosa-Ramos, will draw a lucky attendee’s name in the drawing for a $350 Home Depot gift card.

FYI

K&C is committed to providing the government agency perspective to all employer representative attendees at its Employment Law Update seminars. Receiving such agency input in a friendly, informative environment has proven to be very valuable to employers interested in complying with ever-expanding employment laws. Accordingly, in addition to Mr. Colclough and Mr. Rosa-Ramos, a number of other representatives from relevant government agencies will be on hand to help educate attendees of the 32nd Annual Employment Law Update. For more information, or to register, visit

DOL OVERTIME PROPOSAL TO DOUBLE SALARY THRESHOLD FOR EXEMPT EMPLOYEES

On June 30, 2015, the U.S. Department of Labor (DOL) issued long-awaited proposed changes to rules governing when an employee is exempt from overtime under the Fair Labor Standards Act (FLSA). The proposed changes would more than double the salary required before workers can be treated as exempt from overtime under the FLSA. The proposal would raise the current $23,660 salary requirement to approximately $50,400 per year.

With such a significant increase, the DOL projects that as many as 11 million workers may begin receiving overtime for hours worked over 40 in a workweek. Employer advocates have already expressed concern about the huge impact the proposed changes will have on budgets, workplace flexibility and employee morale.

Practical Pointer

Failure to comply with DOL Wage-Hour regulations governing payment of overtime can prove to be very costly. If a DOL audit reveals errors, employers may be liable for back pay for large groups of employees going back two to three years. Accordingly, employers are well advised to audit their pay practices on a regular basis. To help in that regard, a workshop on conducting effective self-audits will be presented at the November 19 showing of the 32nd Annual Employment Law Update to be held at the Virginia Beach Convention Center.

VIRGINIA EMPLOYER LIABLE FOR INSUFFICIENT HARASSMENT INVESTIGATION

In a recent case that sounds a warning to all companies to follow their harassment investigation policies, the federal Court of Appeals held in favor of a United flight attendant against her employer. In the process, the court roundly criticized the company’s shoddy investigation and failure to take seriously some serious acts of harassment.

The plaintiff in Pryor v. United Air Lines, Inc. was an African-American flight attendant for United, working out of Dulles. She found a note in her company mailbox – in a secured area accessible only to airline personnel – purporting to be a “Federal N****r Hunting License . . . with or without dogs.” The paper also contained a hand-drawn image of a noose and the words, “this is for you.” Both the trial court and the appellate court considered “the conduct at issue in this case . . . [to be] some of the most serious imaginable in the workplace – an unmistakable threat of deadly violence against an individual based on her race, occurring in the particularly sensitive space of the airport.” However, the district court decided the employer was not liable for the conduct – in part, because no one ever was able to identify the perpetrator.

The Court of Appeals reversed. United had an excellently-worded Harassment and Discrimination policy, but no one followed it. When the plaintiff first complained to her supervisor, he “in fact, thought the racist death threat ‘was a joke.’” The supervisor did not contact the Employee Service Center, as mandatory company policy demanded be done “immediately.” Rather, he slipped the note under the door of the absent director of in-flight services, who – when she returned to work — contacted an operational manager. Neither of them ever contacted the Employee Service Center. Both had been aware of earlier racist notes at the facility – but neither of them reported those either; one shredded a racist flyer (“No n****rs need apply”) because she was offended by it. The operational manager called corporate security, who conducted no interviews of co-workers and kept no physical evidence. Security closed its investigation when no one could identify a suspect – and no one told the plaintiff.

The plaintiff herself finally reported the incident to the police. When police investigators arrived, the operational manager told them “this was not the best time to meet,” and did not understand why the police were involved (Despite a hate crime death threat being made in a secure area at a major DC airport). While some later conduct was properly investigated and addressed, the Court of Appeals held that United’s response to these initial complaints fell short of what the law requires. The results weren’t surprising since there was no prompt action, no effective action, no remedial action – and a plain failure to follow the company’s own internal procedures.