Employment Law Update - Fall 2018

EEOC FILES WAVE OF SEXUAL HARASSMENT LAWSUITS

At the final showing of K&C's 34th Annual Employment Law Update at the Hampton Roads Convention Center on July 19, 2018, the Equal Employment Opportunity Commission (EEOC) Norfolk Director, Norberto Rosa-Ramos, told attendees that they could expect a number of new lawsuits from his agency involving sexual harassment claims. Sure enough, within 30 days the EEOC filed at least 7 such lawsuits ranging from claims that grocery chain Piggly Wiggly subjected two female employees to lewd comments and advances from male co-workers to allegations that United Airlines failed to discipline a pilot who posted nude photos of a flight attendant on the internet. The Commission also held a press conference on August 1, 2018, to announce a $3.5 million settlement with customer service provider Alorica, Inc. which was accused of subjecting call center workers to groping and sexually-charged comments by managers and co-workers.

These litigation steps are not surprising given the national attention the Me Too movement has brought to sexual improprieties recently. If anything, this increased attention on workplace harassment by the EEOC has perhaps been slower in coming than anticipated. But the EEOC has now clearly focused on taking public steps to address sexual harassment in the workplace.

To protect against liability for workplace harassment, many proactive employers have intensified their training of employees and supervisors in particular to make sure they are aware of employment law risks. The K&C Employment Team lawyers have helped numerous employers in this regard, and the EEOC has rolled out a number of new training modules that focus on more respectful workplaces.

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

Thomas M. Colclough was recently elevated to Acting EEOC District Director for the region covering most of Virginia, North Carolina and South Carolina. Mr. Colclough is one of a number of relevant employment agency representatives who have agreed to participate in K&C's 35th Annual Employment Law Update on November 15, 2018 at the Virginia Beach Convention Center. His new position not only enhances his perspective as a presenter for new topics to be presented at the seminar, but he is well-poised to provide attendees with an insider's view at the end of the day-long program on what to expect from the EEOC in the coming year.

Other speakers to present at the 35th Annual Employment Law Update include nationally-recognized diversity trainer, Mauricio Velasquez, and a "top gun" lawyer who sues employers, James Shoemaker. Of course the lawyers from the K&C Employment Team will also be on hand to not only present workshops but also answer any and all employment law questions any attendees might have. In this regard, K&C employment lawyers and representatives from a number of relevant government agencies will be available throughout the day at the ever-popular K&C "Answer Booth."

The theme of this year's program will be Social Media in the Workplace and a number of relevant topics will be presented, including Regulating Social Media, Cyber-Bullying and Retaliation Risks, ADA Compliance, and Wage-Hour Issues/Exemptions. Attendees will also be educated and entertained by a lively mock scenario and a "talking emoji." Not only will attendees earn 6 HRCI credits and 5 SHRM PDCs, but one lucky attendee will win an iPad at the end of the day. To register, visit www.kaufcan.com/events or call (757) 624.3232.

ACCOMMODATION IS THE KEY UNDER THE ADA

The Americans with Disabilities Act (ADA) not only prohibits discrimination against disabled applicants and employees, it also requires employers to provide reasonable accommodations to them. With the continued expansion of what constitutes a disability under the ADA, the key for employers to avoid ADA liability is accommodation and, above all, to engage in an interactive dialogue process to determine whether a reasonable accommodation is available.

Several recent cases highlight the continued importance of an employer's accommodation efforts. For example, a federal appellate court recently upheld a jury verdict of just under $300,000 for an employee of a Dollar General Store in Tennessee. The employee, a Type II diabetic, purchased juice from the checkout counter of the store to deal with an episode of low blood sugar and was fired for violating the store's "anti-grazing" policy. Both the jury and the court concluded that the store failed in its requirements to reasonably accommodate the employee when it refused to allow her to keep juice at her register and make an exception to its anti-grazing policy under the circumstances.

Similarly, several prominent national companies, such as Hard Rock Cafe, Game Stop, Dart Container, and Albertsons, have been sued in federal court in California for disability discrimination in their online hiring process. According to the lawsuits, the online application systems used by these companies cannot be fully accessed by blind applicants and, when the companies were contacted by the applicants with a request to fix the sites to make them accessible, the companies failed to respond. The lawyer for the plaintiffs in these cases says that fixing the website accessibility issues is "quick and easy," requiring the investment of few hours and a few hundred dollars, but the lawsuits point to the employers' refusal to even discuss potential accommodation as a violation of the ADA. The plaintiffs' lawyer who filed these lawsuits ultimately may not be successful in these cases, but he has already indicated that he plans to file similar lawsuits against Virginia employers.

PRACTICAL POINTER

As these recent cases demonstrate, engaging in an interactive dialogue with employees and applicants about potential accommodation of their disabilities is crucial for compliance with the ADA. In many cases, this dialogue reveals that a reasonable accommodation is not nearly as expensive as employers fear, and the failure to explore accommodation of a disabled employee or applicant can be very costly. To help employers avoid ADA liability, a workshop on ADA compliance will be presented at the November 15th showing of the 35th Annual Employment Law Update at the Virginia Beach Convention Center where EEOC Acting District Director, Tom Colclough, and a member of the K&C Employment Law Team will provide attendees with timely compliance guidance.

AGREEMENTS REQUIRING INDIVIDUAL ARBITRATION ARE OK!

Over the years, the U.S. Supreme Court has issued a number of decisions validating the use of mandatory arbitration as an alternative to judicial resolution of workplace disputes. The most recent such case, Epic Systems Corp v. Lewis, was decided in May of this year. In its decision, the Supreme Court ruled that employers can use mandatory arbitration agreements that require employees to give up their rights to pursue class or collective actions. The Supreme Court held that the Federal Arbitration Act (the federal statute governing the enforcement of arbitration agreements) requires courts to enforce arbitration agreements, including the terms of the arbitration agreed upon by the parties. Accordingly, the Court confirmed that, through arbitration agreements, employers can require employees to pursue their employment claims individually and not as a group. Given the enormous costs of defending against a class action, this decision is extremely important for those employers who have chosen to use arbitration agreements.

Even with this ruling, the enforceability of arbitration agreements in employment cases remains a hot topic for the courts. In this regard, the Supreme Court has agreed to hear another case involving a question of class arbitration. In this upcoming case, the Supreme Court has been asked to decide whether an arbitration provision that is silent on the question of class arbitration can be interpreted to allow class arbitration actions. While we will be keeping an eye on this case, the fact that the Supreme Court has decided to hear it highlights the importance of proper drafting of arbitration provisions to accomplish the intended result.

PRACTICAL POINTER

The Supreme Courts recent decision is a win for employers. Not only can employers avoid jury trials through arbitration, but, now, it is clear that they can also avoid class and collective lawsuits by employees so long as there is a properly drafted arbitration agreement. The bottom line... Make sure you know what you are getting into and work with someone knowledgeable to create a valid agreement with a viable arbitration process.

DOL FOCUSES ON WAGE-HOUR COMPLIANCE

As most employers are aware, the federal law regarding payment of minimum wage and overtime involves many technical rules that can be confusing. To help employers comply with these complex rules, the DOL announced this past month that it has created a new office with the mission of helping employers comply with wage-hour laws. The Office of Compliance Initiatives will work with other employment enforcement agencies to improve regulatory compliance and enforcement while also assisting employers in the process. The new office has created two websites, www.worker.gov and www.employer.gov to provide both workers and employers with a breakdown of wage-hour legal requirements.

The creation of this new DOL office comes on the heels of the launch of a pilot program designed to give employers a chance to self-audit their wage and hour practices and report any compliance errors in exchange for limited protection from additional liabilities and claims. This program, dubbed the Payroll Audit Independent Determination ("PAID") program, is currently a 6-month pilot which may or may not be offered on a permanent basis depending upon public response. There has been some initial trepidation on the part of employers as to the costs/risks of reporting compliance mistakes.

FYI

Given the above-described DOL initiatives and changes to the federal wage-hour laws that the Trump Administration is trying to implement, employers are well advised to review their pay practices to make sure they are in compliance with applicable law. To help in that regard, the K&C Employment Team will present a Wage-Hour Compliance workshop as part of the 35th Annual Employment Law Update on November 15, 2018.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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