All posts by Josh Murdock

California Safeguards for Workplace Violence Investigations

According to the Occupational Safety and Health Administration (OSHA), nearly two million employees are victims of workplace violence each year. OSHA’s General Duty Clause requires employers to ensure that their workplace is “free from recognized hazards that are causing or are likely to cause death or serious harm.” This has been generally interpreted to mean that employers are responsible for keeping their employees free from all potential threats of harm which could include workplace violence.

While there are no specific requirements for employers to set up formal rules to avoid workplace violence, Cal/OSHA drafted a proposal on December 4, 2017, that would require employers to develop a Workplace Violence Prevention Plan and provide training. While that proposal wasn’t officially adopted, it is something that is still likely on the horizon. Employers need to make sure they prepare for this by implementing solid policies, procedures, and training on the topic of workplace violence. Continue reading California Safeguards for Workplace Violence Investigations

Modern Timekeeping Warning: California Court Rules That Employee’s Imprecise Evidence Is Better Than Employer’s Lack Of Records

A recent decision by the California Court of Appeal has created new precedence for an employers’ obligation to track employee time records accurately.

On December 12, 2018, in the case of Furry v. East Bay Publishing, LLC, the court ruled that the employee’s “imprecise evidence,” for their hours worked was adequate to “shift the onus to the employer to either provide a specific detail on the amount of overtime or to disprove by evidence what was not correct with the employee’s figures.”

Despite an early decision by a trial court in favor of the employer, the Court of Appeal ruled that the employer could not disprove the employee’s recollection of their hours worked could entitle them to unpaid overtime wages.

Continue reading Modern Timekeeping Warning: California Court Rules That Employee’s Imprecise Evidence Is Better Than Employer’s Lack Of Records

NEW LAW: The Hair-Raising Adventures of Grooming Policies In New York City

In the growing trend of cultural and racial protections, the topic of hairstyles was recently addressed by the New York City Commission on Human Rights (NYCCHR).

The Commission’s new guidance (NYC Commission on Human Rights Legal Enforcement Guidanceon Race Discrimination on the Basis of Hair) explains that the New York City Human Rights Law (NYCHRL), states, “natural hair or hairstyles closely associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”

Accordingly, employers in New York City are prohibited from having any policies that limit the length, style or color of hairstyles of any specific race or protected class. Singling out a specific race, such as African-American employees that defines the styles or natural states of their hair can be viewed as discriminatory.  The NYCHRL “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.”

While employers can institute policies that limit hairstyles and length for health and safety concerns, they must apply these policies equally to all employees regardless of their race. Any policy that forces any ethic employee to straighten (by way of heat chemicals) or change their grooming style in a way that would conform to the majority race’s cultural norms would create a disparate impact upon those employees. Examples given from the NYCHRL of hairstyles that cannot be restricted are, “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.”

The NYCHRL focuses much of its attention on African American employees, but other ethnicities are covered under this guidance as well. The guidance states, “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities,” are prohibited. This protection could potentially extend to hair wraps for such as Muslim and Sikh turbans, hijabs and Jewish yarmulkes.

Age and gender are also addressed in this new guidance. Employers in New York City cannot create a policy that would limit the length of hair of a male employee (or an employee who identifies as male) if the same procedure would not also apply to a female employee (or an employee who identifies as female). Likewise, an employer cannot restrict or require the natural coloring of hair for older employees. In either case, employers would be at risk of recreating a requirement that could potentially discriminate based on gender or age.

As of February 19, 2019, New York City employers should make their policies compliant with this guidance.  The commission promoted this new potential law through their social media hashtag, “#YourHairYourRightNYC.” The Commission’s Chair stated, “Hair is part of you. Race discrimination based on hair is illegal in NYC.” While the commission’s guidance has not yet been accepted as a law, employers should still make sure they are compliant with this guidance.  Even though this is not a law, the NYCCHR can levy fines and damages to employers who violate the rules laid out in their direction. The commission is already investigating several complaints of possible discriminatory practices hair-related employer policies that have a disparate impact on their African American employees. Investigations into this hair-raising topic will not likely go away anytime soon.

Looking Beyond New York City

Employers outside New York City may not need to make the same adjustments but should be aware of this growing trend and look at their policies and be prepared to make some adjustments as well. Now that this trend is ‘hair,’ it is not likely to go away. It is possible that this guidance from NYCCHR will further braid its way into other American labor laws. One such law is the Title VII Civil Rights act which describes disparate impact as the effect of an employment practice that would cause a substantially negative bearing to hiring, promotion, or other employment condition to members of a minority race, sex, or ethnic group. It is recommended that all employers take another look at their grooming policy and make sure that it is not a blanket policy that might have a discriminatory effect on any of your minority employees. Employers should think twice before they cut an employee’s job short due to a bad hair day.

Going Wild About Service Animals at Work

Animals as a public accommodation.

A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”  This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.

The difference between Service Animals, Emotional Support Animals, and Therapy Animals.

Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.

Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA: Continue reading Going Wild About Service Animals at Work

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues