Category Archives: Employee Privacy

NEW LAW: Cincinnati Passes Salary History Ban

On March 13, 2019, the  city of Cincinnati passed  Ordinance No 0083-2019 that prohibits employers from asking about or relying on the prior salary history of job applicants.

Under the new ordinance, which goes into effect on March 13, 2020 and applies to employers who have 15+ employees in Cincinnati, employers are prohibited from:

  • Inquiring about the salary history of an applicant for employment
  • Screening job applicants based on their current or prior wages, benefits, other compensation, or salary histories, including requiring that an applicant’s prior wages, benefits, other compensation or salary history satisfy minimum or maximum criteria; or
  • Relying on the salary history of an applicant in deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other compensation for such applicant during the hiring process, including the negotiation of an employment contract; or
  • Refusing to hire or otherwise disfavoring, injuring, or retaliating against an applicant for not disclosing his or her salary history to an employer.

Continue reading NEW LAW: Cincinnati Passes Salary History Ban

NEW LAW – New York City To Require Lactation Rooms

Attention New York City employers, under a new law (Int. 879-A and Int. 905-A), which takes effect on March 18, 2019, employers with 4 or more employees will be required to provide “lactation rooms” for breastfeeding employees to express milk in the workplace.  In addition, employers must develop a written policy relating to lactation accommodation that must be provided to all employees and all new employees upon hire.

The City Commission on Human Rights will be developing a model policy that employers can use.

NEW LAW: California Expands Existing Lactation Accommodation Law

California Governor Jerry Brown recently signed Assembly Bill 1976 into law.  This new law amends California’s existing lactation accommodation law and places new responsibilities on employers.

Under the old lactation accommodation law (California Labor Code 1030, et. seq.), an employer was merely required to do the following to accommodate the nursing mother:

  • provide a reasonable amount of break time, which should, if possible, run concurrently with any break time already provided to the employee; and
  • make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

Under the new law, which goes into effect on January 1, 2019, the employer’s obligations are greatly expanded.  The first change is that the law makes it clear that the employer must provide the employee with the use of a room or other location, other than a bathroom, that is close to the employee’s working space to privately express milk.

The law also permits an employer to makes a temporary lactation location available to an employee, provided that all of the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
  • The temporary lactation location is private and free from intrusion while an employee expresses milk.
  • The temporary lactation location is used only for lactation purposes while an employee expresses milk.
  • The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.

The new law also addresses how agricultural employers can meet the new requirements.  Specifically, the law states that an agricultural employer shall be considered to be in compliance with this law if the agricultural employer provides an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.

It is recommended that all California employers review their policies and procedures with respect to accommodating nursing mothers to verify that they will be in compliance with the new law come January 1, 2019.

EMPLOYERS BEWARE: New Email Scam Relating to I-9 Information

Email scams seeking private information about employees have become commonplace and all employers need to exercise constant vigilance when faced with a request for information regarding their workforce.

The latest email scam — an official looking email from the U.S. Citizenship and Immigration Services (USCIS) asking for employees’ Form I-9 information.  The USCIS has released the below notice cautioning employers NOT to respond to this scam email:

USCIS has learned that employers have received scam emails requesting Form I-9 information that appear to come from USCIS. Employers are not required to submit Forms I-9 to USCIS. Employers must have a Form I-9, Employment Eligibility Verification, for every person on their payroll who is required to complete Form I-9. All of these forms must be retained for a certain period of time. Visit I-9 Central to learn more about retention, storage and inspections for Form I-9.

These scam emails come from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address and a fraudulent download button that links to a non-government web address (uscis-online.org). Do not respond to these emails or click the links in them.

If you believe that you received a scam email requesting Form I-9 information from USCIS, report it to the Federal Trade Commission. If you are not sure if it is a scam, forward the suspicious email to the USCIS webmaster. USCIS will review the emails received and share with law enforcement agencies as appropriate.

The USCIS also has provided a full listing of Common USCIS Scams, located here.

It is recommended that all employers familiarize themselves with these types of scams and train their workforce to defend against falling victim to one of many internet scams.

NEW REGULATIONS – California’s New Transgender Regulations Now In Effect

On July 1, 2017, the California Department of Fair Employment and Housing’s (DFEH) regulations concerning transgender employees went into effect.  The new regulations interpret the California Fair Employment and Housing Act’s (FEHA’s) provisions prohibiting discrimination on the basis of “gender identity” and “gender expression.”

New Definitions

The new regulations provide new definitions for the following terms:

  • “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

Clarifying Concepts

Restrooms

The new regulation clarify that employers are required to provide “equal access to comparable, safe, and adequate facilities” to all employees without regard to the sex (which is defined to include gender identity and gender expression) of the employee.  Employers are also expressly required to “permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”

The regulations also remind employers that if they have “single-occupancy facilities” under their control, they are required to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

Finally, the regulations clarify that employers are not permitted to require employees provide proof of any medical treatment or procedure or to provide any identity document to use facilities designated for use by a particular gender.

Dress Codes

While employers are still permitted to impose a dress code, the new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any “dress code” (i.e. physical appearance, grooming or dress standard) which is inconsistent with an individual’s gender identity or gender expression.  In addition, the dress code must serve a legitimate business purpose and cannot discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

The only exception to this prohibition is if the employer can establish business necessity for the particular dress code restriction.

Preferred Name and Identity

The new regulations add a new requirement that employers comply with an employee’s request to be identified by a certain name or gender identity.  The only exception to this requirement is if the employer is under some other legal obligation to identify the employee by his or her legal name or gender marker.

Employers are also prohibited from inquiring into an employee or applicant’s sex, gender, gender identity or gender expression.  The only exception is if the employer can establish a business necessity for such an inquiry.

Recommendations for Employers

It is recommended that all California employers review the new regulations and verify their employment practices comply with the new regulations.  Specifically, employers should consider the following:

  • Revising existing anti-discrimination policies to include express protections relating to sexual orientation, gender identity and gender expression;
  • For employers with single-user restrooms, verify that the restroom is labelled with the appropriate signage (i.e. the unisex signage);
  • Verify that any dress code policy avoids gender stereotypes and is enforced consistently; and
  • Most importantly, provide training to your managers and supervisors about the new regulations.

NEW LAW — Nevada’s Wage Disclosure Law

On June 3, Nevada Governor Brian Sandoval signed Assembly Bill 276 into law.

This law is more known for addressing non-compete agreements.  Specifically, the law renders noncompetition agreements void and unenforceable unless the agreement:

  • is supported by valuable consideration;
  • does not impose any restraint that is greater than is required for the protection of the employer;
  • does not impose any undue hardship on the employee; and
  • imposes restrictions that are appropriate in relation to the valuable consideration supporting the covenant.

The law also prohibits employers from restricting a former employee from providing service to a former customer or client if:

  • the former employee did not solicit the former customer or client;
  • the customer or client voluntarily chose to leave and seek the services of the former employee; and
  • the former employee is otherwise complying with the noncompetition covenant.

In addition, the new law also addresses discrimination based on wage discussions and disclosures.  Under the law, it is considered an unlawful employment practice for an employer with 15 or more employees “to discriminate against any employee because the employee has inquired about, discussed, or voluntarily disclosed his or her wages or the wages of another employee.”

This prohibition does not apply to “any person who has access to information about the wages of other persons as part of his or her essential job functions and discloses that information to a person who does not have access to that information unless the disclosure is ordered by the Labor Commissioner or a court of competent jurisdiction.”

 

NEW Law – San Francisco Expands Protections for Nursing Mothers

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance”. This new law expands the protections provided to nursing mothers under California (and federal law) for nursing mothers employed within the “geographic boundaries” of San Francisco.

What’s required under California and federal law?

The California Labor Code requires employers to provide employees who are nursing mothers with a private location and a reasonable amount of time to express breast milk during the workday. The private location cannot be a bathroom and it must be shielded from view and free from intrusion. Employers are also required to make a reasonable effort to provide a private, secure, and sanitary room or other location where an employee can express her breast milk that is in close proximity to the employee’s work area.

The Fair Labor Standards Act requires employers to provide employees who are nursing mothers with “reasonable break time” to express breast milk during the workday for at least one year after the child’s birth. Like California law, the FLSA requires employers provide a private location that is not a bathroom for this purpose.

What does the Ordinance require?

The Ordinance requires that employers provide a “lactation location” that:

  • Is safe, clean, and free of toxic or hazardous materials;
  • Contains a surface upon which to place the breast pump and personal items;
  • Contains a place to sit; and
  • Has access to electricity.

In addition, the employer must provide the employee with access to a sink with running water and a refrigerator that is in close proximity to the employee’s workspace. Finally, if a “multi-purpose room” is used also for lactation, the use of the room for lactation takes precedence over other uses.

In addition, employers must also implement a lactation policy that meets the following requirements:

  • The policy must include a statement about the employee’s right to request a lactation accommodation and the process for requesting an accommodation.
  • The policy must be included in the employee handbook.
  • The policy must be distributed to
    • New employees upon hiring and
    • When an employee inquires about or requests parental leave.

Employers must respond to an employee’s request for a lactation accommodation within 5 business days of receipt of the request and, if the employer cannot provide break time and/or a location that is compliant with the ordinance, the response must be in writing.

Employers must also maintain a written record of these requests for 3 years from the date of the request.

Recommended action for employers

The new ordinance goes into effect on January 1, 2018. It is recommended that all San Francisco employers review these requirements and verify that they are able to comply with these new requirements.

NEW LAW – West Virginia Safer Workplace Act Goes Into Effect July 7, 2017

In recent years, West Virginia employers have been somewhat limited in their ability to implement and enforce robust drug and alcohol testing policies. This limitation is due to numerous state court decisions imposing expansive privacy rights for employees, thereby limiting employers’ flexibility to conduct drug and alcohol testing.

Under the new Safer Workplace Act, employers will be able to more easily conduct drug and alcohol testing without fear of running afoul of the law. While the new law does not require employers to have a drug and alcohol testing policy and/or program, the act makes it clear that drug/alcohol testing prospective and current employees is legal.

The act also provides other protections for employers who establish a policy and initiate a testing program in accordance with the new law, for any of the following:

  • Actions the employer takes based on the results of a confirmed positive drug or alcohol test or an individual’s refusal to submit to a test;
  • Failure to test for drugs or alcohol or for a specific drug or other controlled substance;
  • Failure to test for, or if tested for, failure to detect, any specific drug or other substance, any medical condition, or any mental, emotional, or psychological disorder or condition; or
  • The termination or suspension of any substance abuse prevention or testing program or policy.

Employers who establish a policy and initiate a testing program in accordance with the new law are also protected from liability for:

  • actions taken in reliance on a false positive tests in circumstances in which the claimant could show that the employer had actual knowledge that the result was false and ignored the true test result in disregard for the truth and/or with the willful intent to deceive or be deceived
  • defamation of character, libel, slander or damage to reputation of an employee unless
    • The results of that test were disclosed to a person other than the employer or the tested prospective employee and
    • All elements of an action for defamation of character, libel, slander or damage to reputation are satisfied.
  • Actions taken as a result of false negative tests (e.g., negligent retention claims

Another “perk” of implementing a compliant drug and alcohol testing program is limitations on unemployment insurance and workers’ compensation claims. In order to qualify for these limitations, the employer’s written drug testing policy must put employees on notice:

  • that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body and
  • that if an injured employee refuses to submit to a test, the employee forfeits eligibility for unemployment compensation benefits, and if injured, for indemnity benefits under the state’s workers’ compensation laws.

To be considered “compliant” with this new law (and take advantage of its provisions), employers must develop a written drug and alcohol testing policy. This policy must be distributed to all existing employees and made available to job applicants for review.

While the Act does not set forth any content requirements for the policy, it is a good idea to include the following components:

  • List the purposes for drug and alcohol testing current and prospective employees. Under the law, the following are permissible purposes for drug testing:
    • Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance, or distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner, on or off the job, or the abuse of alcohol or prescription drugs;
    • Investigation of possible individual employee impairment;
    • Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct;
    • Maintenance of safety for employees, customers, clients or the public at large; or
    • Maintenance of productivity, quality of products or services, or security of property or information.
  • Define safety sensitive employees and the positions that are “safety sensitive positions”
    • the law defines “safety sensitive” as a position where an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.
  • List the disciplinary and rehabilitative actions that may be taken as a result of a confirmed positive test or a refusal to submit to a test
  • Provide information regarding counseling, employee assistance programs, rehabilitation, or any other drug abuse treatment programs that are available to employees
    • NOTE: Employers are required to provide employees with information regarding those programs as requested or otherwise appropriate

Finally, the new law sets forth various requirements for testing procedures and the treatment of drug testing samples. Among these requirements, employers must:

  • Pay for testing (which must be done during, right before, or directly following a regular work period)
  • Compensate employees for time spent submitting to tests,
  • Transport or pay for reasonable transportation to and from the testing site, if testing is done away from the worksite.
  • Treat communications concerning drug and alcohol test results as confidential

In addition, employees have certain rights relating to the testing procedures. Among these rights:

  • All positive tests must be confirmed by a second test.
  • Current and prospective employees have the right to voluntarily provide information relevant to the test, like the use of prescription drugs,
  • Individuals who want to challenge the results of an initial sample test have the right, at their own expense, to have a split sample tested by another lab.

Recommendations

West Virginia employers who wish to continue (or start) a drug testing program should review this new law and verify that their program complies with the new requirements.

HELP! My Employee Keeps Submitting Ambiguous Doctor’s Notes Extending Her Leave of Absence!

Managing an employee’s extended leave of absence is an employer’s worst nightmare – especially when the employee keeps submitting vague doctor’s notes extending the leave of absence, but providing no additional information about when (if?) the employee will be able to return to work.

When faced with this situation, many employers are uncertain of what they can do – especially since terminating the employee too early can readily lead to a discrimination lawsuit. As a result, in lieu of termination, most employers grant the extensions of leave. However, in a recent case (Whitaker v. Wisconsin Dept. of Health Services), the Court upheld the termination of an employee who only submitted vague and ambiguous doctor’s notes extending her ADA leave.

The Case:

In this case, the employee had been employed as an Economic Support Specialist for Milwaukee County in Wisconsin. The employee’s job was not overly complicated or specialized. She was a member of the team responsible for providing public assistance to county’s citizens. Her work included processing applications for benefits and answering phone calls.

In the summer of 2010, this employee went on FMLA leave for a medical condition (severe back pain). When her FMLA leave was exhausted, instead of returning to work, the employee submitted a doctor’s note extending her leave of absence by 9 days. The note simply read:

medical leave of absence until 11/17/10

Despite the vague nature of the note, the employer extended the leave of absence.

One week later, the employee submitted a second (equally vague) doctor’s note extending her leave of absence for an additional month. This note stated only:

medical leave of absence until 12/17/10

Following its receipt of the second note, the employer contacted the employee and informed her that it was considering terminating her employment. However, before any final decision was made, the employee was asked to attend a meeting to discuss her situation. The employee attended the meeting, but aside from reiterating that she was unable to return to work, the employee provided no further information or documentation supporting her need for additional leave.

The employer terminated the employee and the employee later sued the employer for discrimination in violation of the Americans with Disabilities Act.

The Court’s Finding

The court ruled that the employee’s termination was not discriminatory and dismissed the employee’s claims. In reaching its decision, the Court found that attendance was an essential function of the employee’s job and reaffirmed the basic principle that an employer can expect employees to report to work. Since this employee was unable to perform an essential function of her job, she was not protected under the ADA.

In support of its decision, the Court explained:

“[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.”

Take Home for Employers:

While this decision does not support the proposition that an employer can “fire at will” when faced with a vague doctor’s note and an employee seeking to extend an unpaid medical leave of absence, it does give employers important guidance on how to handle these situations.

Most importantly, this case teaches employers that they are allowed to be more assertive and seek more information when in receipt of a vague doctor’s note. The Court set forth the “bare minimum” information that an employer can expect to see in a doctor’s note:

  • Whether the employee is receiving treatment
  • The likely effectiveness of the treatment
  • The medical likelihood that leave would enable her to return to work regularly

The implication – when in receipt of a vague doctor’s note, as a part of the interactive process, employers should follow up with the doctor to at least attempt to receive the above information.

This implication is supported by the EEOC’s resource documentEmployer-Provided Leave and the Americans with Disabilities Act, which supports the idea that employers can seek information from the employee’s doctor (with the employee’s permission) before making a decision on an employee’s leave request. Specifically, the employer can ask for:

  • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
  • whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
  • when the need for leave will end

In addition, employers may specifically ask the employee’s doctor to respond to questions drafted by the employer and designed to enable the employer to understand:

  • the need for leave;
  • the amount and type of leave required; and
  • whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

Finally, when the employee is seeking an extension of ADA leave, the EEOC’s guidance confirms that employers are able to obtain even more information regarding the employee’s need for additional leave. According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:

  • Medical documentation specifying the amount of the additional leave needed;
  • The reasons for the additional leave;
  • Why the initial estimate of a return date proved inaccurate; and
  • Information the employer considers relevant in determining whether the requested extension will result in an undue hardship

Finally, when communicating with an employee (or his/her doctor) about this issue, we recommend that you work with an HR Professional or qualified employment attorney.

High Times in Maine??? Not until February 2018

Maine was one of four states in which voters approved a new recreational marijuana law. Maine’s law took effect on January 30, 2017; however, emergency legislation, passed on January 27, 2017, postponed the enactment of certain provisions of the law.

Specifically, the emergency legislation:

  1. Clarified that possession of a usable amount of marijuana by a juvenile is a crime, unless the juvenile is authorized to possess medical marijuana; and,
  2. Delayed the effective date of most of the provisions of the law including the anti-discrimination provisions, until February 1, 2018, so that the state licensing authority can establish and implement regulations concerning retail sales of marijuana;
  3. Prohibits possession of any edible retail marijuana products until February 1, 2018.

Take Home for Employers

Maine employers should actively engage in assessing and evaluating employment law compliance approaches and requirements under Maine’s medical marijuana statute, which the emergency legislation (LD88) did not affect.

Additionally, when the recreational marijuana law becomes effective (on February 1, 2018), Maine will be the first state to offer employment law protections to employees who use recreational marijuana outside of work.  If this takes place, the anti-discrimination provisions of the Maine recreational marijuana law will have to be aligned with the provision allowing employers to discipline employees who are “under the influence of marijuana in the workplace” which facilities a lower wrongdoing and proof standard than “impairment”.

This emergency legislation in Maine will make it difficult for employers to conduct drug testing for marijuana, particularly in the pre-employment context.  This is because even if employee is suspected of being “under the influence of marijuana in the workplace,” the drug test result cannot provide conclusive proof that the marijuana was consumed at work.

We recommend that employers review their employee handbooks and ensure their policies match and consider drug testing policies and how the new law will impact their organization in 2018 to avoid legal issues.