Category Archives: Hiring Practices

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

NEW EEOC Case Reminds Employers That Sex Discrimination Isn’t Just for Women – Men Can Be Victims Too

Generally, when one thinks about sex discrimination what comes to mind is a woman being discriminated against by her employer because of her gender.  While that is typically the case, employers should remember that sex discrimination isn’t reserved for women – men can be victims too.  A recently settled EEOC lawsuit (EEOC v. Park School of Baltimore Inc.) makes this point clear to employers with a $41,000 price tag.

In this case, a private school in Maryland had hired a man to coach its softball team.  The coach was given a one-year contract in 2014, which the school then renewed for two additional years (2015-2016).   At the end of the 2016 season, the coach was informed that, despite his good performance, the contract would not be renewed for 2017 because the school preferred “female leadership” for its softball team.

The coach filed a claim with the EEOC alleging that he had been discriminated because of his gender and the EEOC agreed, filing a lawsuit against the school for gender discrimination.

While the case was quickly settled, it serves as an important reminder to all employers that “Title VII protects both men and women from unequal treatment based on gender.”

NEW LAW: Suffolk County, New York Bans Salary History Inquiries

New York’s Suffolk County recently passed a county ordinance prohibiting employers from inquiring into an applicant’s salary history as a part of the hiring process.

Under this new law, which goes into effect on June 30, 2019, employers are prohibited from

  • Inquiring about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
    • “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Relying on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

By passing this new law, Suffolk County becomes the fourth locality in New York State to enact a salary history ban law (joining New York City, Westchester County, and Albany County).  To date, New York State has NOT enacted a statewide salary history ban law.

It is recommended that employers in Suffolk County verify that all employment application materials are updated to remove any requests for salary history – including job applications and job interview scripts.  In addition, all employees who are involved in the hiring process are trained about the new requirement and informed that they are not allowed to inquire into applicant’s salary history.

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

NEW LAW: Predictive Scheduling Coming to Philadelphia

Philadelphia Mayor Jim Kenney recently signed the Fair Workweek Employment Standards Ordinance into law. The new law, which goes into effect on January 1, 2020, will impact employee scheduling if the employer:

  • Is in the retail, hospitality, or food service industries;
  • Has 250 or more employees (including full and part-time); and
  • Has 30 or more locations worldwide in.

Employers must provide newly hired employees a “Good-faith” estimate of their work schedule which includes:

  • The average number of work hours the employee can expect to work each week over a typical 90-day period.
  • The expectation to work any on-call shifts,
  • Days and times the employee can typically expect to work and when they can expect to be off work.
  • A written work schedule through the end of the currently posted work period (provided before the first day of work).

Continue reading NEW LAW: Predictive Scheduling Coming to Philadelphia

NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

On January 1, 2019, Connecticut’s new pay equity law went into effect.  Under this new law, Connecticut employers are prohibited from inquiring into a prospective employee’s salary/wage history.  This includes, but is not limited to:

  • Including inquiries about salary history on an employment application;
  • Directly asking a candidate for employment about his/her salary history during the interview process;
  • Directly asking a candidate’s former employer about the candidate’s salary history; and
  • Using a third party to inquire into an applicant’s salary history.

Employers are still able to inquire about components of an applicant’s former compensation structure (e.g. retirement benefits, stock option plans), but the employer cannot ask about the value of the individual components. Continue reading NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries

NEW GUIDANCE: California Pay Equity Task Force Issues Guidelines for Complying with the California Equal Pay Act

In January 2016, SB 358, the amended version of the California Equal Pay Act, took effect. The California Equal Pay Act requires all California employers pay the same wage to employees who perform “substantially similar work” the same wage regardless of gender, ethnicity or race.   Under this law, employers are also required to provide an applicant with a pay scale for a position following a “reasonable request.”  Finally, it prohibits employers from requesting an applicant’s prior salary history and from relying on an applicant’s salary history alone to justify a disparity in compensation “based on sex, race or ethnicity.”

Following the effective date of the amended California Equal Pay Act, the California Commission on the Status of Women and Girls launched a Pay Equity Task Force tasked with the responsibility of monitoring the implementation of the new law.  Recently, this task force issued written guidance for employees, employers and unions on how they may comply with the California Equal Pay Act. Continue reading NEW GUIDANCE: California Pay Equity Task Force Issues Guidelines for Complying with the California Equal Pay Act

NEW GUIDANCE: Final Rules Regarding Oregon’s Equal Pay Law Issued

On November 19, 2018, the Oregon Bureau of Labor and Industries released its final administrative rules interpreting the Oregon Equal Pay Law.  These rules are intended to help employers comply with the Oregon’s Equal Pay Law, which goes into effect on January 1, 2019.

As we previously reported (in NEW LAW – Oregon’s New Equal Pay Act), the Oregon’s Equal Pay Law prohibits pay discrimination on the basis of protected class (i.e. race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age) and it also prohibits employers from using an applicant’s salary history as a screening tool for open positions and/or as a determining factor in an employee’s wages.  Under this law, employers can only inquire about an applicant’s salary history after making a job offer that includes a compensation amount. Continue reading NEW GUIDANCE: Final Rules Regarding Oregon’s Equal Pay Law Issued

NEW LAW: Michigan Legalizes Recreational Marijuana

On November 6, 2018, voters in Michigan passed Proposal 18-1 (the “Michigan Regulation and Taxation of Marihuana Act,” which legalized the recreational use* of marijuana for individuals 21 and over.  With the passage of this new law, which goes into effect 10 days after election results are officially certified, there are now 10 states** (and Washington DC) that have legalized recreational marijuana.

While the new law certainly brings new concerns into the Michigan workplace, as employers will undoubtedly be concerned about how to respond to an employee’s use of marijuana outside of work, the new law contains several provisions that are helpful to employers. Continue reading NEW LAW: Michigan Legalizes Recreational Marijuana

NEW CASE: Employer Must Pay for Post-Offer Medical Exams

In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.

In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination.  This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket).  The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.

The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.”  However, the ADA does not specify who should pay for the additional testing.  The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.”  As a result, the Court found that employers must bear the costs of any such testing.