While the industry awaits a Supreme Court decision on the outside sales exemption, the Seventh Circuit ruled last week that the administrative exemption applies to pharmaceutical representatives.  The Ninth Circuit did not consider this, but the Second Circuit rejected this exemption too.    If the Supreme Court holds that the outside sales exemption does not apply, the applicability of the administrative exemption will take on heightened importance.

In the past, the administrative exemption has been a black hole due to its imprecise parameters.  The primary duty of administrative-exempt employees must be “performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” and must include “the exercise of discretion and independent judgment with respect to matters of significance.”  The imprecision of these terms led many employers to treat far too many employees as exempt under this rule.  But the imprecision of this exemption saved the employer in the Seventh Circuit pharmaceutical case, where the court found the exemption applied because the employees marketed the employer’s business and exercised meaningful discretion in how they tailored the message, even though their marketing efforts were scripted by the employer and constrained by government regulation.  Only time will tell whether other circuits and the Supreme Court embrace this approach.

Employers seeking to treat employees as exempt under the administrative exemption should proceed with caution.  The law in this area is not well settled, and even innocent mistakes can cost millions.  And, scrutiny is up among administrative agencies, including state and federal labor departments.  Before determining that employees are exempt, particularly under the administrative exemption, employers should consult with counsel experienced in wage-and-hour issues.  While the administrative exemption may spare the pharmaceutical industry, you must independently assess how it will apply to your employees.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage-and-hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The Chamber of Commerce v. NLRB Decision

In most situations, the NLRB must have a quorum of three members in order to act.  The touchstone of this requirement is that the three members must be present.  Two members cannot unanimously issue a rule without the presence of a third member, even though a 2-1 vote would be valid.  Even if the third member abstains, the rule is valid.  It is only if the third member simply is not there, that the NLRB lacks authority to act.  NLRB member Brian Hayes participated in and opposed the quickie elections rule, but he did not participate in the voting on the final rule, which took place electronically.  The court held that Hayes was not “present” for the final vote.  Therefore, there was no quorum and the rule is automatically invalid.  The court did not consider the substantive challenges to the rule.

What This Means for Employers

The quickie elections rule substantially shortened the timeframe between when a union files a recognition petition and when an election is held.  The result was that unions could ambush employers and have an election before the employer could express its views to employees.  With the rule in abeyance, the regular timelines apply.

Because the court did not rule on the substantive challenges, the NLRB can vote on the rule again, this time with a quorum.  If this happens, the rule will likely be challenged again and a court will have to decide whether the substance of the rule is valid.

The NLRB has been extremely active lately, particularly with regard to non-unionized employers.  While the posting requirement and the quickie election rules are now on hold, employers must be aware of the NLRB’s recent interest in social media policies and related discipline.  If the NLRB suffers more blows in the rulemaking process, it may choose to focus its attention on enforcement instead, taking the lead of the Obama administration!

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

A transsexual is someone who identifies with a gender other than his or her biological sex.  The term applies both to those who have had sex reassignment surgery and those who have not.  It is not the same as sexual orientation, which refers to a person’s sexual preference.  A number of other terms, such as “transgender,” describe similar concepts.

The EEOC’s decision, and some of the court decisions on the subject, extends coverage under Title VII only to transsexuals.  While some argue that similar logic should be used to extend coverage to gay, lesbian, and bisexual employees, few courts have done so.   Most employment protection for gay, lesbian, and bisexual employees comes from state statutes.

 Now What?

Even if federal courts ultimately chip away at the EEOC’s decision, for now employers who discriminate against transsexuals are subject to the EEOC’s enforcement powers.  To protect yourself, you should review your policies and practices to be sure they are not discriminatory.  Consider not only hiring, firing, and promotion decisions, but also workplace harassment and the provision of workplace facilities – lockers and bathrooms, all of which fall within the purview of the EEOC.

If your sexual harassment training does not already cover gender identity and sexual orientation, it is probably time for an update.  Workplace harassment and retaliation are among the hottest areas of discrimination, and transgender claims of discrimination fit into these issues perfectly.  Even if your state does not prohibit discrimination on the basis of sexual orientation, the shifting tide of federal decisions under Title VII suggests employers should not ignore sexual orientation when dealing with harassment issues.

While the EEOC’s decision does not directly address restroom use policies, this is a common concern for employers and employees.  Many people are uncomfortable with sharing restrooms with members of the opposite sex, and a transsexual employee’s choice of restroom may cause discomfort for co-workers or customers.  To manage this concern, many employers choose to designate one or more single-stall restrooms as unisex.  Consider implementing such an option, even if you have no transsexual employees, to avoid potential problems down the road.

The EEOC’s decision is characteristic of the Obama Administration’s propensity to expand the scope and enforcement of existing laws, rather than enacting new legislation.  The words of Title VII are unchanged, but how employers need to view their obligations to gay, lesbian, bisexual, and transsexual employees under the law is rapidly changing.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

 Disparate Treatment Versus Disparate Impact

One kind of discrimination claim that could arise occurs when members of different groups are treated differently with respect to their criminal backgrounds.  This is called disparate treatment.  For example, if a black applicant and a white applicant both were convicted of auto theft two years before applying to work for your company, it would be disparate treatment discrimination to disqualify the black applicant on this basis, but not the white one.  As with all employment policies, you should ensure that similar employees are treated similarly, without regard to their membership in protected classes.

 The other kind of discrimination claim is disparate impact.  This occurs when a policy that is neutral on its face results in a group of employees being disadvantaged.  In this case, a policy against hiring individuals with criminal records would be neutral on its face, but could give rise to a disparate impact claim based on race or national origin.  A policy that yields a disparate impact, however, can be applied if it is “job related and consistent with business necessity.”  Therefore, you must consider whether your screening criteria meet this standard and whether the same results could be achieved in a different way that does not create a disparate impact.  Policies that automatically disqualify anyone with a criminal record are generally unlawful.

 Further Points to Consider

 To ensure your policy will pass scrutiny, you should consider the nature of the crime, the time elapsed since the crime occurred, and the nature of the job.  For example, a conviction for identity theft is far more relevant when hiring a payroll manager than a truck driver.  But if the identity theft conviction was 20 years ago, it may be too remote for consideration even for the payroll position.  There are no absolute rules to follow; it is all a judgment call.

Although an individualized assessment of your rule to each individual case is not required, the EEOC recommends it as a way of ensuring all relevant information is taken into account and nothing more.  You should consider the facts and circumstances of the offense, the number of offenses, the age of the individual at the time of the offense and now, evidence that the individual has performed similar work without engaging in criminal conduct, rehabilitation, employment history, character references, and other information relevant to determining whether the individual poses a real risk.

A few final points should be considered.  First, the EEOC warns against using arrest records because an arrest does not prove the conduct occurred.  If you have independent knowledge of the conduct and wish to take action based on the underlying conduct, that is not unlawful.  Second, state laws vary regarding how criminal convictions can be used and when background checks can be performed.  Due to state law concerns, asking about convictions on a job application is not advisable.  Finally, you should keep criminal record information confidential.

If you discover an employee or applicant has a criminal conviction and would like to take action based on it, consulting with legal counsel can help you avoid a discrimination claim.  Legal counsel can also review your policies to ensure they comply with state law and the EEOC’s guidance.

 Another Sign of the Obama Strategy

As with many other acts of the Obama Administration, this enforcement guidance expands the scope and enforcement of an existing law, Title VII, without enacting new legislation.  More than ever, employers need to pay attention to the actions of administrative agencies to determine their obligations under the law and whether those obligations have been expanded.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

Hiring should focus on the applicant’s qualifications, not pregnancy, child care, or other family issues.

Assumptions and stereotypes are dangerous.  Not all women take on caregiving roles at home.  Nor do men necessarily lack caregiving responsibilities.  Avoid sex discrimination claims by recognizing the individual needs of your employees.

Parental status is a protected class under many state laws.  Have you checked yours?

Pregnancy is a protected status under federal law and many state laws.  Pregnancy-related disabilities are covered by the Americans with Disabilities Act.

You should be aware of all the state and federal laws that deal with caregiving responsibilities, often indirectly.  For example, Connecticut’s new medical marijuana law prohibits discrimination against certain caregivers and its new sick leave law allows time off to care for a parent, spouse, or child.  The Americans with Disabilities Act prohibits discrimination against individuals who are associated with a person with a disability.

Men can bring sex discrimination claims when they do not receive the same benefits as women for caregiving issues.

Over half of married mothers with children under age 6 are employed.

The Fair Labor Standards Act was recently amended to provide breastfeeding breaks for nursing mothers.

HR Audits should be used to reveal disparities you did not realize existed.  Consider whether employees with caregiving responsibilities are being hired, promoted, and paid on par with other employees.

Employees who have sued for issues related to family responsibilities have a higher success rate in court than employees who sue for most other employment issues.

Review your employee handbook with an eye toward disability and leave policies.  Make sure they are written and implemented in a non-discriminatory manner.

Single people have complained about the scheduling flexibility employers have given to married workers to handle family responsibilities, but this has not evolved into a significant legal concern for employers.  Nonetheless, to boost morale among all employees, consider that single people may have caregiving responsibilities not covered by your policies (e.g. for an elderly aunt or a disabled neighbor) or that they may be resentful of being asked to take on extra responsibilities due to family responsibilities of others. 

Daycare costs are one of the top reasons parents choose not to return to work after the birth of a child.  Some companies provide on-site daycare or discount vouchers as a way to retain their employees.

Assessing employees by results rather than “face time” helps provide flexibility, while holding all employees accountable for their output.

Your obligation under the Family and Medical Leave Act to allow leave to care for a child extends to employees who act as parents, even if they are not the child’s actual parents.  Examples are grandparents caring for grandchildren or Opie’s Aunt Bee from The Andy Griffith Show.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The law makes it illegal to discriminate against an applicant or employee based on that person’s status as a “qualifying patient” or “primary caregiver” under the law.  In order to be a qualifying patient, the person must be eighteen years of age or older, be a resident of Connecticut, and have been diagnosed with one of the medical conditions for which marijuana use is permitted.  A primary caregiver is someone other than the patient or the patient’s physician who is eighteen years of age or older and undertakes responsibility for managing the qualifying patient’s well-being with respect to the use of medicinal marijuana.  Employers may take action against these individuals when required by federal law or required to obtain federal funding.

While discrimination against medical marijuana users and their primary caregivers is prohibited, employers may still prohibit the use of marijuana during work hours and discipline employees who are under the influence of marijuana during work hours. 

Employers must also grapple with the issues medical marijuana raises under the Americans with Disabilities Act (e.g., the duty to accommodate) and drug-free workplace policies (e.g., whether to modify the policy to recognize legal use).  Connecticut’s new law is silent on these issues.  Until more guidance is available, employers will want to take a conservative approach to avoid becoming a test case.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Need to brush up on your state and federal posting requirements?  Dust off the box of thumbtacks and click here.

 Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560. 

As if all of that weren’t enough, recent reports have indicated the NLRB plans to revisit a proposal it abandoned last year to require employers to surrender employees’ home email addresses and phone numbers to union organizers.  The law already requires employers to turn over employees’ names and home addresses.  Employees do not have a say in the matter.

The U.S. Chamber of Commerce has vocally opposed the measure.  Representative Sandy Adams of Florida took aim by introducing the Keeping Employees’ Emails and Phones Secure Act, which would prohibit the NLRB from requiring employers to turn over this information.  We’ll keep you posted on whether the legislation passes and whether the NLRB follows through on the plan.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

• You are subject to the law if you employed 50 or more total employees during any calendar quarter of last year.  For example, if you employed 40 employees last January, laid off 10 in February, and hired 20 new employees in March, you are subject to the law.  Also, if you employed 40 people, and 20 quit during the quarter and 10 more were hired, you are covered.  Not covered this year?  Next January 1, look back to 2012 and do the same analysis. 
• Even if you are a covered employer, not all of your employees are entitled to sick leave.  The law covers “service workers,” which includes food service, health care, and other workers who are paid hourly and are non-exempt under the Fair Labor Standards Act.  The statute provides a complete list.  However, merely comparing your job title to the job title offered under the statute (or not) is not a sufficient investigation.  You must check the actual job duties performed against the job duties described in the federal Bureau of Labor Statistics’ system, which the Connecticut statute uses to define the jobs it lists.
• Unlike usage, accrual began on January 1, 2012.  Accrual occurs at a rate of one hour of sick time for every 40 hours worked, up to 40 hours of sick time per calendar year. 
• An employee can use sick time after he or she has worked 680 hours for the employer since January 1, 2012.  This is a one-time requirement.  However, an employee is not entitled to use accrued paid sick leave if he or she did not work for you an average of 10 or more hours per week in the last calendar quarter.
• The employee can use paid sick leave for a child’s, a spouse’s, or his or her own mental or physical illness, injury, health condition, medical diagnosis, or preventative medical care.  Sick time can also be used for a variety of circumstances related to family violence or sexual assaults, including family relocation or court appearances. 
• An employer can require up to seven days advance notice, but only where the need to use leave is foreseeable.  If it is not foreseeable, the employer may require notice as soon as practicable.  An employer may not request documentation (such as a doctor’s note) unless the leave is used on three or more consecutive days.  This provision effectively requires the employer to assume the employee is being truthful, but nothing prohibits the employer from disciplining or firing an employee for lying about the use of sick leave.  But, be careful – the law prohibits retaliation against employees for using sick leave, so your justified discipline could put you under the microscope if it is misconstrued as retaliation for using leave.
• Employees are allowed to carry over up to 40 hours of unused accrued sick time until the following year, but the employee is not entitled to use more than 40 hours of sick time in a year. 
• Covered employers must notify their service workers of certain rights contained in the Paid Sick Leave Law at the time of hiring.  The most practical notification method is to place a poster in a conspicuous place accessible to service workers.  If you choose this method, you must post both English and Spanish versions of the poster.  This poster should have gone up by January 1, 2012!

If you would like more information on the Connecticut Paid Sick Leave Law, including the full-text of the statute, the poster in both English and Spanish, a guide to the law from the Connecticut Department of Labor, and our articles providing comprehensive analysis of the law, click here.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.