On June 1, 2015, the United States Occupational Safety and Health Administration (“OSHA”) published A Guide to Restroom Access for Transgender Workers.  OSHA stated that the “core principle” of the Guide is as follows:  “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The Guide serves as an extension to OSHA’s longstanding rule that, as a matter of health and safety, all employees must be provided a sanitary toilet facility in order to avoid “the adverse health effects that can result if toilets are not available when employees need them.” According to the Guide, there are approximately 700,000 adults in the United States who are transgender -- meaning that their internal gender identity is different from the sex they were assigned at birth.  OSHA explained that restricting employees to using “only restrooms that are not consistent with their gender identity or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.”  This could potentially lead to an unsafe situation where transgender employees avoid using restrooms entirely while at work.  Therefore, the Guide’s “Model Practices” explain that an employee who identifies as a man should be permitted to use men’s restrooms, and an employee who identifies as a woman should be permitted to use women’s restrooms, and that the decision of which restroom to use should be made solely by the employee.  Notably, employees are not required to submit medical or legal documentation of their gender identity in order to have access to the restroom of their choosing. This Guide does not come as a surprise given the actions taken recently by the Office of Federal Contract Compliance Programs, Equal Employment Opportunity Commission, and United States Department of Labor in acknowledging the rights of transgender employees to use the restroom that is consistent with their gender identity. Unfortunately, OSHA did not provide much guidance for employers, stating simply that “employers need to find solutions that are safe and convenient and respect transgender employees.”  OSHA also did not provide any guidance indicating how employers should address situations where employees raise concerns about a transgender employee using their restroom. Nevertheless, employers must be conscious of and follow OSHA’s guidance, regardless of whether adherence makes other employees uncomfortable, or else they will potentially invite legal action, including the filing of OSHA complaints or EEOC charges.  Employers should also review their policies (if any) to ensure that they cannot be construed as prohibiting transgender employees from using the restroom that is consistent with their gender identity.

On June 1, the Supreme Court issued an 8-1 decision in EEOC v. Abercrombie & Fitch Stores, Inc., holding that Title VII of the Civil Rights Act prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even if the applicant has not actually informed the prospective employer of the need for a religious accommodation.  The Supreme Court reversed the decision of the Tenth Circuit Court of Appeals granting summary judgment in favor of Abercrombie, and remanded the case back to the Tenth Circuit for further consideration. The Facts In reviewing the Tenth Circuit's decision granting summary judgment to Abercrombie, the Supreme Court considered the facts in the light most favorable to the EEOC.  The Supreme Court summarized those facts as follows. At the time this case arose in 2008, Abercrombie had a Look Policy that governed its employees' clothing and appearance while at work.  The Look Policy prohibited employees from wearing "caps," but did not define the term "caps." An applicant named Samantha Elauf applied for a position in an Abercrombie store, and wore a headscarf to her interview with the store's assistant manager.  During the interview, Elauf did not comment on (and the assistant manager did not ask any questions about) the headscarf or the reasons why she wore the headscarf.  The assistant manager gave Elauf a rating after the interview that qualified her to be hired, but the assistant manager was concerned that Elauf's headscarf would conflict with the store's Look Policy. The assistant manager sought clarification from the district manager regarding whether the headscarf would be considered a "cap" that was prohibited by the Look Policy.  In making the inquiry to the district manager, the assistant manager stated that she believed Elauf wore the headscarf for religious reasons.  The district manager told the assistant manager that the headscarf would violate the Look Policy and directed the assistant manager not to hire Elauf. Although Abercrombie did not know this for sure at the time it made the decision, Elauf was a practicing Muslim who wore the headscarf for religious reasons.  Elauf filed a discrimination charge with the EEOC, and the EEOC filed a lawsuit against Abercrombie on Elauf's behalf, alleging that Abercrombie's decision not to hire Elauf violated Title VII. The Lower Court Decisions The District Court granted summary judgment to the EEOC on the issue of liability, and awarded $20,000 to Elauf after a trial on damages. On appeal, the Tenth Circuit reversed the District Court and granted summary judgment to Abercrombie.  The Tenth Circuit reasoned that Abercrombie could not be liable under Title VII for failing to accommodate Elauf's religious practice unless Elauf provided Abercrombie with actual knowledge of her need for a religious accommodation.  Because it was undisputed that Elauf did not make any request for a religious accommodation, the Tenth Circuit found that Abercrombie did not violate Title VII. The Supreme Court's Decision The Supreme Court disagreed with the Tenth Circuit's holding that an employer must have actual knowledge of an applicant's need for a religious accommodation in order to establish that the employer violated Title VII by refusing to hire an applicant in order to avoid making a religious accommodation.  The Supreme Court held that an applicant need only demonstrate that his or her need for a religious accommodation was a motivating factor in the employer's decision. The Supreme Court explained the difference between motive and knowledge as follows:  "An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." Considering the facts in the light most favorable to the EEOC and Elauf, the Supreme Court concluded that the Tenth Circuit's decision should be reversed because Abercrombie's assistant manager at least suspected that Elauf wore the headscarf for religious reasons, and Abercrombie's district manager directed that Elauf not be hired because the headscarf violated the Look Policy.  On remand, the lower courts will need to determine whether there are genuine disputes regarding these material facts and whether a trial will be necessary on these issues. What Can Employers Do to Minimize the Risk of Religious Discrimination Claims in the Hiring Process? Many employers delegate responsibility for hiring new employees to managers without providing adequate guidance or training regarding how to carry out that important responsibility.  All personnel who have responsibility for interviewing and making hiring decisions should be trained regularly regarding compliance with anti-discrimination laws and employer policies.  The training should include, at a minimum, a review of lawful vs. unlawful pre-employment inquiries, a review of what information may and may not be considered as part of the hiring process, and the employer's obligations to make accommodations for religious observances or practices if the accommodations can be provided without undue hardship. If the hiring manager believes that an applicant's clothing or appearance during the interview might conflict with the employer's dress code, the hiring manager should still refrain from making any inquiries about whether the applicant's clothing or appearance is for religious reasons.  If the hiring manager feels that the applicant is a good candidate for the position in all other respects and is seriously considering extending an offer to the applicant, one way to address the potential dress code concern would be to show the applicant a copy of the employer's dress code and ask the applicant whether he or she can comply with the dress code, either with or without an accommodation.  If the applicant states that an accommodation would be needed, the employer can begin the process of determining whether the requested accommodation can be provided without undue hardship.  However, if the hiring manager has other legitimate, non-discriminatory reasons for rejecting an applicant that have nothing to do with concerns about the applicant's ability to comply with the employer's dress code or potential religious accommodations, the hiring manager should not make any inquiries during the interview regarding the applicant's ability to comply with the dress code. Finally, as in all other aspects of employment law, documentation is critical.  All hiring managers should be directed to take and maintain detailed notes of their interviews with job applicants and to document the legitimate, non-discriminatory reasons for hiring one candidate over another.  If a religious accommodation is requested by an applicant, the employer should keep documentation of the request, any information provided by the applicant regarding the religious practice for which an accommodation is requested, and the decision regarding whether or not the requested accommodation can be provided without undue hardship.

On April 20, 2015, the Acting Director of the Occupational Safety and Health Administration (“OSHA”) Whistleblower Protection Programs issued a memorandum to all Regional Administrators clarifying the standard which should be applied to whistleblower claims at the agency investigatory stage.  The guidance was issued because there was some concern that the standards contained in OSHA’s Whistleblower Investigations Manual were “ambiguous.”  The clarified standard is that “after evaluating all of the evidence provided by the employer and the claimant, OSHA must believe that a reasonable judge could rule in favor of the complainant.” A few points about the clarification are noteworthy.  First, the agency made it clear that “the evidence does not need to establish conclusively that a violation did occur.”  Second, “a reasonable cause finding does not necessarily require as much evidence as would be required at trial.”  Finally, the memorandum does note that “although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations.” While it is too early to tell whether the newly clarified standard will result in more (or less) reasonable cause determinations, employers need to take the guidance into consideration when they are involved in any future whistleblower investigation.

On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a proposed rule to amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (“ADA”) as it relates to employer wellness programs.  The EEOC also issued a Fact Sheet for Small Business and a Q&A regarding the proposed rule. By way of background, Title I of the ADA prohibits employment discrimination on the basis of disability.  This non-discrimination provision applies to compensation and other terms, conditions, and privileges of employment, including fringe benefits, whether or not administered by the employer.  It also limits the medical information that employers may obtain from employees and applicants.  The ADA, however, does permit employers to conduct medical examinations and inquiries, including voluntary medical histories, when it is part of a voluntary employee health program.  The EEOC’s proposed rule is intended to provide guidance to employers on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. What is a wellness program and when would it be considered  an employee health program? A wellness program is a program or activity that is typically offered through employer-provided health plans to help employees improve their health with the goal of lowering health care costs.  Wellness programs often encourage employees to become more active, quit smoking, eat better, etc., by offering monetary or other rewards or incentives for doing so.  Some wellness programs obtain medical information from employees by asking them to complete health risk assessments or undergo biometric screenings. According to the proposed rule, a wellness program could be considered an employee health program if it is reasonably designed to promote health or prevent disease.  In other words, it must:  (1) have a reasonable chance of preventing disease and improving the health of participating employees; (2) not be overly burdensome; (3) not be a subterfuge for violating the ADA or other employment discrimination laws; and (4) not be highly suspect in the method chosen to promote health and prevent disease. When would participation in a wellness program be considered voluntary? A wellness program that includes disability-related inquiries or medical examinations would be considered voluntary as long as the employer:  (1) does not require employees to participate; (2) does not deny access to health coverage or limit the extent of benefits for employees who do not participate; (3) does not take adverse action, retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate in the program or who do not achieve certain outcomes; and (4) provides written notice to employees (when the wellness program is part of a group health plan) that describes the medical information that will be obtained, the purposes for which it will be used, who will receive it, and how it will be safeguarded. Does the use of incentives to encourage employees to participate in a wellness program render it involuntary? No.  The EEOC takes the position in its proposed rule that the use of incentives, whether in the form of reward or penalty, will not render the program involuntary as long as the maximum allowable incentive available under the program does not exceed 30 percent of the total cost of employee-only coverage.  For example, if the total cost of employee-only coverage is $5,000, the maximum incentive for an employee under the plan cannot exceed $1,500.  This is consistent with the maximum allowable incentive amount under the Health Insurance Portability and Accountability Act (“HIPAA”) and the Affordable Care Act health-contingent wellness programs. Will medical information gathered as part of an employee’s participation in wellness programs be kept confidential? Yes.  The EEOC proposes adding a new subsection to its regulations relating to confidentiality to ensure that medical information collected through participation in employee health programs will only be provided to employers in aggregate terms and will not disclose (or be reasonably likely to disclose) the identity of any specific employee. While we await issuance of a final rule, here are a few steps that employers can take to ensure that their wellness programs comply with the ADA:

• Confirm that wellness programs are reasonably designed to promote health or prevent disease.
• Audit the incentives offered under wellness programs to ensure that they do not exceed 30 percent of the total cost of employee-only coverage.
• Ensure that employee participation in wellness programs is voluntary.
• Provide reasonable accommodations to enable employees with disabilities to participate in wellness programs and earn whatever incentives are offered.
• Ensure that medical information is maintained in a confidential manner, which includes training employees on handling confidential medical information, encryption of electronic medical information, and prompt reporting of breaches.
• Establish a written notice to employees regarding the collection of medical information.
• Do not deny health insurance or limit the extent of benefits to employees who choose not to participate in wellness programs.
• Do not take adverse action, retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate in wellness programs or who do not achieve certain outcomes.

In follow-up to our April 21 post, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law on May 6, prohibiting employment discrimination on the basis of “consumer credit history.”  The amendment makes it an “unlawful discriminatory practice” for an employer to use an applicant's or employee’s consumer credit history when making hiring and other employment decisions, and to otherwise discriminate against an applicant or employee on the basis of his or her consumer credit history.  The law goes into effect on September 3, 2015, and applies to most private sector employers in New York City. Under this new amendment, most private New York City employers may only consider an applicant's or employee’s consumer credit history for the following types of positions:

• Positions that are non-clerical and have regular access to trade secrets;
• Positions with “signatory authority over third party funds or assets valued at $10,000 or more”;
• Positions that “involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer”;
• Positions where job duties regularly include the modification of digital security systems designed to protect the employer’s or client’s networks or databases;
• Positions with access to information relating to criminal investigations or national security; and
• Positions legally required to be bonded.

There are also exceptions for positions in public agencies, and for employers who are legally required to obtain an applicant's or employee’s consumer credit information. “Consumer credit history” is broadly defined as information relating to an individual’s “credit worthiness, credit standing, credit capacity, or payment history,” including information obtained from credit reporting agencies, as well as information gathered directly by the employer from the applicant or employee, such as whether the individual has items in collections, or has filed for bankruptcy. The enforcement and remedy provisions of this new amendment are the same as for other types of discrimination under the New York City Human Rights Law, meaning aggrieved applicants or employees may file a lawsuit for damages in court, or file a complaint directly with the New York City Commission on Human Rights. Private New York City employers who gather and use an individual’s consumer credit history during hiring or when making other employment decisions should revise such policies.  Such information may only be considered when the position held by an employee or sought by an applicant fits into one of the exceptions listed above.

Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity -- doing things the same way and expecting a different result -- all too often is at play when it comes to conducting effective investigations.  Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability.  These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined.  Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. 1.  Failing to Investigate or Ignoring Complaints Failing to take action when a complaint is made is one of the biggest mistakes employers can make.  Choosing not to conduct an investigation after acquiring knowledge of the alleged inappropriate conduct will result most likely in the company being legally responsible for harm caused to any employee, client, and others due to the inappropriate conduct.  Regardless of how frivolous or unfounded the complaint appears, or who made the complaint, an investigation should be conducted.  Even allegations made by employees who have a history of making complaints or are regarded as “troublemakers” at work should not be ignored.  Equally important, the mere fact that the complaint may be anonymous does not excuse the failure to investigate.  Obviously, the task is more difficult but the investigation nonetheless should be conducted. 2.  Not Creating an Investigation Plan Failing to create a preliminary plan for the investigation creates serious issues because it often results in the purpose of the investigation being misunderstood or forgotten.  Before diving into the investigation, make sure you’ve thought about the five W’s:  (1) Why are you investigating?; (2) Who will conduct the investigation?; (3) Who are the witnesses that need to be interviewed?; (4) What evidence needs to be collected?; and (5) What is your investigation timeline? 3.  Taking Too Long to Investigate Delaying the initiation of the investigatory process after being notified of an issue may lead to employer liability.  Particularly in harassment and discrimination cases, an employer’s decision to delay an investigation may be viewed as subjecting the employee to additional unlawful behavior.  Nonetheless, making sure an investigative plan is properly prepared remains important.  Therefore, Human Resource professionals must strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays. 4.  Not Having Trained and Ready Investigators or Selecting the Wrong Investigator A failure to have trained investigators prepared to promptly respond to complaints can result in an ineffective and drawn out investigation.  Employers should have a few employees trained to conduct an impartial, professional, and credible investigation.  Another option is to hire a trusted Human Resources colleague or use in-house or outside counsel to conduct the investigation.  No matter who you choose as the investigator, making sure that the investigator is trained and able to begin the investigation promptly is key. Depending on the nature of the allegations, you also need to be sure you have selected the right person for the job.  For example, having a former senior law enforcement official interview relatively young employees regarding highly sensitive allegations of a sexual nature may not be the most effective way to get the truth! 5.  Not Doing a Thorough Investigation Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents, and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.  You should make sure that every investigation is thorough, not only to ensure that the alleged misconduct is properly dealt with, but also to counteract any accusations by an employee that the investigation was ineffective. 6.  Conducting Unlawful Searches Searching an employee’s personal belongings or monitoring certain communications without consent can result in the employer breaking several federal and state laws.  To avoid liability, it is good practice for employers to make employees aware of its surveillance policies and obtain consent from employees to monitor and access communications and information contained on any electronic devices employees are given access to at work. 7.  Using Aggressive or Unwelcoming Interview Styles An employer may become the target of a lawsuit if its investigators are overly aggressive when interviewing employees about alleged misconduct.  Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions, just to name a few.  More practically, the employer risks not getting the whole story, dissuading employees from cooperating in the investigation, and not reaching the correct conclusion in the matter.  To avoid aggressive interviewing, you should consider appropriate locations to conduct the interviews, outline questions in advance, and use open-ended questions when able, to get the entire story.  As noted above, the “right” investigator can and often does make a big difference in making witnesses feel comfortable so that they will be cooperative instead of obstructing the investigation. 8.  Making Confidentiality Promises Although it is reasonable for an employer to encourage everyone involved in the investigation to keep the matter private, an employer should never promise an employee that his or her complaint will remain confidential.  There will always be certain information that must be disclosed in order for a thorough investigation to be completed.  Moreover, depending again on the nature of the allegations, employers run the risk of a possible violation of federal labor law (considering the NLRB's Banner Health decision) if they demand absolute confidentiality by the witnesses. 9.  Failing to Create a Report Don’t underestimate the value of documenting investigations and credibility determinations to help support the company’s action or inaction regarding the allegations.  Not appropriately documenting necessary evidence, information provided during interviews, and any other relevant findings is just as bad as failing to conduct an investigation.  “The dog ate my homework” does not work very well in the legal arena.  When there is no record of the information obtained to support your determination, there is no way to show that a proper investigation was done and that an appropriate determination was reached.  An investigatory report should be prepared for every single investigation and should include a summary of the matter, the identity of the complainant, the accused, and all witnesses, a description of the relevant documents, findings, credibility determinations, and the recommended action. 10.  Failing to Make a Determination Failing to reach a conclusion and take the necessary steps to stop misconduct and prevent it from occurring in the future will ultimately result in the employer once again exposing itself to legal liability.  Once the report has been completed, a determination should be made regarding whether the misconduct occurred and what appropriate actions should be taken.  Make sure, especially in cases of harassment, that the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.  When a determination is made, you should consider not only if the chosen action appropriately corrects the problem, but whether it also sends a message to coworkers of what the consequences are for harassing behavior or misconduct. Following these basic common sense steps should go a long way in helping you ensure your employer avoids unnecessary liability.

On April 16, 2015, the New York City Council overwhelmingly passed an amendment to the New York City Human Rights Law that would bar most city employers from using credit checks as part of their hiring process.  Supporters of the bill argue that in most cases, an applicant’s consumer credit history has no direct correlation to their job performance, and an employer’s use of credit checks in hiring could have an adverse impact on minority job applicants, who are more likely to have poor credit histories. Similar to Article 23-A of the New York Correction Law, however, the bill does include exemptions for certain professions where there is, in fact, a direct relationship between a person’s credit history and his/her fitness or ability to perform the job.  Exempted professions include high-level executives who have financial authority over company or third-party funds or assets worth more than $10,000, elected officials, police officers, and workers who are required to have security clearance under federal or state law, such as those having access to intelligence, national security information, or trade secrets.  By focusing employer exemptions on particular job duties as opposed to excluding entire industries, such as banks, this bill has broader coverage than similar laws in other jurisdictions. If the amendment is signed into law by Mayor de Blasio, New York City would join 10 states and Chicago in barring employer credit checks in hiring.

On March 27, 2015, the U.S. District Court for the Southern District of New York granted the plaintiffs’ motion to compel disclosure of a report prepared by a Human Resources (“HR”) consultant in class action litigation under the Fair Labor Standards Act (“FLSA”) and state wage and hour laws. In Scott v. Chipotle Mexican Grill, Inc., Chipotle claimed that a number of documents sought by the plaintiffs during discovery were privileged communications that were protected from disclosure.  One such document was a report from an HR consultant examining the activities of four employees holding Chipotle’s apprentice position.  Chipotle claimed that the report was subject to the attorney-client privilege because one of its attorneys retained the HR consultant to help him assess whether the apprentice position should be classified as an exempt or non-exempt position.  The Court disagreed with Chipotle and ordered that the report be turned over to the plaintiffs. In general, the attorney-client privilege -- upon which Chipotle was relying -- applies to communications between an attorney and his/her client that were intended to be, and were in fact, kept confidential, and were made for the purpose of obtaining or providing legal advice.  In certain limited situations, however, communications can fall within this privilege even if not made between an attorney and a client.  The so-called “agent of attorney” doctrine acts to extend the attorney-client privilege to shield communications that are not between an attorney and client when the purpose of the communication is to assist the attorney in rendering legal advice to the client.  Such communication must be “necessary” or “highly useful” for effective consultation between the client and attorney.  This exception has been applied sparingly, in very limited circumstances. Here, the Court held that Chipotle failed to establish that the HR consultant did anything more than factual research to assist Chipotle in making a business decision, rather than to assist an attorney in rendering legal advice to Chipotle.  The Court explained that the report did not provide any specialized knowledge that the attorneys could not have acquired or understood on their own or directly through Chipotle (their client).  There was also no indication that the consultant was taking information that was incomprehensible to Chipotle’s attorneys and putting it into a “usable form,” rather than merely consolidating employee interviews and delivering a factual analysis.  The Court rejected Chipotle’s argument that the report should be considered privileged because the consultant was hired by a law firm and the report was specifically drafted for an attorney, because the agent-of-attorney doctrine does not consider form over substance.  The final nail in Chipotle’s coffin was the fact that no legal advice was actually provided by its attorneys following receipt of the HR consultant’s report, which indicated that the report was not created for the purpose of assisting the attorneys in providing legal advice. The Chipotle decision emphasizes the need for employers to exercise the utmost care when deciding whether to utilize the services of an HR consultant.  Although the Court ruled upon a situation where an attorney was involved, at least tangentially, with the HR consultant, employers must recognize that when an HR consultant is simply providing advice to an employer and there is no attorney involvement at all, such communications or resulting reports would undoubtedly not be privileged.  Even if an attorney is involved, however, the privilege still will not apply if the consultant’s investigation is merely factual, does not assist the employer’s attorney in rendering legal advice, and does not provide information outside of the attorney’s general expertise that is essential to effective consultation between the attorney and client.  In such situations, there is a risk that the employer will be required to disclose any communications and reports from the consultant during future litigation, which potentially could be devastating depending upon the content of those communications and reports.

On April 6, the National Labor Relations Board ("NLRB") General Counsel issued a guidance memorandum to explain the changes in the procedures for processing union representation petitions under the NLRB's final rule on "quickie" elections that was adopted on December 15, 2014.  Although a resolution was passed by Congress to block the NLRB from implementing the quickie election rule, President Obama vetoed the resolution, paving the way for the NLRB's final rule to take effect on April 14, 2015. Although the practical effect of the NLRB's final rule will likely be a shorter time period between the date when a representation petition is filed and the date when the election is held, the General Counsel noted in the guidance memorandum that "neither the final rule, nor this memorandum, establishes new timeframes for conducting elections or issuing decisions."  The guidance memorandum supersedes any provisions contained in the NLRB's manuals and other guidance to the extent that those provisions are inconsistent with the guidance memorandum. For a summary of the NLRB's final rule, see our December 15, 2014 blog post.

As the social media phenomenon continues to dominate our culture and its use has become second-nature, it is worthwhile to revisit some of the issues presented by an employer's use of social media, particularly in the context of hiring. Social media presents a unique workplace conundrum.  On one hand, employees generally believe that their use of social media outside of work is none of their employer’s business.  However, employers need to make employment decisions based on the best available information, which sometimes includes information an employee or potential employee shares on social media.  In the context of hiring, a candidate’s social media page can provide invaluable insight into the candidate’s character.  Generally, people tend to be much more candid on social media than they would be during a job interview, and, as the saying goes, “a picture is worth a thousand words.” While there are currently no laws prohibiting New York employers from accessing an applicant’s social media information during the hiring process, there are potential legal pitfalls depending on how a candidate’s social media information is accessed, what information is obtained, and what information is considered when making a hiring decision.  Social media sites contain a lot of information that employers are legally prohibited from considering during the hiring process (e.g., age, sexual orientation, race, religion, ethnicity, etc.).  Simply possessing this type of knowledge about a candidate could ruin an otherwise well-based decision not to hire an individual, because it could create an inference that this information was part of the basis for the decision.  Thus, employers that use social media as a hiring tool must exercise caution and take the appropriate steps to address these concerns. At the outset, an employer should determine whether a social media search will be conducted as part of the hiring process, and if so, develop a policy regarding the use of social media in hiring.  The policy should address what positions the search will be used for, the scope of the search, and when the search will occur, which is ideally later in the process to limit the number of candidates who are affected.  The policy should also clearly identify what information will not be looked at or considered (i.e., protected characteristics), and what will be reported to those involved in hiring.  Employers must ensure that this policy is distributed and communicated to hiring managers, and that they understand the purpose of the policy.  As with any other policy, it is important that it is followed and applied consistently. With respect to implementation of the policy, it is imperative that direct hiring managers do not access social media as part of the hiring process.  A non-decision-maker should conduct the search and report only relevant, non-protected information to the decision-maker.  To ensure this process is effective, the non-decision-maker conducting the search must understand what information the employer is legally prohibited from using when making a hiring decision. An employer should never access any site that they have not been authorized to access, nor should employers require a candidate to provide them with access to their personal social media accounts.  As reported in our April 28, 2012 blog post, legislation was introduced in the New York State Senate that was intended to prohibit employers from failing to hire an applicant based on his/her refusal to provide login information to the employer.  Although this bill has not been passed, it is still the best practice to refrain from requiring candidates to provide access to their social media accounts as part of the application process, or as a condition of an offer of employment.  In fact, multistate employers should be aware that at least 18 states, including Arkansas, California, Colorado, Delaware, Illinois, Louisiana, Maryland, Michigan, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, and Washington, have enacted legislation regulating an employer’s social media activity, most of which contain prohibitions against requiring applicants or employees to provide the employer with his/her personal login information.  Further, employers should not falsify information or impersonate an individual to gain access to the page.  In other words, an employer must not ask an employee who is “friends” with a candidate to access his/her page.  As a rule of thumb, only view information that is open to the public. Employers should attempt to verify information before relying on it.  Employers should also document and retain the information obtained in the search, including the search criteria and the information considered as a basis for their hiring decisions.

On March 25, the U.S. Supreme Court issued its much anticipated decision in Young v. United Parcel Service, Inc., which centered on whether UPS unlawfully discriminated against a pregnant employee by denying her a light-duty accommodation for her lifting restriction.  The Court vacated a Fourth Circuit Court of Appeals decision, which granted summary judgment in favor of UPS. Peggy Young, the plaintiff, was a part-time driver for UPS.  UPS policy required drivers to be able to lift up to 70 pounds.  When Young became pregnant, her doctors advised her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy.  Based on its internal policy, UPS advised Young that she could not work under the lifting restriction. Young sued UPS, claiming that it had discriminated against her by refusing to accommodate her pregnancy-related lifting restriction.  Young alleged that UPS had provided other drivers who had similar restrictions with light-duty accommodations, but UPS argued that it only provided light-duty work to a limited number of employees, including those who:  (1) were injured on the job; (2) had lost their Department of Transportation certification; or (3) had an ADA-covered disability. Young argued that under the Pregnancy Discrimination Act ("PDA"), which amended the definitions subsection of Title VII to include pregnancy discrimination as a form of sex discrimination, if an employer accommodates only a subset of workers with disabling conditions, pregnant workers who are similar in their ability or inability to work must be treated the same regardless of whether there are other non-pregnant employees who do not receive the same accommodations.  Unpersuaded by this broad approach, the Court stated that it doubted Congress “intended to grant pregnant workers an unconditional most-favored-nation status.” However, the Court also refused to accept UPS’ interpretation of the PDA.  UPS argued that the second provision of the PDA (which requires employers to treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work") means that an employer is not required to accommodate a pregnant employee if there are other non-pregnant employees who also are not eligible for such accommodations.  UPS argued that pregnant employees such as Young were treated exactly the same as non-pregnant employees who had temporary lifting restrictions due to off-the-job injuries, and that its refusal to provide an accommodation for Young was therefore lawful. The Court also refused to “rely significantly” on the EEOC guidance which was issued in July of 2014 -- less than two weeks after the Supreme Court decided to hear the case.  The EEOC guidance provided that "an employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job)."  The Court reasoned that the EEOC’s position was inconsistent with previous positions and the EEOC failed to explain the basis of its guidance. Instead, the Court announced its own interpretation.  It held that a pregnant employee attempting to establish a claim of disparate treatment based on pregnancy may do so through the same general framework applicable to other types of employment discrimination claims (known as the McDonnell Douglas framework).  An employee who alleges that an employer’s denial of a pregnancy accommodation constitutes disparate treatment under the PDA must establish a prima facie case that:  (1) she belongs to the protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer did accommodate others “similar in their ability or inability to work.” Once the employee establishes her prima facie case, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason to justify its refusal to accommodate the employee.  The Court advised, however, that the employer cannot merely claim that accommodating pregnant women is “more expensive or less convenient.” If the employer articulates a legitimate, nondiscriminatory reason, the employee must show the employer’s reason is a pretext for pregnancy discrimination.  The Court held that the employee may satisfy her burden at this stage by providing “sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination.”  For the claim to survive summary judgment, the employee can provide evidence that although the employer accommodates a large percentage of non-pregnant workers, it does not accommodate a large percentage of pregnant workers. Applying this standard, the Court explained that Young may be able to show that UPS provides light-duty accommodations to most non-pregnant employees with lifting restrictions, while “categorically failing” to accommodate pregnant employees with similar lifting restrictions.  Accordingly, the Court vacated the Fourth Circuit’s grant of summary judgment in favor of UPS, as there was a genuine dispute as to whether UPS treated employees whose situation “cannot reasonably be distinguished from Young’s” more favorably. For employers, this case may create more confusion than clarification on the issue of what obligation it may have to provide light duty assignments to pregnant employees.  However, given the Court’s articulation of the applicable legal standard, employers should:

• review their light duty policies and determine whether such policies should also apply to pregnant employees;
• review all other workplace accommodation policies to ensure compliance with the PDA and Americans with Disabilities Act;
• establish a policy for addressing requests for an accommodation, and in particular, requests from pregnant employees; and
• train supervisors and managers with regard to pregnant employees’ requests for an accommodation.

Employers are likely well aware of the conditions that must be satisfied before an employee can be deemed eligible for leave pursuant to the Family and Medical Leave Act (“FMLA”):

• the employee has worked for the employer for at least 12 months;
• the employee has worked 1,250 hours in the 12 months preceding the leave request; and
• the employer has 50 or more employees at, or within 75 miles of, the employee’s workplace -- the so-called “50/75” requirement

If one of these conditions is not satisfied, an employer cannot later be held liable for any FMLA-related claims brought by an employee, right?  Not so fast!  Although determining whether these conditions are met is typically the simplest step in the FMLA certification process, the United States Court of Appeals for the Sixth Circuit recently reminded employers of the headaches they may face if they are not careful in notifying their employees of these conditions. On January 26, 2015, the Sixth Circuit decided Tilley v. Kalamazoo County Road Commission.  Tilley was employed by the Road Commission, which did not meet the 50/75 requirement.  The Road Commission’s personnel manual contained the following statement regarding an employee’s eligibility to apply for FMLA benefits:  "Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months." On August 1, 2011, Tilley began experiencing symptoms that made him fear that he was suffering a heart attack.  He was taken to the hospital, admitted for observation, and discharged the next day.  After his discharge, Tilley’s wife informed the Road Commission that Tilley would not be able to return to work until at least August 5. On August 9, a Road Commission representative sent Tilley FMLA paperwork that informed him that he was “eligible for FMLA leave.”  At no time was Tilley informed that the Road Commission did not meet the 50/75 requirement, or that such a requirement even existed.  On August 12, the Road Commission terminated Tilley’s employment, claiming that the reason for his termination was his failure to timely submit certain work assignments. Tilley filed suit, claiming that the Road Commission interfered with his right to FMLA leave and retaliated against him for taking such leave.  The Sixth Circuit agreed with the Road Commission that Tilley was not technically an “eligible employee” under FMLA, but concluded that Tilley’s case could continue because there was a dispute as to whether the Road Commission was “equitably estopped” from denying that Tilley was an eligible employee. The Court explained that “in certain circumstances equitable estoppel applies to employer statements regarding an employee’s FMLA eligibility, preventing the employer from raising non-eligibility as a defense.”  In order to prevail on such an “equitable estoppel” argument, an employee must show a definite misrepresentation by the employer, a reasonable reliance on the misrepresentation, and a resulting detriment to the employee who reasonably relied on the misrepresentation.  The Court found that Tilley presented sufficient evidence on all three elements to allow his case to continue. As to the first element, the Court held that the Road Commission’s personnel manual contained a “clear misrepresentation” as to Tilley’s eligibility to apply for FMLA benefits.  Specifically, the manual contained an “unambiguous and unqualified statement” that Tilley was covered by FMLA and was eligible to apply for FMLA benefits if he worked 1,250 hours in the previous 12 months, but it failed to note that the 50/75 requirement must also be satisfied.  Next, the Court found that there was sufficient evidence that Tilley relied upon the eligibility statement in the manual, which was sufficient to satisfy the second element.  Finally, as to the third element, the Court held that Tilley suffered a detriment as a result of his reliance on the eligibility statement in the manual since he was fired in part because he missed a deadline that he claims he would not have missed but for his reliance on the manual.  Therefore, because Tilley raised questions of fact regarding all elements of an equitable estoppel claim, the Court permitted Tilley’s FMLA claims to move forward. The takeaway from this decision is straightforward:  employers should immediately review their personnel manuals and/or FMLA policies to ensure that they are well-drafted and that all eligibility conditions for FMLA leave are adequately explained.  A poorly drafted or incomplete FMLA policy could result in an employer being in a situation similar to the Road Commission -- potentially being liable for an FMLA claim even when the employee making the claim is not even technically eligible for FMLA leave!