Revisions to Overtime Laws Slated for December 1 Despite Lawsuits

Q: I heard a lawsuit was filed challenging the implementation of the revised overtime regulations. Do I still need to take steps to comply with the revised rules by December 1?

 A: Yes! While it is true that 21 states and more than 50 business groups have filed two lawsuits challenging the  Department of Labor’s revised overtime regulations, the filing of these lawsuits did not stay the effective date of the rules.  In the past few days, the House of Representatives passed a bill to delay implementation of the revisions by six months, and a similar bill was introduced in the Senate.  However, it is unlikely that either bill will be signed into law, given the President’s opposition to it.

Until a court or statute says otherwise, employers remain bound by the new revisions as of December 1.  As a reminder, the primary change is the increase in the salary threshold for the most common white collar overtime exemptions (i.e., executive, administrative and professional) from $23,660 a year to $47,476 a year, or from $455 a week to $913 a week. For details on the recent lawsuits and practical steps you can take to implement the revised rules, check out this recent Pepper@Work Alert.

Lee Tankle


Background Checks in the Era of Ban the Box

Q: What does it mean to “ban-the-box,” and how does it affect our hiring process?

 A: Ban-the-box legislation is quickly spreading throughout state and local jurisdictions.  Even if your jurisdiction has not adopted such legislation yet, it is likely that it will do so in the not-so-distant future. Therefore, it is vital to understand both the rationale behind the legislation and how it will affect your organization’s hiring processes.

The “box” that is the subject of so much controversy is the commonly used checkbox on job application forms that asks whether an applicant has a prior criminal record. Limiting an employer’s access to a prospective employee’s criminal history at the initial stage of the hiring process is thought to decrease the likelihood that an employer will discriminate against an ex-offender, thereby reducing employment barriers for those individuals.

Ban-the-box laws attempt to effectuate this policy goal by limiting (1) what can be asked of applicants prior to hiring, (2) when inquiries into criminal history can be made, and (3) the type and age of offenses that may be considered by employers in making hiring decisions. Some research studies have suggested that “banning the box” has resulted in the unintended consequence of broader discrimination against minority applicants because of employer bias that such applicants are more likely to be ex-offenders.

Nevertheless, the movement continues to gain momentum. Recently, Connecticut joined the State of New Jersey, New York City, Philadelphia and many other states, cities and localities in enacting ban-the-box legislation for private employers.  In addition, President Obama has banned the box by prohibiting federal agencies from inquiring into the criminal record of an applicant until the final phase of the application process.

It is important to note, however, that ban-the-box laws do not prohibit employers from ever inquiring into the criminal history of applicants. The laws concentrate on when and in what manner such inquiries may be made.  The Philadelphia ordinance, for example, permits employers to inquire into an applicant’s criminal history after a conditional offer of employment has been made.  The employer is then required to engage in an individualized assessment of the applicant, which includes consideration of the nature of the offense, the time that has passed since the offense, the particular duties of the job being sought, evidence of rehabilitation, previous employment history, and any character references provided by the applicant.  In contrast, the New Jersey ban-the-box law allows an employer to inquire into criminal history after the applicant’s first interview.  The New Jersey law is also much narrower than the Philadelphia ordinance; other than the timing requirement, it only prohibits an employer from considering expunged convictions and does not require that employers undertake any “individualized” assessment of the applicant’s conviction history.

Even if your jurisdiction has not yet been affected by ban-the-box, it is wise to begin adjusting your hiring procedures now so that you are prepared once such legislation arrives. At minimum, employers should make the following changes:

  • Remove the “box,” i.e., eliminate questions regarding criminal history from employment applications.
  • Ensure compliance with the federal Fair Credit Reporting Act , which requires disclosure and consent before running a criminal background check, as well as disclosures before taking any adverse action because of the results of the background check,
  • Train managers on what they can and can’t ask during job interviews. Where “ban the box” is in effect, questions regarding an applicant’s criminal history, whether oral or in writing, should be asked only when permitted by the applicable statute.
  • Take action to eliminate any unconscious bias against certain demographic groups in the recruiting process.
  •  Keep abreast of pending ban-the-box legislation in your jurisdiction; once enacted, such legislation might place limitations on how an applicant’s criminal history may be considered in the hiring process.

– Tracey E. Diamond and Laura Kleinberg


Prohibiting Politics in the Office

Q.  Recently, two employees almost came to blows arguing over the merits of a Trump versus Clinton presidency. Can our company prohibit employees from talking about politics in the workplace?

A.  The 2016 presidential election has created the most intense and divisive political environment in recent memory. What can a company do if the banter of cable news, talk radio, and polarizing political Facebook posts spills into the workplace?

Because the First Amendment only limits the government’s ability to limit speech, an employer’s ability to prohibit free speech in the workplace depends on whether the employer is a public or private entity. Generally speaking, public employees have the right to free speech if they are conveying a message as a private citizen and the subject matter of the speech is a matter of public concern. However, private employees generally have no First Amendment protections in the workplace.

In most states, if a non-unionized private employer wants to prohibit political discussions at work, they may do so. As a practical matter (and from an employee morale standpoint), an employer is best served by enforcing its existing non-solicitation , dress code, and general conduct rules prohibiting behaviors such as harassment and workplace disturbances. Although it would be legal in many states and municipalities, we do not recommend for employers to discipline an employee simply for expressing a political opinion or candidate preference. If an employee’s political speech interferes with production or is harassing to other employees, however, an employer certainly can impose discipline. Likewise, if an employee’s attention is focused more on Hillary Clinton or Donald Trump than  his or her work, a private employer can and should take action.

If an employer disciplines an employee related to the employee’s political speech, the employer must ensure that the employee in question is not actually speaking out about workplace conditions (such as expressing support for a particular candidate because she advocates an increase in the minimum wage) because such activity may be considered concerted activity protected by the National Labor Relations Act. In addition, it is important to differentiate between off-duty and on-duty conduct. In many states, such as New York and California, for example, it is unlawful to discipline an employee for engaging in political discourse outside of the office, such as participating in a political campaign.

If a company does impose discipline, the employer should administer the discipline consistently to avoid violating anti-discrimination laws. If a difficult situation arises, err on the side of caution and consult legal counsel.

The 2016 presidential election creates unique challenges, as the major candidates are of different sexes and statements have been made throughout the election season regarding protected classes, including sex, race, religion, national origin, and disability. A political discussion (whether it is in person or online) can quickly devolve into discriminatory or harassing comments. Even though a presidential candidate may make sweeping generalizations about Mexicans, Muslims, or women, such behavior is inappropriate (and could be the catalyst for a harassment or discrimination claim) in the workplace and should be addressed through a company’s non-discrimination policy. Likewise, an employee’s comment about a particular candidate that is based on that person’s gender or other protected characteristic is not appropriate for the workplace. Now is a good time to review and update your policy prohibiting discrimination and harassment.

No two workplaces are the same and every company will need to examine its own workforce dynamics to determine what type of political activity is and is not appropriate, whether employee/supervisor training is required, and whether policies need to be put in place to preempt potential problems.

-Lee Tankle

Testing for Marijuana: Working Through the Haze

Q: My company requires employees to submit to random drug tests.  Will our  drug testing policies “go up in smoke” as laws grow more lenient towards marijuana use? 

A: That is a valid question considering that Pennsylvania became the 24th state to legalize the use of marijuana for medical purposes.  In addition, several jurisdictions have legalized marijuana for recreational use.  Importantly, however, marijuana use, distribution, and possession remains prohibited under federal law.

So what does this mean for employers?

As a practical matter, it means that, in some states at least (including Pennsylvania), employers may not discharge, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, and other terms and conditions of employment solely on the basis of the employee’s status as an individual who is certified to use medical marijuana. On the other hand, employers are not required to make any accommodation of the use of medical marijuana in the workplace, and may discipline or terminate an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

Where the picture gets hazier, however, is when an employee does not show any outward signs of impairment, but tests positive in a random drug test. This is quite possible, as marijuana stays in the human body for as long as 30 days.

Given that marijuana is considered a Schedule I substance prohibited by federal law, employers in most jurisdictions can maintain a “zero tolerance” policy mandating that applicants or employees who test positive for marijuana automatically will be terminated from employment. So far, at least, courts across the country have uniformly held that employers do not have to accommodate an employee’s use of marijuana, whether on or off duty.

But beware that in a small number of states, including Delaware, an employee may not be penalized for testing positive for marijuana where the employee has a valid prescription and there is no evidence that the employee used, possessed or was impaired by marijuana while at work.

The new Pennsylvania law does not speak directly as to whether an employer can rely upon a positive drug test as a reason for an adverse employment action in the absence of other evidence of impairment. While the law allows employers to discipline employees for being under the influence of medical marijuana in the workplace, it also limits such discipline when the employee works while under the influence of medical marijuana to when the employee’s conduct falls below the standard of care normally accepted for that position.  Thus, the rule suggests that employers may not condition an adverse employment action on a positive drug test where the employee is a medical marijuana cardholder and the employee does not show outward evidence of impairment or his or her conduct does not fall below expected standards of care.

It remains to be seen how the Pennsylvania law will be interpreted. In the interim, in drafting a comprehensive drug testing policy, it is important for employers to consider the laws of every state in which it does business, and keep an eye on legal developments as this area of the law continues to evolve.

-Tracey E. Diamond and Yvette Tyson

Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King