EEOC’s Wellness Program Rules in Doubt

Q.  Are the EEOC’s Wellness Program rules still valid?

A.  The ADA and the Genetic Information Nondiscrimination Act both permit an employer to seek medical information as part of a wellness program if the employee participates voluntarily.  However, neither statute defines the term “voluntary.”

Effective January 2017, the EEOC issued rules allowing incentives of up to 30 percent of the cost of  coverage for employees participating in a health-contingent wellness program, in which the participant receives an award for satisfying a health-related factor.  These rules aligned the EEOC’s position with the regulations under the  Health Insurance Portability and Accountability Act (HIPAA), such that employers were able to rely on the 30 percent incentive limit to comply with HIPAA, the ADA and GINA.

In October 2016, AARP filed a lawsuit against the EEOC, arguing that the EEOC’s 30 percent incentive rendered wellness programs involuntary because employees would feel coerced to participate in wellness programs and to disclose medical information to avoid losing the benefit of the incentive.  The court concluded that the EEOC did not offer a reasoned explanation for its decision to construe the term “voluntary” to permit employers to offer incentives of up to 30 percent for participation in wellness programs.

For more information about this important case, please click here.

 

Uber Sex Harassment Scandal Is Sobering Reminder of the Costs of Ignoring Complaints

Uber made headlines last week when Susan Fowler, a former engineer, claimed that she was harassed by her direct supervisor and her complaints were ignored by the human resources department. Uber took another hit a few days later when a recently-hired executive resigned amidst allegations that he had harassed employees at his former company.

How can you prevent your company from becoming the next media story?

There are several takeaways from the Uber incidents:

  1.  Distribute a written policy prohibiting harassment based on sex and other protected categories. The policy should clearly explain the legal definition of harassment, provide examples of conduct deemed offensive, provide alternative avenues for an employee to lodge a complaint, explain the investigation process, and promise absolute protection against retaliation for good faith complaints of harassment.
  2. Provide harassment prevention training at regular intervals.  Not only is such     training crucial to ensuring that employees understand their rights and obligations, but it also may provide an affirmative defense if an employee sues after failing to make an internal complaint.
  3. Train supervisors on their responsibilities to lead by example.  Supervisors need to be taught how to recognize harassment and what to do if they witness or receive a complaint about inappropriate conduct in the workplace.
  4. Take all complaints of harassment seriously and perform a prompt and thorough investigation.  Analyze emails and text messages as part of your investigation.  Ms. Fowler said that the multiple emails that she forwarded to HR were ignored.  Electronic communications can assist HR departments in determining what really happened in what sometimes can be a “he said/she said” situation.
  5. Take corrective action if appropriate, even if it is the first offense. According to Ms. Fowler, Uber didn’t take her complaint seriously because her supervisor was a “high performer.” Ensure that your evaluation metrics take into account professional behavior in addition to job performance.
  6. Never forget that diversity matters.  Ms. Fowler emphasized the low number of women on her team and in the company in general.  Promoting diversity based on gender, race, ethnicity and other categories helps to ensure that all voices are heard.
  7. Take a hard look at your hiring practices.  When performing background and reference checks, dig into information about previous claims against the prospective employee for workplace misconduct.  Keep in mind, however, that certain federal and state laws may govern your company’s ability to gather this type of information.
  8. Finally, never forget the power of the Internet.  Ms. Fowler’s story gained immediate national attention after she published a detailed essay on her personal blog.  While the Internet is a powerful place to promote your brand, this is not the sort of publicity most companies would like to see.

– Tracey E. Diamond

EEOC Issues Guidance Interpreting National Origin Discrimination

Q:  What does it mean to discriminate against someone based on their national origin?

A:  Title VII prohibits employers from acting in a way that would have the purpose or effect or discriminating against an employee because of his or her national origin.

But what does the term “discrimination based on national origin” really mean?

The Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on this subject. Although the EEOC’s position at times is broader than controlling case law, the Enforcement Guidance is helpful because it offers insight into how the EEOC will investigate claims of alleged national origin discrimination in the future.  It is significant that 11 percent of EEOC Charges filed in 2015 contained an allegation of national origin discrimination.

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular ethnic group. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated with (or, according to the EEOC, perceived to be associated with) a particular religion or race.

Title VII prohibits an employer from using certain recruitment practices, such as sending job postings only to ethnically or racially homogenous areas or audiences, or requesting that an employment agency refer only applicants of a particular national origin group. Importantly, employers may not rely on the discriminatory preferences of coworkers or customers as the basis for an adverse employment action in violation of Title VII.  Thus, for example, a retail store may not reject an applicant for not fitting its “all American image.”

Social Security Numbers

The EEOC also addressed an issue that sometimes trips up employers. According to the EEOC, having a policy or practice of screening out candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin, such as newly arrived immigrants or new lawful permanent residents, and thus has a disparate impact based on national origin. The EEOC has clarified that newly-hired employees should be allowed to work if they can show that they have applied for but not yet received a Social Security number.

Accents

Under Title VII, an employer may refuse to hire (or fire) an individual if his or her accent interferes materially with job performance. To meet this standard, however, an employer must be able to provide evidence showing that: (1) effective English communication is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. Likewise, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed.

According to the EEOC, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job. Evidence of an accent materially interfering with job duties may include documented workplace mistakes attributable to difficulty understanding the individual, assessments from several credible sources who are familiar with the individual and the job, or specific substandard job performance that is linked to failures in spoken communication.

Hostile Work Environment Claims

The EEOC’s Enforcement Guidance also issued an important reminder to employers that harassment based on an employee’s national origin could give rise to liability for a hostile work environment. A hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent.  None of this behavior should be tolerated in the workplace.

Promising Practices

The EEOC lists several “promising practices” for employers to consider to avoid liability for national origin discrimination:

  • Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible;
  • Identify your Company as an equal opportunity employer;
  • Implement clearly-defined criteria for evaluating performance;
  • Distribute a policy prohibiting harassment based on national origin and train employees regarding their rights and obligations under the policy.

Tracey E. Diamond

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