AN EMPLOYER’S DUTY TO ACCOMMODATE NOT SO-COMMON RELIGIOUS PRACTICES

Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.

Recently, the United States District Court for Western District of Pennsylvania, as well as the Court of Appeals for the Fourth Circuit, have addressed accommodating the religious practice known as the “mark of the devil” or the “mark of the beast.” In both instances, the Courts held that the employee’s allegations were sufficient to establish a sincerely- held belief in the religious practice.

In Kaite v. Altoona Student Transp., Inc., the employee worked as a school bus driver and refused to have fingerprints taken because she believed that fingerprinting was the “mark of the devil” and if she submitted to it she would not get into heaven.  The employee asked for an accommodation in the form of a different type of background check that did not include fingerprinting.  The employer refused and terminated the employee’s employment for failing to comply with the State’s background check law.

The United States District Court for the Western District of Pennsylvania rejected the employer’s attempt to dismiss the case, holding that, at least at the motion to dismiss stage, the employee had sufficiently alleged a prima facie case of religious discrimination.

To establish a prima face case, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  Once the employee establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”  Here, the employee stated that (i) she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” and would prevent her from going to heaven; (ii) this belief conflicted with her job requirement that she undergo a background check; (iii) the employer was aware of her sincerely-held religious belief; and (iv) the employee subsequently was terminated for failing to comply with the fingerprinting requirement. This was enough to overcome a motion to dismiss.

Similarly, in EEOC v. Consol Energy, Inc., the employer implemented a biometric hand-scanner system for the purpose of requiring employees to check in and out of work.  The employee refused to use the a scanner because of his religious belief that the use of the scanner was the “mark of the beast.”  The employer refused to accommodate the employee’s religious belief, although the employer accommodated others who could not use the hand scanner for non-religious purposes.  The EEOC brought suit on the employee’s behalf, which went to trial.  The jury returned a verdict for the employee totaling $586,860.00 ($150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits).  The Fourth Circuit Court of Appeals affirmed the District Court’s ruling denying the employer’s motion for a new trial and motion for judgment.

Both of the cases illustrate an employer’s need to be tolerant in accommodating all religious practices, not only those that are considered more mainstream. Employers should remember that demonstrating a sincerely-held belief is typically a “low bar,” and most employees likely will be able to establish this element of their claim.

Moreover, these cases serve as a reminder that, when making determinations regarding accommodating religious practices, the company should:

  • Review whether it has made exceptions for non-religious reasons; and
  • Consider the actual hardship to the employer in accommodating the employee’s request.

Kali T. Wellington-James

Surveillance in the Workplace

Q.  Can employers prevent employees from recording conversations in the workplace.

A.  Sometimes.

As technology continues to advance, so does the likelihood that everything you say and do is being recorded, even in the workplace. With most employees having access to smartphones and other similar devices, there has been an increase in the number of employees engaging in surreptitious surveillance as a means of trying to document alleged wrongdoing and to assert and prove legal claims.  These recordings are being used more frequently in discrimination litigation.  Employees who secretly record workplace conversations often regret it, because the recordings usually depict an employer attempting to be reasonable, and it makes the employee look sneaky and manipulative. However, employers often want to prevent these recordings from happening in the first place. Whether an employer can prevent employees from recording conversations in the workplace depends on federal and state wiretapping laws, and the interests the employer is attempting to protect in relation to employee rights.

Federal law permits the recording of conversations as long as one of the parties to the conversation consents. This means that, so long as the person doing the actual recording consents to the recording, such a recording is permissible.  However, whether more than one-party consent is required varies from state to state.  While most states only require one-party consent, 12 states, including Pennsylvania, require two-party consent.

Pennsylvania

Pennsylvania is a two-party consent state, meaning that it is illegal to intercept or record a conversation unless all parties to the conversation consent. Under Pennsylvania law, it is a felony to record a private conversation without obtaining the appropriate consent.  Thus, if an employee secretly records a private workplace conversation with his or her coworkers or employer, the employee may be subject to a civil lawsuit and criminal charges.

New Jersey

By contrast, in New Jersey, only one-party consent is required to record an in-person or telephone conversation. Thus, it is legal to record a workplace conversation as long as you are a party to the conversation.  However, if an employee records a conversation that he or she is not a part of (for example, if the conversation occurs between a coworker and a supervisor), the employee must obtain consent from at least one of the parties to avoid civil and/or criminal penalties.

“No-Recording” Policies

Employers who wish to prevent their employees from recording workplace conversations should distribute a “no-recording” policy. However, such policies must be drafted carefully to avoid running afoul of the National Labor Relations Act.  For example, no-recording policies that completely ban employees from recording any workplace activities are likely to be considered unlawful.  Employees, even in an non-union environment, are permitted (at least in one-party states) to record conversations or events regarding the terms and conditions of their employment. Such conduct could be considered to be lawful “concerted activity.”

On the other hand, employers are permitted to place properly-tailored limits on an employee’s ability to record workplace activities without violating Section 7 rights. Including a disclaimer in the policy that informs employees that the policy is not intended to interfere with their Section 7 rights is an effective way to reiterate the types of recordings that the employer is not barring.  Employers also should make sure that they are able to identify and articulate legitimate business reasons for prohibiting employees from recording during certain times and in certain places, such as protecting confidential or proprietary information.  Also, if an employer’s state law prohibits nonconsensual surreptitious recordings, it is recommended that the employer refer to the state law in their recording policy.

In addition, employers should be careful to follow these best practices:

  • When meeting with employees, employers should refrain from saying anything that they would not want recorded and make sure to comply with company policies and procedures.
  • Employers should always conduct themselves in a professional and fair manner, as if they were being recorded.
  • In situations where employers are aware that they are being recorded, they should make it clear whether they object or consent to the recording,
  • Consistently enforce the no-recording policy among both employees, supervisors and visitors.
  • Employers should not record discussions with their employers; however if an employer chooses to record a workplace conversation, he or she should inform all parties in advance, even in a single consent state.
  • If an employer feels that he or she is being recorded, the employer should ask the employee(s). Employers do not have to participate in a conversation that is being recorded and can refuse to have a discussion with anyone who insists on recording.
  • Before terminating, disciplining or pursuing criminal or civil charges against an employee for recording in the workplace, seek the advice of counsel.

Renee C. Manson

 

 

 

Regulating Speech at Work

Q: Can a private employer limit its employees’ speech and political activity in the workplace?

A: Yes, but not speech that is considered part of a “concerted activity.”

Last year, former San Francisco 49ers player Colin Kaepernick, kneeled during the national anthem to bring attention to racial injustice. On Saturday September 23, 2017, in a series of tweets, President Trump demonstrated his displeasure with NFL players who do not stand during the national anthem and called for their termination.  In response to President Trump’s comments, NFL players across the country have been “taking a knee,” locking arms or staying in the locker room during the national anthem.  These demonstrations have generated a lot of discussion about whether a private employer can limit an employee’s speech and political activity in the workplace.

Although the right to freedom of speech is fundamental, it is not absolute. The First Amendment prohibits the government from interfering with an individual’s freedom of speech and religion; however it does not protect private-sector employees.  There is a common misconception that freedom of speech applies to anything and everything an individual has to say, but the First Amendment protections only apply in cases of government interference.

Private-sector employees are typically employed at-will, meaning that their employers can fire them at any time for any reason, with or without cause. There are many exceptions to the employment at-will doctrine, but the First Amendment is not one of them.  As a result, as a general matter, a private sector employer may discipline or even terminate an at-will employee for statements made both inside and outside of the workplace, including statements made on social media posts, blog posts, political opinions, t-shirts, and bumper stickers.  But the employer’s right has limits.  Under federal labor laws, an employer cannot discipline or fire an employee for speech that involves “concerted activities,” such as discussing the terms and conditions of employment, wearing a union shirt, discussing wages, and/or forming a union.

Even though the First Amendment does not apply to private workplaces, employers should be careful when regulating speech. Although an employer may have a right to regulate employee speech on political or social issues, doing so may have a detrimental effect on the workplace.  And, there are times when employers have a duty to regulate employee speech.  For example, employers have a responsibility to maintain a work environment that does not violate laws prohibiting discrimination and harassment, or create a hostile environment.  Employers often have to investigate and act in response to speech in the workplace, and even outside the workplace, that creates or contributes to a hostile work environment from the standpoint of race, sex and other protected characteristics.

Employers should consult a labor and employment attorney if they have any questions about what speech is appropriate to regulate, and for assistance in establishing policies and procedures that govern speech in the workplace.

Renee Manson

Drafting Effective Performance Reviews

Q.  Our performance review process seems outdated and I’m not sure what to do. Do you have any suggestions?

A.  Employee performance reviews are probably one of the most loathed aspects of the workplace. Managers hate to do them. Employees hate to receive them.  In some cases, they can do more harm than good.

Consider the employee whose performance is mediocre. He is friends with his supervisor, however, and they often grab a drink after work.  Knowing that a negative performance evaluation may impact the employee’s annual salary increase, the manager looks the other way and gives the employee an evaluation rated as “effective.”

Or how about the manager who is reluctant to provide honest criticism on an evaluation for fear it will make it more awkward and difficult to work with the employee going forward? Or the employee who receives negative reviews but salary increases year after year?

On the flip side, consider the employee who tries really hard, but has a supervisor who is mean-spirited and does not want to see this employee succeed and possibly usurp his job?   Or the company that regularly reviews the employees of one department but not another?  Or the manager who rates everyone the same, regardless of their actual performance?

Some companies have been moving away from the performance review process altogether, and replacing it with a policy of providing regular, project-specific feedback to employees. Regardless whether you offer feedback on a rolling or annual basis, there are a few pitfalls to be aware of:

  • Be honest. Performance reviews that do not accurately reflect the employee’s actual performance are damaging in many ways. In employment litigation, they often undermine the employer’s legitimate reason for terminating the employee and have a major impact on the outcome. And inaccurate performance reviews – whether they are unfairly harsh or fail to identify needs for improvement—have serious detrimental effects on the business. No performance evaluations are far better than inaccurate ones.
  • Watch out for gender bias. One 2014 study of performance reviews in the tech industry found that women were significantly more likely than men to receive critical feedback in performance reviews. In particular, the study found that women were more likely to receive feedback on personality traits that was contradictory to men. For example, while a female employee may be labeled as “abrasive,” that same trait may be defined in a male employee as “confident” and “assertive.”
  • Be consistent. It will be much harder to defend a termination decision of an employee for poor leadership if that same performer received regular annual performance reviews describing her as a great leader.
  • Focus on the performance, not the person. The best evaluations provide feedback on performance, supported by specific examples. Thus, rather than labeling an employee as “negative,” focus on a specific example of an instance when the employee spoke to a customer in an inappropriate manner.
  • Stay clear of euphemisms for age. Be careful not to label an employee as “slow,” or not savvy with computers. Instead, again, focus on specific performance issues and cite to examples of deadlines not met or projects not completed.
  • Be sure to evaluate the employee on his or her performance throughout the entire year, and not just focus on recent events.
  • Avoid surprises. Managers should not wait until review time to notify employees of issues with their performance. Rather, give consistent, honest and regular feedback to employees throughout the year.
  • Provide measurable goals. The best evaluations provide specific, performance-based feedback with measurable goals for the future. This gives managers a roadmap to evaluate how the employee performs the next year. If performance does not improve, and the employee is fired and sues, reviews that told the employee what he needed to do to improve, and a chance to do it, are a tremendous aide in helping the employer win the litigation.

-Tracey E. Diamond