SOCIAL MEDIA JOB POSTINGS AND AGE DISCRIMINATION

Q:        Does using social media advertisements targeted to younger potential applicants raise age discrimination concerns?

A:        The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate against workers over the age of 40 in employment advertising, recruiting, hiring, and other employment opportunities.  The publication provision of the ADEA generally makes it unlawful to “print or publish” job notices or advertisements “indicating any preference, limitation, specification or discrimination, based on age.”  Age preferences for younger employees are only appropriate when age is demonstrated as a bona fide occupational qualification that is reasonably necessary for the normal operation of the business.

Age discrimination claims pursuant to the ADEA have been rising steadily in the past 10 years. The number of age discrimination complaints submitted to the U.S. Equal Employment Opportunity Commission totaled about 18,000 in 2017 — about 20% of all complaints filed with the federal agency.

At the same time, the manner and method by which employers are posting job advertisements has been changing and evolving. Not surprisingly, given the rise of social media usage, many employers are turning to sites like Facebook to recruit new hires.  However, using such sites to target specific demographics, such as younger applicants, may run afoul of the ADEA.

In December 2017, a group of some of the largest U.S. employers found themselves in federal court, facing tough questions about their social media hiring practices. A class action lawsuit was filed against the various employers, alleging that they used Facebook-provided targeting tools and algorithms to direct ads to younger potential applicants, thereby discriminating against older applicants in violation of the ADEA.  The individual plaintiffs in the case, who are all recently unemployed workers over the age of 40 who use the social media site, claim they have been denied the opportunity to view certain employment advertisements simply because of their age. Because they could not view the ads, consequently, they could not apply for the posted jobs.

Although we do not yet know the outcome of the pending litigation, it is likely similar claims will follow. So what can an employer do to mitigate the risks associated with posting jobs on social media sites?  Treat the online posting no differently than any other publication, such as a newspaper.  Avoid using language that may be deemed discriminatory (i.e. “young” or “new grad”).  Research the social media site’s advertising policies and procedures.  When completing the criteria for the posting, do not affirmatively limit how the advertisement will be shared among different age demographics who use the site.  Ensure that your company’s advertisements are accessible and open to potential applicants of all ages.

Leigh McMonigle

Connecticut Law Prohibiting Wage History Inquiries and Restrictions on Employee Wage Discussions Now in Effect

Q: I have employees in Connecticut.  What do I need to know about the new pay equity law?

A:  Effective January 1, 2019, employers are not allowed to: (1) inquire (whether directly or through a third party) about a prospective employee’s wage history; or (2) prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by the other employee.

“Wages” are defined as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.” 2018 Conn. Pub. Act No. 18-8, Section 1(a)(3).  Employers can  inquire about the existence of other elements of a prospective employee’s compensation structure (such as stock options), but cannot inquire about the value of those elements.

Under the new law, employees must be permitted to discuss wages with each other, but the law does not require any employer or employee to disclose the wages paid to any employee.  As a result, employees have a right to discuss their wages with other employees, but are under no obligation to do so.  Importantly,  employers may continue to keep individual employee wage information confidential.

Connecticut joins many other states and localities that have enacted similar laws, including New York City, Delaware, and California. Like New York City’s law,  Connecticut’s prohibition on, inquiries about wage history does not apply if the applicant discloses his or her wage history voluntarily.  The question of whether such a disclosure was made voluntarily can be tricky, however, especially after the fact, so employers should tread carefully.

The Connecticut law provides a private right of action to both prospective employees and employees, and authorizes suit within two years of an alleged violation. Employers who are found to have violated the law may be liable for compensatory damages, punitive damages, and attorney’s fees and costs.

To ensure compliance, employers should review job applications for positions in Connecticut to ensure that they do not include inquiries about wage history. Employers should also review offer letters and employment agreements to ensure they do not contain language prohibiting disclosure and/or discussion of compensation.  Finally, employers should update internal policies and interview guidelines, and ensure that all relevant personnel are aware of the new law.

Jessica Rothenberg

Philadelphia Enacts Fair Workweek Ordinance

Q.  Can you explain to me Philadelphia’s new Fair Workweek Ordinance?

A.  In late December 2018, Philadelphia Mayor Jim Kenney signed an Ordinance that will require large fast-food chains, retailers, and hotels to provide employees with advance notice of their schedules and a variety of other protections. The Ordinance—known as the “Fair Workweek” Ordinance—requires certain Philadelphia employers to provide employees with at least two weeks’ advance notice of their schedules, offer remuneration to employees if their schedules are changed, and provide minimum periods of rest in between shifts. The Ordinance is similar to ordinances adopted in New York, San Francisco, and other large cities.  It is scheduled to become effective on January 1, 2020.

Some key facts about the Ordinance:

  • The Ordinance applies only to “Covered Employers,” which consist of retail, hospitality and food services establishments that have 250 or more employees and 30 or more locations worldwide. This definition includes chain establishments and franchises associated with a franchisor or network of franchises.
  • Upon hire, all Covered Employers must provide employees with a written, good faith estimate of the employee’s work schedule. The Covered Employer must provide a revised schedule when the employee’s availability changes or the Covered Employer’s business needs change. The employee’s work schedule must include the following information: (1) The average number of work hours the employee can be expected to work over a typical 90 day period; (2) Whether the employee will be expected to work any on-call shifts; and (3) A subset of days/times/shifts that the employee typically will work.
  • Covered Employers also must provide employees with written work schedules. When the law takes effect in 2020, the schedules must be provided at least 10 days in advance of the schedule start date. Covered Employers will be required to provide 14 days advance notice beginning in 2021.
  • An employee may decline to work hours or additional shifts not included in the posted work schedule.
  • The Ordinance requires “Predictability Pay.” Predictability Pay is a monetary payment made by a Covered Employer to an employee as compensation for making changes to the employee’s work schedule. Predictability Pay is in addition to any other wages earned by the employee for actual work performed.
  • Covered Employers must pay one hour of “Predictability Pay” at the employee’s regular rate of pay if the Covered Employer adds time to a work shift or changes the date, time, or location of the shift, even if there is no loss of hours. Additional Predictability Pay is required if a Covered Employer subtracts hours from a regular shift or a regular shift is cancelled. If the employer makes changes to a posted schedule within 24 hours of initially posting the schedule, then no Predictability Pay will be required.
  • Employees may decline, without penalty, any work hours that are scheduled or otherwise occur less than nine hours after the end of the previous shift. An employee working a shift that begins less than nine hours after the end of the previous shift must be compensated $40 (in addition to their normal wages) for each such shift.
  • Covered Employers must offer work shifts to existing employees before utilizing subcontractors or hiring new employees from an external applicant pool. The work must remain available to existing employees for at least 72 hours (unless less time is necessary in order to complete the work).
  • As with most statutes, Covered Employers must post notice of the requirements of the Fair Workweek Ordinance. It is expected that the City will provide a model notice before the Ordinance’s effective date.
  • Covered Employers must be careful to maintain records (including but not limited to good faith estimates of work schedules provided to employees at the commencement of employment, work schedules, and payroll records that specify the amount of Predictability Pay paid to employees) for a period of at least two years in order to demonstrate compliance with the Ordinance.
  • At the request of any employee, a Covered Employer must provide employees with work schedules for all employees at the particular location for any previous week in the past two years, including the originally posted and any modified versions of work schedules.
  • Employees will have a private right of action under the Ordinance, and upon prevailing in such an action, can recover the full amount of any unpaid compensation, including Predictability Pay, and an equal amount as liquidated damages up to a maximum of $2,000. Employees will also be able to recover attorneys’ fees and costs.We expect that the agency charged with enforcing the Ordinance will issue implementing regulations prior to the Ordinance’s effective date. While the Ordinance does not take effect until 2020, the Ordinance is likely to impose significant administrative burdens and costs on Covered Employers. Covered Employers should work with experienced employment law counsel to minimize the burden and begin to take steps to prepare for implementation of the Ordinance.

Lee Tankle

MINIMUM WAGE INCREASES SCHEDULED FOR NEW YORK EMPLOYEES

Q.  My company conducts operations in several locations throughout New York State. What do I need to know about the upcoming minimum wage increases and new salary threshold requirements for our administrative and executive level employees?

A.  Employers in New York State should prepare to ring in the New Year with yet another increase in the minimum wage, as well as substantial increases in the salary thresholds for exempt executive and administrative employees. In 2016, as part of a sweeping overhaul of the state’s wage and hour law, the New York Department of Labor amended the rules to provide for annual increases across the spectrum of wages, with the third phase set to go into effect on December 31, 2018.

Minimum Wage Increases

The increases in the general minimum wage depend on the employer’s location and number of employees. For example, in New York City, the minimum wage requirement for employers with 11 or more employees will rise from $13 to $15 per hour, with no additional increases planned for the following years.  For New York City employers with fewer than 11 employees, the minimum wage will increase from $12 to $13.50, with an additional increase to $15 slated for December 31, 2019.

The minimum wage requirements increase more gradually for employers outside of New York City. In Nassau, Suffolk, and Westchester counties, employers must raise wages for hourly employees from $11 in 2018 to $12 in 2019.  Employers in all other counties are required to raise the minimum wage from $10.40 to $11.10 per hour.  These increases outside of New York City will continue at the same rate and on the same date annually, with the final increase effective December 31, 2021.  On that date, the statewide minimum wage settles at $15 per hour, regardless of the employer’s location or number of employees.

In addition, the law provides a separate schedule of increases for employees in the fast food industry. Effective December 31, 2018, New York City fast food workers must receive a minimum wage of $15 per hour, while those workers in the rest of the state will see incremental increases annually before arriving at the statewide $15 per hour minimum wage at the close of 2021.

Employers should note several points regarding these changes. First, the applicable minimum wage rate is based on where the employee works, rather than the location of the employer’s headquarters.  Notably, for employees working in more than one location, employers must pay wages based on the applicable rate for the location where a given hour is worked.  In those cases, the employer must record the location worked and the commensurate wage, although the law allows the employer to use a hybrid overtime rate based on the applicable rates for the different locations.

Increases to Salary Threshold for Exempt Status

In addition to changes to the minimum wage, employers must ensure that their employees classified as exempt under the executive or administrative exemption meet the new salary threshold for exempt status. For non-hourly executive and administrative employees, the minimum salary necessary to claim the overtime exemption will rise significantly, again depending on the employer’s size and location.  Regarding the location, it is thus far unclear whether the applicable salary threshold is determined by the location where the work is performed, or some other factor such as the location of the employer’s primary place of work.

Assuming the employee works in one location, on December 31, New York City employers with 11 or more employees must raise salaries for exempt employees from $975 per week in 2018 to $1,125 per week. Along the same timeline, for employers with fewer than 11 employees, the weekly salary threshold increases from $900 to $1,102.50.  In Nassau, Suffolk, and Westchester counties, the salary threshold for exempt status rises from $825 to $900 per week, with further increases yearly until salaried employees in those counties reach the $1,125 threshold in 2021.  For all other counties, the salary threshold increases from $780 to $832 per week at the end of this year, with two additional increases scheduled before arriving at $937.50 at year end 2020.

Employers with employees earning salaries that fall below the new threshold on the effective date have several options going forward. If feasible, the simplest solution for employers in most cases is to raise salaries for exempt employees up to the threshold.  Alternatively, to mitigate the financial burden of the new law, employers might consider reclassifying these employees as non-exempt, track hours worked, and pay them overtime for hours worked over 40 in a workweek.

Given the scope of these changes, every employer in New York should conduct a thorough analysis of its workforce to ensure compliance with the new laws and to assess the financial impact of these changes. For exempt workers earning salaries near the new threshold, employers should carefully analyze the particular circumstances in light of the options discussed above before deciding the most prudent course of action.  Finally, employers in counties outside New York City (and small employers in the City) should mark their calendars in preparation for additional increases annually over the next several years.

Rogers Stevens

 

#MeToo: Is Your Company Covered?

Q.  Are there any steps we should take to protect our company from liability in the #MeToo era?

A.  A year ago, sexual assault allegations against movie mogul Harvey Weinstein rocked the entertainment industry and quickly led to the rise of the #MeToo movement, sparking an upsurge of reports and claims of sexual harassment in workplaces across America. In many cases, the alleged misconduct is not new. But the intensity, tone, and tenor of the claims — and the sheer volume of allegations — has been dramatically different and has had significant effects on businesses caught in the cross-hairs.

Public sentiment has also shifted: A CNN poll conducted in December 2017 found that nearly 70 percent of Americans described sexual harassment as a “very serious problem.” That’s almost double the 36% of Americans who expressed similar views in a CNN/Time poll conducted in 1998. As high-profile, credible women have come forward in virtually every industry, more women have been emboldened to share their stories.

Alleged perpetrators are not the only ones being called to account; so are other corporate actors who allegedly enabled, covered up, or failed to prevent the wrongdoing. Sexual harassment claims against high-ranking corporate actors can expose companies to enormous costs, including reputational harm, consumer boycotts, drops in market capitalization, loss of corporate opportunities, and legal expenses for internal investigations, government proceedings, employment lawsuits, securities class actions, and shareholder derivative suits.

It’s vital that businesses and individual directors and officers understand their potential exposure to loss arising out of sexual misconduct claims and the availability and limitations of their insurance coverage.

Read Full Article Here.

Pamela S. Palmer and Susan K. Lessack*

* This publication was prepared by Marsh in conjunction with Pepper Hamilton LLP. Copyright © 2018 Marsh LLC. All rights reserved. It is reprinted here with permission.