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Archive for the ‘Employment Law Blog (US)’ Category

What Have You Done For Me Lately? (Other Than Opening The Door To Potential Sexual Harassment Liability): Reexamining Workplace Romances in Light of the Bill O’Reilly Scandal

Posted on: April 28th, 2017

By: Amanda K. Hall

The recent allegations against Bill O’Reilly and news of significant settlements in multiple sexual harassment lawsuits demonstrate the danger of romantic interactions between supervisors and subordinates. In the case of Mr. O’Reilly, a former guest commentator claimed Mr. O’Reilly was “hostile” to her and that her guest segments were put on hold because she rejected his invitation to accompany him to a hotel suite after dinner.

Assume a manager attempts to date a subordinate and he/she refuses the advances. If that same manager now disciplines the same subordinate, or chooses another candidate over the subordinate for a promotion, the manager has opened the door to a potential claim of quid pro quo sexual harassment with respect to the employer. Quid pro quo (or “this for that”) sexual harassment claims, as distinguished from hostile work environment claims, typically involve allegations that a supervisor has taken a tangible employment action – for example, a demotion, a reduction in pay, or a termination – against a subordinate because he or she has failed to acquiesce to the sexual demands of the supervisor.

Even if the subordinate accepts the manager’s advances, and the relationship appears to be consensual, these situations have the potential to lead to sexual harassment claims. While the subordinate and the manager may fall in love and/or marry, it is also possible that the relationship will end and the employer may be  exposed to liability. If the relationship ends, the subordinate may contend that he/she is being unfairly counseled or not promoted because he/she ended the relationship. Or, an employee may contend they dated a manager only because he/she feared for the job. Similarly, the employer is open to potential claims from other employees (or comparators) who could potentially allege that they received less favorable treatment because they were not dating the boss.   

The bottom line? Workplace romances, particularly between managers and subordinates are not a good idea. And, because of the potential issues that can result from such romances, employers should be wary of permitting workplace fraternization, particularly between supervisors and subordinates. To that end, employers should carefully consider their stance on workplace romances and adopt and/or review their policies on workplace fraternization accordingly.           

For any questions, please contact Amanda Hall at  [email protected].

Federal Government Announces Changes to its Green Cards

Posted on: April 19th, 2017

By: Layli Eskandari Deal

U.S. Citizenship and Immigration Services has announced a redesign to the Permanent Resident Card (“Green Card”) and the Employment Authorization Document (“EAD”) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date. These older Green Cards without an expiration date remain valid.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

The Battle for Transgendered Bathroom Rights in PA

Posted on: April 19th, 2017

UPLOADBy: Jennifer Ward

Transgender rights have become an increasing divisive issue in the United States, and the use of public bathrooms has been a key part of the controversy. The Obama administration introduced federal protections that allowed transgendered students to choose a bathroom that aligned with their gender identity and not necessarily their gender of birth. Rescinding the Obama federal protections, the Trump administration revoked federal guidelines specifying that transgender students have the right to use public school restrooms that match their gender identity. Trump administration is calling for the states and local school districts to determine their own policy of transgender bathroom use.

In February, three teens from a Pittsburgh high school won in federal court to suspend their school’s bathroom policy of ‘assigned’ use. U.S. District Judge Mark Hornak ruled in favor of the transgendered students, citing the lack of evidence that physical and visual privacy was compromised. Based on this one small victory, it is unclear whether transgendered rights can prevail without federal protection. 

If you have any questions or would like more information, please contact Jennifer Ward at 267.758.6012 or [email protected].

 

FAQs: Medical Marijuana in Florida and Accommodations Under the ADA

Posted on: April 10th, 2017

By: Melissa A. Santalone

In this past election cycle, Floridians voted to approve Amendment 2 by a landslide, officially amending the State Constitution to allow the medicinal use of marijuana by those with “debilitating conditions,” free from criminal or civil liability under Florida law. The amendment went into effect on January 3, but questions remain as to exactly how this amendment affects the rights of employers and employees under the Americans with Disabilities Act (ADA).

Who can use medicinal marijuana under Amendment 2?

Amendment 2 provides for legal medicinal use of cannabis under Florida law by “qualified users,” or those with “debilitating conditions.”  “Debilitating conditions” have been defined as:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • HIV;
  • AIDS;
  • Post-traumatic stress disorder (PTSD);
  • ALS;
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; and
  • Other debilitating medical conditions “of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.”

It remains to be seen how the potential vagueness in the definition of “other debilitating medical conditions” will play out in proposed state rules and regulations and in the courts. Under draft administrative rules recently proposed by the Florida Department of Health, the Florida Board of Medicine will have the final say as to what other conditions may qualify for use of medical marijuana.

Does the ADA mandate accommodations for the use of medical marijuana?

No. Title I of the ADA prohibits employers with 15 or more employees from discriminating against disabled employees and the case law suggests an employer may be required to provide reasonable accommodation for disabled employees that need to take medication during their shift.  However, there is a carve-out in the ADA for the use of ”illegal drugs,” which is defined by the federal Controlled Substances Act (CSA). As marijuana is still currently illegal under the CSA, the ADA does not require an accommodation be made for the use of medical marijuana.

Does Amendment 2 require employers to make accommodations for employees’ use of medical marijuana?

We currently don’t know with certainty, but we may be able to make a good prediction. Amendment 2 expressly provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” The language is clear in that no accommodation must be made whatsoever for employees to use medical marijuana while on the job. However, Amendment 2 remains silent as to any accommodations to be made for off-site use, and the Amendment is too new for the Florida courts to have weighed in on this point.

The wording of Florida’s Amendment 2 mirrors that of the State of Washington, though, which is also silent as to accommodations for off-site use. In Washington, the courts have declined to interpret their law’s silence as a mandate that accommodations are to be made for off-site use of medicinal marijuana.  Given Florida’s relatively conservative jurisprudence, it seems likely that Florida courts will likely adopt a similar interpretation.

Moreover, Amendment 2 further provides that “[n]othing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana.” This language would support an employer’s denial of any accommodation for off-site use of medical marijuana by an employee required to operate vehicles or heavy machinery.

What developments in the law do Florida employers need to look out for?

The Florida Department of Health has been tasked with promulgating final administrative rules for Amendment 2 by July 2017. The Florida Legislature is also moving forward with bills delineating a regulatory scheme for Amendment 2 in this legislative session. These rules and laws, when enacted, may offer employers further guidance.

Florida employers seeking assistance in the development of ADA policies in light of the passing of Amendment 2 or those with accommodation questions should contact attorneys in FMG’s Tampa office.

Seventh Circuit Holds Title VII Prohibits Sexual Orientation Discrimination, Creates Circuit Split

Posted on: April 5th, 2017

By: Timothy J. Holdsworth

The Seventh Circuit Court of Appeals held that sexual orientation discrimination is sex discrimination under Title VII.  Other circuits to address this issue, including the Eleventh Circuit (which we previously discussed), have held otherwise.

In Hively v. Indiana Tech, an adjunct professor sued her employer for sexual orientation discrimination for failing to promote her to a full-time position and not renewing her part-time contract. Her claim was dismissed at the trial court and then on appeal to a three-judge panel of the Seventh Circuit on the basis that sexual orientation is not a protected class under Title VII. A majority of judges on the Seventh Circuit voted for the full Seventh Circuit to rehear the case (referred to as a rehearing en banc), leading to the opinion that sex discrimination includes discrimination based on sexual orientation.

This newly-created split among circuits could, and probably will, lead to the Supreme Court weighing in on this hotly-debated subject. In fact, the plaintiff in the Eleventh Circuit opinion of Evans v. Georgia Regional Hosp. et al., ruling that there is no Title VII protection for sexual orientation discrimination, has recently requested that the Eleventh Circuit rehear the case en banc.

For the time being, however, employees in Illinois, Indiana, and Wisconsin (states within the Seventh Circuit) can now bring a cause of action for sexual orientation discrimination under Title VII. Employers operating in these states should re-examine their handbooks, procedures, and policies to ensure that sexual orientation is included in, and treated the same as, other protected classes under Title VII.

For more information, please contact Tim Holdsworth at [email protected].