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

Whistling While You Work: Nurses’ Complaints about Internal Procedures Not Protected Under Georgia Whistleblower Act

Posted on: August 15th, 2017

By: Robyn M. Flegal

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In late June 2017, the Georgia Court of Appeals held that expressions of general safety concerns do not rise to the level of activity protected by Georgia’s Whistleblower Statute – no matter how well-founded or well-intended.  The court reached its conclusion after considering a retaliation action brought by two nurses who were terminated after they voiced concerns to their supervisors about the way a Georgia healthcare provider staffed its shifts (one of the nurses raised her issues after a patient attempted suicide). The hospital, however, cited failure of the nurses to perform their assigned shifts as the reason for their terminations.

Georgia’s Whistleblower Statute prohibits public employers from (1) retaliating against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency; or (2) retaliating against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.

The Court decided that the trial court properly granted summary judgment to the defendant healthcare provider because the nurses’ complaints concerned only internal operating procedures. The women’s whistleblower action failed because they were unable to demonstrate that they disclosed a violation of a law, rule, or regulation to a supervisor or objected to participating in an activity they thought violated the same.

Public employers should be well aware of Georgia’s Whistleblower Statute and what constitutes protected activity thereunder. For more information, contact Robyn Flegal at [email protected].

CALIFORNIA’S NEW REGULATIONS ON TRANSGENDER EMPLOYEE PROTECTIONS

Posted on: August 9th, 2017

By: Melissa M. Whitehead

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Effective July 1, 2017, new regulations went into place to protect transgender employees (Cal. Code Regs. §§ 11030-11034). The new regulations are intended to provide “enhanced clarity” and also lists specific types of prohibited conduct and/or protections.

New defined terms are key to the new regulations. “Gender Identity” is now defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.” (New portions underlined.) “Transitioning” is defined for the first time, as ““a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.” This process is not expressly defined, but can include anything from name or pronoun usage to undergoing hormone therapy, surgeries, or other medical procedures. Discrimination against a person who is transitioning, has transitioned, or is perceived to be transitioning, is now specifically prohibited.

Under the new regulations, employers –

  • Must use requested name/pronouns, except where legally obligated (e.g., tax documents);
  • May not ask for identification/documentation of sex, gender, gender identity, or gender expression, and cannot discriminate if a job applicant declines to designate;
  • Must permit employees to perform job/duties that correspond to the employee’s gender identity or gender expression; and
  • May not ask employees to comply with dress/grooming standards inconsistent with gender identity or expression.

Employers also must provide equal access to comparable, safe, and adequate “facilities” that correspond to the employee’s gender identity or gender expression. Here, a “facility” is more than just a bathroom, and can include locker rooms, showers, etc. An employer cannot require “proof” or documentation of any medical treatment or procedure, or any identity document, for use of a particular facility. Interestingly, the new regulations also require employers to provide “feasible alternatives” to protect the privacy interests of all employees. These can include, for example, locking toilet stalls, staggered shower schedules, shower curtains, or other methods of ensuring privacy.

One final note to employers – typically in discrimination cases, an employer has an available defense where a certain religion, age, gender, etc., is a “bona fide occupational qualification.” Examples of this defense include requiring a Church’s minister to be a particular religion or a women’s’ restroom attendant to be female. However, the new regulations specifically state that this defense will not apply to discrimination based on an individual being transgender, gender nonconforming, or where an individual’s sex assigned at birth is different from the sex required for the job.

California employers faced with implementation of these new regulations are entering uncharted territory and though the obligations and expectations of employers is now somewhat clearer, much is still left murky.  Employers with questions or issues raised by these new regulations are strongly encouraged to seek advice of experienced employment counsel.

If you have questions or would like more information, please contact Melissa Whitehead at [email protected].

 

 

2017 Florida Legislative Scorecard for Labor and Employment Laws

Posted on: August 9th, 2017

By: Melissa A. Santalone

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In its 2017 legislative session, both houses of the Florida Legislature introduced bills on a wide array of topics that, were they to become law, would affect the interests of Florida employers in numerous ways.  Over all, most employment-related bills failed, but their mere introduction should place employers on notice of changes on the horizon.  Here are the key bills that were introduced, grouped by those that passed and failed:

Passed

  • Contractors on State-Funded Projects:  Both houses introduced bills prohibiting the State, counties, and cities from mandating contractors on State-funded public works projects to provide certain benefits to their employees or pay certain wages. The House version was passed and the law went into effect July 1, 2017.
  • Medical Marijuana:  This law codified Amendment 2, which Florida voters overwhelmingly voted in favor of in the 2016 election, that legalized medical marijuana by Constitutional Amendment.  We discussed the Amendment in detail here, and the law reflects the contents of the Amendment.

Failed

  • Raising the Minimum Wage:  The Senate introduced a bill that would have slowly raised the Florida minimum wage, currently $8.10 per hour, by $1.00-1.50 per year through 2021.  The bill died in Committee.
  • Wage Discrimination: Both houses introduced bills that would have broadened protections against wage discrimination on the basis of sex or gender identity and made it easier for women to sue over being paid less than male colleagues for the same work.  Both bills died in Committee or Subcommittee.
  • LGBT Anti-Discrimination: The House introduced a bill that would have amended the Florida Civil Rights Act to prohibit discrimination based on sexual orientation and gender identity in employment, and would have made it impermissible to discriminate on these bases in other contexts such as housing.  The bill died in the Careers and Competition Subcommittee.
  • Verification of Employment Liability:  The House introduced a bill that would have required employers to use the E-Verify system to verify the legal employment eligibility of new hires and prohibited an employer from knowingly or intentionally employing unauthorized aliens, imposing fines and suspensions and losses of license to do business in Florida for violations.  The bill died in Subcommittee.
  • Gun Liability:  Both houses introduced bills that would have created a cause of action against businesses and other organizations that prohibited those with concealed-carry gun permits from bringing firearms onto their premises if the permit-holder could demonstrate he or she was injured by a person or animal on the premises and the injury could have been prevented had the permit-holder not been disarmed.  Both bills died in Committee or Subcommittee.
  • Public-Sector Unions:  Both houses introduced bills that would have automatically decertified public-sector labor unions, except those for police, firefighters, and corrections officers, if they failed to collect dues from at least 50% of the workers they represented.  Both bills died in Committee or Subcommittee.
  • Workers’ Compensation Attorney’s Fees:  Both houses introduced bills that would have capped attorney’s fees for injured workers at $150 per hour (House bill) or $250 per hour (Senate bill).  Each bill passed its respective house, but died as the houses tried to reach a compromise on the rate.

Florida employers should keep an eye out next year for many similar issues in the failed bills to be taken up again by the Legislature.  Contact Melissa A. Santalone at [email protected] if you have any questions about the current status of any Florida labor and employment law.

Many North Carolina Non-Compete Covenants Could Be in Jeopardy

Posted on: August 8th, 2017

By: Paul H. Derrick

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Automatic renewal provisions are ubiquitous in employment contracts, and many such contracts include non-compete obligations that limit the extent to which an employee can use his/her knowledge and skills on behalf of a competitor in the same industry. A decision by the North Carolina Business Court could have a profound effect on whether non-compete covenants are valid at all when an employment agreement automatically renews.

In American Air Filter Company, Inc. v. Samuel C. Price, Jr. and Camfil USA, Inc., the employee and his employer entered into an employment agreement 17 years after his employment began. The contract contained an automatic renewal provision, as well as non-compete obligations that limited the employee’s future employment for a period of time after his employment ended. Because contracts entered into after employment has already begun often require new consideration beyond continued employment (e.g., a bonus, pay increase, or promotion), the company paid the employee something of value that he was not otherwise entitled to receive. Years later, and after the employment agreement had automatically renewed several times, the employee quit and went to work for a competitor.

The former employer sued for breach of contract, claiming that the worker’s new employment with a competitor violated the non-compete covenant in the agreement. The court determined that that the employee had received sufficient consideration to make the agreement enforceable and valid at the time it was signed. However, it concluded that the agreement was no longer valid at the time the employee went to work for a competitor because the original employer had not provided additional consideration each time the contract automatically renewed in subsequent years. Because the employment agreement was not supported by additional consideration when it renewed, its non-compete covenant was invalid and the employee did not violate any legal obligation when he went to work for a competitor.

A couple points are worth noting. Although the court was applying Kentucky contract law to this particular case, the relevant laws of Kentucky and North Carolina are very similar, and there is no indication that the court would have reached a different result if it had applied North Carolina law. Also, decisions of the North Carolina Business Court are not binding on other courts unless they are affirmed by an appellate court. However, the state’s trial and appellate courts typically look to the Business Court’s decisions for guidance in cases involving restrictive covenants, so it is likely that this decision could become persuasive authority.

For now, it is safe to say that businesses in North Carolina should be aware of this substantial development if they use non-competes and other restrictive covenants in their employment agreements. At the very least, changes may be required in employment agreements that contain automatic renewal provisions so that some amount of new or additional consideration is given each time the contract renews.

If you have any questions or would like more information, please contact Paul Derrick at [email protected].

HOW FAR CAN AN EMPLOYER GO IN USING APPLICANTS’ AND EMPLOYEES’ CRIMINAL HISTORY?

Posted on: August 7th, 2017

By: Rebecca J. Smith

blogCalifornia has not banned an employer’s ability to use the criminal history of an applicant or employee in making an employment decision adverse to the individual, however additional hurdles have been put into place for employers with the implementation of regulations from the Fair Employment and Housing Council (FEHC) which became effective July 1, 2017.

Practically what does this mean for an employer? First, it means that an employer cannot use criminal records and information if such use would have an adverse impact on individuals in a legally protected class designated by the Fair Employment and Housing Act (FEHA). The regulations require employers to show that the use of the criminal history is appropriately tailored, job related and consistent with a business necessity. To do this, the employer must perform an individualized assessment of the applicant and employee, take into account the nature and gravity of the offense, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought. Even if the employer does all this the employee still may challenge the employer’s decision by demonstrating that there was a less discriminatory alternative that the employer could have used.

Additionally, under current state law there are matters which an employer may not consider:

  • An employer may not inquire into or consider any non-felony misdemeanor conviction related to marijuana possession that is more than 2 years old
  • An employer may not inquire into or consider information related to arrests, convictions or other proceedings that occurred while an applicant or employee was subject to the process and jurisdiction of the juvenile court
  • An employer may not inquire into or consider an arrest or detention that did not result in a conviction,
  • An employer may not inquire into or consider an offense which resulted in a referral to or participation in, any pretrial or post trial diversion program
  • An employer may not inquire into or consider a conviction that has been judicially dismissed or ordered sealed.

The take-away, employers with a “bright line” policy that disqualifies candidates with a criminal history or that disqualifies individuals with certain types of convictions will violate the FEHA. In light of the new regulations and the Department of Fair Employment and Housing’s (DFEH) more proactive enforcement efforts in the recent past, employers should reevaluate any practice that uses criminal history as a disqualification from employment. Employers should also keep an eye on the California Legislature as there is pending legislation to impose a state-wide ban on the review of criminal history before an offer of employment has been made.

If you have any questions or would like more information, please contact Rebecca Smith at [email protected].