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Archive for the ‘Employment Law Blog – GA’ Category

FMG Client Headed to Supreme Court in Landmark Title VII Case to Resolve LGBT Employment Standards

Posted on: April 23rd, 2019

The Supreme Court yesterday agreed to review two federal circuit court decisions that reached differing conclusions as to whether Title VII of the Civil Rights Act of 1964 covers sexual orientation. For approximately 40 years, the EEOC and the federal circuit courts have unanimously held that Title VII does not encompass sexual orientation. The EEOC changed its position in 2014 and determined that Title VII encompasses sexual orientation. The Seventh Circuit likewise reversed its position in 2017, and the Second Circuit changed its position in early 2018 and held in Zarda v. Altitude Express that Title VII encompasses sexual orientation. Later in 2018, the Eleventh Circuit re-affirmed circuit precedent and held in Bostock v. Clayton County that Title VII does not prohibit discrimination on the basis of sexual orientation. The Supreme Court agreed to review Bostock and Zarda and consolidated the two cases.

Freeman Mathis and Gary, LLP represents Clayton County in Bostock and will argue that Title VII does not apply to a claim of discrimination on the basis of sexual orientation.

In addition, the Supreme Court granted certiorari in the Sixth Circuit case of R.G. & G.R. Harris Funeral Homes v. EEOC. That case raises the question of whether Title VII provides protection to transgender persons. That case is similar in some regard to the Bostock and Zarda cases, however, their distinctions are evident in that the Court did not consolidate the Harris case with Bostock and Zarda.

In granting certiorari in the Harris case, the Supreme Court may revisit a concept outlined in its 1989 decision in Price Waterhouse v. Hopkins, which held that it was unlawful sex discrimination under Title VII to discriminate against employees because they do not conform to ideas of how a certain gender should behave.

These cases will be argued and decided sometime during the Court’s 2019-2020 term, which begins in October.

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

New Rule, Who Dis? DOL Proposes Changes to Joint Employment Regulations

Posted on: April 8th, 2019

By: Will Collins

On April 1, 2019, the U.S. Department of Labor (“DOL”) announced notice of proposed rulemaking, amending the DOL regulations addressing joint employers under the federal wage and hour law (i.e. the Fair Labor Standards Act (“FLSA”)) and providing guidance and clarification long sought by employers.

The proposed changes announced last week mark the first revision to the DOL’s joint employment regulations since originally promulgated in 1958.

The proposed changes, which seek to address the situation where an employee works for his or her employer and that work simultaneously benefits another person or entity, offer a Four-Part Test to determine if an organization is a joint-employer by assessing whether that organization:

  1. Hires or fires the employee;
  2. Supervises and controls the employee’s work schedule or conditions of employment;
  3. Determines the employee’s rate and method of payment; and
  4. Maintains the employee’s employment records.

The DOL’s proposed changes also makes clear that only actual actions taken, “rather than the theoretical ability to do so under a contract, are relevant to joint employer status.”

The proposed changes also clarify that certain business models (such as franchises), practices, and agreements do not make joint employment more likely.

Under the proposed changes, examples activities not indicative of joint employment include:

  • Providing a sample handbook or other forms as a part of a franchise agreement;
  • Allowing employer to operate a facility on its premises; or
  • Offering or participating in an association health or retirement plan.

And examples of agreements that do not indicate joint employment include contractual provisions requiring an employer to maintain:

  • workplace safety practices;
  • a wage floor;
  • sexual harassment policies; or
  • other measures to encourage compliance with the law or to promote desired business practice

Take Away

The proposed changes would provide welcome clarity for employers and, through its articulation of a Four-Part Test, examples of business models, practices, and agreements that do not indicate joint employment, and the list of illustrative hypotheticals addressing specific joint employment scenarios, the proposed changes would provide needed guidance and certainty to joint employment in the FLSA context.

Now subject to a 60-day public comment period, we will continue to monitor the DOL’s proposed changes to the joint employment regulations.

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

City of Cincinnati Joins Growing Number of States and Local Governments To Adopt Salary History Ban

Posted on: April 1st, 2019

By: Bill Buechner, Jr.

On March 13, 2019, the City of Cincinnati, Ohio adopted an ordinance prohibiting employers within the City of Cincinnati with 15 or more employees from inquiring about an applicant’s salary history (current or prior wage, benefits or other compensation) either on an application or during an interview. The ordinance also prohibits employers from relying on the salary history of an applicant in deciding whether to offer employment to an applicant or to determine the salary, benefits or other compensation for the applicant during the hiring process. The ordinance does not apply to any unit of local, state, or federal government except for the City of Cincinnati. The ordinance becomes effective in March 2020.

The City of Cincinnati’s adoption of its salary history ban is just the latest in an emerging trend of states and local governments prohibiting inquiries into the salary history of applicants. Since the beginning of 2019 alone, bans on inquiries into an applicant’s salary history have either been adopted or taken effect in Connecticut, Hawaii, Illinois, Michigan, the City of Atlanta and now the City of Cincinnati. A total of 11 states, Puerto Rico and 12 local governments have adopted some version of a ban on inquiries into an applicant’s salary history. Some bans apply only to city or state departments or agencies (New York, New Jersey, Illinois, Michigan, Pennsylvania, Atlanta, Chicago, Louisville, New Orleans, Kansas City and Pittsburgh), whereas other bans apply to public and private employers alike (California, Connecticut, Hawaii, Massachusetts, Oregon, Vermont, Puerto Rico, San Francisco, New York City, Philadelphia, Albany County NY, Suffolk County NY and Westchester County NY). Some bans prohibit not only inquiries into salary history, but also reliance on any salary information inadvertently obtained (including information voluntarily provided by the applicant), whereas other bans only prohibit inquiries into salary history. Some bans have been adopted via statute, ordinance or resolution, whereas other bans have been adopted via an executive order. The purpose of these bans is to eliminate the cycle of pay discrimination on the basis of sex that may be perpetuated by employers’ reliance on an applicant’s salary history either in making hiring decisions or pay decisions for new hires.

Bucking the trend outlined above, Michigan and Wisconsin passed statutes that went into effect in 2018 prohibiting local governments from adopting salary history bans. Also, a federal judge issued an injunction in 2018 enjoining enforcement of Philadelphia’s ban on inquiries into the salary history of applicants on First Amendment grounds. That decision, however, upheld Philadelphia’s prohibition against employers relying on an applicant’s salary history information in making hiring and pay decisions.

Each salary history ban has its own nuances and exceptions. Accordingly, employers with operations in a jurisdiction that has adopted a salary history ban in some form should consult with their employment counsel concerning what conduct is prohibited and modify their application, interviewing, hiring and pay practices as needed. Employers with operations in multiple jurisdictions (some of which may have a salary history ban) should consider whether it is prudent to follow one set of rules in jurisdictions that have adopted a salary history ban and another set of rules in jurisdictions that have not, or whether it makes more sense to adopt a uniform practice throughout the organization not to inquire about or rely on an applicant’s salary history in making hiring and pay decisions.

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

How Do You Like Them Apples? Eleventh Circuit Slices Up New “Comparator” Standard for Intentional Discrimination Cases

Posted on: March 26th, 2019

By: Tim Boughey

Last week, in Lewis v. City of Union City, Ga. et al., No. 15-11362 (11th Cir. March 21, 2019) (en banc), the Eleventh Circuit issued an important decision addressing the proper comparator analysis applied to circumstantial claims of intentional discrimination (whether under Title VII, Equal Protection, or Section 1981).  At the core of every discrimination case, the employee must produce evidence the employer acted with an impermissible, discriminatory motive or else suffer the dismissal of their case at summary judgment. In most discrimination cases, the employee lacks direct evidence of discrimination – such as clearly sexist, racist, or similarly discriminatory statements or actions by the employer in connection with an employment decision. Without direct evidence, the employee must instead come forth with circumstantial evidence supporting an inference of intentional discrimination. In most cases, the employee proceeds down the familiar McDonnell Douglas framework and attempts to establish that the employer treated a so-called “similarly situated” employee outside of the employee’s protected class more favorably (in lawyer speak a “comparator”).

Over the years, the Eleventh Circuit made efforts to define “similarly situated”, and by its own admission, created something of a “hash” of the concept. In some cases, the Eleventh Circuit defined “similarly situated” to mean “same or similar” and in others as “nearly identical.” In more colloquial terms, the Eleventh Circuit summarized the “similarly situated” concept as one that prevents courts from second-guessing an employer’s reasonable decisions and confusing “apples with oranges.” Faced with the issue of reconciling differing and nebulous definitions, the Eleventh Circuit did some house cleaning Thursday and held “similarly situated” means “similar in all material respects.” In addition, the Eleventh Circuit held courts must apply this standard on the front end of the McDonnell Douglas analysis (commonly referred to as the prima facie stage) before an employer must articulate its legitimate, non-discriminatory reason(s) for making an employment decision.

With the spirit of providing employers “the necessary breathing space to make business judgments,” the Eleventh Circuit provided some guide posts for assessing whether or not an alleged comparator is “similar in all material respects.” Fleshing out the concept, the Eleventh Circuit indicated that a “similarly situated” employee is someone who, when compared to the employee bringing a discrimination claim, (1) engaged in the same basic conduct (or misconduct); (2) is subjected to the same employment policy, guideline, or rule; (3) reports to the same supervisor; and (4) shares the same employment or disciplinary history. The Eleventh Circuit then applied these standards to Lewis’ claims of discrimination and found she flunked the test because the employer applied a different employment policy (implemented two years after her termination) to her two alleged comparators.

This new “similar in all material respects” standard is most important for Human Resources professionals, supervisors, and employment counsel to public and private sector employers on the front lines of cases involving disciplinary action. In this regard, employers should look to past disciplinary decisions under the same work rule and supervisor as well as disciplinary history before making the call to toss a rotten apple from its workforce.

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

EEO-1 Pay and Hours Data Requirement In Limbo

Posted on: March 21st, 2019

By: Brent Bean

Whether and when covered businesses have to comply with revised EEO-1 requirements for pay and hours worked data remains uncertain as the reporting period opens. Companies with 100 or more employees, along with federal contractors who employ 50 or more employees, are required to submit to the EEOC annual Employer Information Reports, so-called EEO-1 reports. These reports disclose information concerning the number of employees a company employs broken down by job category, race, sex, and ethnicity. In 2016 the EEOC requested approval from the Office of Management and Budget to begin collecting pay and hours worked data. The ostensible aim of these additions was to generate data from which the Commission could begin to identify pay disparities and potential discriminatory practices.

In August 2017 OMB announced a stay of these new collection requirements due to the burden imposed on businesses when weighed against the perceived utility of the data. In response, the National Women’s Law Center brought suit in the District Court for Washington, D.C., challenging the OMB’s basis for taking that action. On March 4 of this year, that court issued an opinion reinstating the pay and work hours reporting requirement, finding the OMB had acted arbitrarily and capriciously in eliminating the requirement. See National Women’s Law Center v. Office of Management and Budget, 2019 U.S. Dist. LEXIS 33828 (D.D.C. Mar. 4, 2019).

EEO-1 reports for 2018 however, are due between March 18 and May 31. Accordingly, this recent ruling and putative change in reporting requirements raise some significant concerns about the practical ability of employers to comply on such short notice. The EEOC’s portal for EEO-1 reports opened on Monday, March 18 without any reference to pay and hours worked data. The Commission stated that it is working diligently on complying with the court’s order and further information regarding pay and hours worked reporting would follow.

While it is expected that the OMB will appeal the District court’s ruling, it is not clear at all whether that appeal will cause a stay of the reporting requirement for pay and hours information for 2018.

So questions remain: will employers have to provide this information in their 2018 reports and if so, when?

At a status conference on March 19, the District Court Judge issued an order that the Commission must explain by April 3 how it will implement the March 4 Order reinstating the collection of pay data. As such, we can expect some additional information from the Commission by then, as well as perhaps a notice of appeal from OMB.

FMG will keep you updated on activity by the Commission and the Courts. But employers should prepare now with a thorough review of their pay structures in order to identify not only any disparities that may raise red flags and draw increased scrutiny, but also to understand what legitimate, non-discriminatory reasons exist for their present pay practices.

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