Photo: Chuck Coker via Flickr (CC by ND 2.0)
Photo: Chuck Coker via Flickr (CC by ND 2.0)

Last Thursday, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in a case that asks whether employers can be required to make accommodations for employees’ off-duty use of medical marijuana.

The case was brought by a woman who suffers from Chron’s disease and who treats the condition with marijuana, as authorized by state law.  (Massachusetts voters passed an initiative in 2012 decriminalizing the possession and use of marijuana for medical purposes.  In 2016, Massachusetts voters passed a measure decriminalizing marijuana for recreational use.  Marijuana is illegal for all purposes under federal law.)  After the plaintiff accepted an entry-level job at a marketing company, she was told that she would need to take a drug test.  Continue Reading Massachusetts Supreme Judicial Court Considers Employees’ Use of Medical Marijuana

Photo: Rusty Clark via Flickr (CC by 2.0)
Photo: Rusty Clark via Flickr (CC by 2.0)

Earlier this month, the Supreme Court announced that it had decided not to hear the case of Gavin Grimm – the transgender student who sued his school district seeking access to the restroom and locker room facilities that correspond to his gender identity.  The Court’s  change in course followed the Trump Administration’s rescission of an Obama-era Department of Education policy on the issue of bathroom access.  Although Grimm’s suit involves public school students, private employers have been keeping a close eye on the case for any implications it may have on the rights of transgender employees in the workplace.  The answer to that question will have to wait. Continue Reading The Problem with Pronouns

Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)
Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)

One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections.  Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.

Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating.  They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice. Continue Reading Are Employee Absences Giving You A Headache?

Photo: Christopher T. Sununu
Photo: Christopher T. Sununu

Yesterday Governor Sununu enacted his first law allowing gun owners to carry concealed loaded guns, without a license – effective immediately.

Prior to the this law, police chiefs and local officials had discretion to decide if someone was “suitable” to carry a loaded gun concealed.  Now, if a person is not prohibited by state or federal law from possessing a gun, he or she can carry it concealed without a license.  This means that an employee, who lawfully possesses a gun, could carry it concealed in her handbag, backpack, briefcase, or jacket, for example.  Some employees may view this new law as permitting them to carry loaded concealed weapons into the workplace.  That is not true. Continue Reading Conceal and Carry: License to Be Armed at Work?

Photo: Mark Goebel via Flickr (CC by 2.0)
Photo: Mark Goebel via Flickr (CC by 2.0)

As we reported in an earlier blog post, employers have been keeping an eye on the ongoing political fights over the rights of transgender persons to use restrooms that correspond to their gender identities.

Yesterday, the Department of Justice (DOJ) and the Department of Education (DOE) issued a joint “Dear Colleague Letter” withdrawing two statements of policy and guidance issued by the Obama Administration relating to transgender students’ access to restroom and locker room facilities.  The prior guidance documents took the position that prohibitions on discrimination “on the basis of sex” under federal law governing education (Title IX), also apply to gender identity, and require schools receiving federal funds to allow transgender students to use the facilities that correspond to their gender identities.  The new letter from the Trump Administration states that the prior guidance did not contain extensive legal analysis, and did not undergo a formal public comment and review process.  The new letter from the DOJ and the DOE also notes that states and local school districts play a primary role in establishing educational policy. Continue Reading The Latest Battle in the “Bathroom Wars”

Photo: Mark Goebel via Flickr (CC by 2.0)
Photo: Mark Goebel via Flickr (CC by 2.0)

With all of the focus on the uncertainty of federal employment regulations, state legislatures have been hard at work on proposed legislation and have flown a bit under the radar. Now is a good time to take a look at some pending bills in New Hampshire which could impact workplaces.  There are a variety of important issues being discussed. Continue Reading New Hampshire Legislature Tees Up Workplace Laws for Debate

Photo: Judge Neil Gorsuch (Public Domain)
Photo: Judge Neil Gorsuch (Public Domain)

Last month, President Trump nominated Judge Neil Gorsuch from the United States Court of Appeals for the Tenth Circuit to fill the vacant seat left by the late Antonin Scalia on the United States Supreme Court.  While Judge Gorsuch’s nomination has been met with both praise and criticism from a divided electorate, it may bring good news to employers wrestling with leave requests under federal disability laws. Continue Reading Supreme Court Nominee’s Record on Disability Leave Favorable to Employers

Photo: John Hilliard via Flickr (CC by 2.0)
Photo: John Hilliard via Flickr (CC by 2.0)

The winter season presents employers with many weather related issues ranging from obligations to keep outdoor areas safe to deciding whether to close the business for all or part of the day.  Closing the business due to inclement weather raises pay issues – what pay are employees entitled to when the business closes? It depends, in part, whether the employee is considered exempt or non-exempt and whether, the employee is paid on a salary basis. Continue Reading Winter Weather and Employee Challenges – To Pay or Not to Pay?

On February 3, 2017, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it would extend the notice and comment period for its proposed enforcement guidelines on unlawful harassment under EEOC-enforced employment discrimination laws.  The extension, which provides an additional forty (40) days for public input, gives in-house counsel and human resources professionals a good opportunity to review and familiarize themselves with the standards by which the EEOC is likely to evaluate harassment-based discrimination claims.

The EEOC’s proposed guidance (“Guidance”), released on January 10, 2017, follows up on the agency’s June 2016 Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace (“June 2016 Report”).  The June 2016 Report found that discriminatory harassment remains a pervasive problem in the American workforce, amounting to almost a third of all discrimination charges the EEOC received in FY 2015.

The Guidance outlines the agency’s position, with accompanying caselaw, on the following topics related to discriminatory harassment:

  • Covered bases for discrimination. The Guidance identifies certain bases for harassment that, in the EEOC’s view, may amount to unlawful race, national origin, religious, sex, age, disability, or genetic information. Examples include black hairstyles (race discrimination), sexual orientation and/or gender identity (sex discrimination), and foreign accent or cultural diet (national origin discrimination).
  • Establishing Causation. The Guidance sets forth several examples of harassment the EEOC considers to be sufficiently “connected” to a protected classification, such as: derogatory or hostile comments regarding a protected classification, whether or not the comments are directed against a specific employee; ostensibly neutral conduct that is related to an overall pattern of class-based harassment; harassment that begins or escalates shortly after learning of the complainant’s protected status; and higher productivity standards for women as compared to similarly situated male employees.
  • “Severe” or “pervasive” harassment. In explaining when conduct is sufficiently severe and/or pervasive to amount to unlawful harassment, the Guidance identifies certain actions that could create a hostile work environment even if they occur only once: sexual assault, sexual touching of an intimate body part, physical violence or threats, use of symbols of violence or hatred, use of the “n-word” by a supervisor, use of animal imagery, and threats to deny job benefits for rejecting sexual advances.
  • Subjectively and objectively hostile work environment. In its Guidance, the EEOC agrees that a harassment plaintiff must establish that s/he actually and reasonably perceived the conduct to be severe or pervasive. The EEOC disagrees, however, with the various U.S. Circuit Courts of Appeals that have required plaintiffs to separately establish that the harassing conduct was “unwelcome.”  The Guidance also notes that the EEOC does not consider “prevailing workplace culture”—i.e., a longstanding workplace habit of engaging in relatively crude, coarse, or vulgar conduct—to excuse conduct that would otherwise amount to unlawful harassment.
  • Relatedness of the harassing conduct to the work environment. The Guidance discusses when the EEOC will find conduct that occurs outside an employee’s regular place of work, or in a non-work-related context, as contributing to a hostile work environment for which the employer may be held responsible.  Among other examples, the Guidance states the EEOC might consider conduct on a private social media platform as contributing to a hostile work environment if coworkers discussed the conduct in the workplace—even if the social media postings occurred during non-working time.
  • Supervisor/coworker liability. The Guidance reiterates the four standards of harassment liability based on the relationship of the harasser to the employer:
    • The employer’s proxy or alter ego (strict liability);
    • The employer’s supervisor who engages in a “tangible” employment action against the victim (vicarious liability);
    • The employer’s supervisor who engages in harassment but does not engage in a “tangible” employment action against the victim (vicarious liability, subject to the affirmative defense that the employer exercised reasonable care to prevent and correct harassment and the employee failed to take advantage of any preventive or corrective opportunities);
    • Non-supervisors (liability if the employer negligently failed to prevent or correct the harassment).
  • Systemic harassment and pattern-or-practice claims. The Guidance explains the theories of systematic or widespread discrimination, in which the employer subjects all employees of a protected group to the same discriminatory circumstances in the workplace as a whole.
  • Best practices to prevent harassment. The Guidance reiterates the holdings from the EEOC’s July 2016 Report, including five principles for preventing and addressing harassment: committed and engaged leadership; consistent and demonstrated accountability; strong and comprehensive harassment policies; trusted and accessible complaint procedures; and regular, interactive training tailored to the audience and the organization.

Public comments originally were due by February 9, 2017, but the EEOC has now extended the deadline until March 21, 2017.  The agency already has received approximately 70 comments from individuals and organizations.  Comments are publicly posted, and may be submitted and viewed here.

Photo: Public Domain
Photo: Public Domain

Typically with an incoming administration there is a waiting period of sorts before changes in pending and certainly existing regulations kick in.  The current administration, however, appears to be working at an accelerated pace toward upending the status quo.  So, it appears time for a quick check-in on where we are and what to expect.

On Inauguration day, White House Chief of Staff Reince Priebus Jan. 20 instructed federal agencies to freeze all pending regulations, a move that seems to include a number of labor and employment initiatives that were in the works under the Obama administration.

This type of freeze is not unusual when a new president takes office.  An action of this nature does not necessarily mean that significant changes are coming, but given candidate Trump’s campaign promise to roll back regulation on business, we can at least predict that the administration will be in no rush to move on the pending matters. Continue Reading Two Weeks Into the Trump Administration: Where are we with Labor and Employment Regulations?