Employment Law Bits

Title IX: an employment law too?

When many people think of Title IX, they believe it only applies to students who are discriminated against based on sex. However, what they don’t realize is that there is actually a much broader interpretation, protecting employees of most educational institutions as well.

Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” In the North Haven Board of Education v. Bell case, the court determined that while Title IX does not expressly include or exclude employees, therefore “it’s broad directive that ‘no person’ may be discriminated against on the basis of gender, on its face, includes employees as well as students.”

Under this law, people who are employed by institutions that receive federal funding are protected against sex discrimination. The following situations, while not complete, fall under the protection of Title IX:

• A female employee who is paid a lower salary than her male colleagues for like work
  
  
• Sexual harassment
  
  
• A male employee discriminated against based on gender non-conforming behavior
  
  
• Retaliation against a person for reporting or complaining of sexual discrimination

Title IX action is generally not the route most take when filing a complaint based on sexual discrimination, but it may provide another form of relief. If you think you have been the victim of sexual discrimination, please contact a qualified attorney to discuss your legal rights.

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Are punitive damages recoverable in a Title VII discrimination case?

Title VII of the Civil Rights Act allows some employees who have been discriminated against to recover punitive damages from the employer. An employee will be entitled to punitive damages when an employer engages in discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual. 

Compensatory damages are recoverable when the employer “intentionally discriminates” against the employee.In order to recovery punitive damages, the employee must show that the employer had an intention to break federal law.This is a difficult task for the employee because it requires admission of evidence showing that the employer in fact had knowledge of the federal law, and that he or she intentionally disregarded it.This requires the employee to get into their employer’s head.

There will be many cases where a company believes that its discrimination is lawful.For example, an employer may rely on age in making an employment decision, but not know he or she is in violation of the Age Discrimination in Employment Act of 1967. In these types of cases, employers will only be potentially subject to compensatory damages. 

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DOMA and your 401(k) or (m) safe harbor plan

How will the DOMA decision in 2013 in U.S. v. Windsor affect your 401(k) or (m) safe harbor plan? Well, the Internal Revenue Service (IRS) issued Notice 2014-37 on May 16, 2014 addressing this exact issue. In this notice, they provide the following background information:

“Notice 2014-19 provides that the deadline to adopt a plan amendment pursuant to Notice 2014-19 “is the later of (i) the otherwise applicable deadline under section 5.05 of Rev. Proc. 2007-44, or its successor, or (ii) December 31, 2014. Moreover, in the case of a governmental plan, any amendment made pursuant to this notice need not be adopted before the close of the first regular legislative session of the legislative body with the authority to amend the plan that ends after December 31, 2014.”

“Under Treasury Regulations, a 401(k) or (m) plan must be adopted before the beginning of the plan year, and must be maintained throughout a full 12-month plan year. Exceptions are granted relating to the reduction or suspension of safe harbor contributions, or in guidance of general applicability published in the Internal Revenue Bulletin.”

However, may 401(k) or (m) plans adopt a mid-year amendment pursuant to Notice 2014-19? Notice 2014-37 answers “yes.” The plan will not fail to satisfy the requirements to be a 401(k) or (m) safe harbor plan merely because the plan sponsor adopts a mid-year amendment pursuant to Notice 2014-19.

If you have any further questions regarding your 401(k) or (m) plan, please speak to an employment lawyer.

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Nepotism in the Workplace - is it discrimination?

Today many employers are lending a hand to struggling family members or friends by offering them employment opportunities. Normally nepotism (favoritism directed exclusively or mainly toward friends or relatives, regardless of merit) in the private sector is not illegal, and therefore, nobody has a cause of action against an employer for engaging in it. However, there are two circumstances in which engaging in nepotism can land an employer in trouble.

First, if an employer hires friends or relatives to the point where they fail to consider people of other races, creeds, sexes, or ages, they may be violating Title VII of the Civil Rights Act of 1964.

Secondly, if an employer creates workplace conditions that effectively force out an existing employee to make room to hire a relative, the employer may be liable, and therefore, must pay damages to the forced out employee.

These discrimination claims may arise when a private employer has six or more employees.

If you have any questions as to the legal implications of hiring a friend or relative, please contact an employment law attorney.

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Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge

Employers can be liable for discrimination under Title VII of the Civil Rights Act even if another co-worker is responsible for the discrimination. The First Circuit recently held that an employer can face liability when it terminates an employee whose job performance has been slandered by an angry co-worker’s intent on revenge. That co-worker does not have to be a supervisor of the employee.

In this case, the employer terminated an employee after receiving poor job performance reviews by that employee’s co-worker. That co-worker allegedly threatened to undercut the employee’s work and get him fired if he did not engage in a sexual relationship with her. The employer was also aware of the entire situation, and still chose to fire the employee.

The court prescribes a test with three factors to determine when an employer will face liability in this type of situation.

1. The coworker must have acted, for discriminatory reasons, with the intent to cause the plaintiff's firing. 
2. The co-worker’s actions must have been the proximate cause of the plaintiff’s firing.
3. The employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

If you are an employer and need more advice on legally terminating an employee involved with an angry revenge-seeking co-worker, please contact an employment law attorney.

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Thurdin v. SEI Boston - Pregnancy Discrimination under MERA

In Massachusetts, employers with six or more employees are prohibited from discriminating against an employee because of her pregnancy under General Laws chapter 151B. Any employee who can sue under chapter 151B must file a complaint with the Massachusetts’s Commission Against Discrimination (MCAD) within 300 days of the act that the employee is alleging is discriminatory. After 90 days, the employee can elect to remove the case from the MCAD and pursue the claim in Superior Court.

Employers with fewer than six employees can also be sued for pregnancy discrimination, but under a different law: the Massachusetts Equal Rights Act (MERA). Complainants who file under MERA are not required to file with the MCAD first, but can proceed directly to Superior Court with their claim.

Tracy Thurdin was hired in February 2005 to work for a small information technology business, SEI Boston. Two months later, she informed her employer that she was pregnant and due in June. She told her supervisor that she could perform all the essential duties of the job. The next day her supervisor told her that he was upset that she was pregnant and requested she take voluntary unpaid leave. Ms. Thurdin refused. Her supervisor went on to chastise her that is was unethical that she had not revealed her pregnancy during her interview and that it would place a burden on the company. Ms. Thurdin telephoned her attorney, a friend, and her husband saying that she believed she was being discriminated against because of her pregnancy. This conversation was overheard by another employee who repeated it to her supervisor. Her supervisor told her to leave for the day and subsequently placed Ms. Thurdin on unpaid administrative leave because of her pregnancy.

Ms. Thurdin sued SEI Boston under MERA. The Superior Court dismissed the case, finding that chapter 151B was the exclusive remedy for pregnancy related discrimination. However the Supreme Judicial Court reversed. It found that “a party aggrieved by employment discrimination based on pregnancy who is precluded from using [chapter 151B] may assert a claim under MERA.” It also found that MERA not only applied to hiring decisions, but also discrimination during the course of employment.

 

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When must employers pay for commuting time?

Time spent commuting is generally not considered “on the clock” if not specifically part of an agreement between an employer and employee.  Employers need not pay employees for the time spent getting to work, whether it is by car, foot, or public transportation.  Nor would an employer be expected to compensate an employee for the time spent getting ready for work.  This is well-established under the Fair Labor Standards Act of 1937 and the Portal-to-Portal Act of 1947.

However, there are exceptions to the general rule.  For example, when an employee is required to wear safety gear to work, and it takes an exceptionally long time to get ready every day, an hourly employee must be paid for the time spent preparing for work.

There is an exception for time spent commuting when an hourly employee performs preliminary and postliminary activities that are an “integral and indispensable” part of an employee’s “principal activity.”  Of course, it is not easy to distinguish between less significant activities and those that are “integral and indispensable.”  When an employee spends twenty to thirty minutes each day before work checking e-mail, scheduling tasks, and otherwise preparing for work, then not only does the time spent working become compensable, but also the time spent commuting after the day’s work has begun. 

However, simple tasks that an employee must perform, especially if the tasks are infrequent or do not need to be done at a specific time, probably fall into the category of less significant tasks.  This may include dropping a letter in a mailbox on the way home or sending a summary of work performed to an employer at some point between shifts.  Employees are not entitled to wages for time spent commuting before or after these minor tasks are performed. 

An employer would be wise to set policies with this in mind.  If possible, tasks should be performed within the regular workday to avoid creating a liability for time spent commuting.  Where it is important that hourly employees perform certain activities at home, before going to work or after returning at the end of the day, the employee should be paid for the time spent working at home, in addition to the time spent commuting.

 

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Employers beware potential Associational Discrimination

Associational discrimination occurs when an employer discriminates against an employee, not because of the employee’s status as a member of a protected class, but based on that employee’s association with a person of a protected class. For example, consider the case of a husband employee whose spouse is a member of a protected class. Recent case law indicates that Mass. Gen. Laws ch. 151B, bar employers from partaking in such discrimination.

In Flagg v. AliMed, Inc, the Massachusetts Supreme Judicial Court interpreted G.L. c. 151B, § 4(16) to bar an employer from discriminating against its employee based on the handicap of a person with whom the employee associates. In the case, the plaintiff worked for AliMed for over 18 years. As a result of the employment, the plaintiff received family medical benefits. In December of 2007, the plaintiff’s wife underwent expensive surgery to remove a brain tumor, and the plaintiff became responsible for his wife’s care. His obligations required him to miss up to an hour of work on certain weekdays.

In February 2008 the plaintiff was terminated from AliMed due to failure to punch out when leaving work. The plaintiff argued that he had implied permission to leave without punching-out.

The termination of the plaintiff from AliMed resulted in the immediate termination of the family’s medical insurance. The plaintiff brought action for associational discrimination, arguing he was really terminated because of his wife’s illness and the accompanying expenses to AliMed.

In analyzing the case, the court noted that while a claim for associational discrimination cannot expressly be found in the language of c. 151B, it is impliedly encompassed in the statute. However, the court drew only narrow conclusions and held that associational discrimination can be brought in cases where an employer seeks to avoid health insurance costs related to the care of an employee’s disabled family member. Associational discrimination claims beyond this situation will likely be analyzed on a case-by-case basis.

Ramifications for Employers?

The Flag case undoubtedly expands the scope of discrimination law in the Commonwealth of Massachusetts. While this case only applies to the narrow situation described above, employers should analyze all circumstances when terminating an employee. 

 

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What does the Genetic Information Nondiscrimination Act (GINA) mean to employers?

GINA was established to prevent employers from discriminating against potential employees based on the results of genetic testing. This means employers may not use the results of genetic testing to make decisions such as hiring, firing, or setting compensation. Further, employers are required to keep confidential any medical information obtained.

The legislative intent behind the law was to encourage more people to take advantage of genetic testing without the fear of being fired. Genetic testing is important because it helps individuals predict certain risks associated with diseases and may assist in preventing such diseases early.

Genetic discrimination occurs when people are treated disparately because of an individual’s predisposition to certain medical conditions.

Many states have established statues to comply with GINA. For example, Mass. Gen. Laws ch. 151B § 4, which went into effect in July of 2012, states that it is unlawful for employers to;

1. Refuse to hire or employ, represent, grant membership to, or license a person on the basis of that person's genetic information;
   
   
2. Collect, solicit or require disclosure of genetic information from any person as a condition of employment, or membership, or of obtaining a license;
   
   
3. Solicit submission to, require, or administer a genetic test to any person as a condition of employment, membership, or obtaining a license;
   
   
4. Offer a person an inducement to undergo a genetic test or otherwise disclose genetic information;
   
   
5. Question a person about their genetic information or genetic information concerning their family members, or inquire about previous genetic testing;
   
   
6. Use the results of a genetic test or other genetic information to affect the terms, conditions, compensation or privileges of a person's employment, representation, membership, or the ability to obtain a license;
   
   
7. Terminate or refuse to renew a person's employment, representation, membership, or license on the basis of a genetic test or other genetic information; or
   
   
8. Otherwise seek, receive, or maintain genetic information for non-medical purposes

Thus, employers must proceed with caution when requesting sensitive health information from potential employees. 

 

Image credit: Microsoft

Employers beware the use of broad criminal background checks

It has been just over one year since the Equal Employment Opportunity Commission (EEOC) issued revised guidance for employers using broad criminal background checks. The guidance warned against using criminal background checks to exclude applicants without establishing why a criminal record should disqualify an applicant.

The EEOC has now filed its first two lawsuits on the issue since issuing the guidance last year.

The first was filed against BMW after a policy change expanded the use of criminal record checks in hiring decision. The warehouse in South Carolina previously had a policy that excluded applicants if they had a criminal record within the past seven years. When a new contractor took over the warehouse, BMW changed the policy to exclude anyone with any criminal record at any point in time. Of the 88 workers who were fired, 70 were black.

The second case involves two prospective employees of Dollar General, both of whom are black. One applicant was offered a job after she disclosed a six year old conviction for possession of a controlled substance, only to have the offer revoked alleged because Dollar General’s policy was not to hire anyone with such a record within the past 10 years. The second applicant was fired when a criminal record check showed she had a felony conviction, even after she told Dollar General that it was a mistake.

Both of these cases highlight the importance of employers using criminal background checks carefully when making employment decisions. In order to justify the use of criminal background checks, employers should consider the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

By identifying how a specific conduct is linked to job performance, an employer can better explain why a background check is a valid element of a hiring process. It is also important to conduct an individualized assessment, allowing applicants to address their criminal record, especially inaccuracies and any reasons why the exclusion should not apply. And of course, employers must abide by the new CORI regulations.