It’s a new year and a new administration, so what better time to review and get up to speed with the changes and current developments in labor and employment law. There are many regulations from the Obama administration that were set to go into effect late last year and early this year. Many of those regulations, such as the new overtime rules and the new EEO-1 Reports, will likely not survive this administration. Also, there are new Louisiana laws that may have an effect on your current employment policies and practices. Below are a few selected areas which you should be aware of, and note how they could impact your business.
Selected Areas for Review
Section 7 of the National Labor Relations Act (“NLRA”)
The National Labor Relations Board (“NLRB”) is an independent federal agency created by Congress in 1935 to administer the NLRA. Currently, the NLRB has five members, including only one Republican. After filling his cabinet, President Trump will make two more Republican appointments. Under the Obama administration, the NLRB has issued many pro-labor decisions, and many have called it an activist board. That is expected to change with the new Republican appointments, but it may take a while to see any real change because the cases will have to go through the system of an Administrative Law Judge, the NLRB, and the Court of Appeals.
As it stands now, employers should be aware of any language in their handbooks, manuals and policies that could be considered a violation of Section 7 of the NLRA. Remember, the NLRA covers most employees in the private sector, regardless of union status. Employers have run into Section 7 violations with their social media policies, confidentiality clauses, and policies regarding the use of company logos, copyrights and trademarks.
In T-Mobile USA, Inc., 363 N.L.R.B. No. 171 (Apr. 29, 2016), T-Mobile had a provision in its employee handbook stating that “[e]mployees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.” The NLRB held that maintaining this provision violated Section 7 because employees would reasonably construe the rule to prohibit controversial or contentious communications and discussions that are protected under the Act.
Another issue to follow is the use of mandatory arbitration clauses that prohibit class claims. The NLRB has taken the position that a mandatory arbitration clause that prohibits bringing class or collective action claims violates employees’ right under Section 7, to engage in concerted activity for mutual aid or protection. In Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), cert. granted, No. 16-285, 2017 WL 125664 (Jan. 13, 2017), the court created a circuit split between the Seventh and the Fifth Circuits. The Fifth Circuit first looked at this issue in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), where it held that such a clause was enforceable under the Federal Arbitration Act. The Seventh Circuit found that “collective or class legal proceedings fit well within the ordinary understanding of ‘concerted activities.’…Collective, representative, and class legal remedies allow employees to band together and thereby equalize bargaining power.” It also rejected the argument that the Federal Arbitration Act trumps the NLRA because it found no conflict between the two. The Eighth Circuit joined the position of the Fifth Circuit, while the Ninth Circuit followed the Seventh Circuit. The Supreme Court granted cert. and will weigh in and decide this issue.
As it stands now, such agreements would be enforced in Louisiana under the Fifth Circuit’s holdings, but this may change depending on how the Supreme Court rules.
Protections for LGBTQ
Title VII does not explicitly provide that sexual orientation and gender identity are protected classes. The EEOC has issued a declaration that “[the] EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.” Some courts have ruled in accordance with this EEOC declaration, while others have not. www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
In Baldwin v. Foxx, EEOC (2015), 2015 WL 4397641, the Commission held that the Complainant’s allegations of discrimination on the basis of his sexual orientation stated a claim of discrimination on the basis of sex within the meaning of Title VII. The Seventh Circuit rejected this finding in Hively v. Ivy Tech Community College, 830 F.3d 698, reh’g en banc granted, No. 15-720, 2016 WL 6768628 (7th Cir. 2016). However, the petition for rehearing en banc was granted in October of 2016, vacating the judgment. This will be interesting to watch what happens on rehearing. Even the Seventh Circuit in Hively recognized that “it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.” It seems inevitable that this issue will make its way to the Supreme Court.
Although whether or not sexual orientation and gender identity is a protected class under Title VII remains unresolved, many Louisiana cities have local ordinances addressing this issue. New Orleans and Shreveport have local ordinances prohibiting employment discrimination based on sexual orientation and gender identity by both public and private employers. This ordinance applies to employers with eight or more employees. Baton Rouge and Jefferson Parish have policies prohibiting discrimination based on sexual orientation or gender identity against government employees. Lafayette, Monroe, and Bossier City prohibit discrimination based on sexual orientation against government employees.
Another hot topic is bathroom access for transgender individuals. Recently, the Trump administration revoked federal guidelines issued by former President Obama that allowed public school students to use restrooms and other facilities corresponding to their gender identity. The Supreme Court was scheduled to hear arguments in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), cert. granted, but remanded the case to the lower court for rehearing. At the lower court, the Fourth Circuit ruled in favor of the plaintiff. The Supreme Court is remanding the case for rehearing in light of President Trump’s recent revocation of the Obama administration’s guidelines, which were favorable for the plaintiff. This is a school case involving Title IX, but it could also have ramifications for Title VII. Likewise, this case could return to the Supreme Court.
Also of note, OSHA’s Best Practices provide that “…All Employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Several states have invoked or proposed bathroom legislation recently, but so far, Louisiana is not one of them.
La. R.S. 40:1046 allows the use of marijuana for therapeutic use. This law became effective August 1, 2016. Employers must now navigate the issue of how to treat an employee who has been prescribed marijuana for therapeutic use to treat a debilitating disease or illness. To start, employers should have some reassurance knowing that the use of marijuana is still a crime under federal law, specifically, the Controlled Substances Act, and that federal law trumps state law. Because of this, marijuana falls within the ADA’s “illegal use of drugs” exclusion, and therefore the ADA would not apply. Also, the EEOC has issued guidance that under no circumstance is there a “reasonable accommodation” for the use of marijuana www.eeoc.gov/policy/docs/accommodation.html. However, while requesting leave to use medical marijuana may not be a reasonable accommodation, an employer should tread with caution in discussions with the employee, as it could trigger an employer’s obligations under the Family and Medical Leave Act.
Regarding drug testing, the Drug Free Workplace Act and workers’ compensation laws will generally govern, and employers are mostly free to require a drug-free workplace. Again, because marijuana is an illegal drug under federal law, testing for it would not be considered a medical examination under the ADA and those restrictions and inquiries would not be applicable. There have been law firms such as odglawgroup.com that have already had phone calls from people wanting to form cases against their employers for this.
The takeaway here is that terminating an employee for his or her use of marijuana is a defensible claim, but employers should proceed with caution and go through all proper steps to ensure that all obligations owed to the employee have been provided.
Ban the Box
La. R.S. 42:1701 provides that no state employer hiring for a position may inquire, including on an initial application form, about the applicant’s criminal history until after the applicant has interviewed for the position, or if no interview is conducted, until after a conditional job offer has been extended. The law does not prohibit an employer from considering the applicant’s criminal history when making a final employment decision. “State employer” means any department, office, agency, commission, board, committee, or other organizational unit of the state. The effective date of this statute is August 1, 2016.
The Fair Labor Standards Act
On May 18, 2016, the Department of Labor issued its final ruling on the proposed overtime changes to the Fair Labor Standards Act. Under the new law, the salary threshold for white collar exempt status was raised from $455 per week to $913 per week, or from a yearly salary of $23,660 to $47,476. There were no changes to the duties test under these exemptions. These changes were supposed to go into effect on December 1, 2016.
On November 22, 2016, a federal judge in the Eastern District of Texas issued a nationwide preliminary injunction, blocking the Obama administration’s new overtime rules from going into effect. The Department of Labor appealed this decision. It is expected that once President Trump confirms his new Secretary of Labor, the government will withdraw its appeal of the permanent injunction.
New EEO-1 Report
The Standard Form 100, Employer Identification Report (EEO-1 Report) requires that employers report on the number of employees by race, ethnicity and gender for each of nine job categories. The EEO-1 Report must be filed annually, not later than September 30th. The EEO-1 Report must be filed by all private employers that are subject to Title VII and have 100 or more employees; and all Federal contractors with 50 or more employees that have either: (1) a contract, subcontract, or purchase order of $50,000 or more; or (2) serve as a depository of Government funds in any amount; or (3) is a financial institution that serves as issuing and paying agent of U.S. Savings Bonds and Savings Notes.
The Obama administration issued a new requirement for this annual report, requiring that the employer set forth all compensation levels of an employer by gender and the various minority classifications. The first report under this new rule is not due until March 31, 2018. This is one of the Obama administration regulations that is not expected to survive into this administration.
How to Keep Up? First things first, you should check your employee handbooks, manuals and policies to make sure they are up to date, and if not, edit accordingly. Not only have we seen a shift in important employment laws, but your business environment may have also changed. For example, have you recently hired more employees and now fall under one of the laws you previously did not? Or, have you incurred a reduction in force, where a certain law no longer covers your workforce, but your handbook still provides your employees with those protections? A good, well thought out employee handbook is usually an employer’s first line of defense when an employee brings claims against you. It is so important to routinely review these documents and make appropriate adjustments where needed.
Second, you should keep in constant contact with your labor and employment law attorney. It is much easier to stay ahead of any potential liability issues, instead of dealing with a problem that has been neglected. A good offense is always the best defense.
Third, while the above is illustrative of current developments, it is important to note that there will likely be many more changes to come in terms of employment laws. President Trump’s labor secretary pick, Alexander Acosta, has not yet been confirmed, but we can assume that his position on various labor and employment laws will be different from the past administration and many Obama regulations will not survive into this administration.
To conclude, I hope this helps you keep up with the current developments, and if you have any questions regarding the above, or any employment law issue, please feel free to reach out to me for advice and assistance.