Levy Employment Law Blog

16

May, 2022

WHD Guidance Highlights Retaliation Protections and Enforcement

By Tracey I. Levy

Retaliation is a thorny problem.  There are a multitude of laws at the federal, state and local level that are intended to protect employees’ rights in the workplace.  But those protections amount to little if employees are unable to assert those rights without jeopardizing their standing with their employer or suffering other adverse consequences.  As a result, virtually every law granting employees legal protections in the workplace additionally prohibits employers (and sometimes others) from retaliating against employees who assert their legal rights.

Broader Standards and Greater Publicity Warrant Education

Early in my legal career, before the internet was widely known and used, the conventional wisdom was that we educated supervisors and managers on their obligation not to retaliate, specifically in response to complaints of harassment or discrimination, but in training sessions attended by the rest of the workforce, we did not talk too much about retaliation.  We did not want to give anyone any ideas on how to file a legal claim.  A seminal U.S. Supreme Court decision in 2007, Burlington Northern Santa Fe Railroad Co. v. White, adopted a broad definition of retaliatory behavior under Title VII, and the conventional wisdom changed as the floodgates started to open.  Last year, nearly 56 percent of all charges filed with the Equal Employment Opportunity Commission included a retaliation claim, whereas less than 30 percent of the charges filed before the Burlington Northern case had included such a claim.  Under the Burlington Northern decision, even conduct by coworkers, whether on or off the job, can give rise to a retaliation claim.  The only way to address that liability risk is by educating everyone in the workplace with regard to the prohibition against retaliation – what retaliation looks like, and what is expected of employees to prevent it.

This year, the U.S. Department of Labor (DOL) seems to have placed renewed emphasis on the subject of retaliation.  The Wage and Hour Division (WHD) issued a Field Assistance Bulletin, “Protecting Workers from Retaliation,” and a powerpoint presentation, “Unlawful Retaliation Under the Laws Enforced by the Wage and Hour Division” that clearly outline the numerous laws enforced by the Wage and Hour Division, the retaliation prohibitions contained in each of those laws, examples of the types of behavior that are considered retaliatory, and the remedial actions that the DOL will take in those situations.  The WHD has also launched a new antiretaliation website, dedicated to educating employees on what constitutes retaliation and how to contact the WHD for help.  These resources serve as a clear reminder to employees and employers of the breadth of the WHD’s enforcement powers and interests.

Just an Inference

It only takes an inference of retaliation for an employee to raise a claim that falls within the Wage and Hour Division’s remit, and that inference can be made whenever three elements come together.  First, the employee engages in protected activity by:

  • raising a concern about a possible violation of legal rights
    • related to wages and reasonable break time under the Fair Labor Standards Act (FLSA),
    • job-protected time off under the Family and Medical Leave Act (FMLA),
    • immigration status under the H-2A or H-2B Visa programs,
    • worker treatment under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), or
    • rights as an employee of a federal contractor under the Executive Orders establishing and increasing the minimum wage (E.O. 13658 and E.O. 14026), or mandating paid sick leave (E.O.13706);
  • asserting rights under the labor laws, such as by requesting time off under the FMLA, questioning an employer about wages withheld, or objecting to kickbacks of wages; or
  • participating in the investigation of a complaint, whether by consulting with the DOL or cooperating in an investigation.

Second, the employee experiences anything by way of “adverse action,” including not just disciplinary action, termination, reduced work hours or pay, or shift changes, but also less favorable working conditions, threats or blacklisting by other employees.  Third, there is a causal connection between the protected activity and the adverse action, which can be established by direct references or simply by close timing between the first two elements.

Learning from Real World Examples

The WHD’s guidance includes real examples, some of which describe pretty egregious behavior on the part of employers, and some that warrant further reflection.  One example references a new mother who took longer than her allotted lunch break to pump breastmilk.  Her boss told her she could not use her meal break for “personal stuff,” and when she asked if she had a right to take another break for pumping later in the day, her boss sent her home for the rest of her shift without pay.

The WHD found the boss retaliated against the new mother in violation of the FLSA, which grants nursing mothers a legal right to take reasonable break time to express breast milk.  Without the legal protection for nursing, however, at least in a non-union environment a manager might classify the same behavior as tardiness followed by insubordination.  A manager would typically have lawful, discretionary authority to send the employee home for the day for that type of behavior.

Employers can learn from the WHD’s example.  It is not clear if the manager knew that the employee’s break time requests, when used for expressing breastmilk, fell within a legally protected category.  Make sure your managers do.  Managers need to be trained as to the scope of legal protections provided under wage and hour and other labor laws.  They need not be expert on all the intricacies of these laws but should have sufficient familiarity with their scope so as to know when to ask a question or get advice – before taking actions that may later be found retaliatory.

Monitor for the Subtler Behaviors

It can be hard to separate our feelings and emotions from the objective requirements of the anti-retaliation provisions.  If a manager, supervisor or even coworkers feel that an asserted complaint is exaggerated or unjustified, there may be an inclination to treat the complainant less favorably, criticize the complainant for having raised the complaint, or avoid the complainant altogether.  These very human responses fall within the range of subtler forms of retaliation.

Employers can rely on their systems and processes to monitor for (and thereby prevent) retaliatory changes in pay, disciplinary action, transfers, or outright termination.  But behaviors like less favorable working conditions, threats or blacklisting by other employees are more subtle, and cannot be monitored in the same fashion.  Rather, addressing these behaviors requires education and a shared sense of responsibility, building an organizational culture in which such forms of retaliation will be recognized, called out for what they are or appear to be, and promptly addressed.  There are no quick or easy fixes to establish that type of organizational culture, which is what makes retaliation such a thorny problem.  But employers that do not make the effort risk facing the full panoply of remedies that the WHD has so cogently outlined in its antiretaliation guidance.

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9

May, 2022

Consider Transparency of Outcomes from Workplace Investigations

By Tracey I. Levy

What if we were less secretive about outcomes in our workplace investigations?

Conventional wisdom, and the cautionary note I most commonly provide when conducting harassment prevention training for organizations, is that the organization will not share specifics about whether and what remedial actions are being taken following a workplace investigation of concerns of harassment, discrimination, retaliation or other inappropriate workplace behaviors.  We explain that this is out of respect for the respondent and consistent with disciplinary process.  Just as I would not tell employee A that employee B was being written up for excessive lateness, I will not tell a complainant that a respondent has been written up, denied a promotion, had their bonus cut, or all of the above based on a violation of the organization’s policies.

But does that approach still make sense?  What do we sacrifice in the process?  Post #MeToo/Black Lives Matter, this may be the time for organizations to consider doing things differently.

Demonstrating Accountability

Earlier in my career, when I was conducting investigations in-house as an employee relations specialist, my colleagues and I would periodically vent to one another about the “bad rap” that our team and the human resources function more generally had when it came to addressing employee concerns.  We often took responsive actions following workplace investigations, with a host of wide-ranging consequences for respondents. We felt we were acting appropriately to achieve the primary objective — getting the behavior to stop, and deterring that individual from doing it again.  But because we were silent about what actions were taken, complainants assumed we had done little more than pay lip service to their complaints.  We were powerless to correct employees’ misimpression, because we were adhering to the conventional wisdom of respecting the respondent’s privacy.  I used to rationalize that it only was HR’s reputation that suffered from this process. I now think the harm is broader.

Accountability is a key component of any initiative to create a more respectful workplace, one that does not tolerate harassment, discrimination or retaliation. The EEOC made that clear in its seminal 2016 report on workplace training and effective prevention of harassing behavior. On a fundamental level, organizations usually do hold employees personally accountable for their inappropriate workplace behaviors, at least following a workplace complaint and investigation. If no one is told details of the outcome, however, then the organization’s responsive actions at best serve the limited purpose of deterring that particular individual from engaging in further inappropriate conduct. There can be no broader deterrent effect absent some transparency.

Alternative Approaches

One option is for organizations periodically to provide their workforce with aggregate data on the responsive actions taken following workplace investigations.  That serves the beneficial purpose of disclosing the range of actions taken, and how frequently they occur.  The downside is that the data may not mean much without additionally disclosing how many claims were substantiated, and the types of behaviors that were found to have occurred.  Each disclosure runs the risk of raising more questions than it answers.  Particularly if the number of claims found unsubstantiated is not considered sufficiently “high” from the employees’ perspective, organizations may find the aggregate reporting is too generalized to present the desired message of a responsive leadership team.

So how about full transparency — informing the complainant in an individual investigation of the responsive action being taken by the organization, including possible disciplinary action of the respondent.  Clearly there are downsides to this approach in that it tarnishes the reputation of the respondent and may add fodder to the gossip mill, thereby making it harder for the respondent to move forward.  But there are upsides as well, in that the complainant receives specific information about how the organization has responded, and is not left to wonder or doubt the sincerity of the organization’s approach.  Also, as employees learn that responsive actions are no longer being kept confidential, the deterrent effect may be enhanced — individuals may think twice about their behavior if they know that their actions will have public consequences.

Take Time to Evaluate Options

Each alternative presents challenges and concerns, and there is no single “right” answer.  But most organizations default to keeping responsive actions confidential, without even entertaining the possibility of an alternative approach.  I invite you to consider something different, weigh the upsides and downsides of greater transparency, and do not fall into the trap of maintaining the status quo simply for the sake of being consistent with past practice.

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27

April, 2022

Maine as National Example Disappoints Employers with Newest Law on Paid Time Off

By Tracey I. Levy

A plethora of paid leave laws currently plague multi-jurisdiction employers and they seem to multiply with each passing year. The concept of paid sick leave, which originated in San Francisco in 2007, has spread to 16 states and at least 25 localities across the country.

Sick Leave Isn’t Just for Being Sick, And Other Complications

“Sick” leave as defined by many of these laws is a far cry from typical employer policies in that usage often extends beyond an employee’s own illness and injury to include:

  • routine well visits for medical care;
  • care of an employee’s family member (in the broadest sense);
  • “safe” time for victims of domestic violence, sexual assault or similar crimes; and
  • coverage when a school, childcare center or place of employment is closed due to a public health emergency.

Particularly challenging for employers are the differences between the laws, in terms of leave time granted, permitted uses, accruals, carryover and requisite notice. So while the laws consistently state that an employer can maintain its own sick leave policy provided it meets all the elements of the legally-mandated sick leave, the varying requirements collectively make it nearly impossible to have one fully-compliant one-size-fits-all policy.

Maine Approached It Differently

Enter Maine with its paid personal leave law. It was refreshing in its simplicity.  Rather than adding an ever more expansive list of reasons why employees could use paid leave, the Maine law says the reason is irrelevant.  If you have more than 10 employees, full-time, part-time or otherwise, then you must provide them with up to 40 hours of paid leave, per year, for any purpose, provided they give reasonable notice. While there surely are employers of that size who do not already provide 5 days of paid time off per year, a great many provide that much or more. For those with existing paid time off policies, tailoring those policies to comply with the new Maine law should be relatively easy.

The only element of the law that deviates from typical employer practice (but aligns with most of the paid sick leave laws), is that employees need to be able to carryover up to 40 hours of accrued, unused paid leave from one calendar year to the next. When not subject to legal mandates, private sector employers typically restrict carryover of paid time off to a fixed number of days and require that the carryover days be used within a duration of three to six months into the new year. Employers may incur a cost when carryover is mandated, in that accrued days may need to be reflected as a pending liability in their business records.  Employers are therefore disinclined to allow too much in the way of carryover. While the Maine carryover mandate may require employers to modify their vacation or other paid time off policies, overall the law is simpler than the approach taken in other states and localities.

And Then Maine Complicated Things

But now, things have changed a bit.  Maine’s governor just signed a new law, which takes effect January 1, 2023, that amends the state’s wage statute to require employers to pay out employees for accrued, unused vacation upon termination.  Other states, like Massachusetts, Rhode Island and Illinois, have similar legal requirements, which thereby discourage employers from granting vacation time in a lump sum at the outset of the year, and deny employees the flexibility that comes with front-loaded vacation time.

Lesson for Legislators

Adopting ever more prescriptive paid time off laws sows confusion and impedes uniformity in approach for multi-jurisdiction employers.  As Maine demonstrated with its 2021 paid personal leave law, states can achieve the overarching goal of granting employees the assurance of paid days off to manage their personal lives, while minimizing the strictures that impede employers’ ability to draft consistent policies and manage their workforce.

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4

April, 2022

NYC Wage Transparency Law Has Its Limits Under NYC Guidance

By Tracey I. Levy

New guidance issued by the New York City Commission of Human Rights expounds on both the breadth, and the limitations, of the city’s new wage transparency law.  The law, which we discussed in our prior blog article, requires employers posting for a position in New York City to state in their job posting the minimum and maximum salary for the position.  This requirement is currently scheduled to take effect May 15, 2022, but there is a pending legislative proposal under consideration in the City Council to delay the effective date.

Breadth in Applicability

The wage transparency law covers employers with four or more employees or one domestic worker.  When counting “employees,” business owners, employees, interns and independent contractors must all be considered, as long as at least one of them works in New York City.  Employment agencies are also covered.  There is an exception for temp firms seeking applicants to join their pool of available workers, but the law provides that the employers who work with those temp firms must follow the new wage transparency law.

The law also extends to every form of advertisement or job posting – whether internal or external, printed or electronic, published or circulated.  And it covers any type of job – whether a new position, a promotion or a transfer.  Employers need not advertise for a position in order to hire, but if they do post or advertise in any way then the guidance states that they must comply with the law.

Limitations in Wage Information to Be Disclosed

Significantly, though, the wage transparency law is about disclosure of base pay only.  Whether defined as an hourly wage or a fixed salary, that dollar value must be disclosed.  The guidance makes clear that employers are not required to disclose, for example, either in specific or general terms, any bonuses, commissions, tips, stock, overtime pay, or other forms of compensation that may apply to the position.  Compensation structures that will thereby experience little impact from the new law include:

  • sales jobs paying largely on a commission basis;
  • mid-level and higher positions in industries such as financial services for which the bulk of compensation is in the form of discretionary bonuses; and
  • positions at tech firms and other start-ups that offer stock option awards as a significant component of their overall compensation plan.

New York City’s new law also does not require disclosure of wage supplements, such as paid time off, or benefits, including insurance or pension plan contributions.  In this regard the law differs from its closest counterpart in Colorado, where employers are required to include in their job postings a general description of any bonuses and the nature of benefits provided.

The law further has its limitations – and the guidance is not particularly helpful – in regard to the wage range to be posted.  Where the pay is fixed, perhaps at or slightly above minimum wage, meeting this requirement is as simple as posting “$15 per hour.”  Where there is more flexibility or variability, depending on factors such as the candidate’s prior skills and experience or meeting the candidate’s stated salary expectations, New York City employers are directed to post a wage range based on the employer’s honest belief as of the time of the job posting as to the range of pay it would offer to a successful applicant.

States with similar wage transparency laws, most notably neighboring Connecticut, have defined benchmarks for employers to use in defining the wage range.  These may be an applicable pay scale, the amount budgeted for the position, or the actual range of wages for those employees currently holding comparable positions.  The New York City law, and this new guidance, are both silent on that point.  Nothing in the law or the guidance states that an employer cannot hire someone at a wage that is above or below the posted range, but there also is nothing in the law or guidance that assures an employer it can make those hiring decisions.

Employers that hire, transfer or promote candidates into roles at wage rates that fall outside the posted range must therefore be prepared to demonstrate the bona fides of their original wage range estimate, as reflected in the job posting.  These employers also should be prepared to explain why/how the wage they ultimately agreed to pay was not foreseeable at the time of the job posting.

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25

March, 2022

3 Handbook Policy Requirements that New York Employers May Overlook

By Tracey I. Levy and Alexandra Lapes

Spring cleaning is a great time for employers to revisit their employee handbook policies to confirm that they comply with current legal obligations.  In addition to updates prompted by new legislation, there are more long-standing, New York-specific requirements that we find employers may overlook.  These include specific provisions on accommodation of breastfeeding employees, protection of reproductive health decisions, and smoking prohibitions.

Policy on Lactation Accommodation

All New York State employers are required to make reasonable efforts to provide their employees with a designated room or other private, sanitary location that is not a bathroom, as well as reasonable unpaid break time, for the purposes of expressing breast milk.  New York City law requires that employers have a written policy regarding the rights of nursing mothers to express milk at work, which it distributes to all employees upon hire.  The New York State Division of Labor Standards has similarly issued guidelines that employers are expected to provide employees who are returning to work following the birth of a child with written notice, either individually or through a written handbook policy, regarding their right to break time and an appropriate location for expressing breast milk.

A declarative statement as to the availability of appropriate time and space to express breast milk, or of the employer’s support of its breast-feeding employees, may not be sufficient.  The New York City law specifies a plethora of provisions that must be in the written policy, including:

  • a statement of the employee’s right of access to an appropriate lactation room and reasonable break time to use it;
  • how to request access to the designated lactation room;
  • reference to the employer’s obligation to respond to access requests within a reasonable timeframe, not to exceed five business days;
  • a procedure to follow when two or more individuals need to use the room at the same time; and
  • assure employees that if the request poses an undue hardship, the employer will engage in a cooperative dialogue with the employee to provide a reasonable accommodation.

Reproductive Health Decisions Policy

All employers in New York State are prohibited from discrimination based on an employee’s or the employee’s dependent’s reproductive health decisions.  The law further requires that any New York employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.  This includes notice that:

  • employers are prohibited from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making;
  • employers are prohibited from discriminating or retaliating against an employee based on the employee’s or dependent’s reproductive health decision making;
  • employers are prohibited from requiring an employee to sign a waiver of the employee’s right to make reproductive health decisions; and
  • employees have the right to bring a civil action against the employer for violation of the law and available remedies.

Some employers satisfy this obligation with a separate reproductive decisions policy.  Others may choose to incorporate the requisite provisions pertaining to reproductive health decisions into existing handbook policies that prohibit discrimination and retaliation and specify employees’ legal rights and available remedies under the laws against harassment, discrimination and retaliation.

Note: a March 29, 2022 federal district court decision, CompassCare et.al v. Cuomo, has permanently enjoined enforcement of the notice requirement with regard to reproductive health decisions, on the grounds that it violates the First Amendment.

Smoking Prohibitions in the Workplace

It has been several decades since New York State, New York City, and various counties adopted laws prohibiting smoking in the workplace and other public areas, such that those restrictions are no longer novel or surprising to most workers. This cultural shift may lead employers to overlook a long-standing requirement in many of the local laws, including from Westchester County and Suffolk County, that employers adopt and maintain written policies against smoking in the workplace. New York City’s law goes a bit further in its specificity.  The New York City law requires every employer to have and distribute to all new employees when hired a written policy outlining:

  • the legal prohibitions on smoking and the use of electronic cigarettes;
  • the protection from retaliation for employees or applicants who exercise their right to a smoke-free workplace; and
  • the employer’s procedure for an employee to raise concerns in the event of perceived retaliation.

Takeaways

The passage of time can dull any employer’s recollection of when handbook policies are simply memorializing employer expectations and practices, and when those policies are driven by legal requirements.  The latter must be maintained and updated as the law changes.  Now is a great time for employers to take stock of their handbook policies, and ensure they have the requisite provisions to comply with the law.

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