Levy Employment Law Blog - Page 2 of 20

28

March, 2023

Workplace Investigations: Anticipate Cognitive Overload

Sometimes you just need to let things gel in your mind for a while. I came to this conclusion in my investigations practice years ago, but only recently recognized it as symptomatic of a far more universal phenomenon, what mental health professionals call “cognitive overload.” Cognitive overload refers to a situation in which we are given too much information at once, or too many simultaneous tasks, resulting in not being able to perform or process the information as we would under normal circumstances.

By way of example, a friend who is an accomplished scholar attended a cross-disciplinary conference with a multitude of presentations and small group discussions. When I asked her about it as she was heading back home, she described her head as “spinning.” She needed time to reflect before she could respond. Another friend, a leader in the community, went on a whirlwind tour as a representative with other community leaders to another country, where the agenda was packed with speakers and programs over just a few days. He too needed time to process the experience before speaking eloquently of it to the community a week later.

Any time we are presented with large amounts of information we need to give ourselves the time to mentally reflect and contextualize it. That is particularly true if the information provides a different perspective or if it is laden with shifts in emotional state. Those two elements – of different perspectives and emotional shifts – often arise when conducting workplace investigations. Our goal as investigators is to gather information, in whatever manner and quantity it is presented, and it is not uncommon to experience cognitive overload.

Information Gathering Can Overwhelm

During an investigation interview, information may be presented in all different ways. Sometimes information is delivered sequentially, sometimes the recounting of events jumps between time periods, sometimes events are recalled thematically across multiple time periods, and sometimes they seem to hop around pretty randomly. In my experience, it is rare that I am presented with an account that is comprised entirely of organized, neatly-stated segments. Rather, during the interview I may need to continuously clarify points and confirm my understanding. After the interview I then need to assume responsibility for organizing the information gathered in a logical, coherent format.

Emotions are at play as well in an interview. An interviewee may be recounting a traumatic experience, responding to allegations where the interviewee feels misconstrued, or managing personal challenges that impact how the individual comes across in an interview. An investigator needs to maintain calm, but still gather relevant information. Sometimes that requires asking uncomfortable questions. Sometimes it requires providing the interviewee with time and space to respond. Staying focused can be mentally and emotionally draining for the investigator.

Allow Time to Process

While not every investigation produces cognitive overload, an investigator needs to plan for that possibility from the outset. As a rule of thumb I almost never schedule interviews of anyone else on the same day as the complainant. I need to allow myself time to absorb what has been recounted, identify all the issues being raised, and plan the next steps in my investigation, which may be quite different from what was anticipated at the outset.

Other interviews may similarly warrant strategically placed breaks. Interviewing a respondent often is also best planned for a day separate from other interviews. While it is more feasible (and at times necessary) to stack several interviews of others with relevant information in a single day, allow space and the possibility of needing to shift that schedule or follow up with an interviewee on another day. Information provided in one interview may introduce new elements to the investigation and require you to prepare questions for subsequent interviews that reflect those additional points. Or a particular interview may prove to be so draining that you are not able immediately to pivot to another one and maintain the requisite focus and composure. Spacing interviews helps avoid those challenges.

Another consideration is when to provide updates to one or more parties with an interest in the progress of the investigation. I prefer not to provide daily debriefings to a client contact as an investigation unfolds. My daily debriefing is inevitably raw, unfiltered, and at times a bit disjointed. It reflects how I received information from the interviewee but usually not how that information fits with other information I have gathered. I can provide a more concise summary of my progress, status, initial impressions and next steps if I am allowed a day to pull those details together, separate from the days spent gathering information.

Cognitive overload is almost an inevitable by-product of conducting workplace investigations. While it may not be possible to prevent its occurrence, allowing time and opportunity to mentally process information that has been gathered can dissipate the stilting or even paralyzing effect of cognitive overload.

By Tracey I. Levy

14

February, 2023

Workplace Breastfeeding Laws Offer General Consistency with Local Nuance

Breastfeeding protections have gone mainstream. Through the magic of a budget spending bill, nursing employees in workplaces throughout the country now have legal protections that will afford them break time and access to spaces outside of toilet stalls in which to express breastmilk. That is a sea change in many parts of the country, and a more modest shift for employers in the tri-state area of New York, New Jersey and Connecticut, where these protections have been afforded to varying degrees under state and local laws going back nearly a decade.

Amazingly, the new laws are fairly consistent with those already in existence, which makes compliance less burdensome for employers. The laws focus on requiring three things:

suitable space;
sufficient time; and
protected access.

Suitable Space

Make it Private

Nursing a baby often can be done discretely even in public, under cover of a light blanket, shawl or loose garment. Expressing breast milk to be stored in bottles for later use is an entirely different operation and experience, as anyone who has seen or used the various pumping apparatuses well knows. For that reason, the existing and new laws entitling employees to suitable space for expressing breast milk all prioritize that the space offer “privacy.” Often the laws clarify that means the space should be “shielded from view” and “free from intrusion.” And to dispense with the most obviously private but apparently not suitably hygienic option, the laws consistently state that the space cannot be a restroom or toilet stall.

Employers looking to achieve compliance should consider options like a private office or conference room with solid walls, blinds, or filtered glass – and a lock on the door or at least signage advising against entry while the room is in use. Even a storage closet, if appropriately cleared out, may be fit for this purpose.

Consider Proximity

While the federal law only mandates privacy, the state and local laws often also consider accessibility. New York, New Jersey, Connecticut and New York City, for example, all require that the designated space be in close proximity to the employee’s work area. This criterion serves employers’ interests, as well, in that it minimizes the time that the employee needs to spend away from the work area.

Furnish Appropriately

Some of the laws additionally require that the designated space be outfitted appropriately to its purpose. New York State and New York City require that the space be well lit and include a chair and working surface. New York City and Connecticut require access to an electrical outlet, and New York City further requires that employees have nearby access to refrigeration. New York State recognizes greater variability in work locations and therefore requires access to an outlet only if the workplace is supplied with electricity, and access to refrigeration if it is available. Connecticut also requires nearby refrigeration or an employee-provided cold storage unit. The New York state and city versions finally require access to clean running water.

Optimally, therefore, employers looking to achieve compliance should be looking to provide the following furnishings and equipment:

a chair and work surface;
ample light;
an electrical outlet; and
nearby running water and refrigeration.

Employers that incorporate those items will meet their obligations under the current jurisdictional variations in the law.

Undue Hardship Is Considered

Employers with fewer than 50 employees are exempt from the federal PUMP Act if they can demonstrate that compliance would impose an undue hardship. Comparable state and local laws similarly recognize an undue hardship exception, but employers invoking this exception should be prepared to demonstrate that they reasonably explored options for providing suitable space and were unable to do so.

Sufficient Time

Access to a suitable location would be virtually meaningless if employees could only use it on their meal break. The laws therefore additionally require employers to provide “reasonable” break time for employees to express breastmilk. The federal “PUMP Act” grants this right to break time for up to one year after the child’s birth. The New York State version extends the protection to up to three years after childbirth, while other state laws are not specific as to duration.

New York State has issued guidance that employees are entitled to break times of at least 20 minutes in duration in these circumstances, but can use more or less time as needed. The U.S. Department of Labor previously had advised that a break of 15 to 20 minutes to pump, plus some time for set up and clean-up, was most common. The DOL has removed any specific reference to duration in its most current Fact Sheet on break time for nursing employees. Employers generally are not required to pay employees for break time taken to express breast milk, provided the time is actually a break and the employee is not performing work while pumping.

Reasonableness is a Variable Threshold

“Reasonableness” is determined through the same process that employers are expected to follow for accommodating employees for other legally-protected reasons. In New York City, the process is called a “cooperative dialogue,” and the city’s phrasing is indicative of that which is expected of all employers in this context – some degree of discussion, consultation and consideration of the employee’s needs in relation to the nature, size and operations of the employer’s business.

The duration of break time needed for expressing breast milk may include factors beyond the employer’s control, such as the speed of the pump itself, as well as factors that the employer can influence. For example, employers that offer a secure location for employees to store their breast pump in close proximity to the employee’s work space and/or the designated break room can thereby reduce the time needed for set-up and cleanup.

One of my clients was frustrated that an employee was taking hour-long breaks to express breast milk. In speaking with the employee, the employer learned that each break period, the employee would leave the work area, go out to her car in the parking garage to retrieve her breast pump and walk to the designated room (waiting for elevators along the way), and then return her pump to her car before coming back to the work area. A secure storage solution was all that was needed to cut the break time in half. The more comfortable an environment the employer can provide, and the fewer obstacles an employee faces in cleaning and storing needed equipment for pumping, the less time an employee will need to be away from productive work.

Protected Access

All the laws related to nursing employees include an assurance that the break time and designated spaces are legally-protected. This means that employers cannot discriminate or retaliate against employees for requesting or using the time or facilities, or for breastfeeding in the workplace. Some of the laws, including New York State, New York City and Connecticut, additionally require that employees receive notice of their rights with regard to expressing breastmilk. In New York, the state and city laws additionally require employers to have written policies with specifically-delineated provisions.

Compliance with these varied laws is more readily achievable than, for example, many of the paid leave laws. Employers must still, however, note the variations in legal requirements and adjust their workplace practices accordingly.

By Tracey I. Levy

10

February, 2023

Pay Transparency Laws Can Help Workers, But Not in the Way Advertised

Led by the rationale proffered by legislatures in support of pay transparency laws, I have been thinking about them from the wrong perspective. Promoted as a means of closing the gender wage gap, I have been vocal in my criticisms that the laws will be of little or no effect for two key reasons. First, because they do not get to the root problems that produce most of the pay gap, as I discussed in this blog article. Second, because even where they provide useful information for negotiations, they do not overcome the tendency of certain groups to “undersell” themselves.

Reflection on their efficacy is important, because the laws are proliferating and the existing versions are already being tweaked. Less than three months after it took effect, New York City is considering amending its pay transparency law, partly to align with the New York State version of the law, and partly to capture forms of compensation beyond base salary. The city’s proposed amendments to the law will not do anything to address its deficiencies in resolving the gender pay gap.

Connecticut, on the other hand, currently has an earlier version of pay transparency, which requires employers to disclose salary ranges to job applicants during the hiring process. The state is considering amending the law to align with the approach in New York, California, and Colorado, and require that salary ranges appear in job postings. That is a distinction with a difference. Not so much for the gender pay gap problem, but relative to the new way in which I am considering the benefits of pay transparency.

Reconsider Pay Transparency as Serving a Different Beneficial Purpose

How are pay transparency laws helpful to U.S. workers? Sometimes you need to consider things from a different perspective. The aha moment for me was in the epilogue of Barbara Ehrenreich’s book, Nickel and Dimed, which I recently had the opportunity to read. Reflecting on her own experience as a journalist undercover, temporarily occupying the space of a low-wage worker, Ehrenreich observed that her coworkers in those positions had little opportunity to comparison shop for higher-paying positions.

Time is money, transportation is money, and when you have little or no money saved, you cannot afford to hop between multiple employers and interview processes. You only go to as many places as it takes to land a job, even if it is not the best job.

We Don’t Talk Much About Money

Friends and family may provide few insights into other work opportunities because, at all levels of society, most people tend not to say how much they are paid. This was illustrated last month, when The New York Times ran a Sunday feature on people’s compensation, “27 People on the Streets of New York Talk About How Much They Make.” They reported that most of the people they stopped on the streets (nearly 400 were asked) declined to speak with them on the record about how much they earned.

Similarly, from the employer’s perspective, I suspect my own approach is similar to that of most small business owners. Even this past year when I knew pay transparency laws were on the horizon I did not list pay in my job postings. In my interviews with candidates, pay is usually one of the last points covered, and only if I am asked. But why is that? I have done benchmarking and believe I am paying on the higher end for the roles I am filling. And yet I have historically hidden that fact. I could say I wanted people to work for me because they were interested in the work and not the money. While true, I am not sure that was my motive. Rather, I think I am just reticent to talk about pay, worried that my benchmarking is wrong, or that I am planning to offer too much and should pay less. I hedge as long as I can before committing to compensation to reassure myself that I am not overpaying the person or, if I am, that it is because they are a great candidate and worth the investment.

Comparison Shopping Is a Valuable Benefit

Overcoming that reticence and secrecy to allow for “comparison shopping” is how pay transparency laws can make a difference for workers. Imagine if every help wanted ad in the paper or online included a wage range. Employers would be disinclined to inflate that number, lest too many of their current employees start to question their pay, and they would not want to lowball it too much, lest they lose out on attracting the best candidates.

How valuable would it be for people who are barely getting by financially to have salary information for dozens of open jobs at their fingertips? They could quickly pinpoint the highest paying opportunities and prioritize applying for those. Would that equalize pay between men and women, or between individuals of different races? I am not sure that it would for the various reasons I have covered in prior articles. But it sure might help those at the bottom rungs of the pay scale do just a little bit better. Over time those incremental differences can mean the difference between paying for food, shelter, clothing and transportation, versus having to forego one or more basic necessities.

For low wage workers, then, there is a benefit to pay transparency laws. And for any worker the laws force disclosure of data that allows for some degree of benchmarking and comparative analysis, which can help inform wage negotiations. But at more skilled, higher-level positions, the compensation range for posted positions tends to get wider, so the comparative data is less helpful.

New York City’s Newest Contemplated Changes Will Not Help

Currently, New York City only requires employers to disclose base salary, not incentive compensation or commissions. The City Council is considering amendments to the law that would require inclusion of the job description, which would make the law consistent with New York State’s pay transparency law that takes effect in September 2023. The amendments would also require employers to describe the non-salary or non-wage compensation for the position, including bonuses, benefits, stocks, bonds, options and equity or ownership. All that additional data will make for a mighty long (and pricey) job posting for employers, and in my experience those non-wage factors can encompass so many variables that the information employers include in their postings in response to such a mandate will be of little value to applicants.

Rather than bog down employers with further mandates and clutter their job postings to such a degree that the most useful information gets lost in the fine print, local and state governments would be better served in recognizing the value of mandating pay transparency in job postings simply as to base salary. For those who lack the time and resources to interview widely or otherwise collect comparative pay data, it could be invaluable. As for solving the gender pay gap, move past the quick fix window-dressing of pay transparency. Instead, consider the societal changes needed to really make a difference.

By Tracey I. Levy

7

February, 2023

Legally-Prescribed Policy Wording Ensnares Those Striving to Be Employers of Choice

I write a lot of policies. They come with the advisory work that I do, and I also gravitate toward those types of projects. In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.

Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers. Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.

Specificity Feels Like Mandating Minutia

New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers. Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days. The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time. New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.

I draft the appropriate language, and then the conversations with my clients go something like this:

Client: Five days?!

Me: Yes, five business days.

Client: Of course we are going to be responsive. Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?

Me: I understand you will get back to people promptly, but New York City law says that language has to be there.

Client: And why do we have to spell out what happens if two people need the room at the same time? We’ll just work it out.

Me: I know you will, but again, the city requires it.

Some Provisions Are Effectively Meaningless

Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer). That conversation generally proceeds like this:

Client: What is this part about carrying over days but then not being able to use more than one year’s allotment? What is the point of that?

Me: It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.

Client: Okay, I get that. But we front-load the days at the start of each calendar year. Everyone starts with a fresh bank with no accrual time.

Me: I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days. Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.

Client: So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!

Me: Exactly.

My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.

Two Universes of Employers

New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work. Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so. Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale. The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.

The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies. Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.

As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests. They are striving for a friendly tone, not legalistic language. Increasingly they are experimenting with various versions of unlimited time off. “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.

But prescriptive policies do not easily allow for that. Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.

Considerations for Legislators and Regulators

Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire. This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.

By Tracey I. Levy

26

January, 2023

Reconsider Job Requirements to Diversify Your Talent Pool

Following established techniques and methodologies can achieve efficiencies, assure consistency and produce positive outcomes. But sometimes we need to challenge our historic approach, analyze the rationale behind certain standards and methodologies, determine whether those rationales are still viable, and make changes as appropriate. Organizations facing a talent shortage and those looking to diversify the workplace may now be at such an inflection point.

Diversity Starts with Hiring Decisions

Hiring processes and decisions are the cornerstone of any initiative to diversify a workforce. President Lyndon Johnson recognized this nearly 60 years ago when he issued Executive Order 11246, which continues to prohibit federal government contractors from discriminating in employment decisions based on certain protected characteristics and requires them to take affirmative action in their hiring and promotion decisions, to ensure the provision of equal employment opportunities. Hiring also has been the focus of more recent government initiatives to achieve equal employment opportunity, as exemplified by the launch one year ago of a “Hiring Initiative to Reimagine Equity (HIRE)” by the Equal Employment Opportunity Commission (EEOC) in partnership with the Office of Federal Contract Compliance Programs (OFCCP) as part of its Equity Action Plan to advance racial equity and support for underserved communities. If you do not bring a diverse group in the door, then there can be no diversity in any other aspect of the organization’s workforce.

Conventional Wisdom and Hiring Criteria

Educational background, training certifications and past employment history have long been our primary selection criteria when reviewing job candidates. We often use these factors as a proxy for competence or even of superior ability, presuming that:

college-level education equates to higher intellect than those with a high school diploma;
a degree from a selective college or university indicates an even higher level of intelligence and accomplishment;
courses of study and advanced degrees from universities reflect specialized knowledge, intellectual rigor and commitment;
training certificates prove interest in a particular specialty;
gaps in employment are red flags of poor past work performance or personal issues that encroach on commitment to the work; and
prior industry experience offers better training than work in other fields.

Each of these are stereotypes – categorical assumptions, based on preconceived notions. Stereotyping is a technique that we use to filter and organize the universe of data we may encounter. In the abstract stereotyping is neither good nor bad, but there are exceptions to every stereotype, and some may be flat out wrong or predicated on inappropriate, discriminatory assumptions. Relying too heavily on stereotypes in our hiring criteria and processes can lead us to overlook desirable candidates.

Ask “What If”

Sometimes particular degrees, training or experience is critical to performing a particular job. Mere interest in law or medicine, for example, or having taken some courses in those subjects, will not qualify an individual to receive certification from professional licensing boards that are necessary to practice in those fields.

Often, though, there is opportunity to explore other considerations.

What if a candidate for a sales position did not attend or complete college because that candidate needed to transition more immediately into the workplace to help support the candidate’s family? If the candidate has proven work history, should the lack of a degree be an exclusionary factor? And even if the candidate does not have proven work history, if it is an entry-level job why is a college degree required? Is there any other way in which the candidate can demonstrate ability and potential?
What if a candidate’s family is legacy at a prestigious academic institution and the candidate was accepted largely on the coattails of past relatives’ achievements? Is that candidate more qualified than someone who bootstrapped their way through a state university and graduated in the middle or upper range of the class?
What if a candidate had to step out of the workforce due to a serious health condition that a prior employer could not or would not accommodate, and which has now been fully resolved? Does a prior health issue mean the candidate can never be a productive, hardworking contributor to the workplace?
What if the candidate chose to leave the workplace for a period of time due to caregiving responsibilities? Are there any skills or values that, while perhaps uncompensated, the candidate might have gained during that period that would be relevant to the position for which the candidate has applied?
What if a candidate was fired along with most of the division in a major restructuring, and the termination coincided with a serious economic downturn? Or a former employer relocated its operations across the country and the candidate had family obligations that precluded moving with the former employer? Are either of those circumstances a negative reflection on the candidate’s skills and experience?

Many hiring managers might reconsider their preconceived assumptions in those circumstances, but if screening criteria are set too rigidly they can filter out candidates at the application stage, before they would ever have the opportunity to meet with a hiring manager.

Diversity Implications of Rigid Screening Criteria

Testimony provided at the EEOC’s HIRE roundtables reflect the implications for a diverse workforce when baseline hiring criteria are too rigid. Among those screened out of the workforce based on a period of unemployment, for example, are:

workers who were pregnant or had caregiving responsibilities at some point;
disproportionately people of color; and
older workers who may have been impacted by past layoffs.

Similarly, degree requirements or preferences based on academic institutions attended can disproportionately screen out people of color and certain socioeconomic groups.

Recognizing those outcomes, the EEOC and OFCCP are actively promoting skills-based hiring and encouraging employers to consider alternative credentials for job candidates. Last year, the state of Maryland announced that it would eliminate a four-year college degree as a job requirement for thousands of state jobs, and consider workers skilled through alternative routes, including apprenticeships and certification programs. In making the announcement, the state reported that nearly half of the workers in Maryland are skilled through these alternative measures.

Maintaining High Standards

Reconsidering historic job criteria means applying different measures of skills and credentials and recognizing certain benchmark indicators of high achievement are not necessarily a proxy for identifying superior talent. It does not mean an employer has to lower its standards.

I graduated from a regional law school, and subsequently completed an advanced law degree at an ivy league school. The institutions I attended trained me on the law from different perspectives, each of which I found to be incredibly valuable. I was no greater a scholar after graduating with my ivy league LLM than I was five years earlier when I earned my law degree. Yet even now, 23 years after earning that second degree and notwithstanding many years working in various capacities, people will call out the ivy league degree on my bio as the hallmark measure of my accomplishment. I am grateful for any doors that degree helps open, but I spent enough years having to prove myself without the stellar credential to attest that talent comes in all forms and from a variety of places. As talent pools dwindle, broadening the net to reconsider hiring criteria opens the door to more candidates and opens the potential to develop a more diverse workforce.

By Tracey I. Levy