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Sexual harassment is in the news again; this isn’t anything new

April 11th, 2017  |  Joy Waltemath

Since the New York Times wrote April 1 about Fox News’ reported payments of $13 million in response to women’s complaints about Bill O’Reilly’s alleged behavior, with President Donald J. Trump himself weighing in during a later New York Times interview, saying “I don’t think Bill did anything wrong,” articles about sexual harassment have become inescapable.

In fact, there hasn’t been this much news about sexual harassment since former Fox News Chairman Roger Ailes left that organization after a reported $20 million settlement of sexual harassment claims brought by its former anchor Gretchen Carlson. That was six months ago. Approximately a month later (that would be five months ago), the Donald Trump/Billy Bush recording story broke about their “extremely lewd conversation about women” that took place in 2005. Just last month we learned about the Marine Corps and a private Facebook group called Marines United where naked photos of female marines were posted without their consent. It’s not like sexual harassment is out of the news for very long.

Averaging about one article every business day. We at Employment Law Daily are not surprised. Neither, I suspect, are you. Over the past five years of reporting employment law case analyses, Employment Law Daily has reported an average of approximately 244 articles per year involving sexual harassment. That is the equivalent of almost one article for every business day we publish, and that number has been pretty steady year over year. It looks like it is on track to continue in 2017; during the first quarter we have reported 64 articles involving sexual harassment.

At the EEOC too. EEOC charge statistics for sexual harassment haven’t varied that much since 2012, although they are down some: From 7571 charges filed in 2012, dropping to 7,256 in 2013, 6,862 in 2014, 6,822 in 2015, and 6,758 in 2016. Monetary benefits obtained, according to the EEOC, for sexual harassment claims run pretty steady: $43.0M in 2012; $44.6M in 2013; big drop to $35.0M in 2014; back up to $46.0M in 2015; and dropping again to $40.7M in 2016.

So what’s the point? The point is, simply, that we have chosen to tolerate some level of sexual harassment. It has a cost, in dollars and resources expended, as well as in lives and reputations compromised, but we act as though that is an acceptable cost of doing business—a societal norm, a level of which we expect and tolerate. In contrast, consider the impact that Mothers Against Drunk Driving (MADD) has had in the modification of social norms involving intoxicated driving, moving the public perception from a characterization of “drunk driving accidents” to “crashes caused by criminal negligence,” as a 2005 article in World Psychiatry suggested.

What will it take to move the needle on sexual harassment?  Is the issue lacking a grassroots organization—say, a “Mothers Against Sexual Harassment”—to lead the charge? More of the same anti-harassment training that has been used in the past does not seem to be the answer. Reports from June 2016 posit that “the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors,” according to Chai Feldblum, EEOC commissioner and co-author of the Select Task Force on the Study of Harassment in the Workplace.

The grandparent rule. Maybe another approach is warranted. A college friend who now has a medical practice instructs his employees to treat every patient like they would want their grandparent to be treated; perhaps that is the standard we could adopt for treating others in the workplace as well.

Working Families Flexibility Act: Choice between overtime pay or unguaranteed time off

April 6th, 2017  |  Pamela Wolf

On April 5, the House Education and the Workforce Subcommittee on Workforce Protections held a hearing on what proponents say is a commonsense proposal that would help Americans better balance work, family, and personal needs. The Working Families Flexibility Act, H.R. 1180, would amend the FLSA to let private-sector employers offer workers the choice of paid time off or cash wages for overtime hours. But those who oppose the measure argue that the bill would weaken overtime rights for low-income workers who are already struggling to keep pace with the economy and offers no guarantee that the promised time off actually would be made available.

Brief tour of the bill. Under H.R. 1180, employees would have the choice of being paid time and one-half for overtime hours as required by the FLSA, or compensatory time off at the same rate. The employee would have to agree to any compensatory time-off arrangement, either via a collective bargaining agreement made on behalf of the employee, of if not represented by union, through a written or otherwise verifiable record of an agreement made before the work is performed, which is “entered into knowingly and voluntarily by such employees and not as a condition of employment.”

Use. Employees who request the use of accrued compensatory time off “shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.”

Accrual. Employees would not be permitted to agree to or receive compensatory time off unless they have worked at least 1,000 hours for the employer during 12 months of continuous employment before the date of agreement or receipt of compensatory time off. Employees would not be able to accrue more than 160 hours of compensatory time.

Unused comp time. By January 31 each year, employers would be required to pay employees monetary compensation for any unused compensatory time off for the preceding calendar year. Employers would have the option of using a 12-month period other than a calendar year, in which case payout would have to be made not later than 31 days after the end of the 12-month period. Employers would also be able to provide monetary compensation for an employee’s unused compensatory time in excess of 80 hours at any time after giving the employee 30 days’ notice.

Withdrawal. Employers also would be able to discontinue their compensatory time policy at any time upon 30 days’ notice to employees, unless a CBA provides otherwise. Employees would be able to withdraw from the agreement at any time also, but to get monetary compensation for unused compensatory time off, they would have to make a written request and the employer would have 30 days to pay.

Good or bad for workers? As is often the case, there is disagreement about whether the measure would serve the best interests of workers. Proponents pointed out that for more than 30 years, public-sector employees have been able to accrue “comp time” for working overtime hours. But outdated federal rules prevent private-sector workers from receiving the same flexibility. “This simply isn’t right, and it isn’t fair,” said Subcommittee Chairman Bradley Byrne (R-Ala.) at the hearing. “Private-sector workers should be afforded the same freedom to do what’s best for themselves and their families. For many Americans working paycheck to paycheck, earning extra overtime pay is the choice that’s best for them. But the federal government shouldn’t assume that’s the best choice for all workers.”

Subcommittee Democrats, see it differently, though, suggesting that instead of paying workers for their overtime work, H.R. 1180 would let employers pocket employees’ overtime pay in return for a vague promise that employees may be able to take compensatory time off at some point in the future.

“This bill ought to be named the Betrayal of Working Families Act because it once again violates the Trump administration’s promise to empower vulnerable Americans,” Subcommittee Ranking Member Mark Takano (D-Calif.) said in a statement. “The bill gives employers the right to deny low-income workers the overtime pay they’ve earned, while giving their employees nothing but vague promises in return. At a time when there is so much this Committee can do to support working families, it is disappointing that we are even considering legislation that would take us in the opposite direction.”

Parity and flexibility. One invited witness pointed to the parity between government workers and private employees, as well as the flexibility that H.R. 1180 would provide. “Many Wellstone employees work side-by-side with Huntsville Police Department officers, who do benefit from the option of receiving overtime pay or comp time,” said Leslie Christ, chief resource officer of an Alabama nonprofit focused on behavioral health. “It is difficult for employees to understand why the rules are different for public or governmental agencies when they work so hard for our community.”

Christ went on to explain how hard it was to inform an expectant mother that she couldn’t accrue comp time. “She incurred significant overtime and asked me if she could ‘waive’ the overtime to ‘credit’ her that time … I had to explain to her that we were unable to do so because it was against the law,” Christ said. “It was difficult conveying this message to this single mom-to-be, who felt she should be allowed the option to choose for herself whether to take the overtime pay or paid leave when her child was born.”

Crystal Frey, vice president of human resources for a Maryland real estate business, shared how comp time would help employees juggling school, family, and work. “I was recently approached by a non-exempt leasing consultant who was facing numerous life-changing events at one time, including the birth of her child, her upcoming marriage, and the completion of her college degree … If comp time had been an option available to her, I believe it would have given her even more access to paid leave.”

Urging Congress to pass the Working Families Flexibility Act, Frey said, “It is troubling that Congress has not yet extended this same benefit to hardworking private-sector employees. In the 21st century workplace, it’s time to give private-sector non-exempt employees the opportunity to choose for themselves whether to receive cash wages or paid time off for working overtime.”

Built-in protections. While opponents say the bill lacks necessary worker protections, Leonard Court, a labor attorney with years of experience, reminded members, “The bill is carefully drafted to ensure that employees retain maximum flexibility in being able to choose whether to take the comp time option, whether to continue exercising it, when they may seek a cash-out of their banked time, and to protect them from any coercion or undue influence from the employer as to whether they exercise the comp time option.”

Court added, “The Fair Labor Standards Act’s 40-hour workweek as the threshold for earning overtime compensation remains totally untouched.”

Christ explained how the bill puts workers in control. “If an employee opted to participate in a comp-time arrangement but later realized that overtime pay was a greater need, the employee would have the right to discontinue participating in the comp time program after given written notice,” Christ said.

Smoke and mirrors? Not everyone sees the bill as pro-worker. Vicki Shabo, Vice President of the National Partnership for Women and Families, testified about the legislation’s impact on workers. Speaking in opposition to H.R. 1180, Shabo said “the so-called Working Families Flexibility Act … will harm rather than help America’s working families. People today are struggling to meet their job and family obligations, to make ends meet and to save for the future. For most people, there is no “either-or choice” to be made between time and money. Both are absolutely critical to survival, security, and the pursuit of better opportunities.”

Shabo said there is no question that working people and families need updated workplace policies and higher wages, noting also that in some cities and states, successful policies are in place to offer just that. “Unfortunately, H.R. 1180 would do the opposite. This legislation is based on smoke and mirrors,” she said. “It pretends to offer the time off people need when they need it but, in fact, it offers a pay cut for workers without any attendant guarantee of time. It also sets up a dangerous, false dichotomy between time and money when, in fact, working families need both.”

“Quite simply, H.R. 1180 would be a step in the wrong direction for approximately 59 million hourly, full-time workers as well as for salaried, non-exempt workers who are eligible for overtime pay,” Shabo continued. “Instead of providing working people and their families with the time off and the financial stability they need to care for themselves and their loved ones, this ‘flexibility’ bill offers forced choices and false promises.”

Bills that would not trade pay for time off. Subcommittee Democrats noted that several concrete solutions that would strengthen wage and hour laws rather than weaken them already have been offered. For example, the Healthy Families Act, Schedules that Work Act, and the Family and Medical Insurance Leave Act would provide families with paid time off from work and fair schedules without forcing workers to forfeit overtime pay or work excessive hours to spend time with their families.

President nullifies DOL unemployment drug testing rule

April 4th, 2017  |  David Stephanides

On March 31, President Trump signed a congressional joint resolution of disapproval (H.J. Res. 42) that nullifies a Department of Labor Employment and Training Administration final rule. Seen by some as a limitation on states’ ability to require those who apply for unemployment benefits to submit to drug testing, that rule established, for state unemployment compensation program purposes, occupations that regularly conduct drug testing.

The DOL regulations, which were finalized on August 1, 2016, and effective September 30, 2016, implemented the Middle Class Tax Relief and Job Creation Act of 2012 amendments to the Social Security Act. They permit states to enact legislation that would allow state unemployment compensation agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the state law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor). States may deny UC to an applicant who tests positive for drug use under these circumstances.

Earlier, the White House had signaled its support for H.J. Res. 42, saying that the final rule it would nullify “imposes an arbitrarily narrow definition of occupations and constrains a State’s ability to conduct a drug testing program in its unemployment insurance system.”

The Department of Labor issued a statement saying “The rule contradicted clear congressional intent—it narrowly limited the circumstances under which drug testing may be carried out and constrained a state’s ability to conduct a drug testing program under the act.” Acting U.S. Secretary of Labor Ed Hugler commented that “The Department of Labor supports the president’s nullification and looks forward to examining additional flexibilities for states relative to the drug testing of persons seeking unemployment benefits.”

The 2012 law amended the Social Security Act to add a new subsection permitting states to drug test unemployment compensation applicants as a condition of eligibility and deny jobless benefits for failing the test, under two specific circumstances:

  • If they were terminated from employment with their most recent employer because of the unlawful use of a controlled substance.
  • If the only available suitable work for an individual was in an occupation that regularly conducted drug testing.

Rule 23: A primer

March 31st, 2017  |  Lisa Milam-Perez

One of the fun parts of my job is collaborating with the smart people at Jackson Lewis on its Class Action Trends Report. The newest issue has just been released. It’s a primer of sorts on Rule 23 written by lawyers in the firm’s Class Action & Complex Litigation Practice Group.

The issue takes a closer look at the fine points of Rule 23 and the procedural requirements for certifying a class, with an eye toward defeating class certification–which, as Jackson Lewis notes, “is where the most vigorous defense can reap the greatest reward.”

It’s an important time to stay abreast of Rule 23 and class action developments in general, with recent amendments to the Federal Rules of Civil Procedure, and still more revisions in store. Also, Congress has just introduced legislation that would enact even more sweeping changes–a measure that has considerable prospects for success given our Republican-controlled everything. Jackson Lewis talks about these developments, too.

Read the latest issue here: Class Action Trends Report,

Access Board issues guidance on International Symbol of Accessibility

March 28th, 2017  |  Deborah Hammonds

In response to questions that have been raised on the use of alternative symbols, the Access Board has released guidance on the International Symbol of Accessibility (ISA). For almost 50 years, the ISA has been recognized worldwide as a symbol identifying accessible elements and spaces. Some cities and states have adopted a different symbol and the guidance explains how use of a symbol other than the ISA impacts compliance with the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA).

Standards under the ADA require that the ISA label certain accessible elements, spaces, and vehicles, including parking spaces, entrances and restrooms. Similar requirements are contained in standards issued under the ABA for federally funded facilities.

“Consistency in the use of universal symbols is important, especially for persons with limited vision or cognitive disabilities,” Marsha Mazz, Director of the Access Board’s Office of Technical and Information Services, said in a March 27 statement. “In addition to the ADA and ABA Standards, many codes and regulations in the U.S. and abroad also require display of the ISA.”

While the ADA Standards do not recognize specific substitutes for the ISA, they do generally allow alternatives to prescribed requirements that provide substantially equivalent or greater accessibility and usability under a provision known as “equivalent facilitation.” However, in the event of a legal challenge, the entity pursuing an alternative has the burden of proof in demonstrating equivalent facilitation. Under the ABA Standards, use of a symbol other than the ISA requires issuance of a modification or waiver by the appropriate standard-setting agency.

The ISA bulletin is available on the Access Board’s website along with other issued guidance on the ADA Standards and the ABA Standards.