Employers in Rhode Island must now reasonably accommodate pregnancy and related conditions under legislation signed by Rhode Island Governor Gina M. Raimondo. The bill requires employers to consider the needs of women with medical issues related to pregnancy or who express breast milk for a nursing child.
“As a working mother, it was important to sign this bill to show support for pregnant and nursing women in the workplace,” said Governor Raimondo at the bill-signing ceremony. “I know firsthand how important it is to work in a welcoming, professional and supportive environment when pregnant and after having a child. Having different perspectives in the workplace will foster productivity and ultimately make our economy stronger.”
The Act amends the state’s Fair Employment Practices law to require employers to reasonably accommodate an employee’s (or prospective employee’s) pregnancy, childbirth, or a related medical condition, including the need to express breast milk for a nursing child, unless the employer can demonstrate that an accommodation would impose an undue hardship. The law also prohibits an employer from requiring an employee to take leave if another reasonable accommodation can be provided for the employee’s pregnancy, childbirth, or related medical condition (including, but not limited to, lactation or the need to express breast milk for a nursing child).
“Reasonably accommodate” is defined as including, but not limited to, more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, seating, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modified work schedules.
“A good female employee does not stop being a good employee simply because she becomes pregnant or gives birth,” said Senator Gallo. “Progressive companies that acknowledge the value of all their employees will readily make these kinds of accommodations. Those employers that may not be so open-minded will, by virtue of this legislation, be required to.”
“The bill also prohibits employers from requiring an employee to take leave if another reasonable accommodation can be provided,” said Representative Maldonado. “It’s all about fairness to women. It also makes it unlawful to deny employment opportunities to an employee or prospective employee if such denial is based on the refusal of the employer to reasonably accommodate an employee’s condition related to pregnancy or childbirth.”
By Lisa Milam-Perez, J.D.
Trade groups seeking to overturn the National Labor Relations Board’s revisions to union representation election procedures are now 0-2 in court, with a federal judge in the District of Columbia upholding the controversial rule last week. The plaintiffs, the U.S. Chamber of Commerce, National Association of Manufacturers (NAM), Society for Human Resource Management (SHRM), and other organizations, failed to show that the rule contravened the National Labor Relations Act (NLRA) or the Constitution, was arbitrary and capricious and thus ran afoul of the Administrative Procedure Act (APA), or was an abuse of Board discretion, the court found. “Ultimately, the statutory and constitutional challenges do not withstand close inspection, and what is left is a significant policy disagreement with the outcome of a lengthy rulemaking process,” it wrote.
A month earlier, a federal court in Texas had rejected a similar challenge brought by Associated Builders and Contractors, concluding that the rule did not on its face violate either the NLRA or the APA. The plaintiffs argued to no avail that the newly promulgated rule impermissibly restricts employers’ ability to litigate threshold issues during a union election; invades employees’ privacy by requiring the disclosure of their personal information; or interferes with employers’ free speech rights during organizing campaigns. Moreover, the plaintiffs “point[ed] to nothing in the record which supports their conclusion that the Board intended to favor organized labor,” which the agency denies.
Working as intended. Meanwhile, the NLRB’s election rule, which took effect in April with the goal of expediting union election procedures, appears to be having its intended effect. Timothy M. McConville, who leads the labor and employment law group at Odin, Feldman & Pittleman in Reston, Virginia, blogged in June that one NLRB region (Phoenix’s Region 28) has had an average election period of 18 days since enactment. Region 22, in Newark, New Jersey, conducted one election in just 9 days after the union’s election petition was filed; Region 4 in Philadelphia conducted an election within 10 days. (Those stats were based on election data between April and early June.)
While management attorneys almost universally lament that the rule changes sharply increase the odds of a union election win, attorneys at Hunton & Williams snatched a victory for an employer under the revised rules but noted it was no easy task. “Our experience under the new rules taught us that, though elections are still winnable, there is no room for error, and there is not enough time to begin a campaign from scratch once the petition is filed,” wrote Gregory B. Robertson and Ryan A. Glasgow, who offered a play-by-play in a recent blog post.
The fight goes on. “We remain committed to fighting this battle on all fronts,” NAM Senior Vice President and General Counsel Linda Kelly said following the adverse ruling, signaling not only an imminent appeal of the decision but ongoing legislative advocacy to thwart the rule by other means. Sensing, perhaps, that the battle was heading uphill, Kelly noted that the trade group also was equipping manufacturing employers with the necessary tools to help them comply with the “onerous regulation.”
SHRM also issued a statement, calling the decision “a loss for workers everywhere” and noting that it prevents employees from having the information they need to make an informed decision about unionizing. “SHRM will continue to work with HR professionals on strategies to protect their direct and open communication with employees about the workplace.”
Congressional challenges. Undoubtedly, the industry groups will have allies in Congress. Days before the latest NLRB court win, Senator Orrin Hatch (R-Utah) and Rep. Tom Price (R-Ga) introduced bicameral legislation that would roll back the NLRB’s election rule changes. In April, Republicans floated another pair of legislative proposals hoping to undo the rule’s key provisions. That came on the heels of a rare joint resolution by Congress to invalidate the rule under the Congressional Review Act—a maneuver that President Obama blocked by way of a pocket veto. The Republicans’ tireless quest to undo the NLRB rule shows no sign of abating.
Relying in part on the U.S. Supreme Court’s recent decision in Texas Department of Housing & Community Affairs v The Inclusive Communities Project, Inc, a First Circuit panel affirmed, 2-1, a federal district court’s dismissal of the Title VII disparate impact and retaliation claims brought by a group of former Federal Emergency Management Agency (FEMA) call center employees. The employees claimed that FEMA discriminated against them on the basis of their Puerto Rican national origin by implementing a rotational staffing plan at a Puerto Rico call center and by eventually closing that facility; they also asserted that these actions constituted unlawful retaliation for protected conduct. The appellate court majority held that claims of different treatment based on location — absent a claim of intentional discrimination — do not establish liability under a safe harbor provision in Title VII at 42 U.S.C. § 2000e-2(h). Because the plaintiffs expressly disavowed any claim of intentional discrimination, their claims failed under that safe harbor provision. In addition, the majority, citing the recent High Court ruling, found that challenged actions were job-related and consistent with business necessity and that the plaintiffs failed to show there were alternatives available to FEMA that would have had less disparate impact and served FEMA’s legitimate needs. Lastly, the majority ruled both retaliation claims failed because the plaintiffs did not demonstrate that the allegedly adverse employment actions were causally related to any protected conduct (Abril-Rivera v Johnson, July 30, 2015, Lynch, S; 99 EPD ¶45,357).
Bias complaints and cost concerns. FEMA, an agency within the Department of Homeland Security (DHS), assists state and local governments in carrying out their responsibilities to alleviate the suffering and damage that result from major disasters and emergencies in part by providing federal assistance programs for public and private losses and needs sustained in disasters. To this end, FEMA has established call centers, which primarily receive calls from those affected by disasters, and National Processing Service Centers (NPSCs), which both receive calls and process claims. The plaintiffs in this action were employees of the now-closed Puerto Rico NPSC (PR-NPSC). Established in 1995 and located in San Juan, the PR-NPSC was set-up to address calls from Spanish speaking victims of Hurricane Marilyn. In 1998, it began processing claims as well as receiving calls, and became one of four full-fledged NPSCs in 2003 (the others were located Maryland, Texas, and Virginia).
In 2006, several groups of PR-NPSC employees complained to management that they were being paid less than their mainland counterparts, and eventually filed an informal complaint of discrimination in October 2006 and a formal complaint of discrimination in April 2007 with the EEO Office. In May 2007, an employee filed a class complaint with the EEO on behalf of one group of employees; that class complaint was dismissed in 2008. A June 2007 safety review revealed several fire safety issues at the facility. In May 2008, in order to make repairs necessary to address to fire safety issues, FEMA placed employees at the facility on administrative leave and continued paying them until July 18, 2008. The facility was not occupied from May 16, 2008, until mid-July 2008, when FEMA implemented the rotating staffing plan. The plan, which was implemented in light of the necessary actions needed to address the fire safety issues, as well as other cost concerns, involved having approximately 15-20 employees (out of a total of around 300) work at a time, on a rotational basis. In October 2008, the FEMA Administrator decided to close the PR-NPSC permanently, and so recommended to DHS, who agreed in on December 10, 2008. The closure of the facility and elimination of all positions at the PR-NPSC was announced on December 30, 2008.
The plaintiffs brought their lawsuit in 2009, and the district court dismissed their claims against the DHS and FEMA on summary judgment finding, in essence, that each of defendants’ challenged actions were undertaken for non-discriminatory, valid business reasons.
On appeal, the plaintiffs’ limited their focus to their disparate impact and retaliation claims arising from two actions: (1) the implementation of a rotational staffing plan during period of fire-safety related work at the facility which reduced the number of days of work for each employee, and (b) the closure of the PR-NPSC.
Disparate impact. Title VII, at 42 U.S.C. § 2000e-2(h), contains a safe harbor provision providing that different treatment in different locations is permissible absent an intent to discriminate. Specifically, the provision states:
“[n]otwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment . . . to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .”
Because the plaintiffs here did not pursue an intentional discrimination theory on appeal, and, indeed, expressly disavowed it, the safe harbor statutory provision in § 2000e-2(h) defeated both of their disparate impact claims — as to the Puerto Rico employees being rotated while the facility was repaired and as to the closing of the facility after the lease expired.
Defense not presented below. Although the First Circuit acknowledged that the defendants did not raise the safe harbor provision in the trial court or explicitly argue it on appeal, it explained that the settled law of the circuit is that “’an appellate court has discretion, in an exceptional case, to reach virgin issues’” (citing Chestnut v. City of Lowell, (1stCir, 2002)). The appeals court concluded that that this case was appropriate for the exercise of that discretion for four reasons. First, the issue was purely legal and could be resolved on the existing record. Second, the argument that it applies was highly persuasive. Third, the court’s consideration of the issue did not prejudice plaintiffs. Even if the safe harbor did not apply, plaintiffs’ claims would still fail because, as explained below, the defendants set forth legitimate business justifications for the challenged actions. Finally, the issue involves important questions about the reach of Title VII that may arise in future cases.
Legitimate business justifications. As an independent holding, even if the safe harbor provision were not applicable, the majority stated that it would still affirm the district court’s dismissal of plaintiffs’ disparate impact claims because the defendants established that there were legitimate business justification for the decisions at issue, and the plaintiffs failed to present any contrary evidence.
This holding was based on the U.S. Supreme Court’s June 25, 2015 decision in Texas Department of Housing & Community Affairs. There, the High Court upheld, 5-4, the application of disparate impact theory of discrimination under the Fair Housing Act, but imposed significant limitations on its application. Here, the First Circuit majority noted that the Court emphasized that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. It must also be limited as applied to government entities so as to avoid injecting racial considerations into every agency decision. Further, the Supreme Court stated that “[g]overnmental or private policies are not contrary to the disparate-impact requirement unless they are artificial, arbitrary, and unnecessary barriers.” Accordingly, before rejecting a business justification, a court must determine that a plaintiff has shown that there is an available alternative practice that has less disparate impact and serves the agency’s legitimate needs, the First Circuit explained. If employers’ business judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas, thereby, raising serious constitutional concerns, the appellate court observed, citing the High Court’s decision.
With regard to the rotational staffing plan, the First Circuit majority agreed with the district court’s finding that the plan served FEMA’s legitimate needs of maintaining as many employees as possible to assist in the event of a disaster while still maintaining a safe working environment.
Although the plaintiffs disagreed, the record was clear that the 2008 review revealed serious safety concerns, and FEMA’s decision to reduce staffing levels while addressing those concerns and evaluating the future of the PR-NPSC was reasonable. Indeed, once FEMA became aware of the concerns it had no choice but to address them or an entirely different sort of legal liability, otherwise, it would risk exposure to an entirely different sort of legal liability.
Regarding the closing of the center, the undisputed facts show numerous business justifications for the conclusion that the PR-NPSC should not have remained open. These justifications included:
(1) remedying the deficiencies identified in the 2008 inspection would have been very expensive;
(2) establishing and operating a new facility in Puerto Rico would have been even more expensive;
(3) even though the PR-NPSC employees took Spanish- and English language calls, the Puerto Rico facility was established specifically for bilingual services, and by 2008, the volume of Spanish-language calls had decreased; and
(4) the existing NPSC system could absorb the workload if the PR-NPSC closed.
In addition, FEMA had ample basis to close a facility that still had ongoing safety issues, was in poor condition, and lacking critical modern infrastructure, and which was no longer needed, given declining claims processing needs, rather than to pay approximately $9 million to move to a new facility or to renew the lease and renovate the facility, which was never designed for long-term FEMA use.
Pointing out that the PR-NPSC employees were required to be fully bilingual, unlike their counterparts at other centers, the plaintiff’s asserted that the defendants could have responded to the excess capacity in the NPSC system with nationwide, performance-based layoffs. However, this course of action would not have addressed FEMA’s concerns about the costs associated with maintaining the PR-NPSC facility, the court said.
Retaliation. The plaintiffs failed to make the requisite showing that the purported adverse employment actions (the decision to rotate employees while the center was under repair and the decision to close the center) were causally connected to any protected activity, much less that protected activity was a “but for” cause of the rotational staffing plan or the closing of the PR-NPSC. They identified two instances of protected activity: (1) the EEO complaints filed from October 2006 to May 2007 claiming that PR-NPSC employees were underpaid relative to their mainland counterparts, and (2) the EEO complaints filed in response to the July 2008 implementation of the rotational staffing system.
The first set of complaints was far too temporally remote from the challenged actions to support an inference of causality, the majority found. Over 14 months elapsed between the last EEO complaint regarding pay and the implementation of the rotational staffing system during repairs.
The plaintiffs argued that there is more evidence of causation than mere temporal proximity because the challenged actions were a deviation from the procedures followed within the PR NPSC and NPSC system for over ten years. Yet, the court was not convinced. There was no evidence to support the suggestion that the 2007 review was itself a mere pretext to eventually close the center. FEMA management was not aware of the safety issues until they were identified in the 2007 review, when the management began taking steps to rectify the problems.
While the first set of complaints occurred too early to ground a retaliation claim, the second set occurred too late to be causally related. The decision to close the PR-NPSC was set in motion by recommendations in May 2008, at least two months before the implementation of the rotational staffing system, the subject of the second set of complaints, the First Circuit majority pointed out, citing both U.S. Supreme Court and First Circuit precedent for the proposition that employers’ proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality. Here, without more evidence of causality there could be no rational inference that the closure of the PR-NPSC, first contemplated in May 2008, took place in retaliation for complaints filed in the wake of the July 2008 implementation of the rotational staffing plan.
Given the safety concerns at the PR-NPSC facility, the impending expiration of the facility’s lease, and the $9 million cost of establishing a new Puerto Rico facility, it decision to close the center was justified. Moreover, it was undisputed that the Puerto Rico facility was originally established specifically for bilingual services, and the need for those services had sharply diminished by 2008.
“The premise of this entire lawsuit was erroneous. Plaintiffs cannot force a government agency to keep open an unsafe facility which would have cost excessive sums to repair when there are alternate means by which the agency can accomplish its goals,” the majority wrote.
Again, the majority cited Texas Department of Housing & Community Affairs, to emphasize that “’[d]isparate-impact liability mandates the removal of artificial, arbitrary, and unnecessary barriers, not the displacement of valid governmental policies.’”
Dissent. Judge Torruella dissented, asserting that the plaintiffs raised factual issues sufficient to take the case to a jury and specifically objecting to the majority applying, on its own initiative, the safe harbor defense for the first time on appeal even though the defendants failed to present it either before the district court or the First Circuit. Concluding it was an affirmative defense (which the majority declined to rule on), Torruella maintained that not only was the majority wrong to apply this defense on its own initiative, it was also wrong to conclude as a matter of law that the safe harbor defense protects an employer’s decision to terminate employees.
According to Torruella, the plaintiffs “deserved a chance to prove that their alternatives to FEMA’s adverse actions reasonably accommodated FEMA’s business necessities — to the extent that these were valid — without having a disparate impact against them, and they should have a chance to prove that reasons to place them in a rotational staffing plan and then terminate them were pretextual.”
* Update: On November 17, 2015, the First Circuit issued a revised opinion (99 EPD ¶45,438) withdrawing its prior opinion and apparently eliminating its reliance on the safe-harbor defense. The revised opinion still affirmed dismissal of the employees’ Title VII disparate impact claims, but relied only on an independent holding cited in the prior opinion—that the employees’ disparate impact claims failed because the challenged actions were job-related and consistent with business necessity, and the plaintiffs had not shown that there were alternatives available to FEMA that would have had less of a disparate impact and served FEMA’s legitimate needs. The retaliation claims failed as well for the same reasons stated in the prior opinion.
It was October, it was Italy, on an outdoor balcony at the hotel where two U.S. executives, the chairman and vice chairman of a state airport board, were staying for a business conference, and it was time to think about dinner. Naturally, the chairman called the airport CEO’s executive assistant—back in Kentucky—to ask her to make them dinner reservations.
What’s wrong with the hotel concierge, people? Think of the problems that could have been avoided here.
Dinner reservations. His first attempt to call her personal cell phone with his did not go through, so the chairman put his cell phone back in his suit pocket. The vice chairman then successfully called her office phone from his cell phone and had her make reservations; they hung up. But unbeknownst to the chairman, his cell phone then pocket-dialed (or butt-dialed, to use the more familiar vernacular) the executive assistant’s office phone. She answered, but they did not hear her. She asked her colleague to listen as well, and within mere minutes, it was clear to the two women back in Kentucky that the board members were discussing the possibility of replacing the female CEO—the executive assistant’s boss.
Plan to discriminate? Guess what? She didn’t hang up. In fact, she listened for 91 minutes; she made extensive notes of the conversation; she even recorded part of it on another company-owned iPhone. Believing that the overheard conversation revealed a plan to unlawfully discriminate against the CEO, the executive assistant turned over her typewritten notes and an enhanced audio recording of a portion of the call to the airport board.
Reasonable expectation of privacy. When the chairman and his wife later sued, claiming the executive assistant had intentionally intercepted their oral communications in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968, the district court granted summary judgment for the executive assistant, reasoning that because he had placed the pocket-dialed call, the chairman and his wife lacked a reasonable expectation that their conversations would not be intercepted, which is a prerequisite for protection under Title III.
Intention vs. expectation. Essentially the Sixth Circuit agreed, in Huff v. Spaw, a July 2015 case, although for a different reason. The district court said the chairman would not have discussed sensitive, airport-related matters with either the vice chairman or his wife if he had known that others might be listening. But that established only that he intended his statements to be private, not that he exhibited an expectation of privacy, stressed the appeals court. Nor was the fact that he spoke on a private balcony (and later in his hotel bedroom) dispositive because he had “exposed his statements to an outsider.”
Inadvertent disclosure. And just how did he expose his statements? He placed the pocket-dialed call to the executive assistant, even though he did so inadvertently. Exposure need not be deliberate, explained the appeals court; it can be the inadvertent product of neglect, including via neglectful use of his cell phone.
Remember cordless phones? (Some of you do.) In the past, courts found plaintiffs had no reasonable expectation of privacy in their cordless-phone conversations because “cordless telephone communications are broadcast over the radio waves to all who wish to overhear,” and they knew or should have known of this risk because the owner’s manual provided an explicit warning.
This was the same thing. Here, the chairman admitted he was aware of the risk of making inadvertent pocket-dial calls; he had made them before. Plus, a number of simple and well-known measures can prevent pocket-dials from occurring, the court observed, including locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls. The chairman’s risk of pocket-dialed calls was “no different from the person who exposes in-home activities by leaving drapes open or a webcam on,” so the appeals concluded he had not exhibited an expectation of privacy.
Training opportunity? There are just so many ways this could go badly if all of us are expected to go around locking our phones before we put them aside or away—or kiss our expectations of privacy good-bye. It would be prudent, nonetheless, for corporate or employment counsel to advise their clients, especially those whose conversations wander frequently into confidential matters, that they must “take simple and well-known measures” to protect themselves from inadvertently butt-dialed calls.
Especially executives who cannot make their own dinner reservations.
What constitutes the “practice of law”? That question was at the heart of a recent Second Circuit decision involving a contract attorney’s claim that he was not exempt from the FLSA’s overtime provisions based on the work he performed for a law firm.
In Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, the Second Circuit agreed with a district court’s conclusion that state law informed the FLSA’s definition of “practice of law” but disagreed that by undertaking document review, an attorney was necessarily “practicing law” within the meaning of North Carolina law.
Exercise of legal judgment. Finding that the exercise of some legal judgment is an essential element of the practice of law and that the attorney-plaintiff alleged that he performed document review under such tight constraints that he exercised no legal judgment, the appeals court revived the attorney-plaintiff’s putative overtime class action.
Licensed to practice in California, the attorney was contracted to do temp work for the New York law firm of Skadden, Arps, Slate, Meagher & Flom for 15 months in North Carolina. He conducted document review in connection with multi-district litigation pending in Ohio. According to the attorney, his work was closely supervised and his “entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.”
The attorney was paid $25 an hour for his work and worked approximately 45 to 55 hours a week. He was paid at the same rate for any hours he worked in excess of 40 per week. He brought a putative collective action seeking damages for violation of the overtime provisions of the FLSA.
Practice of law. Moving to dismiss, the law firm argued that the attorney was exempt from the FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court agreed.
While it was undisputed that the attorney was licensed to practice law in California, the parties disputed whether the document review he allegedly performed was “engaging in the practice of law.” Like the district court, the court of appeals found that North Carolina had the strongest interest in making sure that he was fairly paid. Thus, it concluded that the district court properly applied North Carolina law.
Although North Carolina law does not clarify whether “legal services” includes the performance of document review, a North Carolina State Bar formal ethics opinion sheds light on what is meant by “legal services.” The Bar’s Ethics Committee stated that: “A lawyer may use foreign assistants for administrative support services such as document assembly, accounting, and clerical support. A lawyer may also use foreign assistants for limited legal support services such as reviewing documents; conducting due diligence; drafting contracts, pleadings, and memoranda of law; and conducting legal research. Foreign assistants may not exercise independent legal judgment in making decisions on behalf of a client.”
Document review. But the appeals court disagreed that this necessarily meant engaging in document review per se constitutes practicing law in North Carolina. While the ethics opinion did not delve into precisely what type of document review falls within the practice of law, it strongly suggested that inherent in the definition of “practice of law” in North Carolina is the exercise of at least a modicum of independent legal judgment. Many other states also consider the exercise of some legal judgment an essential element of the practice of law.
The attorney’s complaint was that he performed document review under such tight constraints that he exercised no legal judgment whatsoever, so accepting those allegations as true, the Second Circuit found the employee’s complaint adequately alleged that he failed to exercise any legal judgment in performing his duties for the law firm. Accordingly, it vacated the judgment of the district court and remanded his putative collective action.