There have been a variety of responses to the #MeToo movement since it began a little over a year ago. Employees have responded by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment.  Among other things, the data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.  In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017.  You can find more information on the EEOC’s report here.

Employers have responded to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  This year, employers will need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In this four-part series, we explore some of the more recent state law developments addressing sexual harassment in the workplace.  We will start our exploration with the State of California.

CALIFORNIA

Limitations on Settlements of Sex-Based Harassment and Discrimination Claims

On September 30, 2018, a new law was enacted that prohibits the inclusion of language in settlement agreements that prevent the disclosure of factual information related to:

  • Acts of sexual assault;
  • Acts of sexual harassment as defined under Section 51.9 if the California Civil Code;
  • Acts of workplace harassment and discrimination based on sex;
  • Failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting harassment or discrimination based on sex.

The new law applies to any settlement agreement entered into on or after January 1, 2019 settling a claim filed in a civil or administrative action. If a settlement agreement contains a provision prohibiting disclosure of the information listed above, the provision will be considered void as a matter of law and against public policy.

As a result of this new law, employers with operations in California should consider the impact on potential settlement of sex-based harassment and discrimination claims. The new prohibitions on certain confidentiality provisions of a settlement may create a greater risk for damage to the employer’s reputation even after settling a sex-based claim with an employee or former-employee.

Increased Sexual Harassment Training Requirements

Since 2005, California employers with at least 50 employees have been required to provide two hours of sexual harassment prevention training to all supervisory employees once every two years. On September 30, 2018, legislation was approved that will require California employers with at least five employees to provide sexual harassment training and education to all employees (both supervisory and non-supervisory).  This new law requires employers to provide at least two hours of sexual harassment prevention training and education to all supervisory employees and at least one hour of such training to all non-supervisory employees by January 1, 2020.  Thereafter, the training and education must be provided once every two years.

As a reminder, the sexual harassment training required since 2005, must address all of the following:

  • The definition of sexual harassment under the California Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
  • The statutes and case-law prohibiting and preventing sexual harassment;
  • The types of conduct that can be sexual harassment;
  • The remedies available for victims of sexual harassment;
  • Strategies to prevent sexual harassment;
  • Supervisors’ obligation to report harassment;
  • Practical examples of harassment;
  • The limited confidentiality of the complaint process;
  • Resources for victims of sexual harassment, including to whom they should report it;
  • How employers must correct harassing behavior;
  • What to do if a supervisor is personally accused of harassment;
  • The elements of an effective anti-harassment policy and how to use it;
  • “Abusive conduct” under California Government Code section 12950.1, subdivision (g)(2).

This training must be provided in a classroom setting, through interactive E-learning, or through a live webinar. E-learning training must provide instructions on how to contact a trainer who can answer questions within two business days. All training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Additional information on the requirements related to California’s mandatory sexual harassment training can be found here.

Stay tuned for Part 2 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement.

The Occupational Safety and Health Administration (OSHA) has rolled back Obama-era guidance on safety incentive programs and post-accident drug testing. OSHA has a rule prohibiting employer retaliation against employees for reporting work-related injuries or illness. In its latest guidance (a memorandum published October 11, 2018), OSHA clarified that workplace safety incentive programs and post-accident drug testing do not violate that anti-retaliation rule. This differs from OSHA’s approach in previous guidance, where OSHA took the position that, in some circumstances, safety incentive policies and post-accident drug and alcohol testing could be a retaliatory practice for deterring employees from reporting work-related injuries and illnesses. OSHA has changed its course, but the latest guidance is still not a model of clarity.

Specifically, OSHA most recently stated that most incentive programs and instances of workplace drug testing are permissible. However, OSHA warned that such programs can be unlawful and retaliatory if they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” The new guidance supersedes any other interpretive documents, to the extent they are inconsistent.

Safety Incentive Programs

OSHA clarified and reinforced that incentive programs can be an important tool to promote workplace safety and health. Positive programs, such as those that reward workers for reporting near-misses or hazards or encourage involvement in a safety and health management system, are always permissible, according to the memorandum.

However, the line is less clear regarding rate-based incentive programs (e.g., rewards with a prize/bonus for an injury-free month) and negative action against an employee (e.g., withholding a prize/bonus because of a reported injury). OSHA’s position is that rate-based incentive programs are permissible so long as they are not implemented in a manner that discourages reporting. OSHA claims it would not cite the employer if the employer has implemented “adequate precautions” to ensure that employees feel that they are free to report an injury or illness. The question becomes whether the employer has “adequate precautions” to counterbalance any inadvertent deterrent effect under a rate-based incentive program.

Workplace Drug Testing

OSHA has provided more definitive guidance for drug testing. The following will be deemed permissible:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

OSHA has clarified that if an employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee(s) who reported injuries.

The attorneys of the McNees Labor & Employment Group are ready to assist your Company with developing OSHA-compliant safety incentives and drug testing policies.

We have been tracking the status of the proposed changes to the white-collar overtime exemptions in the Pennsylvania Minimum Wage Act (PMWA) regulations. In January 2018, Governor Wolf announced that the Pennsylvania Department of Labor and Industry (DLI) would be proposing new regulations to amend the PMWA regulations that govern its overtime and minimum wage exemption requirements for executive, administrative, and professional salaried employees. DLI submitted a proposed rulemaking in June 2018 for new regulations.

As we outlined in a prior blog post, the DLI’s proposed regulations included both big increases to the minimum salary requirements and changes to the duties tests for the PMWA’s white-collar overtime exemptions.

After their publication on June 23, 2018, DLI accepted written public comments on the proposed regulations through August 22, 2018. Not surprisingly, public comments on the proposed regulations were mixed, with employer groups being sharply critical of the proposed changes, while employee groups generally expressed favor.

The state’s Independent Regulatory Review Commission (IRRC) is tasked with examining proposed regulations before they can take effect. On September 21, 2018, the IRRC published its comments on the proposed regulations. The IRRC concluded that DLI needed to do more to justify the proposed regulations and outlined a number of questions and concerns. The IRRC noted the large number of employees, businesses, and non-profit organizations that will be affected by the changes contained in the regulations should they take effect. The IRRC flagged the fact that the proposed salary increases would greatly exceed the national average for salary increases and the actions with undesirable consequences that employers may take in response to the changes. The IRRC also expressed concern about the effect a change to PMWA’s regulations may have in advance of possible changes to the FLSA regulations, which could create even more confusion and compliance difficulties. The IRRC concluded that, based on the explanation of the proposed regulation in its Preamble, it was unable to determine if the regulation would be in the public interest.

It is unclear at this stage what effect, if any, the IRRC’s negative comments on the proposed regulations will have on the process and any final regulations issued. Pennsylvania law directs the DLI to respond to all comments received from the IRRC and any other source, and we await DLI’s responses to the IRRC’s comments.

The ball is now in the DLI’s court to address the comments provided by the public and IRRC and to determine (1) whether to issue final regulations and, (2) if so, the contents of the final regulations.

We will continue to monitor the progress of the DLI’s efforts in this area and provide updates as warranted.

In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in.  OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018).  Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations).   Employers who are involved in such activities, or in construction work, may be affected by the silica standards.

Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs).  OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change.  For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000.  Employers in construction and, now, general industry, should heed this warning as a sign of things to come.

Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping.  The general industry standard also requires demarcation of regulated areas.  It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.

Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry.  For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply.  But the time has come for compliance, inspections, and enforcement.

Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance.  OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance.  Additional resources  added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.

Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner.  Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.

Perhaps the most significant EEO issue percolating through the federal court system right now is whether Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.  There is now disagreement among federal appellate courts on this issue and the U.S. Supreme Court will likely decide the question at some point.  In the interim, the Equal Employment Opportunity Commission has taken the position that Title VII does prohibit discrimination on the basis of sexual orientation and gender identity.  In addition, several federal courts sitting in Pennsylvania have agreed with the EEOC’s position. See EEOC v. Scott Medical Center (W.D.Pa. 2016).

Amidst all the recent focus on how federal courts are interpreting Title VII, little attention has been paid to whether the Pennsylvania Human Relations Act (PHRA) extends protection to the LGBTQ community.  In guidance issued on August 2, 2018, the Pennsylvania Human Relations Commission (PHRC) made its position on the issue clear.  The PHRC’s “Guidance on Discrimination  on the Basis of Sex Under the Pennsylvania Human Relations Act” states that the “prohibitions contained in the PHRA and related case law against discrimination on the basis of sex…prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.”  The Guidance further states that the Commission will accept sex discrimination complaints based on this expanded definition of the term.  The PHRC does not address some of the more thorny related questions, such as whether employer health plans must cover gender transition surgery as a matter of state law.

Notably, the PHRC Guidance further states that respondents (e.g. employers) who believe the PHRA violates their free exercise of religion “are free to avail themselves of the protections found within the Religious Freedom Protection Act (RFPA).”  The Guidance outlines how a respondent should go about raising an objection under the RFPA.  Some may remember that the RFPA was the statutory basis for the Supreme Court to limit the scope of the Affordable Care Act’s “contraception mandate.”

In light of the PHRC’s recent guidance, employers should carefully consider whether it’s time to revise their policies governing harassment and equal employment opportunity.  In addition, it may be advisable to revamp harassment prevention training programs to specifically address LGBTQ concerns.  If you have any questions regarding the PHRC’s Guidance, please don’t hesitate to contact any member of our Labor and Employment Practice Group.

The Third Circuit Court of Appeals, the appeals court that has jurisdiction over federal cases in Pennsylvania, New Jersey, Delaware and the U. S. Virgin Islands, recently held that a public employer violates the First Amendment of the United State Constitution when it retaliates against an employee based on the employee’s union membership.  In reaching its conclusion, the Court distinguished between First Amendment “free speech” claims and First Amendment “association” claims.

Palardy v. Township of Millburn involved a claim by a former police officer, who alleged that the Township refused to promote him to Chief, because of his affiliation with the police officers’ union.  In support of his claim, the former officer presented testimony that the Township’s business administrator made a number of derogatory comments about his role as a union leader.  Interestingly, the former police officer retired before the Chief position actually became vacant, because he believed that he would not be selected for the position.

The Township defended the claim and argued that union affiliation is not a matter of public concern, and therefore not protected by the First Amendment.  The trial court agreed, holding that speech on behalf of the union and association with the union were not constitutionally protected conduct. On appeal, the Third Circuit analyzed and rejected the trial court’s opinion, which also happened to be the same opinion reached by the majority of other circuit courts throughout the United States.

Instead, the Third Circuit adopted the minority view, and concluded that union affiliation is protected by the First Amendment freedom of association clause.  The Court agreed with the Fifth Circuit, which had previously held that the union activity of public employees is always a matter of public concern, and therefore, no additional proof is necessary to establish that the union affiliation is protected.

Accordingly, when an association claim arises from a public employee’s union affiliation, the employee or former employee need not establish that his association was a matter of public concern or that an specific free speech issues are implicated.

Keep in mind that First Amendment claims still require that the plaintiff establish three things: (1) that he engaged in constitutionally protected conduct; (2) the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a casual link between the protected conduct and the retaliatory action.  In Palardy, the court only considered the first question, finding conclusively that union-affiliation is constitutionally protected conduct.  The court remanded the case for consideration of the additional two elements.

While we certainly believe that this decision will result in an increase in First Amendment “association” claims (anyone who is a member of a union can now establish the first element), whether any particular plaintiff will be successful will depend on whether he or she can establish the other necessary elements of the claim, and that will still depend on the specific facts of each case.

Two years ago, when the Pennsylvania Medical Marijuana Act (MMA) passed, we advised employers that the Act contained an express anti-discrimination provision providing that:

No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.  MMA §2103(b)(1).

Since that time, however, there has been little guidance to employers regarding the breadth or impact of this anti-discrimination provision.  This month, that changed.

On September 5th, a Federal District Court in Connecticut ruled on the impact of such an anti-discrimination provision in the hiring context.  Noffsinger v. SSC Niantic Operating Co., LLC. Because the Connecticut Palliative Use of Marijuana Act (PUMA) includes the same anti-discrimination as the PA Act, the Noffsinger decision provides guidance to Pennsylvania employers.

In Noffsinger, the employer, a health and rehabilitation facility, offered plaintiff the position of Activities Manager subject to completion of various pre-employment screenings, including a drug screen.  At that point, plaintiff advised the hiring manager that she was qualified under PUMA to use medical marijuana to treat PTSD.  Plaintiff showed the manager an empty pill container specifying the dosage information for her medical marijuana pills and stated she took the pills each evening to prevent night terrors.  Employer sent plaintiff for the drug screen, which returned positive for THC.  The hiring manager discussed the situation with HR and advised that plaintiff was disqualified from the job because “medical marijuana is not an approved prescription” and “we use federal law, which indicates marijuana is still illegal.”  Employer subsequently rescinded plaintiff’s job offer.

The plaintiff filed suit alleging, among other things, that the employer discriminated against her in violation of PUMA’s anti-discrimination provision.  The relevant portion of PUMA provides “No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”  Discovery revealed that “plaintiff’s job offer was rescinded because of her positive drug test result and that this positive drug test result stemmed from plaintiff’s use of medical marijuana pursuant to her qualifying status under PUMA.”  Accordingly, the District Court granted summary judgment in plaintiff’s favor, unequivocally stating that the employer’s refusal to hire her violated PUMA’s anti-discrimination provision and that the statute contained an implied private right of action.  Notably, the District Court rejected the employer’s arguments that federal law pre-empted PUMA and that the federal Drug Free Workplace Act barred it from hiring plaintiff.

They key take-aways from the Noffsinger case are as follows:

  • The anti-discrimination provision contained in Connecticut’s PUMA provides an implied right of action;
  • A zero-tolerance pre-employment drug testing policy violates the anti-discrimination provision in the Connecticut law;
  • The Drug Free Workplace Act will not save a zero-tolerance policy, because the DFWA only requires federal contractors to “make a good faith effort to maintain a drug-free workplace.” The DFWA does not require drug testing and does not prohibit federal contractors from employing someone who uses medical marijuana outside the workplace in accordance with a program approved by state law.
  • The anti-discrimination provision contained in PUMA mirrors the anti-discrimination provision contained in the PA Medical Marijuana Act.

Based on the Noffsinger decision and the similarities between the PUMA and the PA MMA, PA employers should take caution.  Refusing to hire an applicant, who is a certified to use medical marijuana under PA law, simply because he/she has failed or will fail a drug screen likely violates the anti-discrimination provision of the PA MMA.  Instead, we recommend that employers engage in an interactive process with the employee to determine if his/her use of medical marijuana, outside of work, can be accommodated (i.e. whether the employee’s use of medical marijuana will affect the employee’s ability to perform work in a safe and productive manner).  We also recommend including exception language in your pre-employment drug testing policy.

We are glad to help you work through the interactive process, to assist with the review and revision of your policies or to otherwise discuss with you the impact of the PA MMA on your workplace.

Over the past fifteen years, wellness programs have generated more than their fair share of litigation and regulatory scrutiny – primarily over the issue of whether they comply with the Americans with Disabilities Act.  A related compliance issue that has attracted relatively little attention from courts and regulators is whether, under the Fair Labor Standards Act (FLSA), employees must be paid for time spent participating in wellness-related activities.  This question was addressed in an Opinion Letter (FLSA2018-20) issued by the U.S. Department of Labor’s Wage and Hour Division on August 28, 2018.

Opinion Letter 2018-20 specifically addresses whether an employer must pay employees for time spent in the following activities:

  1. biometric screenings (blood pressure, cholesterol levels, nicotine usage) both during and outside of their regular work hours;
  2. wellness activities such as nutrition classes, employer-facilitated gym classes, telephonic health coaching, participation in Weight Watchers and Fitbit challenges;
  3. attendance at benefits fairs to learn about employer-provided benefits, financial planning and college attendance opportunities.

The Opinion Letter concludes that employees need not be compensated for participating in the above activities if: a) their participation is purely voluntary;  b) they perform no job-related duties while participating; and c) the activities predominantly benefit the employee and not the employer.   In concluding that the activities were predominantly for the employees’ benefit, the DOL noted that participating employees may enjoy lower health insurance deductibles while also learning how to make “more informed decisions” about non-job related health issues.  Moreover, since employees were relieved of all job duties while participating, they were “off duty” as that term is defined in DOL regulations.

This Opinion Letter is helpful assurance for employers who are considering implementation of wellness programs.  If employee participation is strictly voluntary and no work is performed during the course of participating, the time will likely be deemed non-compensable under the FLSA.  However, as many employers have learned, it can be difficult to generate strong employee participation in wellness programs.  Although paying employees for their participation may not be required by the FLSA, some employers choose to do so as an incentive for participation.

If you have any questions regarding wellness programs or the Fair Labor Standards Act, please contact any member of our Labor and Employment Practice Group.

In an effort to combat opioid addiction, the Wolf Administration recently rolled out a set of opioid prescribing guidelines to assist health care providers treating workers’ compensation patients. Highlighting the need for reform, Governor Wolf stated: “[i]n 2017, there were more than 174,216 workers’ compensation claims made in Pennsylvania, and our state ranks third highest in the nation in the percentage of injured workers who become long-term opioid users.” The Administration reported that workers who received longer-term opioid prescriptions for work-related lower back injuries had a substantially longer duration of temporary disability.

Accordingly, it is no surprise that the average lost time claim for injured workers, prescribed with opioids, is 900% higher than injured workers who were not prescribed the drug. To improve these numbers, the Administration identified the following objectives for the guidelines:

  • To promote the delivery of safe, quality health care to injured workers;
  • To ensure patient pain relief and functional improvement;
  • To be used in conjunction with other treatment guidelines, not in lieu of other recommended treatment;
  • To prevent and reduce the number of complication caused by prescription medication, including addiction; and
  • To recommend opioid prescribing practices that promote functional restoration.

The guidelines include recommendations for the treatment of acute, sub acute, post-operative pain, and chronic pain. The Wolf Administration released a detailed seven-page instruction on how health care providers should approach treatment for such conditions. Generally, under the guidelines, opioid prescription should be done in combination with other treatment options, at the lowest dose, and for the shortest length of time possible.

While the Administration’s newly issued guidelines are an important step toward fighting opioid addiction in the Commonwealth, it is important to remember that they are just that—guidelines. They are not legally binding and are intended only to supplement, not replace clinical judgment. By following these guidelines, however, health care providers will play a significant role in promoting safe and effective treatment for injured workers so that they may return to work as soon and as safely as possible.

Should you have a question regarding this article, please feel free to reach out to a member of our Labor and Employment Group.

 

Another Obama-era National Labor Relations Board policy may be on the ropes.  Four years ago, the Board issued its controversial Purple Communications decision.  In that case, it determined that employees have the right to use employers’ email systems to unionize and engage in other activities protected under the National Labor Relations Act. You can access our break down of Purple Communications here.

On August 1, the Board approved an invitation to file briefs on whether Purple Communications should be modified or overruled altogether.  Some interpret this approval as a signal that employees’ ability to use their employer’s email systems to unionize and engage in non-business, protected activity could soon be in jeopardy.

In other words, another employer-friendly NLRB ruling could be on its way.  We’ll continue to follow the issue and updates will be reported here.  Stay tuned!