By: Bill Pilchak – 3/31/15
The company is in a no-win situation whenever accents are discussed.
Sometimes, people have no appreciation for the perspectives of others and have to be taught sensitivities that they do not share. That is one of the reasons for harassment training. Males, for example, generally do not care when someone, let alone a lady, touches them on the arm or shoulder. However, women may bristle at the merest physical contact by a man, no matter how innocuous.
I have stumbled upon such a sensitivity among the immigrant community. National origin cases have made up a substantial portion of our docket for years. We haven’t run the stats, but they may be the most frequently asserted litigation species that we defend. So, let us give our readers a heads up.
Americans, of course, are a nation of immigrants. Except for the few who can trace their ancestors to the Mayflower or who are members of the DAR, most of us know if we are 1st, 2nd or 3rd generation Americans. If you are like our family, you may celebrate your ethnic heritage. So, it is natural for us to be interested in a more recent arrival’s journey to our country.
However, any exploration of that subject is fraught with peril and is best not pursued. Inquiries about an employee’s country of origin almost always rankle a recent immigrant, no matter how well-intentioned. Whether fabricated or disingenuous, most of our national origin harassment or discrimination cases include some complaint that the employer or co-workers ferreted out and then commented upon the plaintiff’s country of origin.
The same goes for mentioning accents. Though Americans are intrigued by accents, any mention of an employee’s accent will engender ill-will. In virtually every national origin case, expect any discussion of one’s pronunciation to be presented as claims that management or co-workers made fun of or mocked the employee’s accent. Especially given the law on this point, the company is in a no-win situation whenever accents are discussed. Although the ability to speak English clearly and accurately is a legitimate topic of discussion where the employee’s communication skills are especially important, usually, any mention of an accent is considered at least some evidence of discriminatory animus by the courts.
Of course, astute observers might note that plaintiffs in my caseload have a financial motive to embellish their outrage at any mention of their homeland or accent. So, let me tell you about the similar reaction of “John.” John, who hails from an Eastern European country and has a charming accent to prove it, established a home remodeling business after coming to the U.S. John and an army of his “cousins” remodeled our home a few years ago, and we have continued to do business with and refer business to him. One day, in an attempt to convey my admiration at his pluck for establishing a business here, I mentioned that I believed that a higher percentage of recent immigrants established their own businesses than the children of my friends, though those children were backed by parental resources and had grown up in business-oriented homes. John did not take the comment to be the complement intended. Instead, he was highly offended. He drew himself up, and said proudly: “I am not an immigrant. I am a U.S. citizen!”
From my perspective, John was an immigrant who had become a citizen. To John, who had no financial motive in our discussion, any mention of his origins was perceived as an insult. As the title above suggests, these discussions are a no-win situation. Accordingly, simply avoid discussing accents and don’t explore the origins of foreign-born employees.
By: Rob Dare and Dan Cohen – 3/27/15
On Wednesday, March 25, 2015, the U.S. Supreme Court issued a highly anticipated opinion addressing pregnancy accommodation in the workplace. In a 6-3 decision, the Court vacated the judgment of the Fourth Circuit, which had sided with the employer, and remanded the case for further proceedings consistent with the opinion. Young v. United Parcel Service, Inc., 575 U. S. ____ (2015). The plaintiff was a UPS driver that transported packages that arrived overnight by air, and as part of that job, UPS required employees to lift up to 70 lbs. When Young become pregnant, her doctor advised her that she could not lift more than 20 lbs, so UPS informed Young that she could not work while under lifting restriction. Young then filed suit, claiming UPS acted unlawfully by refusing to accommodate her pregnancy-related restriction. She supported her claim by pointing to UPS policies that accommodated workers injured on the job, that had lost Department of Transportation certifications, or that had disabilities covered by the ADA. In other words, she contended that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for other persons, but not for pregnant workers. UPS simply responded that since Young was not injured on the job, did not lose a DOT certification, and did not have a disability under the ADA, UPS had not discriminated against her; it had treated her just as it treated all other relevant persons, i.e. those outside the categories. Both the district court and the Fourth Circuit Court of Appeals ruled in favor of UPS, finding that the policy was neutral, and not evidence of discriminatory animus toward pregnant workers.
The Supreme Court disagreed. The Court essentially rejected the arguments of both parties, and instead fashioned a framework by which similar pregnancy-related accommodation and discrimination claims will now proceed. First, the employee must prove she is a part of the protected group (able to become pregnant); that she asked for an accommodation in the workplace when she could not perform her normal job; that the employer refused to do so, and that the employer provided an accommodation for others who were similar in their ability or inability to work.
If the employee can prove each of those points, the employer then has the opportunity to show that its policy was not biased against pregnant workers, and that it had a legitimate, non-discriminatory business reason for its actions. If the employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the employer’s reasons are a pretext for unlawful discrimination, i.e. that the reasons are not true. The Court added that an employee can show pretext by providing evidence that the employer’s policies impose a “significant burden” on pregnant workers, and the employer’s nondiscriminatory reasons are “not sufficiently strong” to justify the burden.
How does the decision impact employers?
The Supreme Court’s hybrid standard sets the bar quite high for employers. The employee may create a genuine issue of material fact that a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. Employees will in all likelihood be able to carry their burden by pointing to policies that provide accommodations or light duty to certain categories of employees, but not to pregnant women.
As for the strength of an employer’s justification for imposing such a burden, the Supreme Court cautioned that the employer’s reason “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those . . . whom the employer accommodates.” The Court did not provide what justifications may be strong enough, but its message seems clear enough to employers: coming up with reasons other than cost or convenience will prove to be exceedingly difficult. Moreover, employers that accommodate some employees but not pregnant women will have to contend with Justice Breyer’s question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”
Employers should take a closer look at its policies and re-evaluate why distinctions might be made between pregnant and non-pregnant employees with respect to light duty, leaves of absence, attendance, and scheduling. Employers might still be able to consider light duty preference for employees occupationally injured, since this is pregnancy-neutral, but employers must be careful here, and such preferences should not be inflexible if light duty is the only reasonable accommodation available. Finally, when granting light duty requests, employers should do so on an ad hoc temporary basis, taking into account the unique characteristics of each request.
One final caution: As the majority opinion noted, the ADA was amended in 2008, after Young’s case was filed, to include impairment that substantially limits a worker’s ability to lift, stand or bend, which could mean that pregnant women who cannot lift heavy objects are now protected under the ADA. Also now likely covered by the ADA amendments are many more pregnancy related impairments (e.g. anemia, pregnancy-related sciatica, gestational diabetes, etc.).
By: Dan Cohen – 3/17/15
I was delighted to learn the other day that one of my clients received a clean bill of health from the IRS concerning its treatment of certain individuals as independent contractors rather than employees. The groundwork for this result was laid well in advance of the IRS audit and involved a detailed review of the operation and duties of the individuals and the adoption of an independent contractor agreement. This document was front and center of the IRS audit, and I like to think that it was influential.
Don’t get me wrong though: merely calling an employee an independent contractor in a contract will not protect your business from an adverse determination by the IRS, the Department of Labor (“DOL”), state agencies or class action attorneys. Yes, all are stakeholders in cases of employee misclassification. Several years ago, the U.S. Government Accountability Office estimated that employee misclassification costs the federal government in excess of $2.72 Billion in lost tax revenues. This cost may actually exceed $3 Billion today. State unemployment insurance tax losses are in the hundreds of millions. Beyond that, misclassified workers often are not paid minimum wages or overtime pay, and do not typically participate in employer-based health and pension plans.
Under the Obama Administration, the IRS and DOL have signed a Memorandum of Understanding enabling the two agencies to work together and share information to reduce misclassification cases. The DOL has collected tens of millions from employers in misclassification investigations since hiring 300 additional investigators to combat the problem. Michigan is one of nearly 20 states that have created inter-agency tasks forces to strengthen enforcement mechanisms. Of course, class action litigation has resulted in several high profile misclassification findings, like the exotic dancer case in 2012.
Workers are misclassified, often by mistake, but sometimes by design. For some professions, the line between employee and independent contractor is blurred and employers make the decision that an independent contractor designation is proper. Clearly, there are huge cost savings for employers who classify their employees as independent contractors. And, most of the legislation designed to protect employees (e.g. Title VII, NLRA, the Elliott-Larson Civil Rights Act) do not apply. It is for this reason that misclassification cases are so widespread.
However, unless you can pass the IRS right to control test and the economic realities test employed by the DOL and State of Michigan (among other states), the reward may not be worth the risk. Even though the temptation may still exist, make it a point to review the two tests which can be found at “Independent Contractor (Self-Employed) or Employee?” Internal Revenue Service, October 2, 2014. http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee as well as FACT SHEET 13: Am I an Employee?: Employment Relationship Under the Fair Labor Standards Act (FLSA).” Department of Labor, Wage and Hour Division, May 2014. http://www.dol.gov/whd/regs/compliance/whdfs13.htm. If you still believe the worker(s) are truly independent contractors, you should memorialize the terms and conditions of the relationship in an independent contractor agreement, establishing the workers independence, non-exclusivity, right to refuse assignments and the like.
By: Dan Cohen – 3/10/15
Yesterday, Governor Scott Walker signed a bill that makes Wisconsin the 25th right to work state. “This freedom-to-work legislation will give workers the freedom to choose whether or not they want to join a union, and employers another compelling reason to consider expanding or moving their business to Wisconsin,” Mr. Walker said. Wisconsin joins Michigan and Indiana as the third Midwestern state to pass right to work legislation, which had historically been relegated to states in the South, Great Plains and Mountain West.
Wisconsin is the latest, but not likely the last state to join the right to work movement. Right to Work legislation was introduced in Missouri last year where Republicans control a super-majority in both chambers of the Missouri legislature. A similar bill has already passed a full vote in the New Mexico House of Representatives, but still must pass in the Democratic-controlled State Senate. The New Mexico Senate has begun to debate the bill and the Public Affairs Committee could put it to vote shortly.
In Illinois, new Republican Governor, Bruce Rauner, has taken the first steps toward making Illinois a right to work state with his executive order banning public sector unions from requiring state workers to pay union dues. However, Illinois has Democratic super majorities in its legislature so it would appear for now that Illinois will not follow suit on a state-wide basis.
The arguments for and against right to work have been and continue to be made along party lines. Democrats assert that Governor Walker is trying to destroy unions and that his real motivation is political. President Obama criticized Governor Walker as well: “So even as its governor claims victory over working Americans, I’d encourage him to try and score a victory for working Americans — by taking meaningful action to raise their wages and offer them the security of paid leave.”
Republicans argue that right to work improves a State’s economy and invites new businesses to the state. While it is true that Michigan’s economy has improved, it is anyone’s guess how, if at all, right to work was a factor. And, even though Michigan’s union membership has declined since Governor Snyder signed right to work into law, the percentage of union members in Indiana grew to 10.7 percent from 9.1 percent in 2012. With mixed statistics and other factors in play, it is very hard to validate any of these arguments.
I actually believe right to work laws like those in Michigan, Indiana and Wisconsin will make unions “more accountable” by forcing them to represent a broader spectrum of interests. If unions can appeal to our diverse workforces and demonstrate their worth, then union support will continue to exist and workers will continue to pay dues. If not, employees will simply stop reaching into their pocketbooks. The difference now, however, is that employees will not lose their jobs because of their decision not to provide financial support to the union. This seems like a much more balanced approach. It should be up to the employees, not their employer, not the government and not the union that represents other employees. Of course, here in Michigan, all eyes will be focused on the automotive industry later this year when the United Auto Workers’ contract with the so-called “big three” will expire, and tens of thousands of workers will be able to opt out of paying dues.
Graphic courtesy National Right to Work.
By: Dan Cohen – 3/3/15
On February 23rd, the Department of Labor issued its Final Rule (http://www.dol.gov/whd/fmla/spouse/index.htm) allowing an employee to take FMLA leave to care for a same-sex spouse as long as the employee is in a lawful same sex marriage. The Final Rule will take effect on March 27, 2015. The DOL refers to this as the “place of celebration” rule, which trumps any state law to the contrary. For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.
The DOL made this regulatory change in light of the United States Supreme Court’s June 2013 decision in United States v. Windsor, which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Section 3 of DOMA defined spouse for purposes of federal law, which included the FMLA, as a person of the opposite sex. As a result, prior to Windsor, an employee was not entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.
Following the Windsor decision, under the then-existing FMLA regulation defining spouse, eligible employees in same-sex marriages recognized in their “state of residence” could take FMLA leave to care for a same-sex spouse with a serious health condition. However, this definition did not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lived in a state that did not recognize same-sex marriage.
The Final Rule does not change any of the other substantive FMLA provisions. For example, all requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must still be met. The Final Rule allows eligible employees the opportunity to take FMLA leave to care for their lawfully wed same-sex spouse, regardless of where they live, when
- caring for their same-sex spouse with a serious health condition,
- taking qualifying exigency leave due to their same-sex spouse’s covered military service, or
- taking military caregiver leave for their same-sex spouse.
In unrelated FMLA news, the DOL’s FMLA forms expired, but the Office of Management and Budget, which approves the DOL forms, extended the expiration through the end of March, 2015. The DOL’s forms–with the new March 31, 2015 expiration date, include the following:
From now until March 27, 2015, the public may submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.