Cases to Watch in 2019

Here are some issues before the Court that may have long-lasting impact on the workplace.

No it’s not you — E-Verify is down

The E-Verify System is down. Here is what you need to know.

Cases from the Crypt

Spooky cases in time for Halloween.

Halloween at Work: A Real Hellraiser

Do you love Halloween?  I happen to dig Halloween.  Growing up, my family placed as much emphasis on Halloween as they did on Thanksgiving or Christmas.  The truth is we celebrated everything big:  Cuban family + [insert holiday/special event] = PARTY!  As a family, we still love dressing up, decorating, watching scary movies, attending Halloween parties, haunted houses, and giving out candy.

That said, although it may surprise you, I don’t think Halloween and the workplace mix well.  Some employers who innocently allow their workforce to engage in Halloween celebrations may find themselves in some hair-raising situations that make Michael Myers and Freddy Krueger seem undaunting.  Let’s discuss some potential issues and ways around them.

The Problem with Costumes

People magazine recently released its annual list of potentially offensive Halloween costumes, which include:

  1. Stormy Daniels Look-alike, “Cloudy Affair”;
  2. Sexy Op-Ed Article;
  3. Brave Red Maven, a provocative take on the Handmaiden’s Tale;
  4. Costumes that involve darkening your skin;
  5. Zombie dead celebrities (i.e. Zombie Carrie Fisher, Zombie Tom Petty, etc.) (GASP!)
  6. O.J. Simpson;
  7. Kneeling NFL protestors;
  8. Sexy versions of characters played by children;
  9. Costumes related to Harvey Weinstein and his victims;
  10. The “wall” (yes, the Trump wall);
  11. Sexy border patrol agent;
  12. Costumes dealing with Bill Cosy and his drugging of women

Costumes and work can cause some serious nightmares that can prove costly.  Allowing costumes may lead to such provocative or potentially offensive choices that can create serious risks for discrimination and harassment claims.   It can also create intense tension amongst the workforce.

If you’re absolutely resolute allowing people to dress up consider implementing strict guidelines.  Be prepared to send non-complying employees home to change.  Don’t require everyone to participate by wearing a costume.  Finally, speak to management to ensure they are not isolating employees who refuse to participate.  Such strong-arming or isolating can have serious consequences.

Halloween Parties and Decor

In addition to costumes, workplace Halloween parties and decorations can lead to similar results.  If an employer wants to allow its employees to decorate, that can be fine.  I would ensure the decorations are subtle and non-offensive.  Fewer witches and goblins and more cute gords with smiley faces.

Keep in mind, if you have an actual Halloween party, make sure your employees are on board.  Some employees may have religious convictions that are offended by Halloween.  Consider giving these employees a day off.  Don’t make participation mandatory.  We have seen complaints based on this issue.  In one matter, an employee filed a complaint alleging she was fired for refusing to attend a company Halloween party after she explained to her supervisor she could not participate for religious reasons.  See Morales v. PNC Bank, N.A., No. 10-1368, 2011 WL 3425644 (E.D. Pa. Aug. 4, 2011).  In another case, an employee who declined to dress up for Halloween alleged her employer retaliated against her by reducing her hours and demoting her.   See Meraz v. Jo-Ann Stores, Inc., No. CV 03-2914 GAF, 2004 WL 882458, at *10 (C.D. Cal. Apr. 2, 2004).  

As you can see Halloween can present some scary workplace situations.  The best way to avoid these problems is to just skip the celebration altogether.  However, if you choose to engage in the festivities, that’s fine–just make sure you have some thoughtfully-crafted policies in place and NEVER mandate participation.  Employees should be able to opt-out without penalty or fear of retaliation.

Now, are we ready to trick-or-treat now, or what?

The Law Firm of Alejandro Pérez assists employers in complying with the myriad of laws and situations that impact the workplace.  For employment assistance, please call us at 602.354.2833 or email us at info@alejandroperezlaw.com.

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This blog is provided by The Law Firm of Alejandro Pérez, PLC and its affiliates for educational and informational purposes only.  It is not intended, nor should it be construed, as legal advice.    

Election Time is Upon Us!

It’s time to ensure your voting policies comply with the applicable laws.

What’s in a name?

Dear Employers:  You’re Being Recorded!

Winter (well, ICE) is coming . . .

With ICE’s massive upswing in worksite audits and investigations, I-9 Compliance Has Never Been More Important.

Is Working From Home a Reasonable Accommodation?

I get this call pretty frequently. A client wants know whether it should accommodate an employee by allowing the employee to telecommute. The answer, in typical attorney fashion, is “it depends.” And it does. It really does.

Cue Bill Clinton video:

Telecommuting is an interesting topic. Years ago, I remember people professing that everyone would be working at home in the 2000s. Well, that never really came to be. Studies devoted to this phenomenon attribute telecommuting’s slow acceptance to a mixture of lack of trust, fear, cost, and other similar variables on the employer’s side. On the employee side, factors such as a sense of isolation, fear, and inability to engage in office politics are reasons regularly proffered for the lack of employees willing to engage in telecommuting. Who knows why, but we haven’t seen the numbers rise as initially anticipated. That said, we also haven’t seen flying cars come to be, despite Back to the Future II’s promise way back when.

An employer or the employee may suggest telecommuting–and it’s not a bad idea. But be cautioned: telecommuting should only be used as an accommodation to the extent the disability necessitates it. While I am generally a proponent of telecommuting and actually do it frequently, it’s another thing to be bootstrapped by a decision and get burned down the line, or incur excessive costs only to find out nothing has changed in relation to productivity or performance.

As a threshold matter, the EEOC does not require employers to have telecommuting programs. See EEOC Fact Sheet: Work at Home/Telecommuting as a Reasonable Accommodation. Case law is all over the place on this and there is no brightline rule. Here is are some things to consider, though:

1. Look at the disability. One of the most important things to ask yourself is whether the disability will truly be accommodated by allowing the employee to telecommute? In a 2015 case, the Sixth Circuit found telecommuting was not a reasonable accommodation for an employee with severe irritable bowel syndrome to work from home because her condition did not allow her to agree to any predictable schedule in which Ford could count on having her there in person. In conclusion, the job HAS to get done, right? The employee has to be able to be available to work and perform his or her duties.

2. Look at the job. Can the employee perform the essential job functions at home without imposing an undue hardship on the business? Does the employee supervise or monitor the work of others? Are face-to-face interactions required? Look closely at the job’s essential requirements. If the employee has to report to work, telecommuting may not be reasonable.

3. Look at the employee. Can the employee be trusted? Does the employee have attendance issues or problems meeting deadlines. If the employee is non-exempt, what safeguard will you have in place to limit him or her to an 8-hour workday?

Of course, as the universe would have it, no two cases are ever the same. The Law Firm of Alejandro Pérez is experienced in helping employers navigate through ADA compliance and advising clients on accommodation issues. Do not hesitate to contact our office for assistance.

Posted in Employment Law Tags: work from home, telecommuting, ADA, disability, reasonable accomodations, Americans with Disabilities Act, HR, Discrimination

Considering Hiring an Unpaid Intern? Read this!

Last month, the Department of Labor announced a new test it will utilize to determine whether interns working for “for-profit” companies are entitled to wage and overtime protection under the Federal Labor Standards Act (“FLSA”).

Under FLSA, employers are required to pay their employees minimum wage and overtime. Of course, not all workers are “employees” for purposes of FLSA compliance–for example, unpaid interns are not considered employees. Of course, just because an employer classifies a worker as an unpaid intern doesn’t make it so. As is the case with all legal queries, whether an employer has adequately classified a worker is a fact-driven inquiry.

Before its announcement, the DOL applied a six-part test to determine whether unpaid interns were actually employees for purposes of FLSA.

Over the past few years, however, litigation challenging the classification of unpaid interns has increased substantially. Under that test, to classify an worker as an unpaid intern, an employer had to establish: (1) the training provided was similar to what would be provided in a vocational school or academic educational institution; (2) the training was for the benefit of the interns; (3) the interns did not displace regular employees, but worked under their close supervision; (4) the employer derived no immediate advantage from the activities of the interns and occasionally had their operations impeded; (5) the interns were not necessarily entitled to a job after completion of the program; and (6) it was understood that the interns were not entitled to wages for the time spent training.

Each of the six criteria had to be satisfied to establish an intern was not an employee.

Over the years, litigation surrounding unpaid interns increased exponentially. Several courts, including the Second and Ninth Circuits, rejected the DOL’s six-factor test, favoring instead a more flexible and holistic analysis that simply asks who is the “primary beneficiary” of the relationship. The DOL considered the approach taken by courts in announcing its new rule.

Under its new test, the DOL will examine the “economic reality” of the relationship between the employer and intern and assess who derives the “primary benefit” from the intern-employer relationship.

To guide the DOL, the following factors should be considered: (1) the extent to which the intern and employer clearly understand there is no expectation of compensation; (2) the extent to which the internship provides training similar to what would be provided in an educational environment; (3) the extent to which the internship is tied to the intern’s formal education program such as through integrated coursework; (4) the extent to which the internship accommodates the intern’s academic commitments; (5) the extent to which the internship’s duration is limited to the period in which it provides the intern with beneficial learning; (6) the extent to which the intern’s work complements (but does not displace) the work of paid employees and provides significant educational benefits to the intern; and (7) the extent to which the intern and employer understand that the internship is conducted without an entitlement to employment at its conclusion.

Unlike the previous rigid test, the factors above are not exhaustive. Moreover, the test applies to interns in a “for-profit” organization only. Unpaid internships for charitable non-profit organizations and the public sector are generally permissible; however, employers in those sectors should verify whether the unpaid intern actually qualifies as a true “volunteer,” which is a different analysis.

The DOL’s new test aligns with case law. While more flexibility exists, employers should carefully consider the DOL’s guidance when creating unpaid internship positions. The Law Firm of Alejandro Pérez possesses significant Labor and Employment Law experience has experience advising its clients on these critical issues. Don’t go through it on your own. Call our office with your questions.