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A Peacock Walks Into the Office . . .

Emotional support animals are everywhere these days. We see them on planes, restaurants, and other businesses.   Places that were once off-limits to animals have “gone to the dogs.”  What do you do, however, when your employee requests to bring their emotional support animal to work?

This blog endeavors to provide an overview of what to do when an employer receives such a request.   Understanding the difference between “service animal” and emotional therapy animal is an important first step.

The Americans with Disability Act

The Americans with Disability Act (the “ADA”) defines a “service animal” as one that is individually trained to do work or perform a task for a person with a disability.  Some common examples include the “seeing eye” dog or a dog that is trained to notice when a person is having a seizure.   The ADA specifically limits service animals to two species–dogs and miniature horses (which are so darn cute, by the way).

Under the ADA, an animal only qualifies as a service animal if its work or task is directly related to the person’s disability.  Focus on the task the service animal is trained to complete.

An employee requesting to bring a service animal to the workplace would trigger an employer’s responsibility to follow the regular ADA interactive process. Absent any safety, public or business-specific concerns, an employee who has a disability that requires a service animal would usually be deemed a reasonable request.

Emotional Support Animals

The ADA does not provide a definition for an “emotional support animal.”  In most cases, emotional support animals are not trained to perform a specific task.  Instead, these animals provide comfort or emotional support to their owner.  Unlike service animals, emotional support animals are not limited to dogs and miniature horses.  It is important to note that a doctor’s letter stating the person needs an emotion support dog does not turn the animal unto a service animal under the ADA.

What do you do when someone asks to bring in their emotional support animals?  I would suggest you start the interactive process with the employee.  Keeping in mind emotional support animals do not enjoy the same endorsement under the ADA as service animals., it is likely that may be other, less burdensome accommodations available. You may also request documentation as to what task the animal performs. If the animal poses an undue hardship or direct threat in the workplace, the employer will usually have wider latitude to deny the request.

Of course, as with any accommodation request, there are no clear cut answers.  You should contact an attorney to guide you through the interactive process.

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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.    

 

Cases to Watch in 2019

“Like sands through the hourglass,” so is the ever-evolving world of labor and employment law.  2019 is starting out with some major cases before the High Court that can have a significant impact on the workforce.  Let’s about some of these issues.

  1. Equal Pay.

Equal Pay took a front seat in 2018.  Today, SCOTUS will discuss whether it will hear Yovino v. Rizo.  The issue in this case is whether the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”  As an interesting aside, the case also deals with whether a deceased judge may continue to “participate” in the determination of a case after his or her death (gasp).

The Ninth Circuit held “any factor other than sex” is limited to legitimate, job-related factors, such as a prospective employee’s experience, educational background, ability, or prior performance.  Relying on prior salary is not sufficient and does not create an affirmative defense.

  1. LGBT Discrimination

Also on the Court’s schedule for today is a trilogy of cases involving whether Title VII’s reach and asks whether the prohibition against sex-based discrimination extends to sexual orientation and gender identity.

In one case, a now-deceased ski instructor accused his employer of firing him after telling a client he was gay.  In another case, an employee alleges he was fired because of his sexual orientation. In the first case, the Second Circuit scrapped precedent and affirmatively held that Title VII extends to sexual orientation.  The Eleventh Circuit disagreed in the latter case.

The gender-based case, R.G. & G.R. Harris Funeral Homes, involves a transgender employee who argues she was terminated from her employment based on her gender identity.  In this case, the Sixth Circuit held “discrimination against employees “either because of their failure to conform to sex stereotypes or their transgender status, is illegal under Title VII.”

These cases create a significant circuit split.  For me, the split signals an issue that needs SCOTUS’s attention.  Thus, I anticipate the court will take these cases.  Of course, I admit I have been wrong before (*ahem* seldom, of course).  We will just have to stay tuned.

  1. Arbitration Agreements

SCOTUS should be announcing its decision in Lamps Plus, Inc. v. Varela soon.  The issue in Lamps Plus asks whether the Federal Arbitration Act precludes using state law principles of contract interpretation to understand commonly used language in a standard form arbitration agreement as authorizing class arbitration. The High Court heard oral arguments in the case last October.

Lamps Plus would address a question left open in Stolt-Nielsen, which held class arbitration is blocked when there’s no “contractual basis for concluding” that the parties to an arbitration agreement agreed to it. That case didn’t address whether courts can infer that such a contractual basis exists in situations like Varela’s where an agreement doesn’t explicitly block class arbitration.

This decision is important because it could impact arbitration agreements currently used by employers throughout the country.

We will update you as we know more.  In the meantime, feel free to contact us for your labor and employment law needs.  602.354.2833 or info@alejandroperezlaw.com

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.    

No it’s not you — E-Verify is down

Gridlock in the current government is directly impacting the workplace.  One of the agencies directly affected by the shutdown is the Department of Homeland Security (“DHS”).  As a result, the E-Verify program is offline and is expected to remain unavailable until the government is again funded.

While this presents an invariable challenge, don’t let it get you down or allow your New Year to start off on the wrong foot.  Let’s discuss the situation so you can successfully maneuver through this frustrating situation while remaining in compliance and not allowing the shutdown to adversely impact your business.

As a threshold matter, let’s point out what you WON’T be able to do during the shutdown:

  • Enroll in E-Verify;
  • Verify employment eligibility;
  • View or take action in any case;
  • Add, delete, edit any user ID;
  • Add, delete or edit company information;
  • Reset passwords;
  • Terminate accounts;
  • Run reports;
  • View “Essential Resources.”

E-Verify telephone and email support will also remain unavailable.  One of the largest challenges this presents is the inability to resolve Tentative Nonconfirmations (when the information entered into E-Verify fails to match what is in the record).

To minimize the burdens this places on both employers and employees, the U.S. Citizenship and Immigration Services (“USCIS”) has implemented the following policies:

  • USCIS has suspended the “three-day rule” for in any case impacted by the shutdown.
  • The period to resolve TNCs is extended.  Each day the shutdown continues will not count towards the eight federal government workdays the employee has to resolve the issue.  USCIS has further stated it will provide additional time to resolve TNCs once they reopen.

Here are some things to keep in mind:

  1. Complete I-9s!  You should still comply with the rule requiring you to complete the I-9 no later than the third business day after an employee’s start date.
  2. DO NOT TAKE ADVERSE ACTION against an employee because of an E-Verify interim case status.
  3. Do not refuse to hire an employee because he or she cannot be verified in the system.  Employees should not be prejudiced because of the shutdown.
  4. Prepare as though services will resume at any time.   Don’t let this situation negatively impact your operations by creating a backlog.  Prepare for an increased volume in cases.  Also, consider implementing processes to follow once the system is restored to avoid missing any steps.  Plan now!
  5. Remain in compliance!  Remember, workplace enforcement remains a high priority for Immigrations and Customs Enforcement.

In the meantime, HIRE!  Do not let this shutdown affect your business needs.  Good faith completion of your I-9 is an affirmative defense against an accusation of knowingly hiring unauthorized workers.

Of course, don’t hesitate to contact us should you have any questions.   We’re here for you.  602.354.2833 or info@alejandroperezlaw.com.

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.    

 

 

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?

Earlier this month, a Missouri-based healthcare provider sent rejection letters to various female job applicants. While I would normally applaud that practice, these letters expressed the company’s policy of not hiring employees with “ghetto names.”

Yes, you read that right!

While the healthcare provider denies sending the notices—it claims it was hacked by a disgruntled employee—this brings to light the very real issue of name bias. Name bias can take several forms. Generally, it deals with biases towards men’s names over female names and prejudices against “Black-sounding,” “Latino-sounding,” or “foreign-sounding” names.

It’s a Real Thing!

Studies have shown name bias is a real thing. A 2012 study published in the Journal of Experimental Psychology revealed employees with easy-to-pronounce names are more likely to receive job offers and promotions. Moreover, job applicants with “white-sounding” names were 50 percent more likely to receive job interviews, job offers and promotions.

There have also been documented cases of individuals receiving more favorable recruitment decisions after changing their names.

Name Bias is a Form of Unlawful Discrimination

While it goes without saying, I would be remiss if I did not point out name bias is a form of unlawful discrimination prohibited by Title VII of the Civil Rights act, as well as certain state and local laws. Under McDonnell Douglas v. Green, 411 U.S. 792 (1973), SCOTUS held a plaintiff state a prima facie case of discrimination by showing four elements: (1) The Employee made an application for the position sought and was qualified; (2) the employee is a member of a Title VII protected group; (3) the employee did not receive a job offer; and (4) the employer continued to look for job candidates with similar qualifications.

If an applicant can establish a prima facie case under this standard, the burden shifts to the employer to advance a non-discriminatory reason for the employment decision.

As with any litigation or EEOC investigation, things can get expensive rather quickly.  Of course, I subscribe to the old adage “the best defense is a good offense.”  Employers should take measures to ensure such biases do not permeate their workplace or hiring practices.

What Can We Do?

I am not going to get into the data breach measures the healthcare provider could have taken to avoid this issue.  We can save that for another blog.  But, let’s talk about some solutions to deal with this name-bias problem:

1. Train management and human resources on recognizing implicit and unintentional biases.

2. Ensure nondiscrimination and harassment policies are specific and address this type of bias.

3. Consider instituting “blind hiring.” This can entail, among other things, redacting candidates’ names from their materials before putting them in circulation.

4. Structure interviews so candidates vying for the same positions are asked the same questions.

5. Make sure your selection criteria is clear and strictly enforced.

6. Keep records as to why certain candidates were chosen for interviews and, ultimately, for the position.

The Law Firm of Alejandro Pérez is experienced in assisting employers to comply with federal, state, and local laws that affect the workplace.  We regularly counsel employers on employment matters and draft thoughtful, inclusive policies that are meant to comply with all federal mandates and protect our clients from litigation.  The Firm also facilitates training on EEO, diversity and inclusion, implicit bias, respectful workplace norms, leadership skills training, and a number of other employment-related issues.

Please contact us to assist you in eliminating name bias–and other biases-from your workplace.  You can reach 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.    

Dear Employers:  You’re Being Recorded!

I see it more and more every day: employees are recording their employers.  Our trusted bestie and sidekick, the smartphone, along with other technological advances, have made recording workplace conversations easy.  Such recordings can be used as powerful tools in litigation and have the ability to become public-relations nightmares.

Because of this, many clients are asking me whether they can implement broad policies prohibiting recording.  The answer, of course, depends.  Sweeping policies banning workplace recording may be subject to various challenges.  Let’s discuss some specific concerns.

Certain States Allow Recordings

As a threshold matter, it is important to note 38 states allow recordings so long as one party consents to the recording.  Conversely, 12 states require all parties to consent to a recording.  Take a look at the nifty map below for details on your state.

While courts have not yet dealt with preemption strikes against these recording prohibition laws, there is a strong likelihood state laws disallowing recordings are preempted by federal laws for purposes of employment protection, such as engaging in protected activity.

 

Secret Recordings and Whistleblower Statutes

OSHA investigates violations of whistleblower provisions contained in a variety of statues aimed at protecting employees report violations of specific concerns, including safety, financial reform, health insurance reform, and securities laws.

Administrative review boards tasked with making final decisions on OSHA-related matters regularly find an employee recording made in good faith to gather evidence to support a whistleblower claim.  In fact, the boards have found a broad range of employee conduct is allowed, such as taking photographs, making secret recordings, and performance of quality control and quality assurance functions.

Secret Recordings and Federal Nondiscrimination Laws

There is no bright-line rule regarding secret recordings and the discrimination claims. On one hand, some courts have held recordings for proposes of gathering evidence to support a workplace discrimination claim is a protected activity and should not result in employee termination.  This approach, however, represents the minority view on workplace recordings as they relate to discrimination claims.

A clear majority of courts have held employers are able to lawfully terminate an employee who engages in secret recording so long as that recording violates an employee

Other courts look at the facts on a case-by-case basis.  These courts tend to look at whether there were other ways to gather the same evidence that would not violate an employer’s policies.

Secret Recordings and the NLRB

In its memo issued June 6, 2018, the NLRB analyzed this issue and ultimately determined no-recording rules as lawful.  The NLRB recognized such rules could have a chilling effect on recording protected concerted activities.   Nevertheless, the NLRB recognized such policies would actually promote open discussion and the free exchange of ideas.

Accordingly, it looks like no recording policies may be legal and enforceable in certain circumstances.

So, Now What?

A carefully-drafted policy prohibiting secret recordings is an important first step in combatting this issue.  Of course, the policy should keep in mind the conflicting views by various federal agencies and be tailored accordingly.  Such policies should clarify recording is permitted to address certain grievances and areas of concern (such as whistleblower claims).  The policy should also explicitly state it is not intended to chill employee rights under the NLRA.

My grandmother always said if you assume you’re always being watched, you will always do the right thing. While this caused me some nightmares early on, the point is applicable.  Supervisors, managers and HR professionals should always assume they are being recorded.  This is a reality in today’s workplace.

Employers should also ensure their management and HR professionals are properly trained and understand the applicable laws so they don’t misspeak or create a legal issue.

Attorney Alejandro Pérez is a skilled employment attorney who understands the real-life nuances that occur in the workplace.  Mr. Pérez regularly consults clients on employment best practices and is experienced in conducting sensitive workplace investigations; delivers training on a myriad of workplace issues, including sexual harassment; and drafts sound employment policies assisting his clients in limiting liability and fostering positive employer-employee relationships.

To schedule a consultation and discuss your legal matters, please contact 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.    

 

 

 

 

 

 

Winter (well, ICE) is coming . . .

You may recall President Donald Trump issuing his first set of immigration orders and announcing enforcement as the orders’ primary purpose.  “The Presidential Order on Buy American and Hire American” made specific plans to increase workplace enforcement.  The Acting Director of ICE, Thomas Homan, confirmed ICE’s stance on workplace enforcement.  You can see his speech here.  If you don’t have an hour and a half to spare, the most salient points of Homan’s speech included:

  • ICE has already increased the number of inspections and worksite operations
  • A further significant increase in these activities is a plan for the next fiscal year
  • The time spent on enforcement will rise by four or five times
  • ICE will not only prosecute employers who hire illegal workers but also detain and remove illegal workers

Guess what?  ICE is making good on its promise.  As of earlier this year, ICE has served more over 5,000 audit notices to business owners across the country.  Since the beginning of ICE’s fiscal year (October) , it has initiated over 60 investigations.  These investigations have resulted in approximately 675 criminal arrests and 1,000 administrative arrests.

Derek Benner, Acting Director of Homeland Security Investigations recently stated:

“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records. All industries, regardless of size, location and type are expected to comply with the law. Worksite enforcement protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen[s] public safety and national security.”

The mandate is clear, friends. And the penalties are great.  Fines for paperwork violations range from $216 to $2,156 per form.  If an employer is found to have employed an unauthorized worker, it will be fined up to $16,000 per count and face criminal exposure.

Now is the time to make sure you are in compliance!   Hiring an attorney to review evaluate your I-9 form practices will assist you in avoiding potential fines and even possible criminal exposure.

The Law Firm of Alejandro Perez is experienced in issues relating to I-9 and overall workplace compliance.  We are experienced in conducting audits to correct mistakes and remedy any potentially unlawful practices.  We are also able to provide training to assist you in implementing a proper compliance system to avoid fines, lawsuits, and criminal liability.  We can also assist you if you are facing a government audit or civil lawsuit.  Please do not hesitate to contact us for assistance:  info@alejandroperezlaw.com or 602.354.2833.

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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.