EMPLOYMENT LAW

  • DEVELOPING A CBD OIL POLICY? IT GETS COMPLICATED …

    AUTHOR: // CATEGORY: Employment Law, Management

    Just when you thought you had a handle on how your company policies align with laws on medical marijuana, along comes CBD oil.

    Cannabidiol, or CBD, comes from either the marijuana plant or the hemp plant. Made available to consumers by the 2018 Farm Bill, which allows for production and sale of CBD products.

    CBD is advertised as an
    anti-convulsent, anti-diabetic and anti-psychotic, as well as an aid for pain
    relief, anxiety, depression and sleep.

    As a result, the market is booming for CBD products in oil form, vapors, beverages (e.g., coffee K-Cups) and infused edibles (chocolates and gummies).

    CBD is not psychoactive, so employees are generally not at risk of getting intoxicated or impaired with use. It can, however, show up on a drug test as marijuana. That’s where your workplace policies come in.

    The CBD rub

    CBD isn’t regulated by the FDA,
    although some states, like Texas and Georgia, are starting to legalize and
    regulate it. In most of the U.S., your employees don’t really know what they’re
    ingesting with CBD products.

    Furthermore, pure CBD oil won’t report a positive result for marijuana in a drug test because tests typically look for tetrahydrocannabinols (THC) levels that are too low to be detected in pure CBD.

    But some of these unregulated products
    that tout themselves as “THC-free” or “CBD pure” have been tested to have THC.

    That’s why CBD presents the same challenges to employers as medical marijuana, as indicated on JD Supra:

    •   Do job
    applicants know what’s in their CBD product?
    And what impact, if any, does
    the CBD use have on their employment?

    •   What if a worker gets a positive drug test result? Even if an employee presents you with a “CBD pure” product as proof, how will you know what really caused the positive result? Are they also using recreational marijuana or unknowingly using CBD spiked with THC?

    What to do

    Before taking action against CBD users, here are some guidelines when developing a CBD oil company policy:

    •   Consider
    revising policies to address CBD use.
    Employers in states with medical
    marijuana laws in place may have a duty to accommodate the underlying condition
    prompting CBD use.

    •   Train managers. They’ll need to know how to address situations where an employee defends a hot test by using CBD.

    Finally, in this evolving landscape,
    review the laws of your state, work with employment counsel and prepare to be
    flexible until more CBD rules and regs are in place.

    The post Developing a CBD oil policy? It gets complicated … appeared first on HR Morning.

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  • GOOGLE HR FACES ANOTHER PR DISASTER

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views, Uncategorized

    “I’m Not Returning to Google After Maternity Leave, and Here is Why.” That was the subject line of a post alleging pregnancy discrimination and retaliation that went up on an internal Google message board for new and expectant mothers.

    The unnamed Google worker alleges that her manager actively retaliated against her after she told HR about the manager’s comments disparaging pregnant women. Thousands of her co-workers have since read the memo and it has been published by VICE.

    Angry messages and public shaming

    The employee says that, despite assurances from HR that she would not face any retaliation from her supervisor for reporting the pregnancy discrimination allegations, her manager began sending angry messages, ignoring her in meetings and humiliating her in front of her peers.

    The abusive interactions, she says, impacted her health and caused her to be concerned about her unborn baby.

    Joining a new team did not resolve the situation, she says.

    And, she says in the memo, after joinng the new group she was given fewer responsibilities and told not to take on more managerial duties or attend some management events until she returned from maternity leave.

    In the end, she says, she reported that she was being discriminated against because she was pregnant and HR launched an investigation.

    HR’s findings? Poor communication and inadvertent exclusion from management gatherings due to administrative errors. It did not find that the employee’s manager discriminated against her.

    HR also told her, she says, that there was no evidence she was discouraged from taking early leave when she developed complications with her pregnancy.

    Damage control

    The employee did not indicate whether she plans to sue Google under The Pregnancy Discrimination Act. But, if her allegations about hostile messages and unfair reductions in her responsibilities are backed up by internal communications records, Google could face a damaging court battle or an expensive settlement.

    Google released a statement after the VICE story came out, saying, “We prohibit retaliation in the workplace and publicly share our very clear policy. To make sure that no complaint raised goes unheard at Google, we give employees multiple channels to report concerns, including anonymously, and investigate all allegations of retaliation.”

    Reminder for other employers

    Any company as large and high-profile as Alphabet Inc.’s Google is going to have its share of employee complaints and HR missteps.

    But the Mountain View, CA-based tech behemoth has faced both complaints from many unhappy workers and an unusually public discussion of its response to those complaints.

    Google workers have sent all-hands emails on issues ranging from sexual harassment and retaliation, to racial and gender-based discrimination, to Pentagon contracts. And a steady stream of those internal messages has leaked out onto social media and gone viral.

    Regardless of how this allegation of pregnancy discrimination and retaliation plays out, it is yet another blow to Google’s reputation as an employer.

    And it’s another useful reminder that all employers need to be vigilant in training employees on compliance obligations and identifying, addressing, and rectifying instances of pregnancy and other discrimination at every level of their workforce.

    The post Google HR faces another PR disaster appeared first on HR Morning.

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  • STOP SUMMERTIME FMLA ABUSE: THE FRIDAY MONDAY LEAVE ACT

    AUTHOR: // CATEGORY: Employment Law, Employment Law>FMLA (Family Medical Leave Act), FMLA (Family Medical Leave Act)

    Does summertime feel like FMLA stands for the “Friday Monday Leave Act” instead of the Family and Medical Leave Act?

    From late May to early September, you expect some empty desks or vacant work stations because of pre-approved PTO.

    What can’t be planned for is people making FMLA claims for absence that may not be on the up-and-up.

    Keep employees honest

    Don’t hesitate to put a system in place and use it to protect the company from lost productivity due to FMLA abuse.

    FMLA is intended to protect workers from losing their job over a medical or family emergency.

    It’s never meant for “It’s too nice outside to go to the office” or “The kids want to go to the beach” time off.

    5 ways to stop FMLA abuse

    That’s why Jeff Nowak, author of the FMLAInsights.com blog, recommends the following tactics to make sure all time taken as FMLA fits the criteria:

    Get written leave requests. You can’t deny FMLA if the worker provides verbal notice of leave and gives a reason why they can’t follow proper procedures to request it in writing. However, ask for their request upon their return.

    • Ask questions. When FMLA is requested, ask the worker: What is the reason for your FMLA absence? What functions of your job can you not perform? Will you see a doctor?

    Have call-in procedures. If you don’t have written policies requiring when an employee should report an absence, work with legal counsel to get this started. It also allows you to address staffing issues early in the workday.

    Certify and re-certify. Many employers fail to request the medical certification form from the doctor which states why an employee is in need of leave. Make it a practice to request it and keep it handy. Then request recertification every 30 days.

    Follow patterns. If the employee takes FMLA only around holidays or weekends, check with their doctor to confirm if this is related to their health condition. But only ask about what’s covered on the certification form.

    If you aren’t using these guidelines, meet with employment counsel to audit your FMLA policies.

    Use best practices to combat abuse and effectively administer FMLA in your workplace.

    The post Stop summertime FMLA abuse: The Friday Monday Leave Act appeared first on HRMorning.com.

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  • HOUSE-PASSED GREEN CARD REVAMP FACES HURDLES

    AUTHOR: // CATEGORY: Employment Law, Latest News & Views

    The U.S. House of Representatives voted July 10 to eliminate limits on the percentage of employment-based permanent residency work visas (green cards) awarded to immigrants from any one country.

    The measure would apply to two types of work visas – EB-2 visas, for workers with advanced degrees or exceptional ability and EB-3 visas, for skilled workers and professionals.

    Sponsors hope the bill would relieve backlogs of skilled workers seeking permanent U.S. work permits.

    Visa issues worsen skilled labor shortage

    Supporters of the measure say that backlogs for skilled workers seeking permanent work visas – which can stretch decades – are making the skilled labor shortage worse and hurting America companies’ competitiveness.

    Supporters of the bill include the U.S. Chamber of Commerce and the Society for Human Resource Management (SHRM).

    SHRM issued a press release saying, “Eliminating employment per-country caps will create a first-come, first-served green card system, putting talent and skills first so we can meet the current and future workforce needs of this country.”

    The industry group called the measure “an important first step in addressing workplace immigration issues.”

    Tech companies are also backing the measure, since they employ a huge number of H-1B visa workers, whose permits last just six years.

    Each year, hundreds are forced to leave the U.S. and their jobs when temporary work permits expire.

    Employers say that the turnover, especially among highly-skilled tech workers, is costly and disruptive.

    Opponents fear impact on American workers

    The bill has widespread backing from business groups and bipartisan support in the House and Senate.

    Still, the measure is not guaranteed to pass the Senate and get to President Trump’s desk or to get his signature if it does.

    Opponents, including members of the administration, see the measure hurting American workers.

    Others worry that if per-country limits on the number of green cards are lifted, almost all residency permits will go to workers and family members from India and China, where the backlog is highest.

    And that seems to be guaranteed under the current version of the bill.

    Quotas now limit the number of visas awarded to immigrants from any one country to 7% of the 140,000 employment-based residency permits issued each year.

    Indian workers would get nearly all green cards after 2020

    The bill would increase that to 85% of green cards going to Chinese and Indian skilled workers and their families in 2020, with the remainder reserved for to workers from all other countries.

    In 2021 and 2022, the percentage of green cards going to countries other than India and China would drop to just 10% of the total.

    Because of the huge number of Indians awaiting green cards, they would obtain the vast majority of permanent visas for about a decade.

    If signed into law, the quota changes would apply as of October 1, at the start of the government’s fiscal year 2020.

    The post House-passed green card revamp faces hurdles appeared first on HRMorning.

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  • CALIFORNIA BAN ON HAIRSTYLE DISCRIMINATION GOES INTO FORCE

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Uncategorized

    California law now prohibits employers from implementing dress and appearance policies that discriminate against employees or job applicants based on how they wear their hair.

    Governor Gavin Newsom on July 3 signed into law the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair).

    Grooming standards as proxy for race and source of bias

    The law, which is now part of California’s Fair Employment and Housing Act prohibits discrimination in employment and education based on hairstyles that feature “traits historically associated with one’s race, such as hair texture and protective hairstyles.”

    All employers with operations in the state should revisit and revise any personal grooming policies that might run afoul of the law.

    And employers should quickly train all personnel involved in interviewing and hiring, to prevent bias against candidates who choose to wear “hairstyles [such] as braids, locks, and twists.”

    While not restricted to hairstyles most often associated with African Americans, the Act states that hairstyles remain a proxy for race and a source of hiring bias, “especially for Black individuals.”

    Discriminatory dress codes

    The Act also refers to discriminatory dress code policies that prohibit or discourage religious dress.

    It defines religious dress as including “religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed.”

    The CROWN Act has also been introduced in New York and New Jersey, with other states and municipalities likely to follow.

    Indeed, even before the state legislature acts, the New York City Commission on Human Rights in February issued its Legal Enforcement Guidance on Race Discrimination on the Basis of Hair.

    Those regulations follow the Crown Act’s language and focus on “eliminate[ing] dress code and grooming policies that prohibit natural hair, which are likely to deter Black applicants and burden or punish Black employees. “

    The post California ban on hairstyle discrimination goes into force appeared first on HRMorning.

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  • PREPARING FOR SALARY HISTORY BANS?

    AUTHOR: // CATEGORY: Employment Law, Pay and Benefits, Uncategorized

    How can employers make sure that a prospective hire will be willing to take a job at a salary you consider fair before you spend everyone’s time interviewing?

     That puzzle is getting even harder to solve in the nearly 30 cities and states that have banned employers from asking prospects about their salary history.

    And these laws aren’t restricted to the most progressive states
    and cities. Maine and North Carolina are the latest states to pass bans. The
    city of Cincinnati has also joined the list.

    Salary history bans are aimed at encouraging equal pay for minorities and women doing the same jobs as their male colleagues.

    Stopping cycle of low pay

    Backers hope to stop the cycle of below-market salaries in one
    job leading to lower offers when workers apply for a new position.

    Women’s paychecks still lag behind what their male peers get
    paid for the same work and the ratio is even worse for many minorities.

    Research by the American Association of University Women (AAUW) shows women average about 80% of what white male colleagues receive for the same work. Latina women in those jobs average as little as 53% of male peers’ pay.

    What benefits teams need to do

    As is so often the case, these new rules create more work for
    benefits pros striving to find the best candidates at the right salary.

    If you operate where a ban’s in place, the first thing you need
    to do is look at your application policies and any templates or scripts you use
    in the hiring process. Get rid of anything that specifically asks for salary
    history.

    And train your team to protect your organization by documenting
    how they arrived at a specific salary range for the job and for a given
    candidate.

    That means researching salary data available from government and
    industry sources.

    The Bureau of Labor Statistics publishes data on salaries, for example, and the Randstad Salary Calculator benchmarks salaries across many industries.

    And job search sites, including Indeed, Monster and Totaljobs,
    offer salary comparison tools. Candidates are probably looking at these same
    sites, so that can also help align everyone’s expectations.

    Federal law is going to catch up to local and state rules
    eventually.

    It’s a good idea to take action now to ensure your team – and
    your hiring policies and procedures – are ready when they do.

    1

    The post Preparing for salary history bans? appeared first on HRMorning.

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  • IN BATTLE OF PGA V. ADA, GOLFER JOHN DALY GETS AN ACCOMMODATION

    AUTHOR: // CATEGORY: Employment Law, Latest News & Views

    Turns out even the PGA (the Professional Golfers Association) falls under the auspices of the ADA (the Americans with Disabilities Act), which apparently offers no mulligans the second time around.

    According to the published reports, pro golfer John Daly has been granted permission by the PGA to ride in a cart during competition in this week’s PGA Championship at Bethpage Black, on Long Island, NY. 

    The pro golfing circuit has long required players to walk the course, with a caddy to tote the bag. Daly won this event in 1991 and so, has a lifetime exemption to play in the tournament, one of professionals golf’s four major tournaments.

    Daly suffers from osteoarthritis in his right knee. He withdrew from the U.S. Senior Open last year after his request for a cart under the ADA was denied. Daly’s knee problems also sidelined him from the Open Championship. He regularly tees it up on the senior circuit, known as the Champions Tour, which allows players to use golf carts.

    The last player to use a cart during a major was Casey Martin at the 2012 U.S. Open. Martin fought the PGA Tour for the right to ride in tournaments through the ADA, ultimately winning his suit. Martin also used a cart at the 1998 U.S. Open.

    Daly, 53, a rotund and colorful figure on the tour, epitomizes the image of the overweight, chain-smoking, beer-guzzling golfer. He’s made just one cut at the PGA Championship since 2007, finishing tied for 12th as Kiawah Island in 2012. He lasted played Bethpage Black in competition at the 2002 U.S. Open, and tied for 70th.

    The PGA Championship opens May 16.

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  • ARE YOU READY FOR INTERN SEASON?

    AUTHOR: // CATEGORY: DOL intern rules, Employment Law, FLSA (Fair Labor Standards Act), glatt v. Searchlight Pictures, hiring interns, Intern

    It’s almost intern season – when college students are out for the summer and look to build their resume.

    You’ll recall that last year, the DOL dropped its strict “six-factor test” for determining whether an intern qualifies as an employee entitled to at least minimum wage and overtime pay, under the FLSA.

    Under this test, the DOL considered all interns to be employees unless each of the very specific factors in the test were met. As a result, companies generally had to make their internship programs paid to avoid running afoul of the FLSA.

    In its place, the DOL adopted a more employer-friendly “primary beneficiary” test.

    Why the change? Because an increasing number of federal courts had been rejecting the six-factor test in favor of the primary beneficiary test, which was first laid out in Glatt v. Searchlight Pictures in 2015.

    In this case, three unpaid interns sued Searchlight, claiming they acted as employees and should’ve been paid minimum wage and overtime.

    The interns did get experience working on movie sets, but they took lunch orders, answered phones and took out the trash.

    The company said the court should’ve weighed who received the primary benefit, but the court said that was impossible to prove and ruled in favor of the interns.

    More wiggle room for employers

    Since the courts were favoring the primary beneficiary test, the DOL changed its internship rules.

    The new rules require employers to consider who’s the primary beneficiary of the internship – the intern or the employer. If it’s the latter, the internship must be paid.

    The list of factors used by courts to determine the status of the internship includes the following:

    • no expectation of compensation
    • educational training that’s similar to what they’d be given in school
    • academic credit
    • accommodation with the intern’s academic commitments
    • duration of the internship coordinates with the intern’s academic calendar (doesn’t interfere with semesters)
    • job tasks that are primarily not administrative in nature to avoid the perception that the intern is performing the work of other employees, and
    • no guarantee of a paid job at the end of the internship.

    Important note: Not every factor in this list needs to be met in order for an internship to be legally unpaid. Courts may also consider additional factors, if they’re relevant to the situation.

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  • CALIFORNIA SEXUAL HARASSMENT CASE ENDS IN $11M JURY AWARD

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views, Uncategorized

     

    For the second time this year, a California jury has awarded a sizeable $11 million verdict against an employer stemming from a workplace sexual harassment lawsuit, according to numerous published reports.

    Late last week, a Los Angeles jury found against Alki David, a billionaire Beverly Hills producer of holograms of celebrities, and sided with one of his former employees, Chastity Jones.

    Jones alleged that David touched her inappropriately, hired a stripper to perform at work, and demanded that she view pornographic videos with him.

    She testified that she was fired for refusing to have sex with David.

    In January, another Los Angeles jury awarded more than $11 million to two former employees who claimed they were sexually harassed and retaliated against for complaining about the harassment.

    In that case, Megan Meadowcroft and Amber Brown, who worked at the Keyways Vineyard and Winery in Temecula, California, alleged they had been harassed by the general manager, Carlos Pineiro.

    During opening statements in the Jones trial, her attorney alleged David once ran his hands up Jones’ legs and ordered her to watch a porn video.

    Jones also testified a male stripper was hired to perform to celebrate an executive’s birthday. Jones said the performance was offensive and a form of sexual harassment.

    The jury apparently agreed. David said he planned to appeal.

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  • HANDLING SEXUAL HARASSMENT WHEN THE OFFENDER’S THE BIG BOSS

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law

    How should you respond if an employee accuses one of your company’s leaders of sexual harassment?

    Progressive Women’s Leadership shares important insights in its e-guide, “Women Leaders Share What’s Working: New Ways to Prevent Sexual Harassment.”

    Here’s a sneak peek from Chapter 2:

    If a company executive (e.g., your boss) is accused of harassment, it can put you and your company in a very difficult spot.

    Suddenly, you’re faced with having to investigate an individual you report to, right? Well … maybe not, if you take some preemptive steps.

    It all starts with coming up with a plan for how you (and your company) will react … before you have to.

    Here are some best practices to implement now, as recommended by employment law attorneys and experts on harassment prevention:

    1. Create a protocol

    It’s unlikely an executive would sign off on an investigation of him/herself, so it’s often smart to create a protocol that automatically kicks in should an executive be accused of harassment.

    Some things your company may want to have the protocol state:

    • What will trigger an investigation – such as when the accused or the complainant is a company executive or owner.
    • What will happen when the investigation is over – i.e., When will the findings result in a suspension or termination? (Remember, if guilty, a harasser doesn’t have to be fired as long as what you do effectively prevents or stops the harassment.)
    • An impartial, outside firm will conduct the investigation (it can help to already have the firm picked out or on retainer).

    Putting a protocol like this in place sends the message up the ladder that harassment won’t be tolerated at any level.

    And that kind of message can also trickle down through an organization in a very positive way.

    2. Give employees multiple outlets to report harassment

    When harassing behavior comes from a direct supervisor or a person in a position of power, employees are more reluctant to complain out of fear of retaliation.

    So give employees multiple people they can go to with complaints (perhapsincluding a third-party investigative firm) and multiple avenues to issue complaints that executives can’t access (such as an online portal or phone hotline).

    To use these resources to the fullest, the EEOC recommends those responsible for receiving complaints:

    • know how to take all complaints seriously
    • are trained not to retaliate and know consequences of retaliation
    • understand/maintain confidentiality
    • have authority to initiate investigations, and
    • document everything – from intake to investigation to resolution.

    3. React promptly, consistently

    Prompt action is key to preventing further damage. This includes not only in launching the investigation, but also in handing out discipline.

    If an investigation does result in discipline, it can also pay to follow up with the accuser(s) to find out if they feel the company’s actions are effectively preventing or stopping further harassment.

    One final key: To avoid the appearance of favoritism, make sure executives are treated the same as employees when it comes to conducting an investigation and disciplining (or firing) the accused.

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