CHAHRM Work and the Law Employment Law Update March 8, 2019

1. CHAHRMWork and the LawEmployment Law UpdateMarch 8, 2019 Chuck Passaglia Employment Law Solutions, Inc. 303.915.6334 cpassaglia@defendwork.com

2. 2018 Highlights for Workplaces • Little federal legislation affecting work in a divided US Congress; same in a divided Colorado; but, in 2019, Democrats control every aspect of state government. Stand by! • Federal immigration enforcement more aggressive; more arrests/doubled worksite investigations • Continued federal effort to deregulate the workplace • EEOC is still quite active in addressing, in particular, gender and disability discrimination claims

3. Headlines:#MeToo – Moment or Movement? Starting October 2017, dozens of high-profile men accused of sexual assault and/or harassment Two theories of sexual harassment Quid pro quo: An employment benefit is conditioned on sex Hostile work environment: Harassment interferes with work and creates an abusive work environment – unwelcome, unreasonable and severe or pervasive Employers can hold employees to a higher standard than law dictates

4. #MeToo and its Impact on the Law • In FY 2018, which ended October 31, 2018, sexual harassment charges increased by 12% over 2017. The US EEOC filed 217 legal actions: Most cases targeted gender discrimination, e.g., sexual harassment suits increased by 50%; race discrimination lawsuits fell by 25%. • States responded to #MeToo in 2018 • Maryland now limits waivers of future claims of sexual harassment and requires employers with 50+ employees to complete a survey disclosing the number of sexual harassment settlements each year • Tennessee, New Jersey, California and Washington adopted laws which restrict private and public employers from executing any nondisclosure agreement that relates to sexual harassment as a condition of employment or which conceals the details of a sexual harassment claim • Vermont further prohibits employers from requiring applicants or employees to sign, as a condition of employment, a waiver that restricts an employee from participating in an investigation of sexual harassment or disclosing sexual harassment; VT encourages, but does not require, harassment prevention training • However, New York and Delaware added laws mandating sexual harassment training for employees; California expanded its law requiring harassment training to all employees, not just supervisors • New Tax Cuts and Jobs Act of 2018 states no deduction is allowed for any settlement payment related to sexual harassment or sexual abuse if the payment is subject to a nondisclosure agreement; also prohibits deduction for attorneys’ fees related to confidential sexual harassment settlements. This will impact the settlement of sexual harassment claims.

5. A rumor of sex is enough for a claim • Spreading a rumor that an employee is sleeping with the boss may be enough to constitute sex discrimination. Parker v. Reema Consulting (4th Cir. 2019) • By all accounts, Evangeline Parker was a superstar. Over two years, she had received six promotions. However, after her most recent promotion, a male employee who had started about the same time, yet not advanced as far, started a rumor that Ms. Parker was having an affair with the boss who had promoted her. The rumor, which wasn’t true, swept through the facility where Parker worked. In fact, the highest-ranking manager at the warehouse helped spread the gossip, asking Parker’s boss, “Hey, you sure your wife ain’t divorcing you because you’re f*&@ing her?” The same manager allegedly slammed the door on Parker when she tried to attend a staff meeting to confront the rumors and subsequently blamed her for the turmoil in their office. Parker complained to Human Resources and, after a meeting to defuse the conflict and mandatory harassment prevention training, the top manager abruptly fired Ms. Parker for “harassing” the employee who started the rumor and being “insubordinate” to the boss. • Parker sued, claiming sex discrimination and retaliation. The trial court dismissed her case on the grounds that the bullying and harassment she experienced was not based on her sex, but on her falsely alleged conduct. The Fourth Circuit reversed the decision stating that a rumor that a female subordinate had sex with a male superior to obtain a promotion tapped into an old and “deeply rooted perception” that women, not men, use sex to achieve professional success and thus are labeled as sluts or prostitutes. The appellate court emphasized that the rumor about Parker was started by a man and spread by men, including upper management, and it focused on the woman and not the man in the alleged affair. The rumor monger, a man, was permitted to disrupt Parker’s workspace, and never faced discipline. The Fourth Circuit also rejected the district court’s conclusion that the short time frame precluded finding severe or pervasive misconduct. The appellate court emphasized the physically threatening aspects of the treatment Parker faced, including having the highest-ranked manager in the facility, to whom she reported, publicly slam a door in her face and scream at her in a meeting. The appellate court also noted that Parker’s terms and conditions of employment were obviously affected, since she was excluded from a meeting at which the rumor was discussed, humiliated in front of her coworkers, restrained in where she could work and ultimately terminated from employment.

6. Hot topic:Emojis are a • According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017 (from 6 to 12 cases) • In fact, an increasing number of employers are using employees’ emojis to defend harassment cases on the basis that an alleged hostile work environment was either welcomed or subjectively not offensive. For example, in Murdoch v. Medjet Assistance (N.D. Ala. 2018), the court held that the plaintiff’s use of a smiley face emoji in a text message to her accused harasser helped establish an absence of a hostile work environment. Similarly, see Bellue v. East Baton Rouge Sheriff (M.D. La 2018) and Stewart v. Durham (S.D. Miss. 2017). • Of course, use of emojis by employees could support a claim of sexual and other harassment. For example, emojis are alleged to support the sexual harassment case against celebrity chef Mike Isabella who frequently referred to female employees using the emoji of corn in conjuction with texts that described women as “so hot, [he’d] eat the corn out of her shit.” The lawsuit alleges further acts of harassment via text messages with corn emojis.

7. How can employers end harassment? • Incorporate civility into organizational standards! Better yet, expect common courtesies . . . no excuses • Inform/train all employees about expectations of respectful behavior • Allow several avenues for employee complaint: Supervisors, department heads, HR, Legal, anonymous hotline • Encourage bystanders to intervene or require report to a supervisor • Take ALL complaints seriously and follow policy guidance • Conduct a timely, impartial, thorough, documented investigation • Disciplinary action to END offensive conduct, and NOT based solely on desires/positions of the parties • No RETALIATION against a complainant or witness • Commitment of leadership to a diverse, respectful workplace

8. Defusing Harassment:Practical responses to offensive comments • “I’m taking a moment to be sure I heard you right.” • “This seems like a good time to take a break — to reflect on what was just said.” • “If I look perplexed, it’s because I’m thinking about how to give you the benefit of the doubt.” • “I suggest we step back for a moment, because something just went wrong.” • “Of all the things I thought you might say, that certainly wasn’t one of them.” • “If I said what I’m thinking, we’d both be out of line.” • “For two people who respect each other, we’re certainly off course today.” • “Do you want to run that by me again in a less personal way?” • “Did you really say that?” • “I usually respond defensively to comments like that, so give me a moment.” • “If I didn’t know you, I’d think you were insulting me.” • “I have a rule about comments like that one — I don’t respond.” • “Were you making a point or simply trying to amuse yourself at my expense?” • “You’re funny sometimes, but not today.”

9. #MeToo Blindness: Harassment includes claims other than sexual harassment • Mocking an employee’s stuttering can constitute unlawful disability harassment • Augustine Caldera was a correctional officer at a state prison with a profound stutter. The prison’s employees mocked or mimicked Caldera’s stutter at least 12 times over a two-year period. In particular, Caldera’s supervisor, Sergeant James Grove, mocked Caldera publicly in front of several employees and other supervisors. • Caldera sued his employer and his supervisor for disability harassment, failure to prevent harassment and retaliation. A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in damages. However, the trial court found the damage award to be excessive and granted a new trial solely as to the issue of damages. • On appeal, the California Court of Appeal upheld Caldera’s original verdict finding that the prison’s supervisors and toxic culture supported the jury’s findings that the harassing conduct was severe and pervasive. Caldera v. Department of Corrections and Rehabilitation (Cal. App. 4th Dist. 2018)

10. New in Colorado in 2018 • The Colorado Court of Appeals found that employers can bring a breach of the duty of loyalty claim against an independent contractor and increased the potential damages in unfair competition cases. Digital Landscape Inc. v. Media Kings LLC (Colo. App., Sept. 20, 2018). • Effective September 1, 2018, Colorado has a new data privacy and protection law that will likely impact most employers. A “covered entity” is any entity “that maintains, owns, or licenses personal identifying information.” The bill expands the definition of “personal information” that, if breached, would require notification to affected Colorado residents; in cases where more than 500 residents are affected, shortens the period to notify residents and the state’s Attorney General to 30 days after determining a breach has occurred; and adds requirements for reasonable safeguards to protect personal identifying information (PII) and procedures for proper disposal of PII. • Distinguishing a 2003 Colorado Supreme Court opinion, the Colorado Court of Appeals held that an individual executive may be held personally liable for unpaid wages under Colorado’s Wage Claim Act if the plaintiff can “pierce the corporate veil” and show the corporation is the alter ego of the executive. Paradine v. Goei(Colo App., April 19, 2018) • Under the Colorado Wage Claim Act (CWCA), a terminated employee’s right to seek unpaid wages or compensation at termination is subject to the two- or three-year statute of limitations found in the CWCA starting on the date wages became due and payable, not on the date of separation of employment. Hernandez v. Domenico Farms, Inc. (Colo., Mar. 5, 2018)

11. Legislative Proposals in 2019 • Use of Deadly Force. HB19-1022 extends the right to use deadly physical force against an illegal intruder under certain conditions to include owners, managers, and employees of a business • “Ban the Box.” HB 19-1025 would prohibit an employer from advertising that a person with a criminal history may not apply; prohibit an employer from making such a statement on an employment application; and prohibit an employer from inquiring about criminal history on an initial employment application. Exceptions include cases where the employer is required by law to conduct a criminal background check for the position. Enforced by DOL with fines and penalties set forth in the bill; no private right of action; no new protected class under CADA • HB19-1058 creates leave savings accounts for FMLA and tax deduction • HB19-1101 prohibits employers from requiring union membership/payment of union dues as a condition of employment • “Live and let live.” HB 19-1140 Broad freedom of religious belief and moral convictions defense to state public accommodations law • SB19-056 would allow private employers to give a preference to veterans in employment decisions • “Equal Pay For Equal Work” SB 19-085 permits private civil actions to pursue wage discrimination complaints based on an employee's sex; permits wage differential based on factors other than gender; and prohibits seeking wage rate history of a prospective employee

12. US Supreme Court cases involving work • Public employees represented by a union to which they do not belong cannot be required to pay a fee to cover the costs of collective bargaining in violation of the First Amendment,Janus v. AFSCMECouncil 31 • Class action waivers in employment arbitration agreements -- prohibiting employees from bringing employment claims on a collective basis -- do not violate the National Labor Relations Act (NLRA), Epic Systems Corp. v. Lewis, et al. • Service advisors are exempt from overtime under the FLSA’s “automobile dealer” exemption applicable to salesmen, partsmen, and mechanics, Encino Motorcars, LLC v. Navarro • Anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 protects only employees who complain directly to the Securities and Exchange Commission, Digital Realty Trust, Inc. v. Somers • The Court upheld President Trump’s Proclamation No. 9645, known as “Travel Ban 3.0,” Trump, et al. v. Hawaii, et al. However,the Court found unconstitutionally vague the Immigration and Nationality Act’s provision that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation,” Sessions v. Dimaya • The Court ruled in favor of a baker in Colorado who refused to make a wedding cake for a same-sex couple, but the ruling focused on the hostility and the biased process executed by the state against the baker, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission • All public-sector employers – regardless of size -- are subject to the Age Discrimination in Employment Act (ADEA), Mount Lemmon Fire District v. Guidohas

13. US Supreme Court:What happened in the Masterpiece Cake case? • In July 2012, two men -- Mullins and Craig -- got married in Massachusetts and planned a celebration ceremony in Colorado. At that time, marriage between same-sex couples was not yet legal in Colorado. Mullins, Craig, and Craig’s mother, Deborah Munn, went to Masterpiece Cakeshop in Lakewood, Colorado, to inquire about purchasing a cake for the celebration. Upon learning that the cake was intended for a same-sex wedding celebration, the owner of the bakery, Jack Phillips, told them that he would not sell them a wedding cake but, instead, offered to sell “general baked goods” not specifically intended for a wedding. Ms. Munn called the next day pressing the owner why he would not sell her son a wedding cake and he stated that it was against his religious beliefs as he honors God through his artistic work on cakes and that, for him, it would displease God if he created cakes for same-sex weddings. • Mullins and Craig filed a charge of discrimination with the Colorado Civil Rights Commission (CCRC) alleging sexual orientation discrimination in violation of the Colorado Anti-Discrimination Act. An administrative judge ruled in their favor and ordered Masterpiece Cakeshop to design and sell wedding cakes for same-sex unions and to take other remedial measures. On appeal by the bakery, the Colorado Court of Appeals upheld the CCRC’s ruling. The bakery appealed to the US Supreme Court. • In a 7-2 decision, the US Supreme Court ruled the baker’s Free Exercise of Religion rights under the Constitution were not properly considered by the CCRC due to its inconsistency and expressed hostility – rather than required religious neutrality -- toward the baker’s religious beliefs when ruling on his case. • The Court did not address whether the CCRC’s “compelled speech” violated the baker’s free speech rights or the baker’s free exercise of religion to refuse to bake a cake celebrating same-sex marriage. The case cannot be said to authorize employers or businesses to discriminate on the basis of sexual orientation or any other protected status regardless of conflicting religious views.

14. Is sexual orientation protected under Title VII? • Title VII does not specifically protect sexual orientation. However, courts are split on the issue whether sexual orientation is protected. • In 2018, the Second Circuit joined the Seventh Circuit (Hively v. Ivy Tech Community College, 2017) in ruling that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation employment discrimination under the category of “sex.” The court ruled that "because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.“ • In Zarda v. Altitude Express, Inc., a skydiving instructor brought a gender discrimination claim alleging that he was fired from his job because he failed to conform to male sex stereotypes. Donald Zarda told a female client with whom he was preparing for a tandem skydive that he was gay. The client told her boyfriend about the reference who, in turn, complained to the employee’s supervisor. Altitude Express fired Zarda shortly thereafter which he insisted was solely because of his sexual orientation. • This issue will reach the US Supreme Court at some point. See Wittmer v. Phillips 66 Company (5th Cir., Feb. 6, 2019)(joining 11th Cir., Title VII does not prohibit discrimination on the basis of sexual orientation)

15. Is gender identity protected under federal law? • Gender identity is a distinct legal concept from sexual orientation, also not specifically protected under federal law; but is protected under Colorado law. • In 2018, a federal appeals court ruled for the first time that Title VII protects transgender and transitioning employees even over the employer’s religious objections. Stephens v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) • Aimee Stephens, a transgender woman who was born biologically male, began work as a funeral director for a Detroit funeral home in 2007 while still presenting as a man. After six years, Stephens gave the owner of the funeral home a letter indicating that she had struggled with gender identity disorder her entire life; she intended to have sex reassignment surgery; but, before, she must live and work full-time as a woman for one year; and she planned to return from vacation as Aimee Australia Stephens, in appropriate business attire. The owner fired Stephens immediately on the grounds that, for the owner, the Bible teaches that a person’s sex is an immutable God-given gift and that he would be violating God’s commands if he were to permit his male-born funeral director to wear women’s clothes. He also said customers would be unnecessarily distracted and upset by the situation. • Stephens filed a Title VII gender discrimination claim; the lower court dismissed Stephens’ claim on the basis that transgender status is not a protected trait under Title VII and that the Religious Freedom Restoration Act (RFRA) barred the claim because of the employer’s sincere religious beliefs. • On appeal, the appellate court reversed, rejecting the argument that, for the purposes of Title VII, “sex” refers to a “binary characteristic for which there are only two classifications, male and female.” Moreover, the court said that discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping and gender non-conformity. Finally, the court rejected the RFRA defense on the basis RFRA protects religious “exercise,” not “religious beliefs;” a funeral home cannot rely on presumed biases of its customers under RFRA; and, finally, “bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views.” • On a related note, a federal court in Virginia ruled in favor a transgender teenager who wanted to use the boys’ bathroom at his former school, finding that the local school district violated his constitutional rights when it prescribed which bathroom he should use. Grimm v. Gloucester County School Board (E.D.Va., May 22, 2018)

16. ADA Compliance: How broad is the definition of a disability? • Is obesity a disability? Obesity is not specifically covered by the ADA. But can obesity lead to an ADA-defined disability? Maybe. • Shell applied to work as a heavy equipment operator, a safety-sensitive poition, for BNSF Railway. Shell’s job offer was revoked because a post-offer physical exam showed his body mass index (BMI) was deemed to be to be in an obesity range and raised concerns he could develop sleep apnea, diabetes, and heart disease. Shell brought an ADA claim against BNSF. • An Illinois trial court denied BNSF’s motion for summary judgment, noting uniform agreement among the courts of appeals, rejecting ADA coverage based on obesity that is not the result of an underlying physiological disorder, but holding that Shell's claim was covered because the employer regarded Shell as if he had an impairment related to his obesity. BNSF admitted that it refused to hire Shell because it “feared” he would develop conditions he currently does not have. Shell v. BNSF Railway (N.D. Ill., Mar. 5, 2018) See also Richardson v. Chicago Transit Authority, Nos. 17-3508 and 18-2199 (7th Circuit 2019)(Appellate court to decide whether bus driver’s morbid obesity – that does not stem from an underlying physiological disorder – is a disability under the ADA) • Regarding someone as disabled has its limits. In 2018, a federal court dismissed an ADA claim brought by the EEOC that an employer improperly regarded as disabled and fired a massage therapist because the employee requested time off to visit her sister in Ghana, West Africa. The employer terminated the employee out of concern that “she would be infected with Ebola if she traveled to Ghana” and that she would bring it home and infect employees and clients upon her return. The Court declined to expand the “regarded as disabled” definition to cover cases in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct. EEOC v. STME LLC dba Massage Envy (M.D. Fl., February 25, 2018)

17. ADA Compliance: Employer decides essential functions of the job • An employer must accommodate a disabled applicant and employee, but the employee must be able to perform the essential functions of the job. • An assistant manager of a fast-food restaurant was robbed and hit over the head with a weapon while making a bank deposit. He suffered PTSD and depression following the attack. He requested a fixed schedule and assignment to an area with a low crime rate as an accommodation for his disability. • All managers of the restaurant chain are required to rotate among three shifts. The employer temporarily granted the request to work a fixed shift but, later, informed the manager he’d have to be able to work the rotating schedule. The employee resigned and sued under the ADA. • The appellate court found that the ability to work a rotating shift was essential to the job in order to divide work among managers. The fact that job advertisements and the job description identified this duty as essential reinforced the court’s judgment. Sepulveda v. Caribbean Restaurants LLC (1st Cir. 2018)

18. ADA Compliance:Is full-time attendance an essential function of the job? • Full-time presence on the job site can be an essential function of the job. • For his first 18 months of work, employee had worked remotely from his home as a scheduler for a construction management company. However, a local office of the company was established and the new manager required all schedulers to be present in the office. The employee had two epileptic seizures and, while he had no restrictions on working, he could not drive for six months in accordance with South Carolina’s driving law. He requested to work from home until his driving privileges were restored. The company was willing to allow the employee to work from home one day a week for a four-week period while the employee reached a transportation solution, but the company refused to allow him to work from home daily for an extended period. The employee was fired after he exhausted all leave available under FMLA and company policy. • Despite the fact that the original job description made no reference to onsite attendance and that the employee had worked from home for the first 18 months on the job, the trial court concluded that onsite attendance was an essential function of the employee’s job. First, great weight was given to the supervisor’s judgment that onsite attendance was essential; the employee had stated to his doctor that he could not perform his job well from home; and, most importantly, the job had changed making onsite attendance much more critical. The court also ruled that six months’ extended leave was not a reasonable accommodation because it would have required the company to reallocate essential job duties to other employees for an extended period of time. Dunn v. Faithful+Gould Inc. (D. S.C., June 18, 2018). See also Trautman v. Time Warner Cable Tex., LLC (5th Cir., Dec. 12, 2018), Vitti v. Macy’s Inc. (2d Cir., Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp. (8th Cir., Dec. 19, 2018)(regular, reliable attendance an essential function of most jobs) • However, courts may disagree if job has flexibility. See Hostettler v. College of Wooster (6th Cir., July 17, 2018) “An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA requirements.”

19. ADA Compliance:Employer gets to choose “reasonable” accommodation • The ADA requires employers to accommodate reasonably a disabled applicant or employee. Among competing reasonable accommodations, the employer gets to choose the most effective accommodation • Sessoms worked for the University of Pennsylvania. She was on an approved leave for her physical and mental disabilities. She requested to return to a temporary part-time schedule before resuming her full duties AND to be transferred to a different supervisor in a “lower-stress” department. The employer agreed to accommodate the request to return part-time, but declined the request for transfer to a new supervisor. Sessoms refused to report to her current supervisor. As a result, Sessoms was fired. • Granting judgment for the employer on the employee’s ADA claim, the court found that an employer must accommodate reasonably – not necessarily the accommodation requested by the employee – but the most effective accommodation. Here, the employer showed it made good faith efforts to accommodate Sessoms and offered her return to work part-time. Sessoms failed to show that any vacant positions for which she was qualified existed in another department to which she could be transferred. An employer is never required to create a “new” job as an accommodation. Sessoms v. Trustees of the Univ. of Pa. (3rd Cir., June 20, 2018)

20. ADA Compliance: No right to “indefinite” leave donation • Many employers have programs allowing employees to donate their own time off to another employee with serious medical or family issues. • In Winston v. Ross (10th Cir., Feb. 27, 2018), the Tenth Circuit Court of Appeals (which covers Colorado) affirmed the dismissal of an employee’s claims that her employer discriminated against her because it ended her participation in a leave transfer program that allowed employees to donate annual leave when another employee needs additional leave for a medical emergency. After the employee exhausted her leave under the FMLA, her employer approved her participation in the leave transfer program for one year. The employer also provided the employee with a flexible work schedule and temporary reductions in her hours due to her need for additional time off. The employer denied her request to telework two days per week because she could not perform her duties as a receptionist handling visitors and routing calls from home. • Among other things, the employee claimed she was discriminated against on the basis of her disability when her employer terminated her participation in the leave transfer program. However, the court concluded that, as the receptionist, the employee’s job required physical attendance. While she did not dispute that attendance was an essential function of her job, the employee claimed that her participation in the leave transfer program was a necessary accommodation for her disability. However, one could argue that is contradictory since her continued participation in the program would mean that she could take more time away from work. The court noted that “even if participation in the program allowed Ms. Winston to be absent from work, it does not follow that such participation ensured she could perform the essential functions of her job, including physical attendance.” In other words, using leave donated by other employees would allow her to be away from work for health reasons, but it would not enable her to fulfill the essential function of physical attendance.

21. ADA Compliance: No, you can’t bum a Vicodin at work • Employers have a duty to attempt reasonable accommodation of disabled applicants and employees, but an employee must cooperate in the process. • An employee who worked with heavy machinery was prescribed morphine – and took unprescribed Vicodin he obtained from family and co-workers -- to manage the pain of his degenerative disc. Employer’s policy provides that employees must disclose use of prescription drugs that affects ability to perform one’s job safely. Employee never disclosed any drug use, despite fact prescription warned not to operate heavy machinery. • Employer received a complaint that employee had requested Vicodin from a co-worker; ordered a reasonable suspicion drug test; employee tested positive for hyrdrocodone (opioid in Vicodin). Employee disclosed morphine prescription. Employer requested employee consult with doctor for alternative treatment options. Without seeing doctor, employee said he needed to stay on his medications and refused to stop taking morphine. Employer fired the employee. • Trial court summary judgment for employer on employee’s ADA/retaliation claims finding the employee impeded the employer’s ability to investigate the extent of his disability and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication could reasonably accommodate his disability. Sloan v. Repacorp, Inc. (S.D. Ohio, Feb. 27, 2018)

22. ADA Compliance:Other Quick Lessons from 2018 Cases • Failure to list the ability to work a 12-hour shift in a security officer’s job description supported employee’s claim that it was not “essential” and, therefore, request to keep regular 8-hour shift should have been accommodated by employer, Florida A&M University v. Snead (11th Cir., February 21, 2018) • The ability to work overtime regularly can be an essential function of the job; therefore, inability to work overtime hours may render an employee unqualified and not protected, Faidley v. UPS (8th Cir., May 11, 2018). Requirement to work overtime by UPS driver clearly is expressed in written job description, applicable collective bargaining agreement and practical reality of position where weather and workload, e.g., holiday periods, can increase deliveries and hours required. Fact UPS driver usually completed his required route in less than eight hours does not change fact that a task may still be an essential function “even if the employee performs it for only a few minutes each week.” See also McNeil v. Union Pac. R.R. (D. Neb., May 21, 2018)(“essential” that railroad emergency dispatcher be able to work overtime in emergency situations)

23. Again, job descriptions are really important • School security officer with plantar fasciitis requested to sit for brief periods of time while working. The school district wanted the employee to “walk constantly” around the premises, denying her request for a chair and desk where she could rest her feet for ten minutes of every hour. • In defense of the employee’s ADA claim, the school district argued that “constant walking” was an essential job function. To determine whether constantly walking is an essential function, the court considered (1) the employee’s job description; (2) the employer’s opinion; (3) the amount of time spent performing the function, (4) the consequences for not requiring the individual to perform the duty, and (5) past and current work experiences. • The court turned first to the job description and noted that it did not specify how much standing and walking is required, leaving that specific issue open to interpretation. While the job description required security officers to perform sweeps and actively respond to fights or other issues in the school that threaten the safety of students, staff, and/or guests, the Court found that “it is not clear from the record that a security officer who sits for a few minutes each hour cannot perform these tasks. The Court also found that because one of the job description’s listed duties is “maintaining an orderly post and remaining at the post at all times unless otherwise directed by a supervisor,” this suggested that for some period of time the security officer is expected to remain in one stationary place.” The Court found, therefore, that the job description was not sufficient to carry the District’s burden under the first factor. Accordingly, the court denied the employer’s request for summary judgment. Ammons v. Chicago Board of Education (N.D. Ill. 2018),

24. ADA/FMLA Compliance: Protection is triggered by knowledge of a health condition • If an employer is unaware an employee has a disability at the time of termination, the employer is not liable under the ADA or FMLA. • An employee with sleep apnea was repeatedly late and was warned she could be fired. After she was late again, the supervisor elected to fire her. At the termination meeting, the employee brought in a note which said she “most probably” had sleep apnea and that she “needs to be re-tested and treated.” Nonetheless, the appellate court upheld the termination since it was not clear that the employee “actually suffered from sleep apnea at the time she was fired” or that she was receiving any care for the condition. In any event, it was clear the decision to fire had already been made by a supervisor who had no notice of her sleep apnea before the meeting at which she presented the note from her physician. Thus, her FMLA and ADA claims failed. In Guzman v. Brown County (7th Cir. 2018) • Similarly, in Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs. (S.D.N.Y., March 13, 2018), a recovered alcoholic’s claim of disability discrimination failed because the employee couldn’t show he was substantially limited in any major life or that his supervisors were even aware of his alcoholism or perceived him as disabled.

25. The Right Not to Work:Recent FMLA Opinion Letters from USDOL • The FMLA entitles eligible employees of covered employers up to 12 weeks’ job-guaranteed leave for birth and care of a newborn, adoption or foster care of a child and the serious health condition of the employee or his/her spouse, child or parent. FMLA cannot be used as a negative in any attendance program. • A serious health condition includes time off to donate an organ since the surgery commonly requires an overnight stay in the hospital. FMLA Opinion Letter FMLA2018-2-A (August 28, 2018) • A no-fault attendance policy that effectively “freezes,” throughout the duration of an employee’s FMLA leave, the number of attendance points that the employee accrued prior to taking his or her leave does not violate the FMLA as long as the policy is applied in a nondiscriminatory manner. FMLA2018-1-A (August 28, 2018) Note: This letter only addresses a continuous leave scenario – an employee returns from continuous absence with the same number of attendance points – but does not address how the policy would apply in an intermittent leave or partial return-to-work scenario.

26. FMLA Compliance: Recent cases address common questions • Can an employee continue to work while on FMLA leave? A sales employee requested FMLA leave to care for her husband. [The husband had acquired a franchise for a competing business and the employee actually took FMLA leave to attend a lengthy training program.] When the employee requested FMLA leave, the employer offered her two options: (1) she could go on unpaid FMLA leave; or (2) she could work remotely a few times per week on existing accounts and earn commissions while on leave. She chose the latter option. However, during the leave, the company learned that the employee was not responding to emails and voicemails, so it cut off remote access and sent an e-mail, mistakenly, to clients that the employee no longer worked at the company. The employee refused to return from FMLA leave, mistakenly thinking she’d been fired, and sued alleging her FMLA rights were interfered with because her employer asked her if she wanted to work during her leave. The Court held that “giving employees the option to work while on leave does not constitute interference with FMLA rights so long as working while on leave is not a condition of continued employment.” FMLA permits voluntary acceptance of work on medical leave. D’Onofrio v. Vacation Publications (5th Cir., Apr 23, 2018). • How far can an employer go to discover FMLA abuse? Police chief of the Pocatello (ID) Police Department decided to surveil a 21-year police officer during his FMLA leave, including setting up a police surveillance camera on his neighbor’s property. Even though the employee was granted leave, and he was never disciplined, he filed an FMLA interference claim against his employer. The court allowed the FMLA claim on the question whether the PD’s invasive surveillance of the employee’s private activities would “chill” his use of FMLA. Walker v. City of Pocatello (D. Id., January 31, 2018)

27. Religious Discrimination:Love is Never in the Air . . . at Work • Cost Containment Group (CCG), a New York-based healthcare consulting company, hired hired Linda “Denali” Jordan, founder of “Harnessing Happiness,” to improve workforce communication and teamwork. The program features the cartoon character “Onionhead” as a tool to improve workplace interactions. • Denali diagnosed the workplace culture as having “disharmony” with a high number of “young people with cancer.” Therefore, a primary tenet of Harnessing Happiness is requiring employees to say “I love you” when speaking to each other. Also, workers were instructed to select a playing card from a deck of “Universal Truths” cards each day to “shed Light” upon them, “reunite them with the ecstatic Universal Realm” and bring them “closer to divinity.” During a weekend company retreat, workers were instructed to recite from “angel cards” and participate in late-night praying and chanting sessions until 1:30 a.m. CCG installed Buddha and angel statues, hung spiritual posters, lit candles, burned incense, and played spiritual music around the office. • The EEOC sued CCG after employees complained Onionhead was actually a new-age religion that was being forced upon them, causing several employees to quit or be fired. CCG defended that Onionhead is a corporate communication strategy, not a religion. On April 25, 2018, a federal jury awarded $5.1 million against CCG for religious discrimination and failure to accommodate employees who wanted to “opt out” of Onionhead practices at work.

28. Religious Accommodation:Most-effective, not most-preferred, accommodation • Like the ADA, an employee is entitled to reasonable accommodation of religious practices, but it may be the most-effective, not the most-preferred, accommodation, even where the difference means lost pay • An employee asked for Saturdays off for his religious beliefs. The employer granted the employee’s request. However, Saturday is the day employees usually worked overtime, thereby leaving the employee with no overtime opportunity. The employee requested to work on Sundays to preserve his ability to work overtime. The employer refused. The employee sued. • Finding for the employer, the appellate court recognized that granting the worker his requested accommodation of Saturdays off had cost him his overtime opportunities but held that the company was not required to allow him to work make up hours on Sundays. The Court found that an accommodation is reasonable if it allows the plaintiff “to engage in his religious practice despite the employer’s normal rules to the contrary.” The Court rejected the argument that Title VII required the company to then allow him to work make-up overtime on Sundays. Christmon v. B&B Airparts, Inc. (10th Cir., May 24, 2018)

29. No retaliation claim permitted by applicant for refusal of religious accommodation request • In a case of first impression, an appellate court ruled that an applicant’s request for religious accommodation did not constitute “protected activity” for purposes of proving a retaliation claim. EEOC v. North Memorial Health Care (8th Cir. 2018). Instead, the applicant must file a claim of religious discrimination under Title VII. • The applicant, a Seventh-day Adventist and registered nurse, applied for a position at North Memorial Health Care. During the interview process, the applicant learned the position would require her to work eight-hour shifts every other weekend under the employer’s collective bargaining agreement. However, she did not inform North Memorial that her religion did not permit her to work from sundown on Friday to sundown on Saturday. The hospital made the applicant a conditional job offer and she accepted the position. While completing the prehire paperwork, she disclosed that she would need to be accommodated in scheduling because of her religious beliefs. North Memorial rescinded its employment offer concluding that it could not accommodate her. • Interestingly, the EEOC brought a retaliation claim against the employer for rescinding the job offer, but no religious discrimination claim. On appeal, the appellate court found that simply requesting a religious accommodation is not “opposition” to an unlawful practice protected from retaliation. However, the Court of Appeals recognized that a Title VII retaliation claim could be asserted in other contexts involving requests for religious accommodation. Examples cited by the 8th Circuit included situations where an employer has a policy of not accommodating religious practices and an employee is terminated for opposing such a practice, or where an employer denied an accommodation request on the grounds that it was not based on a religious practice but then takes a materially adverse action against the individual because of the request.

30. Age Discrimination:ALL workers 40 and older are protected • In 2018, the EEOC announced that Orlando-based Darden Restaurants – which operates Seasons 52 restaurants in 41 locations across the US -- will pay $2.85 million to settle a federal lawsuit alleging that job candidates were told the company does not hire “old white guys.” • As part of the settlement, Seasons 52 admitted no liability and continues to deny the allegations, but is required to hold training for all hiring managers regarding “age-neutral and non-discriminatory recruiting, interviewing, and hiring; and how to avoid stereotypes in hiring and in the workplace, including ageism and age stereotypes.’’ • Alleged victims of age discrimination will also be invited to reapply for employment. The restaurant chain has agreed to have its hiring practices monitored for three years by an independent attorney from a prestigious law firm.

31. But job applicants age claims are limited • An applicant applied for an in-house legal position with CareFusion Corporation. The posted job description required applicants to have "3 to 7 years (no more than 7 years) of relevant legal experience." The plaintiff was 58 at the time he applied and had more than seven years of pertinent experience. He was passed over in favor of a 29-year-old applicant who met, and did not exceed, the experience requirement. • The appellate court affirmed dismissal of the applicant’s age discrimination claim. The appellate court held that the Age Discrimination in Employment Act (ADEA) does not extend to outside job applicants who claim they have been victimized by disparate impact discrimination. Disparate impact claims are usually permitted where an employer’s policy or practice, even if neutral, has an adverse impact on a protected group, in this case, persons age 40 and older. The Seventh Circuit held that the ADEA's disparate impact provision applies only to employees and does not extend to outside applicants for employment. The appellate court reasoned that Congress specifically extended Title VII of the Civil Rights Act to add "applicants" but had never done so in the same way with the ADEA. The court refused to broaden the meaning of the law. Kleber v. CareFusion Corp. (7th Cir. 2019)

32. Headlines:You are only as old as you feel! • In 2018, a Dutch man, Emile Ratelband, sued to have his birth year, 1949, changed to 1969, thus making himself 20 years younger on the basis that age should correlate to “how you feel” and, as precedent, cited that one can already legally change one’s name and gender. • On December 3, 2018, a Dutch district court denied his request on the basis that Mr. Ratelband did not give any good reason to make a change in the law; many legal entitlements are specifically tied to one’s age, e.g., educational requirements, voting, retirement benefits, thus, granting his request would render age requirements “meaningless;” and society has every interest in maintaining accurate public registries of births, marriages and deaths.

33. Wage and Hour: The salary threshold for exempt employees will likely change in 2019 • Under the Fair Labor Standards Act, in order to be exempt from the payment of overtime, a bona fide executive, administrative or professional employees must be paid a salary of at least $23,660 per year ($455 per week). • An effort to increase the salary level to $47,476 failed in 2017. • Publication of a new proposed rule on the “white collar” overtime exemptions, which was expected in October 2018, has been delayed until March 2019. Insiders expect the US DOL to set a salary level in the mid- $30,000 range annually, or close to $600 per week. Stand by for more information in Spring 2019.

34. Wage and Hour Law: Return of Opinion Letters and advice for employers • Compensability of travel time. FLSA does not require employers to compensate non-exempt employees for time traveling to or from work, regardless of whether the worksite is at a fixed location or different job sites. Compensability rules for travel apply equally regardless of whether or not the employee is driving a company vehicle or a personal vehicle. Employees must be paid for travel time from job site to job site. Time spent traveling out of town for work is also compensable when it cuts across the employee’s normal work hours, even when the travel time occurs on the weekend. Normal work hours is average over the most recent month or a mutually agreed-upon definition of normal work hours. Travel from out-of-town worksite to hotel is not compensable. FLSA2018-18 • Rest breaks for health conditions. DOL clarified that employees must be compensated for rest breaks only when the breaks predominantly benefit the employer. Breaks due to health conditions, e.g., 15 minute break under for FMLA-qualifying serious health condition, are primarily for benefit of the employee, and not compensable. Regular paid rest breaks offered to all employees must be afforded to the employee on FMLA leave. FLSA2018-19 • Wellness programs. Employee’s voluntary participation in biometric screenings, wellness activities, and benefits fairs benefit the employee; therefore, the time is unpaid.

35. Wage and Hour Law:New less-restrictive guidance on interns • On January 5, 2018, the US Department of Labor adopted a seven-part test to determine whether a person can be an UNPAID intern. In 2010, the Obama Administration had established a strict six-part test to define an intern. The test was rejected by the Sixth Circuit (2011), Eleventh Circuit (2015), Second Circuit (2016) and Ninth Circuit (2017) • Under revised Fact Sheet #71, the following seven factors should be considered and weighed: The extent to which the intern and the employer clearly understand that there is no expectation of compensation. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the end of the internship. • The DOL makes clear “no single factor is determinative;” instead, the “economic reality” of the intern-employer relationship governs. Unpaid internships in the public sector and for non-profit charitable, religious, civic, or humanitarian organizations “are generally permissible.”

36. Headlines:ACA ruled unconstitutional, but … • On December 14, 2018, Texas v. United States of America, a Texas federal court declared the entire Affordable Care Act (ACA) unconstitutional. Judge Reed O’Connor held that the individual mandate (upheld in 2012 as valid under Congress’ power to tax) is no longer valid due to the reduction of the tax penalty to $0 last year under the Tax Cut and Jobs Act. Judge O’Connor further ruled that the individual mandate was essential to the ACA, and if it fails, the entire statute fails. However, the court did not issue an injunction invalidating the law and the case is expected to be appealed to the U.S. Supreme Court. In the meantime, ACA remains in effect. • On the other end of the political spectrum, in January 2019, courts in California and the District of Columbia recently blocked the Trump Administration’s new rules to limit contraceptive coverage under ACA. The ACA mandates that birth control services be covered at no additional cost to employees. But under rules issued in October 2017, the Trump administration allowed for-profit companies to opt out of providing contraceptive coverage under the ACA if they had religious or moral objections. Attorneys General in five states - including California and New York - successfully challenged the rules as an "unlawful overreach.“ But in November 2018, the administration published revised rules emphasizing that female employees could use alternatives such as family-planning clinics instead of seeking birth control services through the ACA. This time, 13 states plus the District of Columbia sued to stop the rules from taking effect. • Issuing a nationwide preliminary injunction earlier this week, US District Judge Wendy Beetlestone called the administration's policy of placing stricter limits on contraceptives than other types of preventive care "inconsistent with the text" of ACA. She also ruled the policy would harm the states significantly because women who lost their contraceptive coverage would inevitably seek state-funded contraceptive services and the result would be increased health care costs.

37. Employee handbooks and the NLRB: Boeing! • In The Boeing Company, 365 NLRB 154 (Dec. 14, 2017), the National Labor Relations Board (NLRB) established a new standard for workplace policies that balances employee rights to engage in protected concerted activity—such as to organize, bargain collectively or engage in other activities for mutual aid and protection—and a business's right to maintain discipline and productivity, and protect its property. • On June 6, 2018, the NLRB General Counsel's office issued Memorandum 18-04 guidance clarifying the decision. Most importantly, the guidance highlights “Rules That Are Generally Lawful to Maintain,” including rules prohibiting uncivil behavior, such as name-calling, gossip, offensive language or rudeness; banning photography and recordings at work, or requiring prior approval; rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; prohibiting disruptive behavior; protecting confidential, proprietary, and customer information or documents; against defamation or misrepresentation; against using employer logos or intellectual property; requiring authorization to speak for the company; and banning disloyalty, nepotism, or self-enrichment. • Other rules will require individualized case-by-case scrutiny, such as broad conflict of interest rules that do not specifically target fraud and self-enrichment; confidentiality rules that reference "employer business" or "employee information" broadly, rather than customer or proprietary information; rules prohibiting disparagement or criticism of the employer; rules regulating the use of the employer's name, rather than its logo or trademark; rules generally restricting speaking to media or third parties; rules banning off-duty conduct that might harm the employer, rather than insubordination or disruptive conduct at work; and rules against making false and inaccurate statements generally, rather than making defamatory statements. • Finally, the guidance clarifies that some rules are unlawful to maintain, including confidentiality rules on wages, benefits, or working conditions; and rules against joining outside organizations or voting on matters concerning the employer, which would generally be interpreted as prohibiting union participation.

38. NLRB also limits employee “gripes” • In Alstate Maintenance, LLC, 367 NLRB 68 (January 11, 2019), the current NLRB reversed the Obama-era NLRB and made it more difficult for employees to claim that workplace gripes are protected concerted activity (PCA) under the National Labor Relations Act. • In the case, skycaps employed by Alstate Maintenance at John F. Kennedy International Airport were directed to assist with a traveling soccer team’s equipment. However, one employee remarked in front of the others that, “we did a similar job a year prior and we didn’t receive a tip for it.” Therefore, the employees initially refused, and later reluctantly, helped. They were fired for poor customer service and complaints about not getting a tip. • A regional office of the NLRB Board issued a complaint on behalf of one of the skycaps alleging that he had been discharged for engaging in PCA in violation of the NLRA. A judge dismissed the complaint, finding that the gripe regarding the tipping habits of the soccer team was neither concerted activity nor undertaken for mutual aid or protection, and was thus a valid basis for the firing. On appeal, the NLRB agreed by a vote of 3-1. The majority held that the individual employee’s complaint to his manager about the possibility of not getting a tip was not PCA under the NLRA even though the complaint was made in front of other employees. Rather, the individual complaint was a “mere gripe,” not a “concerted” complaint made on behalf of, or to induce action by, his co-workers. The Board expressly overruled its 2011 decision in WorldMark by Wyndham, whereby a two-member Democrat-majority Board found that an individual employee’s comments made during a meeting about a new dress code policy were PCA because “an employee who protests publicly in a group setting is engaged in initiating group action.” The Board identified factors that tend to support an inference that an employee’s complaint is intended to induce group action and therefore “concerted”, including how and where the complaint is made.

39. Headlines:Secret Recording in the Workplace • In 2018, Omarosa Manigault-Newman publicly played a recording of a meeting with her former boss, White House Chief of Staff John Kelly, to bolster her claim that he threatened her. • 12 states have “all-party consent” to recording laws. Federal law and Colorado are “single-party consent” jurisdictions, meaning secretly recording others is lawful if only one party consents to the recorded communication. Of course, parties can expressly or impliedly consent to being recorded. • Surreptitious recording by any party is often viewed as a breach of trust and can harm morale and, therefore, is not recommended. Government employers can generally prohibit recording in the workplace, particularly, to preserve confidential information or trade secrets, privacy of others, including medical or health information. • In the private sector, during the Obama Administration, the National Labor Relations Board (NLRB) ruled that restrictions on employee recordings at work generally violated the National Labor Relations Act (NLRA). However, in December 2017, the NLRB under President Trump held in The Boeing Company case that bans on workplace recording are generally lawful. The NLRB reasoned that Boeing had very substantial legitimate interests in preventing recordings that outweighed the “small risk that the rules would interfere with peripheral NLRA-protected activity…” Private sector employers must still remain cautious that restrictive no-recording rules may violate the NLRA.

40. Headlines:What Happened to the Trump Middle Finger Flipper? • On October 31, 2017, JuliBriskman was forced to resign by her employer, Akima, LLC, after a photo of her “flipping off” the President’s motorcade went viral. Although she was not identified in the photo, Ms. Briskman elected to update her Facebook and Twitter pages, using the photo as her cover photo. Subsequent media accounts identified her employer, a defense contractor in the DC area. The company claimed Briskman’s action violated the company’s social media policy and created a conflict of interest. • Ms. Brinkman sued Akima LLC for wrongful termination in violation of public policy. • In June 2018, a Virginia court dismissed the wrongful termination claim on the grounds there is no “free speech” public policy exception to Virginia’s at-will employment scheme. Rather than appeal, Ms. Briskman is running for the Loudon County (VA) Board of Supervisors in 2019.

41. Hot Topics:Paid Parental Leave and the Law • Federal and Colorado law do not require PAID parental leave upon the birth or adoption of a child; however, many employers have adopted paid leave programs for new parents • Paid leave for use by new-parent employees is to recover from the birth of a child and/or to care for or bond with a new child. Paid parental leave is distinguished from maternity leave (paid time off for a new mother to recover from pregnancy, childbirth and related medical conditions), FMLA leave (unpaid, job-protected time off for birth/adoption of a child) and short-term disability benefits (covering all medical incapacity, including pregnancy and childbirth). • Employers must be cautious, though, about gender discrimination in establishing these leave programs. In 2018, Estée Lauder agreed to pay $1.1 million to settle an EEOC claim filed on behalf of 210 male employees that its parental leave policy discriminated against new fathers. • Estée Lauder provided new fathers with less paid parental leave to bond with a newborn or newly-placed adopted or foster child than it provided to new mothers. While new mothers were given six weeks of paid leave for child bonding after their medical leave related to childbirth was exhausted, new fathers only received two weeks of paid leave. The company also denied new fathers the same flexible return-to-work benefits provided to new mothers, which allowed new mothers to temporary modify their work schedules for up to six weeks to ease their transition back to work following paid parental leave. Estée Lauder has implemented a new parental leave policy that provides all eligible employees, regardless of gender or care­giver status, 20 weeks of paid leave for child bonding and the same six-week flexibility period upon returning to work.

42. Hot Topics:No stopping the growth of marijuana in 2018 • In November 2018, Michigan became the first Midwestern state to adopt a recreational marijuana law by state-wide ballot initiative. Now, 10 states (AK, CA, CO, DC, ME, MA, MI, NV, OR, VT, WA) have legalized marijuana for adult recreational use • In 2018, Missouri and Utah both adopted medical marijuana by state-wide vote. Now, 33 states (AK, AZ, AR, CA, CO, CT, DE, DC, FL, HI, IL, LA, ME, MD, MA, MI, MN, MO, MT, NV, NH, NJ, NM, NY, ND, OH, OK, OR, PA, RI, UT, VT, WA and WV) have legalized medical marijuana • Colorado courts maintain that employers do not have to accommodate medical marijuana use by a disabled employee and off-duty, off-premises marijuana use is not protected by Colorado’s lawful off-duty activities statute

43. Just how far does “freedom of association” go for public employees? • In 2018, the US Supreme Court refused to reconsider Coker v. Whittington, 858 F.3d 304 (5th Cir. 2017) leaving the ruling in place. • The Bossier Parish (LA) Sheriff learned that two deputies had taken up residence in the other’s home and permanently “swapped” spouses without having divorced their spouses. The deputies were accused of violating the department’s “conduct unbecoming” standard and a rule requiring sheriff’s deputies to notify their supervisor of a change of address; and were ordered to cease living with the non-spouses or they would lose their jobs. • The deputies filed suit alleging their First Amendment right to freedom of association had been violated. Ruling for the employer, the appellate court found no support that the deputies, "as public employees of law enforcement agencies, have constitutional rights to 'associate' with each other's spouses before formal divorce." In particular, "[s]exual decisions between consenting adults take on a different color when the adults are law enforcement officers.“ Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public; the conduct “besmirch[ed] the reputation of the Sheriff's Department and hinder its ability to maintain public credibility; and had “great potential to create internal dissension within the force.”

44. Appearance discrimination: My “spouse told me to” is not a defense to gender discrimination • Typically, physical beauty is not a protected class under civil rights laws. • However, a female employee of a chiropractic/wellness center co-owned by a married couple was allegedly fired because the wife/co-owner deemed the employee "too cute" to work there. Several months into the plaintiff's employment, she received a text warning her to "stay the [expletive] away from my husband and family!!!!!!!" The husband/co-owner fired the employee in an e-mail shortly thereafter, explaining, "You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.“ A New York appellate court ruled that "it is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination." In this case, the court found the motivation to terminate the woman were sexual or sex-based in nature – unjustified jealousy based on the woman’s physical attractiveness -- and therefore could support a viable claim. Edwards v. Nicolai (N.Y. App. Div. 1st Dep’t 2017) • Similarly, a Pennsylvania court ruled that a woman who was fired solely because the boss’ wife disapproved of him working closely with women could bring a claim of gender discrimination. The court found that it could be construed that the spouse was unlawfully jealous of an entire protected class and allowed the claim to proceed. Sztroin v. PennWestIndus. Trucks, LLC, (W.D. Pa. 2017)

45. Trending topic: Kids and work On January 31, 2019, Vermont became the first state to launch an “Infants in the Workplace” program for state employees. The policy will allow a state employee the option to bring their infant children up to the age of six months to work. The program is available to state employees who are parents or legal guardians of infants between the ages of six weeks and six months. Eligible parents must apply to participate and receive approval from their supervisor and the Commissioners of Human Resources and Buildings and General Services to insure the work site is appropriate and all safety and health measures are in place.

46. Headlines:Things you will definitely hear more about in 2019 • Paid sick/safe leave: Effective October 29, 2018, New Jersey became the 10th state to enact a paid leave mandate for employers. This continues to be a growing trend across the country. • “Ban the box:” Washington became the 11th state to “ban the box," limiting private employers from asking about arrests or convictions - or receive information through a criminal background check - before a job applicant is deemed otherwise qualified for a position. WA law also bans employers from advertising job openings in a way that excludes people with criminal records from applying, e.g., "no felons," "no criminal background“ • Salary history bans: Effective January 1, 2019, CT, HA, and OR – joining CA, DE, MA and VT -- have laws restricting employers from inquiring into an applicant’s wage and salary history • “Gender-free” restrooms: Vermont now requires that single-user restrooms in all public buildings or places of public accommodation must be made available for use by persons of any gender • Artificial Intelligence (AI): A recent MIT Technology Review article identified “Five Jobs That Are Set to Grow in 2018” naming “Artificial Intelligence (AI) engineer” as the growth profession. Further, a recent survey of HR professionals found that 17% of participants’ organizations currently use AI in hiring.

47. On the Lighter Side: Employee surveys tell much • A 2018 Harvard Business Review survey revealed 58% of respondents trust strangers more than their own boss • Global studies reveal that 79% of people who quit their jobs cite “lack of appreciation” as their reason for leaving: People don’t leave organizations; they leave their bosses! • American workers forfeited nearly 50% of their paid vacation in 2017. And, nearly 10% took no vacation days at all. According to a study by Glassdoor, the “fear of falling behind” is the number one reason people don’t use vacation time. • Another study by Glassdoor suggests that men and women are almost equal when it comes to finding love in the workplace. Women find love a little more frequently than men, 52% compared to 48% of men. • However, The Conference Board reported in 2018 that 53% of Americans are currently unhappy at work.

48. Questions? Chuck Passaglia Employment Law Solutions, Inc. 303.915.6334 cpassaglia@defendwork.com