EEOC announces that Title VII treats all LGBT discrimination as unlawful sex discrimination

Last week, the EEOC released a historic decision on same-sex employment discrimination rights [pdf]. The EEOC confirmed that, in its opinion, Title VII expressly bars discrimination based on sexual orientation. When you couple this decision with an earlier 2012 decision on transgender workplace rights, the EEOC has done what Congress has thus far refused—to re-write Title VII to include express prohibitions against LGBT discrimination.

How does the EEOC reason that allegations of sexual-orientation discrimination necessarily state a claim of Title-VII-protected sex discrimination?

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not…. [W]e conclude that sexual orientation is inherently a “sex-based ccmsideration” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaintant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account….

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex….

Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.

What does this mean? ENDA or no ENDA, the EEOC will accept charges alleging LGBT discrimination under Title VII’s sex-discrimination prohibition. Indeed, the agency accepted more than 1,000 of these charges last year alone.

While neither nor courts have approved this broad stroke, now is as good a time as any to consider updating to your employment policies to reflect this paradigm shift.

WIRTW #375 (the “post-it” edition)

Have you heard the one about the intern fired after hiding an offensive message for his employer buried within the stack of post-it notes he was sent out to purchase? 

Opposing Views has all the info.

Here’s the rest of what I read this week:

Discrimination

• Workplace Impact of Same-Sex Marriage Supreme Court Decision — via Blogging4Jobs
• Obergefell Decision Impact on Employers — via In-house ACCess
• Federal Court Says Employer Can Be Liable for Acts of Anonymous Harasser — via Employment Matters Blog
• Hospital Settles ADA Suit Alleging It Withdrew Job Offer After Learning Applicant Had MS — via Joe’s HR and Benefits Blog
• Blatant Ageism — via Mike Haberman’s Omega HR Solutions
• Timing of Self-ID Usually Emerges As Ugly Issue as Companies Mature… — via The HR Capitalist, Kris Dunn

Social Media & Workplace Technology

• Facebook is Not Your Friend at Work — via Employment Discrimination Report
• Report: Bloggers Trusted More Than All But Family And Friends — via Above the Law

HR & Employee Relations

• Mistakes Employers Make When Conducting Background Checks — via TLNT
• The danger of a 24-hour workday — via Business Management Daily
• Post-Employment Covenants: Is an Inducement to Smile An Inducement to Cancel? — via Employment Matters Blog
• Conflating abuse and incivility in the academic workplace — via Minding the Workplace
• OSHA Extends Enforcement Date for Confined Spaces in Construction Standard — via OSHA Law Blog
• An Injured Employee Tests Positive for Drugs… Now What? — via GMS Blog
• Keeping up with Background Screening — via ERC Insights Blog

Wage & Hour

• No Vacation for Employment Law: New “Interpretation” for Independent Contractors Issued by USDOL — via Dan Schwartz’s Connecticut Employment Law Blog
• Welcome to the 1099 Economy — via Compensation Cafe
• Fedex Drivers In Kansas Are Employees Not Independent Contractors — via Wage & Hour Defense Institute
• Evaluating The Impact Of USDOL’s Salary Proposal — via Wage and Hour Laws Blog
• Will the new #overtime rules be good or bad? Here’s how to be heard. — via Eric Meyer’s The Employer Handbook Blog
• Just Say No To Overtime — via Next Blog
• How Obergefell v. Hodges Impacts Employee Leave Laws — via The Emplawyerologist
• Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer’s Lead — via Jeff Nowak’s FMLA Insights

Labor Relations

• Court of Appeals Reverses Board Decision Allowing Employees to Wear “Inmate,” “Prisoner” Shirts in Customer Homes — via Labor Relations Today
• Union Is the New Black: Labor Organizing in Orange Is the New Black, And What It Means For You — via Workplace Fairness
• AT&T’s “Prison” Break: “Inmate” Employees Lose NLRB Appeal — via All in a Day’s Work
• Photo ID Needed to Leave Union, Not to Vote for Union — via Matt Austin Labor Law
• Federal Judge Disregards NLRB’s Murphy Oil Holding and Dismisses Employees’ Wage/Hour Claims — via Management Memo
• Unions hit the gas: New ‘ambush’ rules cause spike in elections — via Business Management Daily

Who is an employee? DOL has answers in guidance on independent-contractor status

I’ve written a lot in the past year about the distinction between employees and independent contractors under federal wage-and-hour laws (here, here, here, and here).

To me, here is what it all boils down to (cribbed from my post, The “duck” test for independent contractors:

The best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee…. I think you know an employee when you see one.

I’ve also cautioned that it is very difficult for an employer to justify the classification of a worker as an independent contractor, and that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors.

Make no mistake, this issue is of vital importance, because the mis-classification of an employee as a contractor carries with it serious implication under the FLSA, the employment discrimination laws, ERISA, tax laws, and any other laws that regulate the relationship between employer and employee.

Yesterday, the Department of Labor’s Wage and Hour Division Administrator David Weil issued a crucial Administrator’s Interpretation on this issue. Entitled, “The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” the guidance clarifies the uphill battle employers face on this issue and asserts that “most workers are employees.”

In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as “to suffer or permit to work” and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor. The factors should not be analyzed mechanically or in a vacuum, and no single factor, including control, should be over-emphasized. Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee).

What should employers do in response to this guidance? At the end of the day, nothing different than that which I’ve been suggesting for the past few years—in all but the clearest of cases, assume that everyone you pay in exchange for services is an employee, and act accordingly. This issue is squarely on the the DOL’s radar, and employers who take unnecessary risks do so at their peril.

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resumés, applications, and related employment materials, including interview records and notes	6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents	6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms	The later of 3 years from date of hire or 1 year after termination of employment
Written contracts	8 years after expiration
Handbooks, and other policies or procedures	6 years after expiration
Collective bargaining agreements	6 years after expiration
Compensation and time records	3 years after termination
FMLA and USERRA and related leave records	3 years after termination
Performance appraisal and disciplinary action records	6 years after termination
Benefit records	6 years after filing date
OSHA and other employee safety records	5 years after termination
Workers’ compensation records	10 years after the later of the injury or illness or the close of the claim
EEO-1s	2 years after filing date
Affirmative Action Plans	2 years after close of AAP year
OSHA 300/300A	5 years after posting
ERISA 5500	6 years after filing

Are you up on your federal recordkeeping requirements?

The EEOC announced that is has sued a nationwide provider of janitorial and facilities management services for an alleged failure to maintain records or other information that will disclose the impact of its employee selection procedures on equal employment opportunities.

What is the EEOC talking about? According to certain federal regulations, an employer must maintain, and have available for inspection, records or other information that disclose the impact which the employer's tests and other selection procedures have upon sex, African-Americans, Native Americans, Asians, Hispanics, and Caucasians.

According to EEOC Regional Attorney Debra Lawrence, "Federal record-keeping requirements ensure that certain employers make and keep records that disclose the impact of their selection procedures. EEOC's enforcement of the record-keeping requirements is important to the agency's commitment to eliminating discriminatory barriers in the workplace."

So, if you use selection criteria or tests for hiring (criminal records, credit records, etc.), you must maintain those records for all applicants.

Tomorrow, I'll share some thoughts on the other records you should be keeping relating to your employees, and for how long you should be keeping them.

Everything you want to know about the new overtime rules in 3:44

You have to hand it to the Department of Labor. It has gotten creative to spread its message to American workers about the pending changes to the overtime rules.

Last week, the DOL published to its blog a short YouTube video entitled, White Board Explainer: What is overtime? It’s wage-and-hour Schoolhouse Rock, minus the catchy tunes.

Employers are fighting an uphill battle on this issue. A populist messsge that promises more pay for more people + a slick informational campaign = an issue that employers cannot win.

But, do employers want to win this issue? As I pointed out two weeks ago, as a practical matter employers can control whether these new overtime rules actually result in increased pay. Yet, fighting this issue will play into the hands of labor unions that they are needed to increase worker pay and to generally fight for their workplace rights. Employers need to be very wary of the unintended consequence of empowering unions, and act accordingly.

WIRTW #374 (the “bad choice” edition)

Earlier this week, I came across the following while watching the local morning news:

The consumer reporter was demoing an online t-shirt business with two female station employees modeling shirts that read,”I can make you feel cheep,” and “I can take 80% off.” While this demonstration in no way rises to the level of actionable harassment, you might want to rethink your workplace culture if putting female employees in clothes that talk about their promiscuity is part of it.

Here’s the rest of what I read this week:

Discrimination

• 28 percent of whites say they favor a law allowing homeowners to discriminate — via Wonkblog
• What is Section 503 of the Rehabilitation Act and how could it affect your business? — via Blogging4Jobs
• The focus of the ADA turns to websites in the digital age: Is your site compliant? — via Employer Law Report
• Hey, remind me, what is associational discrimination again? — via Eric Meyer’s The Employer Handbook Blog
• Restricting Transgender’s Use of Restroom Found in Violation of Title VII — via Workplace Insights
• Google’s algorithms advertise higher paying jobs to more men than women — via The Verge
• EEOC’s revised pregnancy guidance: Now, just barely more flexible! — via Robin Shea’s Employment & Labor Insider
• EEOC: Employer Violated ADA By Not Hiring Applicant Because Her Child Had Disability — via Joe’s HR and Benefits Blog

HR & Employee Relations

• Your Employees Are Scared to Take Vacation. Fix That. — via Evil HR Lady, Suzanne Lucas
• Working on Vacation? — via Workplace Prof Blog
• No Fault Employment? — via Employment Matters Blog
• Working Dads and Parental Leave: My MSNBC Interview — via Fathers, Work and Family
• Avoiding the “Own Goal” at Work – Three Lessons from the Women’s World Cup — via EntertainHR
• Roundup on civility and incivility at work — via Minding the Workplace

Wage & Hour

• Obama unveils overtime regs — via Walter Olson’s Overlawyered
• Amid New Overtime Rules, More Employers Might Set Email Curfew — via Yugi Noguchi at NPR’s All Tech Considered
• Independent contractor versus employee: “Control” is the issue — via Mike Haberman’s Omega HR Solutions
• San Francisco Retail Workers Bill Of Rights — via Employer Defense Law Blog
• What are the “off-the-clock work” trouble spots? — via Business Management Daily
• Male Stripper Wage Law Update (SFW) — via All in a Day’s Work
• SCOTUS’ Gay Marriage Ruling and Its Impact on Employee Benefits — via The Emplawyerologist

Labor Relations

• Confidential Documents Properly Withheld From Union — via Employer’s Law Blog
• Teachers Say 17 Firings at Urban Prep Charter Schools Were Retaliation for Unionization — via Workplace Fairness
• Should I Let Employees Talk About Their Salaries? — via Evil Skippy at Work
• The Road Ahead: Top 10 Labor Issues to Watch in the Back Half of 2015 — via Labor Relations Today
• One more NLRB overruling is coming — via Ross Runkel Report