Thursday, April 3, 2014

New EEOC Guidelines

On October 4, 2013 we discussed on the blog how Abercrombie & Fitch was being sued for religious discrimination when the Equal Employment Opportunity Commission (EEOC) claimed it fired a Muslim employee for wearing her hijab in the workplace, rather than accommodating her religious beliefs. 

Shortly after this decision the EEOC published new guidelines on religious accommodation and discrimination in the workplace.  The EEOC has clarified its position about employers’ duty to accommodate particular beliefs and practices, as well as the standards for employers to show that a requested accommodation would cause “undue hardship,” that is, “more than de minimis cost."  The new guidelines reiterate that religious accommodation is particularly fact-sensitive and must be handled carefully.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious belief or practice, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.  The guidelines emphasize that accommodations are not required if the employer would suffer undue hardship.  This determination will be made on a case-by-case basis by the EEOC, where the EEOC considers the potential burden of the conduct of the employers’ business in addition to monetary costs.  Morale problems as a result of an accommodation would normally not qualify as an undue hardship, but a shift swap that would require the employer to pay premium wages for an extended period of time would likely qualify as an undue hardship. 

Religion is defined very broadly under federal law to include mainstream faiths and practices, but also to include beliefs that are not recognized by any church or organization. The distinction between religious beliefs and personal choices, is illustrated with an example in the new guidelines.  A Seventh-day Adventist who believes the scriptures require her to be a vegetarian – even though not all Adventists share that belief is a religious belief.  On the other hand, someone who becomes a vegetarian based on health reasons or personal preference is not expressing a religious belief. 

Another example given in the guidelines is the contrast between two employees who have tattoos that the employer would like concealed.  One has ceremonial symbols expressing devotion to an ancient Egyptian god.  The other employee uses body art as a form of self-expression. An accommodation must be considered if displaying the tattoos is in religious observance, but if requiring those tattoos to be concealed would not affect a religious practice it would be permissible.

Another distinction the EEOC makes in the guideline examples is between two employees who hang a "Jesus Saves" poster at their work stations.  One employee has a private office, and no other employees complain about the poster.  Under these circumstances, EEOC states that allowing the poster would probably be a required accommodation.  However, the other employee in the example works at a desk in the lobby and because visitors might think the poster represents the company’s views, the employer can likely prohibit it.  

The EEOC will deal with each situation on a case-by-case basis, but the EEOC and the courts are not likely to scrutinize practices that appear to be sincerely held. 

Sunday, March 16, 2014

The U.S. Supreme Court Agrees to Hear N.C. Board of Dental Examiners Case

The Supreme Court has granted oral arguments in North Carolina Board of Dental Examiners v. Federal Trade Commission.  This case was initiated when North Carolina Board of Dental Examiners (the Board), began sending threatening warnings to nondentists providing teeth-whitening services and their landlords.   These letters stated that only dentists could use peroxide treatments to remove teeth stains.   In a unanimous ruling issued December 2011 the Federal Trade Commission (FTC) determined, the Board “issuing cease and desist orders against certain purveyors of teeth whitening, had violated federal antitrust laws by engaging in unfair competition in the market for teeth-whitening services in North Carolina.”

The FTC’s opinion stated the Board "sought to, and did, exclude nondentist providers from the market for teeth whitening services.”  The opinion continued by saying, "As a result of the Board's actions, many nondentists stopped providing teeth whitening services and several marketers of teeth whitening systems stopped selling their products and equipment in North Carolina.” In addition, the FTC noted “several mall operators refused to lease space to, or cancelled existing leases with, nondentist teeth whitening providers."  The Board subsequently filed a petition for review with the appeals court.

The Board argued that it is exempted from the federal antitrust law.  The exemption allows States to undertake “anticompetitive actions … in their governmental capacities as sovereign regulators.” Private parties may invoke the exemption when two requirements are satisfied: their conduct must (1) be authorized by a “clearly articulated … state policy” to displace competition, and (2) be “actively supervised” by state officials.

The U.S. 4th Circuit Court of Appeals held “that an official state regulatory board created by state law is a ‘private’ actor—and thus must satisfy the ‘active supervision’ requirement—simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.”  The Board did not satisfy the active supervision requirement in the eyes of the 4th Circuit Court of Appeals, with one judge saying “the board would have had a stronger case if its members were elected or appointed by state government officials rather than by other dentists.”

The issue before the Supreme Court is whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

Arguments before the Supreme Court will likely be heard in the fall.

Friday, February 28, 2014

Family and Medical Leave Enhancement Act of 2014

      In January we discussed the Family and Medical Insurance Leave Act (the FAMILY Act), introduced in the Senate on December 12, but just this month Congresswoman Carolyn B. Maloney (D-NY) introduced legislation that would expand  the already existing Family and Medical Leave Act of 1993 (FMLA).  Currently, FMLA only applies to those businesses that have at least 50 employees.  This new legislation H.R. 3999: Family and Medical Leave Enhancement Act of 2014, proposes to expand FMLA to those businesses that have more than 25 employees working within 75 miles of one another.

     Not only would this new legislation expand those businesses covered by FMLA, it would also increase the benefits available.  The additional benefits would include 24 hours per year of unpaid Parental Involvement and Family Wellness leave.  Eligible employees would be able to "participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee." Not only would Parental Involvement and Family Wellness leave cover school or community programs, it would also allow eligible employees to "meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes."

President Obama endorsed the protections in a June 2008 speech in Albuquerque, New Mexico, saying, “With more and more households headed by two working parents – or a single working parent – it's also time to dramatically expand the Family and Medical Leave Act. Since more Americans are working for small businesses, I'll expand FMLA to cover businesses with as few as 25 employees – this will reach millions of American workers who aren't covered today. … We'll allow parents to take 24 hours of annual leave to join school activities with their kids.”

Tuesday, February 18, 2014

Delay for Obamacare Coverage

             As discussed on the Blog on December 5, 2014, yet again, the Federal Government announced another delay in a compliance date for small businesses regarding The Patient Protection and Affordable Care Act.    The Treasury received many requests to offer more time for small businesses to comply with the law and in an effort to work with the small businesses, compromises where made.  “While about 96 percent of employers are not subject to the employer responsibility provision, for those employers that are, we will continue to make the compliance process simpler and easier to navigate,” said Assistant Secretary for Tax Policy Mark J. Mazur to Bloomberg.

             In addition to postponing the compliance date, an announcement of weakened requirements for complying with the law was made.  Small businesses that employ between 50 and 100 full-time workers are now exempt from complying with the mandate until 2016.  A full-time worker is defined as an individual who works more than 30 hours per week.  If a business claims that it is now eligible for the 2016 delay, the business must certify that it has less than 100 full-time workers and that it did not reduce its workforce merely to qualify for this new extension.  Those businesses that are not truthful regarding this statement will suffer the penalties of perjury.

              Those businesses that have 100 or more full-time workers must still comply with the mandate by 2015 and if they do not comply with the mandate by 2015 than the businesses could face financial penalties of at least $2,000 per worker and even up to $3,000 per worker.  However, The Treasury Department did relax the requirements for those businesses as well.  Those companies that have 100 or more full-time workers must make affordable insurance coverage available to only 70 percent, rather than 95 percent of those workers by 2015.  Previously, the requirement was that 95 percent of full-time workers be offered affordable health coverage by 2015.  Nevertheless, those same business will have to offer affordable insurance to 95 percent of its full time workers by 2016.  We will keep you informed of any more changes or delays made to The Patient Protection and Affordable Care Act.

Wednesday, January 29, 2014

Small Businesses Planning to Hire

Two recent Global small-business surveys, the Mid-Year Small Business Report Card and Year-End SMB Survey, both seem to have a clear theme for 2014 -- small business owners are going to be hiring. According to the research from the surveys, more than 77 percent of small businesses plan to staff up in 2014 by bringing on employees, paid interns or unpaid interns.  It may have something to do with the fact that many entrepreneurs have made a New Year’s Resolution to find better work-life balance.

Of the many roles entrepreneurs handle themselves when getting their businesses up and running, the least popular is that of HR manager.  Just two percent cited this mission-critical function as their favorite part of the job.  If you are one of the entrepreneurs that are thinking about hiring in the New Year, we have some suggestions to hire wisely.

1.     Clearly define the position.

You should keep in mind that people search for jobs based on keywords or industries.  The more detailed a job description you can draft, the more appropriate your potential candidates will be and the better your chances of matching the right person with the role. 

2.     A flexible work policy may attract and retain better talent.

As long as your team can meet its goals and collaborate when needed, offering flexible schedules and office hours is a enormous selling point.  Generally speaking, top talent does not want to sit in an office all day, rather they want the option to get their work done at a coffee shop or stay in their pajamas at home.   According to the SMBs survey, 36 percent of small businesses plan to offer more flexible working environments to find better employees. Today’s world with mobile technologies and cloud services, you can attract these employees by offering them greater flexibility in when and where they work. 

3.     Do not rush the process.

Take your time to find the right candidate.  According to an article in Business News Daily, you have a higher chance of hiring the wrong person for a role if you're desperate to fill the position and rush the process. If you really need help right away, bring in temporary help while you carefully search for the right permanent candidate.

4.     Remember to Onboard.

Make sure you have an up-to-date employee handbook and they receive a copy of it to review.  Go over the policies with your new employee to make sure they understand your expectations.  It is hard to be the new person who does not know all the processes, so the HR team, whoever that may consist of should ensure a smooth transition from candidate to employee.

Tuesday, January 14, 2014


The financial impossibility of taking unpaid leave is the single most common reason workers give for not taking leave when they need it, according to the Department of Labor’s Technical Report in November of 2013.  The “Family and Medical Insurance Leave Act” (the FAMILY Act), introduced in the Senate on December 12, 2013, would provide up to 12 weeks of paid leave each year to qualifying workers for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker's own medical condition.

Currently, the Family and Medical Leave Act of 1993 (FMLA), entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.  There is a continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The purpose of FMLA is to prevent employees from losing their jobs and benefits as a result of extenuating circumstances.  However, FMLA coverage is limited.  FMLA includes private employers that have at least 50 employees in 20 or more work weeks in the current or preceding calendar year, and public employers regardless of the number of employees.  Even if the employer meets the requirements for FMLA, for an employee to be eligible for the benefits, the employee must have recorded at least 1,250 hours of work for the employer in the preceding 12 months and must work in an area where the employer has at least 50 employees within a 75 mile radius. Furthermore, the employee must have a qualifying reason for leave under FMLA.

The FAMILY Act would cover private and public companies, no matter their size.  The benefits would be available to every individual who has earned any income from employment or self-employment in the 12 months prior to applying for benefits and is insured for Social Security Disability Insurance.     The FAMILY Act would allow part-time and lower-wage workers access to benefits if their employer’s size or the length of time with the employer would make them ineligible for the FMLA benefits.  The FAMILY Act’s wage replacement rate builds on lessons from state paid leave programs in California and New Jersey.  The program would be funded by employee and employer payroll contributions of 0.2 percent of wages, or two cents for every $10 earned. This will amount to an average contribution of approximately $2 per week per worker from a worker’s paycheck.

The program created through the FAMILY Act would run parallel to FMLA, but it would be separate.  Individuals who qualify for FMLA leave would also be able to apply for FAMILY Act benefits.  We at Karen McKeithen Schaede Attorney at Law, PLLC will keep you up-to-date on the bill’s progress.

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