BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10en-us16 Oct 2021 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssReturning to Work Post-COVID – Handle with Care, Employershttps://www.bscr-law.com/?t=40&an=118795&format=xml&p=5258&stylesheet=blog14 Sep 2021Employment & Labor Law Blog<p>COVID-19 created unprecedented situations in every type of job, industry, and profession, including the legal field.&nbsp; Change, evolution, and adaptation became commonplace as everyone learned how to navigate the process of operating from both work and home. Essentially, the COVID-19 pandemic turned our working lives upside down for the better part of two years.</p> <p>As more people become fully vaccinated, many are eagerly anticipating a return to &ldquo;normalcy.&rdquo;&nbsp; For most, that includes returning to the office (whether full-time, part-time, or by remote or virtual means). But more than 100 million Americans have worked remotely (at least part-time) since the beginning of the pandemic. And many of these employees hope to work remotely permanently. However, for employers intending for their employees to return to the office, potential pitfalls await.</p> <p>Employees who have learned to enjoy the work-from-home model see a variety of benefits, including:</p> <ol start="1" type="1"> <li>Not having to commute to work;</li> <li>No required dress code (unless you are on a video conferencing call, such as with a Court);</li> <li>The ability to take care of work/projects at home while on breaks from office work;</li> <li>The ability to stay home with a sick family member;</li> <li>The ability to more easily schedule personal appointments around work.&nbsp;</li> </ol> <p>But there are pitfalls to working from home, which include:</p> <ol start="1" type="1"> <li>Potentially having to purchase additional office equipment to effectively do work (e.g., printer/scanners, computer monitor);</li> <li>Taking extra precautions to keep client information safe and confidential;</li> <li>Blurring the lines between being present at work and being present at home;</li> <li>Losing some collaboration, communication, and visibility with your colleagues/team/management;</li> <li>More distractions at home to sidetrack you from getting your &ldquo;office&rdquo; work done.</li> </ol> <p>Recent studies indicate that some categories of employees are less eager than others to return to the office. One such survey [<a href="https://fivethirtyeight.com/features/why-post-pandemic-offices-could-be-whiter-and-more-male/">Who Wants To Return To The Office? | FiveThirtyEight</a>] indicates that women and minorities are less eager to return to in-person work, while white men are the group most eager to return to the office. In many families, women bear the load of being both the primary caregiver, as well as a full-time employee, and providing options to work from home provides potentially more time to devote to both. Another factor that may be at play is an office culture in some workplaces that has given white men a higher comfort level than other groups. Whether it&rsquo;s &ldquo;water cooler talk,&rdquo; &ldquo;the good ol&rsquo; boys club,&rdquo; or the standing Friday afternoon round of golf, certain employees can feel excluded and alienated in the workplace.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Employers should take note, as return-to-work and remote work policies may someday serve as the basis for disparate impact claims under Title VII or Equal Pay Act claims. If women and minorities are more likely to opt to work from home (or risk termination or quit when return to the office is mandated), then employers must carefully implement policies or practices to avoid violating the law.&nbsp; These policies or practices should be implemented both to comply with the law, and to promote the well-being and job satisfaction of all of their employees.</p> <p><b>Disparate Impact under Title VII</b></p> <p>Disparate impact claims under Title VII can be tricky for employers to defend because there is no intent requirement. To state a claim of disparate impact, a plaintiff must allege a facially neutral policy that causes statistically significant disparities in employment between a favored class and a disfavored class. Here, women or minorities may be able state a claim for disparate impact where a remote work policy caused them to be disfavored.</p> <p>For example, a mandatory return to the office under threat of termination may cause a disparate impact if it causes women and minorities to quit in much higher numbers than white workers or men. The policy itself does not discriminate based on race or sex, so it is facially neutral. However, if it falls more harshly on a particular group, it may support a claim.</p> <p>Disparate impact claims are analyzed under a burden-shifting scheme similar to the familiar <i>McDonnell Douglass</i> framework. If the plaintiff makes a prima facie case, then the burden shifts to the employer to demonstrate that the policy serves a &ldquo;legitimate, non-discriminatory business purpose.&rdquo; Then the burden shifts back to the plaintiff to show that the articulated reason is pretextual.</p> <p>Some employers may have difficulty proving a legitimate business justification for ordering employees to return to the office. Many employers have seen that productivity has remained steady or in some cases increased as more employees work from home. In some cases, it may be more expensive for employers to have workers in the office than working remotely. Therefore, employers seeking company-wide return to work should carefully consider the reasons for doing so.</p> <p><b>Minimizing Impacts on Remote Workers</b></p> <p>A major potential pitfall will be in promotions. Employers <i>must</i> be mindful of the subjective and objective criteria managers employ in determining promotions. Traditional factors such as &ldquo;face time&rdquo; with the boss, being seen in the office early in the morning and late at night, or overall &ldquo;attitude,&rdquo; &ldquo;personality,&rdquo; or &ldquo;fit,&rdquo; may disfavor remote workers. Where these factors would tend to disfavor remote workers, they may work to cause statistical disparities between male and female or white and minority workers.</p> <p><b>Equal Pay Act</b></p> <p>The Equal Pay Act requires that employees of opposite sexes be paid the same for &ldquo;equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.&rdquo;). In the absence of direct evidence of discriminatory intent, the court applies the familiar <i>McDonnell Douglas</i> burden-shifting framework. The plaintiff puts forth a prima facie case, and the employer must show that there exists a legitimate nondiscriminatory factor on which it based the wages paid. Legitimate factors include seniority systems, merit systems, piecework pay rates, for example. The burden then shifts back to the plaintiff to come forward with evidence that the proffered reason was pretextual.</p> <p>Some employers may feel inclined to pay remote workers less than in-office workers. And studies indicate that some workers would be willing to take a pay cut to work from home. However, if disproportionate numbers of women intend to continue working remotely, then pay differentials could potentially support an Equal Pay Act claim. It is not a complete defense that there are also some men who work remotely at lower salaries. Likewise, it is an open question whether working from home versus working in the office would be a legitimate nondiscriminatory factor supporting pay disparities. However, if an employer saves money by having employees work remotely, it will be hard to avail themselves of that defense.</p> <p><b>Planning and Recordkeeping Can Help Avoid Liability</b></p> <p>In crafting a return-to-work policy that works for everyone, for purposes of potential employment-related claims, employers should consider:</p> <ul> <li>Whether an across-the-board return to work policy is necessary or desirable.</li> <li>If individual approval of remote work is practical. A policy should be based on specific, objective (and recorded) criteria such as seniority, performance evaluations, disciplinary history, and productivity. A copy of the determination should be placed in the employee&rsquo;s file.</li> <li>Whether to re-evaluate promotion and job performance criteria, to focus on objective work-related factors, while weeding out unintentionally discriminatory factors (such as face time with the boss, early arrival at work, etc.).</li> <li>Whether remote work may be a reasonable accommodation for disabled workers.</li> <li>How to ensure that remote workers have equal access to career-advancing training, mentorship, and special projects.</li> </ul> <p>There is never a bad time to consider whether office culture can be made more inclusive. As more people return to the office, it is important to ask whether there are employees who are reluctant to return, and why.&nbsp;</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10They're Baaaaccckkkk: New COVID-19 Guidelines for Your Vaxed and Vexed Employeeshttps://www.bscr-law.com/?t=40&an=118480&format=xml&p=5258&stylesheet=blog16 Aug 2021Employment & Labor Law Blog<p>In November 2020, many Americans breathed a sigh of relief, as news broke that an effective and safe vaccine had been developed against COVID-19. As vaccines from Pfizer, Moderna, and Johnson &amp; Johnson began to roll out in early 2021, numerous citizens began to roll up their sleeves for protection against the virus.&nbsp; In May 2021, many COVID-19 related restrictions were abandoned in the continental U.S. (including the dreaded indoor mask requirement) after the CDC advised that vaccinated individuals did not need to wear masks while indoors.</p> <p>Fast forward to August 2021, and the unwelcome spread of the highly contagious Delta variant, and we seem to be creeping back to mandatory mask wearing in many states, as the CDC recently recommended that fully vaccinated individuals wear masks in public indoor settings in areas of &ldquo;substantial or high transmission.&rdquo;&nbsp; This recommendation comes as no surprise with the Delta variant on the rise, coupled with the fact that vaccinated individuals can still become sick from the virus, as well as transmit the virus.</p> <p>So what is an employer to do with these new CDC guidelines?&nbsp; While the new guidelines do not define &ldquo;public indoor settings,&rdquo; such settings were previously differentiated by the CDC from household settings.&nbsp; Hence, it is safe to say these new guidelines apply to businesses outside of individuals&rsquo; homes.&nbsp; Because it is assumed that these guidelines pertain to companies, employers and businesses should consult with the CDC&rsquo;s COVID-19 Integrated County View website (covid.cdc.gov/covid-data-tracker/#county-view) to determine if the areas in which they do business are COVID-19 hotspots with substantial or high transmission.&nbsp; This website is updated by the CDC daily, reflecting locations that have substantial transmission or high transmission over a 7-day period.</p> While CDC guidelines are not considered &ldquo;law,&rdquo; OSHA and the courts could interpret CDC guidelines to be a standard of care.&nbsp; Accordingly, in the event an employer does not abide by the new CDC guidelines, OSHA could cite an employer for not abiding by the guidelines, on the grounds that the employer breached the OSHA &ldquo;general duty clause.&rdquo;&nbsp; In addition, individuals who contract the virus while visiting non-CDC abiding businesses may sue, claiming that the business was negligent by not abiding by the respective restrictions.&nbsp; Although CDC guidelines are just that &ndash; guidelines &ndash; employers and businesses should therefore heed the CDC&rsquo;s guidance&hellip; to the possible dismay of your some of your vaxed and vexed employees.&nbsp;&nbsp;https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Are Non-Competes Doomed after Executive Order 14306?https://www.bscr-law.com/?t=40&an=118353&format=xml&p=5258&stylesheet=blog05 Aug 2021Employment & Labor Law Blog<p>On July 9, 2021, President Biden signed <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/">Executive Order 14306</a>. The EO has inspired headlines warning that non-compete agreements as we know them are doomed. These prognoses are premature. The EO itself does not affect non-compete agreements in employment, but merely recommends that the Federal Trade Commission begin the rulemaking process with the principles of the EO in mind.</p> <p>Section 5(g) instructs that &ldquo;To address agreements that may unduly limit workers&rsquo; ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC&rsquo;s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.&rdquo;</p> <p>The overall tenor of the EO is that the consolidation of large corporations unfairly restricts competition. To date, the enforceability of non-compete clauses has been almost entirely governed by state law, and state laws dramatically vary on this subject. For example, California law is rather hostile to these provisions, while the laws of Missouri, Illinois, and Kansas are more in the mainstream, allowing restrictions that are appropriately limited in scope and duration.&nbsp; While we have no idea what the FTC&rsquo;s proposed regulation will look like, we can begin to guess by examining state laws on non-compete agreements generally.</p> <p><b>Missouri</b></p> <p>In Missouri, non-compete agreements are enforceable to the extent they protect a legitimate business interest, such as confidential information, trade secrets and customer contacts, and are reasonable in temporal and geographic scope. Importantly, customer contacts are protectable only as to those employees who actually interact with customers and can influence customers&rsquo; decisions. <i>Whelan Security Co. v. Kennebrew</i>, 379 S.W.3d 835 (Mo. banc 2012). A related restrictive covenant, the non-solicitation clause, which prevents employees from snatching up their former co-workers, is presumed enforceable for up to one year, where its purpose is to protect company loyalty, customer goodwill, and related interests. <i>See </i>Mo. Rev. Stat. &sect; 431.202. For more information on Missouri non-competes, see our blog posts&nbsp;<a href="https://www.bscr-law.com/?t=40&amp;an=16548&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Non-Compete Agreements in Missouri: The Missouri Supreme Court (Once Again) Explains it All</a>&nbsp;from December 2012 and <a href="https://www.bscr-law.com/?t=40&amp;an=104551&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Sometimes You Just Can't Compete</a>&nbsp;from April 2020.</p> <p><b>Illinois</b></p> <p>Illinois common law generally resembles Missouri with regard to non-competes. However, in Illinois, non-competes with &ldquo;low-wage employees,&rdquo; an employee who earns the greater of the federal, state, or local minimum wage or $13.00 per hour, are explicitly prohibited by statute. &ldquo;Illinois Freedom to Work Act,&rdquo; 820 ILCS 90/5.</p> <p><b>Kansas</b></p> <p>The landscape in Kansas is also similar to Missouri. In <i>Idbeis v. Wichita Surgical Specialist, P.A.</i>, 112 P.3d 81, 279 Kan. 755 (2005), the Supreme Court of Kansas established guidelines for enforcement that drafters of non-competes should note. In pertinent part, the Court held that non-competes are enforceable if they are not intended to avoid ordinary competition, do not create an undue burden on employees, and does not harm the public welfare.</p> <p><b>What about e-Commerce?</b></p> <p>In the Internet Age, geographic restrictions on non-competes sometimes seem irrelevant. A company headquartered in Kansas City, Missouri, may have a sales representative located in Juneau, Alaska, selling products to customers in Key West, Florida. A geographic prohibition of a 50-mile radius does not make sense. Can&rsquo;t a company just prohibit its employees from going to work for a competitor?</p> <p>These types of non-compete agreements, where a company identifies competitors and seeks to prohibit employees from switching teams, are likely to be an area of focus in the FTC regulations. Particularly in the post-pandemic Big Tech world, where remote work is becoming the norm, companies may seek to protect their employees from being raided by Silicon Valley with global non-competes. The tension is obvious: how will the FTC limit monopolistic raiding behavior by the Googles and Facebooks of the world and protect employees&rsquo; freedom of movement?</p> <p>Employers and practitioners would do well to examine <i>Sigma-Aldrich v. VIkin</i>, 451 S.W.3d 767 (Mo. App. E.D. 2014). There, the Court held invalid a global non-compete that would have forbidden an employee to</p> <p>&ldquo;engage in, provide any services or advice to, contribute my knowledge to or invest in any business that is engaged in any work or activity that involves a product, process, service or development which is then competitive with, the same as or similar to a product, process, service or development on which I worked or with respect to which I had access to Confidential Information while with the Company anywhere the Company markets or sells any such product or service.&rdquo;</p> <p>The Court held that this broad prohibition sought to protect itself from regular competition. For more on <i>Sigma-Aldrich</i>, see our blog post <a href="https://www.bscr-law.com/?t=40&amp;an=34761&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Court of Appeals Affirms Denial of Sigma-Aldrich's Request for Injunctive Relief Against Former Employee</a>. The Court instructed employers to evaluate the employee&rsquo;s specific duties, use of trade secrets in their work, and then identify the protectable interest at stake, then to narrowly tailor the non-compete to protection of those interests. As always, a one-size-fits-all approach to non-competes simply does not work.</p> <p><b>FTC&rsquo;s Rulemaking Authority</b></p> <p>Generally, a properly promulgated agency rule will preempt conflicting state laws on the same subject matter. But as an administrative agency, the scope of the rule is strictly confined to the agency&rsquo;s statutory authority. The FTC can only issue a rule &ldquo;where it has reason to believe that the unfair or deceptive acts or practice which are the subject of the proposed rulemaking are prevalent [&hellip;],&rdquo; that is &ldquo;information available to the Commission indicates a widespread pattern of unfair or deceptive acts or practices.&rdquo; 15 U.S.C.A. &sect;15a(b)(1)-(3).</p> <p>When can we expect this new rule to go into effect? Section 18(a) of the Federal Trade Commission Act includes rulemaking procedures that exceed those of the Administrative Procedures Act. The FTC is required to publish an Advanced Notice of Proposed Rulemaking in the Federal Register with information about the rule&rsquo;s purpose and invite interested parties to comment. The FTC must also seek input from certain House and Senate committees. Then at least 30 days later, the FTC may issue a Notice of Proposed Rulemaking.&nbsp;</p> <p><b>Enforceability of Current Non-Competes After FTC Regulation</b></p> <p>The logic of the EO is somewhat circular, given the law of restrictive covenants in Kansas, Missouri, and Illinois. By law, the FTC only has authority to regulate where there is widespread unfairness. Restrictive covenants are only enforceable to the extent they are reasonable and protect an employer&rsquo;s legitimate interest in protection from <i>unfair</i> competition. So in theory, a non-compete that is enforceable under Missouri, Illinois, or Kansas law should also be enforceable under the FTC regulations.</p> <p><b>Protecting Your Business Interests</b></p> <p>There is no reason for the EO to scare businesses into abandoning non-compete agreements. However, the EO is an important reminder that now is a good time for employers to re-evaluate their non-compete agreements. Are they targeted at a protectable interest, such as customer contacts, trade secrets, and goodwill? Importantly, the EO does not address trade secrets, and Missouri, Illinois, and Kansas have already enacted the Uniform Trade Secrets Act. Employers whose businesses are dependent on trade secrets and proprietary information should consider a trade secrets agreement separate from its non-compete agreement.</p> <p>&nbsp;</p> <p>Ultimately, we will not know what the FTC seeks to regulate until their proposed rule is published. Baker Sterchi Cowden &amp; Rice attorneys will be closely monitoring and reporting on developments in this blog.</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Department of Labor Withdraws Employer-friendly FLSA Test for "Employee" Classificationhttps://www.bscr-law.com/?t=40&an=118334&format=xml&p=5258&stylesheet=blog03 Aug 2021Employment & Labor Law Blog<p>On May 6, 2021, the U.S. Department of Labor withdrew the new Trump-era Fair Labor Standards Act independent contractor rule, scheduled to take effect the next day.</p> <p>The rule, entitled &ldquo;Independent Contractor Status under the Fair Labor Standards Act&rdquo; (ICR), was a decided shift to a narrower definition of &ldquo;employee&rdquo; and thereby narrowed the scope of workers who may be entitled to FLSA protections.</p> <p>The FLSA was the first federal law to afford <i>employees</i> a right to a minimum wage and overtime pay, among other benefits.&nbsp; The condensed statutory definition of &ldquo;employee&rdquo; is any individual who is permitted to work by an employer.&nbsp; <i>See</i> 29 U.S.C. &sect; 203 (2019).&nbsp; As the Supreme Court interpreted the FLSA, it became clear that the sweepingly broad language of the Act&rsquo;s &ldquo;employee&rdquo; definition required that employers delineate between &ldquo;employees&rdquo; and &ldquo;independent contractors&rdquo; lest the FLSA be misinterpreted &ldquo;to stamp all persons as employees.&rdquo;&nbsp; <i>See Walling v. Portland Terminal Co.</i>, 330 U.S. 148, 152 (1947).&nbsp; Whether a worker is classified as an &ldquo;employee&rdquo; &ndash; and therefore is entitled to FLSA protections &ndash; or, alternatively, as an &ldquo;independent contractor&rdquo; has been a costly question steeped in debate ever since.&nbsp;&nbsp;</p> <p>Evolving common law and DOL guidance, via Wage and Hour Division opinion letters, are the tools employers have to decipher who is and who is not an &ldquo;employee&rdquo; for purposes of meeting FLSA standards.&nbsp; Employers are often motivated to classify workers as &ldquo;independent contractors&rdquo; to avoid the need to meet FLSA requirements for minimum wages and overtime pay, for example.&nbsp; For the same reasons, workers often prefer to be classified as &ldquo;employees.&rdquo;&nbsp; Which begs the question, why is a worker&rsquo;s classification up for debate?&nbsp; The answer is because every analysis that common law or the DOL provide amounts to a non-exhaustive list of factors, each bearing indeterminate and malleable weight that exposes the factors to legitimate disputes.&nbsp; The Supreme Court and federal courts of appeals are clear, however, on one point: no single factor is dispositive of a conclusion for or against a classification of &ldquo;employee,&rdquo; and a totality of the circumstances must be considered.&nbsp;</p> <p>Over the years, the most commonly applied multifactorial test has been the Economic Reality Test (ERT), a version of which is published by the DOL on the FLSA Fact Sheet (left column below).&nbsp; The would-have-been new test, ICR, modified the ERT (middle and right columns below).</p> <p>Both tests were designed to pinpoint workers who are economically dependent on a potential employer for work.&nbsp; However, unlike the ERT, the ICR would have mandated that two &ldquo;core&rdquo; factors &ndash; nature and degree of control, and worker&rsquo;s opportunity for profit or loss &ndash; take priority, without analysis of the other factors or the totality of the circumstances.&nbsp; By doing so, the ICR necessarily would have narrowed the scope of workers who may have been deemed &ldquo;employees&rdquo; covered by the FLSA umbrella.&nbsp;<br /> &nbsp;</p> <div align="center"> <table border="1" cellspacing="0" cellpadding="0"> <tbody> <tr> <td width="216" valign="top"> <p align="center"><b>Economic Reality Test </b></p> <p align="center"><b>(DOL&rsquo;s FLSA Fact Sheet)</b></p> </td> <td width="407" colspan="2" valign="top"> <p align="center"><strong>Independent Contractor Rule </strong></p> <p align="center"><strong>(not implemented)</strong></p> </td> </tr> <tr> <td width="216" valign="top"> <p>a. The employer&rsquo;s versus the individual&rsquo;s degree of control over the work;</p> </td> <td width="187" rowspan="2" valign="top"> <p><b>Core Factors&nbsp;</b>&rarr;</p> <p>&nbsp;If both core factors point towards the same classification (employee or independent contractor) there is a substantial likelihood that that classification is appropriate and generally no further analysis is required.</p> </td> <td width="220" valign="top"> <p>1. The nature and degree of the worker&rsquo;s control over the work; and</p> </td> </tr> <tr> <td width="216" valign="top"> <p>b. The individual&rsquo;s opportunity for profit or loss;</p> </td> <td width="220" valign="top"> <p>2. The worker&rsquo;s opportunity for profit or loss based on initiative and/or investment.</p> </td> </tr> <tr> <td width="216" valign="top"> <p>c. The individual&rsquo;s investment in facilities and equipment;</p> </td> <td width="187" valign="top">&nbsp;</td> <td width="220" valign="top">&nbsp;</td> </tr> <tr> <td width="216" valign="top"> <p>d. &nbsp;The permanency of the relationship between the parties;</p> </td> <td width="187" rowspan="3" valign="top"> <p><b>Tie Breaker Factors&nbsp;</b>&rarr;</p> <p>If the Core Factors do not point towards the same classification, these three other factors may serve as &ldquo;additional guideposts&rdquo; in the analysis.</p> </td> <td width="220" valign="top"> <p>a. The degree of permanence of the working relationship between the individual and the potential employer;</p> </td> </tr> <tr> <td width="216" valign="top"> <p>e. The skill or expertise required by the individual;</p> </td> <td width="220" valign="top"> <p>b. The amount of skill required for the work; and</p> </td> </tr> <tr> <td width="216" valign="top"> <p>f. Whether the work is &ldquo;part of an integrated unit of production&rdquo;; and</p> </td> <td width="220" valign="top"> <p>c. Whether the work is &ldquo;part of an integrated unit of production.&rdquo;</p> </td> </tr> <tr> <td width="216" valign="top"> <p>g. The degree of independent business organization and operation.</p> </td> <td width="187" valign="top">&nbsp;</td> <td width="220" valign="top">&nbsp;</td> </tr> </tbody> </table> <br /> <div style="text-align: left;"><br /> The ICR was considered a win for employers, but because the DOL withdrew the rule before it took effect and has since published an <a href="https://www.dol.gov/agencies/whd/flsa/2021-independent-contractor">excoriating explanation of the withdrawal</a> &ndash; that the ICR &ldquo;was inconsistent with the FLSA&rsquo;s text and purpose, and would have had a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent,&rdquo; &ndash; it is highly unlikely that the ICR can be resurrected under the current Administration.</div> </div> <p>While advocates of ICR touted that the rule could provide more certainty and predictability for employers and workers alike, the totality of the circumstances approach of the ERT will remain the federal standard, applying multiple factors to any determination of employee versus independent contractor status.&nbsp;</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10EEOC Issues New Guidance for Employers on COVID-19 Vaccinations in the Workplacehttps://www.bscr-law.com/?t=40&an=118035&format=xml&p=5258&stylesheet=blog22 Jul 2021Employment & Labor Law Blog<p>On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance seeking to clarify significant questions regarding mandating vaccines for employees, reasonable accommodation, and employee incentives for vaccination.</p> <p>In considering mandatory vaccination policies in the workplace, the EEOC advised employers to be mindful of whether certain employees may face greater barriers to obtaining vaccination, and to make sure that any mandatory vaccination program would not disparately affect any protected classes. The EEOC confirmed that an employer may require all employees physically entering the workplace to receive a COVID-19 vaccination, so long it continues to comply with reasonable accommodation obligations under the ADA and Title VII for employees seeking an exemption. Notably, the EEOC remains silent on an employer&rsquo;s ability to mandate vaccination of remote workers. Employers who implement a mandatory vaccination policy must ensure that the standard is job-related and consistent with &nbsp;business necessity.</p> <p>&nbsp;Reasonable accommodation may be required for an employee who declines vaccination due to a disability or sincerely held religious belief, unless doing so would pose an undue hardship on the operation of the employer&rsquo;s business or create a direct threat to the health of others. Employees who are not vaccinated because of pregnancy may also be entitled to adjustments (under Title VII) if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion. (Note, however, that the May 28th EEOC guidance says employers should be alert to and should follow any updated CDC guidance, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html">and on June 29th, the CDC issued new guidance</a> that essentially encourages pregnant persons to be vaccinated, because they are at above-average risk for Covid-19 infection. While the new CDC guidance may not have the effect of reversing the EEOC&rsquo;s guidance on this point, it at least may muddy the waters.)</p> <p>The EEOC reminded employers that when determining if an employee poses a &ldquo;direct threat,&rdquo; the employer must make an individual assessment of the employee&rsquo;s ability to perform the essential functions of the job and rely on reasonable medical judgment regarding the most current medical knowledge about COVID-19, including factors such as current community spread. Further considerations of the employer&rsquo;s assessment of a &ldquo;direct threat&rdquo; may include: the proximity of the employee to co-workers; whether they work indoors or outdoors; available ventilation; direct interaction with others; how many nearby individuals are partially or fully vaccinated; and whether employees are wearing masks, social distancing, or undergoing routine testing. For employees receiving an exemption from a workplace mandatory vaccination program, employers may continue requiring the use of face coverings, social distancing, and periodic COVID-19 testing. Other examples of reasonable accommodations include: modified work shifts; telework; or a reassignment.</p> <p>The EEOC has further clarified that employers may use incentives to encourage employee vaccinations so long as the incentive is not tied to the employee receiving the vaccine from the employer itself, or any other entity with which the employer may have a contract. Employers may provide incentives upon proof of vaccination from a third party. Employers may not offer incentives to employees for vaccinations received by family members from the employer or its agent. Employers are not allowed to require employees to have family members become vaccinated and must not penalize employees if family members decide not to become vaccinated. While employers are allowed to require documentation or other confirmation of vaccination, the ADA requirements for confidentiality of employee medical information applies such documentation.</p> Though the EEOC has provided some guidance on these issues, many speculate there will be a variety of legal issues that may come up as employers begin to implement return-to-work policies and mandatory vaccination policies in the months to come.&nbsp;https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Do You Have a Record? From Conviction History to EEO-1 Reports, Illinois Imposes New Requirements on Employershttps://www.bscr-law.com/?t=40&an=116883&format=xml&p=5258&stylesheet=blog06 Jul 2021Employment & Labor Law Blog<p>Every year, it seems as though the Illinois legislature imposes more and more requirements on employers for the protection of employees, and 2021 is no exception. This spring, Governor J.B. Pritzker signed into law amendments to the Illinois Human Rights Act (IHRA), the Illinois Business Corporation Act, and the Illinois Equal Pay Act under Senate Bill 1480.&nbsp;The new law provides protections to individual with criminal convictions, and adds requirements on employers to report employee demographic and payroll information to the Illinois Secretary of State.</p> <p>As a refresher, the IHRA protects employees from discrimination and harassment on the basis of sex, race, color, national origin, religion, age, etc. in the workplace.&nbsp;Now, the IHRA protects employees (and potential employees) with criminal convictions.&nbsp;In essence, employers are now restricted from using an individual&rsquo;s criminal record to disqualify an individual from employment or act adversely against an individual with a criminal record unless: (1) there is a substantial relationship between the criminal offense and the employment position sought or held; or (2) an unreasonable safety risk to a person or property exists.&nbsp;The test to determine whether a &ldquo;substantial relationship&rdquo; exists requires the employer to consider &ldquo;whether the employment position offers an opportunity for the same or similar offense to occur&rdquo; or whether circumstances exist that would lead to similar conduct</p> <p>Factors that must be considered by the employer when determining if there is a &ldquo;substantial relationship&rdquo; or &ldquo;unreasonable safety risk&rdquo; include: (1) the amount of time that has passed since the conviction; (2) the number of convictions the individual has; (3) the nature and severity of the conviction in conjunction with the safety and security of others; (4) the facts and circumstances regarding the conviction; (5) the employee&rsquo;s age when convicted; and (6) evidence regarding the individual&rsquo;s rehabilitation efforts.&nbsp;</p> <p>If it is determined that a &ldquo;substantial relationship&rdquo; exists or there is an &ldquo;unreasonable safety risk,&rdquo; the employer may preliminary disqualify the individual from employment based on the conviction.&nbsp;If disqualified, the individual must receive written notice of the decision, which should include the conviction that disqualified the individual, the conviction history report obtained by the employer, and information for the individual to respond to the employer&rsquo;s position on disqualification.&nbsp;The employer must provide the individual with five business days to respond to the written notice.</p> <p>If the employer decides to stand on the disqualification after receiving the individual&rsquo;s response, the employer is required to do the following: (1) provide the individual with its final decision regarding the disqualification in writing; (2) state the conviction that led to the disqualification, including the reasoning behind the decision; (3) inform the individual of any other avenues the individual can take to challenge the employer&rsquo;s decision (if applicable); and (4) advise the individual of his or her right to file a charge of discrimination with the Illinois Department of Human Rights (IDHR).</p> <p>Not only does the new law amend the IHRA, but it also amends the Illinois Business Corporation Act.&nbsp;In essence, the amendment provides that corporations are required to provide substantially similar information that is contained in EEO-1 reports to the Illinois Secretary of State.&nbsp;This requirement is for those corporations that are required to submit an EEO-1 report with the EEOC.&nbsp;Corporations who are required to provide this information in annual reports must include this information beginning January 1, 2023.</p> <p>To ensure females and minorities receive compensation that is not consistently below the wages of white males, the new law amends the Illinois Equal Pay Act of 2003, which requires non-public employers with more than 100 employees to obtain an &ldquo;equal pay registration&rdquo; certificate from the Illinois Department of Labor (IDOL) on or before March 23, 2024.&nbsp;To obtain a certificate, employers need to provide an EEO-1 report to the IDOL, as well as proof of all wages paid to its employees over the prior year.&nbsp;Employers covered by this amendment are required to obtain a recertification every two years after its first submission.&nbsp;This amendment to the Equal Pay Act also provides protections to whistleblowers and the imposition of civil penalties against employers who do not comply with the certification requirements.</p> <p>Undoubtedly, these new amendments impose additional burdens on employers and subject employers to additional liability.&nbsp;Conformance with these new laws is critical to ensure that employers are not subject to penalties or liability under the IHRA and the Equal Pay Act.</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Promises, Promises in Arbitration of Employment Disputeshttps://www.bscr-law.com/?t=40&an=116879&format=xml&p=5258&stylesheet=blog29 Jun 2021Employment & Labor Law Blog<p>Employers frequently adopt arbitration programs for resolving disputes with their employees. Arbitration is generally cost-effective and efficient compared with litigation in court. Benefits include reduced discovery costs, shorter time to resolution, and arbitrators willing to make compromise decisions, potentially reducing an employer&rsquo;s overall exposure. But there has also been a corresponding increase in arbitration-related litigation in recent years, and much of it relates to employers&rsquo; desire to retain the right to modify their arbitration programs.</p> <p>In <i>Harris v. Volt Mgmt. Corp.</i>, the Missouri Court of Appeals for the Eastern District reaffirmed that under Missouri law, an arbitration agreement that vests in one party the unfettered right to modify the arbitration program lacks consideration and will not be enforced. The Court affirmed a decision of the circuit court overruling an employer&rsquo;s motion to compel arbitration, finding that the arbitration agreement lacked consideration because Volt&rsquo;s promise to arbitrate disputes with its employees was illusory. Language in the arbitration agreement, which reserved for Volt the unfettered right to unilaterally modify the terms of the arbitration program, was not a promise at all. As a result, the circuit court would not compel the employee to arbitrate her claims, instead her lawsuit to proceed.</p> <p>As a matter of law, an arbitrator&rsquo;s jurisdiction over a dispute requires that a valid contract exists between the parties to refer their disputes to an arbitrator for resolution. Because an arbitration agreement is a contract, the essential elements of a valid contract &ndash; offer, acceptance, and consideration &ndash; must be present. In the employment context, arbitration agreements are generally bilateral. Consideration for the agreement is a mutual exchange of promises between the employer and the employee to arbitrate any disputes that arise from the employment relationship. In a bilateral agreement, mutuality requires that <b><i>both</i></b> the employer and employee agree to refer their disputes to arbitration.</p> <p>The circuit court generally has exclusive authority to decide whether a dispute is procedurally arbitrable, that is, whether a valid arbitration agreement exists. Challenges to the existence of a valid arbitration agreement may include an employee&rsquo;s claims to have never signed the agreement, duress, unconsionability, or any other challenges to contract formation. However, parties may agree to delegate this authority to the arbitrator, as long as the delegation is &ldquo;clear and unambiguous.&rdquo; This &ldquo;delegation&rdquo; clause is a separate agreement within the arbitration agreement, which must also be supported by consideration. Often, parties will incorporate by reference the rules of the American Arbitration Association (&ldquo;AAA&rdquo;) into the arbitration agreement. Section 6.a. of the AAA Employment Rules states that &ldquo;The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.&rdquo; [<a href="https://www.adr.org/sites/default/files/EmploymentRules_Web_2.pdf">EmploymentRules_Web_2.pdf (adr.org)</a>]. Missouri courts have held that incorporation of this rule into an arbitration agreement can be a valid delegation.</p> <p>In <i>Harris</i>, an employee was terminated, allegedly in retaliation for her seeking orders of protection against her co-workers and for other illegal reasons. Harris subsequently filed a lawsuit asserting claims of wrongful termination, retaliation, and related claims. After the suit was filed, the defendants moved to compel arbitration, asserting that the parties had agreed to arbitrate any disputes arising from the employment relationship. The defendants also claimed that the parties had delegated arbitrability issues to the arbitrator.</p> <p>The arbitration agreement at issue was contained in an &ldquo;Employee Guide&rdquo; provided to all new employees at hiring. The Employee Guide provided employees with &ldquo;general information about Volt&rsquo;s rules, policies, plans, procedures and practices concerning the terms and conditions&rdquo; of their employment. The Employee Guide contained a section entitled &ldquo;Travel expense policy | Arbitration,&rdquo; which stated that &ldquo;[a]ny dispute, controversy or claim which arises out of, involves, affects or relates in any way to your employment&rdquo; must be referred to arbitration. The arbitration would be conducted &ldquo;in accordance with the applicable rules of the American Arbitration Association (AAA).&rdquo; The next page of the Employee Guide contained an &ldquo;Acknowledgement,&rdquo; which employees were required to sign, that contained the following crucial provision: &ldquo;Volt has the right to change, interpret or cancel any of its rules, policies, benefits, procedures or practices at Volt&rsquo;s discretion, upon reasonable notice where practicable. [&hellip;] Except as otherwise stated, I agree to arbitrate any and all disputes related to my employment or assignment(s) with Volt, as discussed in this Guide.&rdquo;</p> <p>The Court held that the employer retained the right to modify any part of the Employee Guide, including the arbitration agreement and the delegation clause. Because that provision purported to give the employer an &ldquo;unfettered right&rdquo; to unilaterally modify the arbitration provision at any time, Volt&rsquo;s promise to arbitrate was illusory. The Court echoed concerns from prior cases that an employer could sense that an arbitration case was going badly, revoke their arbitration agreement, and get a second bite at the apple in court.</p> <p>The Court also rejected Volt&rsquo;s argument that Harris did not separately attack the delegation clause. Generally, a party opposing arbitration must challenge the delegation clause and the arbitration agreement separately. Here, however, the Court permitted Harris to challenge both the delegation clause and the arbitration agreement together, as the challenge to both agreements were premised on the same argument; and Harris explained in her brief that the delegation clause lacked consideration for the same reason as the entire arbitration agreement.</p> <p><b><u>Takeaways</u></b></p> <ul> <li>Arbitration is a matter of contract. Missouri courts have long emphasized that employers should not treat an arbitration agreement as a policy to be unilaterally imposed on employees.</li> <li>When drafting arbitration agreements, employers should use care to ensure that modification rights apply only <i>prospectively</i>. The courts have recognized that &quot;limiting an employer's unilateral right to amend an&nbsp;arbitration&nbsp;agreement to amendments that [(1)] are prospective in application and [(2)] about which employees have been afforded reasonable advance notice may prevent an employer's mutual promise from being rendered illusory.&quot; <i>Patrick v. Altria Grp. Distribution Co.</i>, 570 S.W.3d 138, 144 (Mo. App. 2019).</li> </ul>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Are Jury Instructions "At-Will?" Not Under the Missouri Human Rights Acthttps://www.bscr-law.com/?t=40&an=116521&format=xml&p=5258&stylesheet=blog15 Jun 2021Employment & Labor Law Blog<p>Practically every employee handbook has one: a statement that the employee&rsquo;s employment is at-will.&nbsp;Many times, employers require employees to sign an acknowledgment, affirming that the employees know and understand that their positions may be terminated with or without cause.&nbsp;However, is at-will employment a lawful reason to modify a Missouri approved jury instruction at one&rsquo;s will?&nbsp;No dice, says Missouri&rsquo;s Western District Court of Appeals.</p> <p>In <i>Kelly v. City of Lee&rsquo;s Summit</i>, the court examined whether the trial court erred in overruling the plaintiff-employee&rsquo;s objection to a modified jury instruction presented by the defendant-employer regarding the plaintiff&rsquo;s at-will employment status and the lawful reason for her termination.&nbsp;The plaintiff sued under the Missouri Human Rights Act (MHRA), claiming she was terminated by her employer in violation of the MHRA, on account of her race, age, and gender.</p> <p>Like many employers, the defendant-employer required the plaintiff to sign an agreement indicating that she understood that her employment was at-will, and that she could be terminated without cause.&nbsp;Plaintiff was terminated, and in a dismissal letter, the employer stated that, although plaintiff was being terminated without cause, the &ldquo;reason for [her] termination was overall unacceptable performance,&rdquo; including &ldquo;[f]ailure to understand policies, procedures, ordinances, laws, and processes&hellip;[i]naccurate and late work product&hellip;[f]requent shifting of responsibility for assigned work&hellip;and [i]neffective leadership&rdquo; (Huh? Kinda sounds like cause to me, but IDK&hellip;). At trial, the employer presented evidence of the plaintiff&rsquo;s poor work performance, but during closing argument, maintained that the plaintiff&rsquo;s job performance was essentially irrelevant in the jury&rsquo;s determination (I don&rsquo;t get it employer&hellip;why bring it up then?).</p> <p>In general, every employee&rsquo;s employment is deemed to be at-will.&nbsp;A fundamental exception to this rule comes into play, however, if an employee is terminated&nbsp;based on her race, color, religion, national origin, sex, ancestry, age, or disability, as spelled out in the MHRA, Title VII, and other anti-discrimination statutes.</p> <p>If an employee claims that her termination was improper under the MHRA, the employer can present evidence that the employee was terminated for a lawful reason.&nbsp;An employer that has presented such evidence can request the &ldquo;lawful justification&rdquo; jury instruction (<i>i.e.</i>, MAI 38.02), which (in essence) provides that the verdict must be for the employer if the employer terminated the plaintiff because of a specific lawful reason, and in doing so, the improper reasons under the MHRA were not contributing factors in the decision to terminate.<a href="file:///C:/Users/LJR/ND%20Office%20Echo/VAULT-rickman@bscr-law.com/Blog%20-%20Are%20Jury%20Instructions%20At-Will%20(June%202021)%204842-7649-4572%20v.1.docx#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp;The rules are clear that if the aforementioned &ldquo;lawful justification&rdquo; instruction is utilized, it must not be amended.</p> <p>In <i>Kelly</i>, the employer requested the &ldquo;lawful justification&rdquo; jury instruction (I mean, which employer wouldn&rsquo;t?), but changed the verbiage of the instruction, deleting the word &ldquo;because&rdquo; from the instruction.&nbsp;The employer&rsquo;s jury instruction was modified to read as &ldquo;Defendant terminated Plaintiff under the Management Agreement &ldquo;without cause&rdquo; and &ldquo;in doing so, neither race, age, nor sex/gender was a contributing factor.&rdquo;&nbsp;The employer maintained that the &ldquo;lawful reason&rdquo; for the termination was its at-will policy (Wait&hellip;but the MHRA is an exception to the at-will employment doctrine&hellip;not following you employer&hellip;).</p> <p>The court emphasized a familiar point: &nbsp;if an MAI instruction applies to a case, the MAI instruction must be used.&nbsp;The court determined that the employer modified the instruction, as counsel deleted the word &ldquo;because&rdquo; from the instruction.&nbsp;Further, the court determined that the employer&rsquo;s proffered reason for termination (<i>i.e.</i>, its ability to do so under the at-will agreement) was not an actual reason for plaintiff&rsquo;s termination; rather, it was a statement that the employer did not act for specified reasons.&nbsp;According to the Court, the fact that the employer &ldquo;did <i><u>not</u></i> act for certain reasons, or that it acted for &lsquo;no reason,&rsquo; are not themselves statements of a &lsquo;lawful reason&rsquo; for&hellip;termination.&rdquo;</p> <p>Having found that the modifications to the jury instruction were improper, the court next looked to whether the employer could demonstrate that there was no prejudice as a result of the modification.&nbsp;The court determined that the employer&rsquo;s modified instruction &ldquo;did not allow the jury to get to the question of whether there was an underlying <i>lawful reason</i>, not in violation of the MHRA, why [plaintiff] was terminated&rdquo;; rather, the modified instruction &ldquo;kept the jury from getting to the question of whether there was a lawful reason for discharge&rdquo; (sounds prejudicial to me).&nbsp;According to the court, &ldquo;the intention of the instruction was thwarted by asking the jury to answer an entirely different question: was [plaintiff] an at-will employee.&rdquo;&nbsp;Accordingly, the court held that the employer had not met its burden of demonstrating a lack of prejudice.</p> <p>Next, the court determined if any prejudicial effect occurred as a result of the modification.&nbsp;The court determined that the modification was prejudicial, as a non-discriminatory reason for the plaintiff&rsquo;s termination was not stated in the instruction.&nbsp;Rather, the modified instruction allowed the jury to conclude that it could find for the employer if it believed that plaintiff was terminated from employer pursuant to its &ldquo;at-will&rdquo;/&rdquo;without cause&rdquo; policy.&nbsp;According to the court, &ldquo;[w]here, as here, the defendant is provided the benefit of the [lawful justification instruction], yet is able to sidestep the need to provide any lawful reason <i>at all</i> and submit a wholly different, contractually-based cause for termination, prejudice occurs.&rdquo;&nbsp;Further, the court noted that the employer introduced evidence at trial related to the plaintiff&rsquo;s poor performance, but during closing argument, essentially advised the jury that plaintiff&rsquo;s performance was irrelevant for determining the reason for employee&rsquo;s termination.&nbsp;According to this court, such an assertion ignored a powerful circumstantial evidence tool for plaintiffs in discrimination cases, as stated reasons for an employee&rsquo;s discharge can be determined to be pretexual.&nbsp;In essence, by arguing that the performance issues were irrelevant, the employer &ldquo;virtually suggested to the jury that only direct evidence of discriminatory animus could support a verdict in [employee&rsquo;s] favor.&rdquo;&nbsp;Accordingly, the appellate court <a href="https://www.courts.mo.gov/file.jsp?id=175863">reversed</a> the decision of the trial court and remanded the case for further proceedings.</p> <p>Lessons Learned: (1) an at-will/no-cause agreement is not a lawful reason for terminating an individual when faced with MHRA violations; and (2) you can&rsquo;t change an approved Missouri instruction at-will in a MHRA case unless you want to risk re-trying the case.</p> <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/LJR/ND%20Office%20Echo/VAULT-rickman@bscr-law.com/Blog%20-%20Are%20Jury%20Instructions%20At-Will%20(June%202021)%204842-7649-4572%20v.1.docx#_ftnref1" name="_ftn1" title="">[1]</a> Kelly's termination occurred before the August 2017 amendments to the MHRA, which raised a plaintiff&rsquo;s burden of proof in a discrimination case.&nbsp;A plaintiff now must show that her race, gender/sex, or age was a determining (rather than merely &quot;contributing&quot;) factor in the employment decision.&nbsp;MAI was changed accordingly, and for cases arising after August 28, 2017, new MAI 38.06 directs that a plaintiff must show that her protected classification &quot;played a role and was a determinative factor&quot; in the employment decision.</p> </div> </div>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10Kansas and Missouri Federal Courts Raise the Stakes on Employers' Tip Pooling Practiceshttps://www.bscr-law.com/?t=40&an=116035&format=xml&p=5258&stylesheet=blog05 May 2021Employment & Labor Law Blog<p>In separate cases, the U.S. District Courts for the Districts of Kansas and the Western District of Missouri recently certified classes under the Fair Labor Standards Act (&ldquo;FLSA&rdquo;) to pursue claims against Boyd Gaming and Pinnacle Entertainment, Inc. regarding tip-pooling arrangements and notice issues at local casinos, and other casino locations.</p> <p>In <a href="https://scholar.google.com/scholar_case?case=5727000919637638302&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>James v. Boyd Gaming Corp</i></a><i>. </i>the District of Kansas certified classes relating to the tip pooling policies of Boyd Gaming at the Kansas Star Casino.&nbsp;And in <a href="https://scholar.google.com/scholar_case?case=5760810657649507383&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>Lockett v. Pinnacle Entm&rsquo;t</i></a>&nbsp;the Western District of Missouri certified similar classes related to tip pooling policies at Ameristar Council Bluffs, Ameristar Casino, Cactus Pete&rsquo;s, Boomtown New Orleans, L&rsquo;Auberge Baton Rouge, Boomtown Bossier City, L&rsquo;Auberge Lake Charles, River City, Ameristar Vicksburg, and The Meadows casinos.&nbsp;In both cases the Court certified classes challenging both the tip splitting policies and the employers&rsquo; notice to employees.</p> <p>The FLSA requires that employees receive a minimum wage of $7.25 an hour.&nbsp;Section 203(m) of the FLSA allows employers to pay tipped employees below the Federal minimum wage so long as the employees retain all tips, subject to permitted tip pooling arrangements, and the employer provides proper notice of the provisions of &sect;203(m).&nbsp;</p> <p>If you walk into one of these casinos, you would likely find yourself, unwittingly, at the epicenter of the issue in both cases.&nbsp;Table games, such as blackjack and roulette, have dealers who play the games with customers and pit-bosses who supervise the casino floor. Table dealers receive pooled tips, where the casino collects the tips and equally redistributes them to all dealer, and wages below the Federal Minimum Wage.&nbsp;The pay for pit-bosses exceeds the minimum wage, but the supervisory positions do not get tips. Many casinos, including those above, have employees who work in dual roles covering both the pit-boss position and table dealer position on different day.&nbsp;All employees accrued Paid Time Off (PTO) based on their seniority and hours worked.&nbsp;When a tipped employee took PTO they received tips from the pool as if they had actually worked that shift.</p> <p>Plaintiffs sought class certification of FLSA violation claims relating to the tip pooling practices applied to dual-role dealers.&nbsp;Plaintiffs allege that the casinos violated two FLSA provisions: first, a requirement to redistribute tips to employees &ldquo;who customarily and regularly receive tips,&rdquo; and second, a provision precluding the employers from keeping any portion of the tips collected.&nbsp;More specifically, Plaintiffs allege that when a dual-role employee took PTO, that pay necessarily occurred at the dealer&rsquo;s rate, including tip shares, regardless of whether the employee earned the PTO working as a dealer or supervisor.</p> <p>The FLSA allows an employee to bring wage/hour claims on behalf of himself and others, in a so-called &ldquo;collective action&rdquo;. Unlike class action suits, FLSA collective actions require claimants to opt-in rather than opt-out to participate in pursuing claims against the employer.&nbsp;Federal courts generally utilize a two-step approach to determining whether claims can be pursued on a class-wide basis. Under the two-stage approach, the court must first determine if the plaintiff has sufficiently alleged that all potential claimants are victims of a single policy.&nbsp;At the initial stage, the court can look to the allegations of the Complaint, supporting affidavits or declarations, but the court does not weigh evidence, resolve factual disputes, or rule on the merits until the second stage.&nbsp;If the court determines that a single policy has affected multiple &ldquo;similarly situated&rdquo; employees, it may issue a conditional class certification, which then enables plaintiffs to send out notice to all potential class members.</p> <p>Both the <i>Lockett </i>and <i>James</i> courts conditionally certified the plaintiffs&rsquo; tip pooling class, as well as classes regarding the employers&rsquo; compliance with the FLSA&rsquo;s notice requirements regarding tip withholdings.&nbsp;</p> <p>So what happens next?</p> <p>Plaintiffs and defendants in both cases will get together to work out issues related to language and timing for the notice and opportunity to opt-in to the cases.&nbsp;After discovery, the courts will be called upon to make a final determination regarding whether the employees&rsquo; have similarly situated claims.&nbsp;&nbsp;</p> <p>We will keep our eyes on these cases to anticipate any impacts the decisions may have for all employers in tipping industries.&nbsp;</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10OK, Boomer…Does Your Employee Have an Age Discrimination Claim?https://www.bscr-law.com/?t=40&an=116037&format=xml&p=5258&stylesheet=blog27 Apr 2021Employment & Labor Law Blog<p>We&rsquo;ve all heard it (and in my case, I am publishing it &ndash; sorry, HR!): OK, Boomer.&nbsp;This phrase has risen in popularity over the years as a way of suggesting that Baby Boomers (<i>i.e.</i>, those born between 1946 and 1964) have mindsets or attitudes that may be at-odds with those of younger generations.&nbsp;The &ldquo;OK Boomer&rdquo; phrase has shown up in viral Internet memes and GIFs, as a way of portraying Boomers as out-of-touch.&nbsp;The Supreme Court has even discussed the meme, when Chief Justice Roberts asked an attorney during oral argument if saying to an applicant &ldquo;OK, boomer&rdquo; is enough to qualify as age discrimination.</p> <p>As discussed in <a href="https://www.bscr-law.com/?t=40&amp;an=115217&amp;format=xml&amp;stylesheet=blog&amp;p=5258">my last post</a>, the Age Discrimination in Employment Act (ADEA), Illinois Human Rights Act (IHRA), and Missouri Human Rights Act (MHRA) prohibit discrimination against employees who are 40 years old or older in any aspect of employment.&nbsp;Similarly, it is unlawful for an employer to harass an employee because of the worker&rsquo;s age, if 40 or older.&nbsp;Such harassment can include derogatory or offensive remarks regarding an individual&rsquo;s age, to the point where such comments are so frequent and severe that they create a hostile work environment.&nbsp;These laws clearly protect Boomers from age discrimination in the workforce.</p> <p>As things stand, using the word &ldquo;Boomer&rdquo; in a derogatory fashion is likely not in and of itself enough to establish age discrimination.&nbsp;According to the Seventh Circuit, &ldquo;isolated comments that are no more than &lsquo;stray remarks&rsquo; in the workplace are insufficient to establish that a particular decision was motivated by discriminatory animus.&rdquo;&nbsp;<i>Merillat v. Metal Spinners, Inc.</i>, 470 F. 3d 685, 694 (7th Cir. 2006) (citing <i>Cullen v. Olin Corp.</i>, 195 F. 3d 317, 323 (7th Cir. 1999)).&nbsp;With that being said, &ldquo;this general rule may give way where particular remarks in fact support an inference that unlawful bias motivated the decision-maker, such as when those remarks are made by the decision-maker or one having input in a decision, and are made &lsquo;(1) around the time of, and (2) in reference to, the adverse employment action complained of.&rsquo;&rdquo; <i>Id.</i> (quoting <i>Hunt v. City of Markham</i>, 219 F. 3d. 649, 652-53 (7th Cir. 2000)).</p> <p>Let me sock it to you with what this means.&nbsp;If a 30 year-old employee refers to a 60 year old employee as a Boomer in a derogatory manner, without more, the 60 year old can hardly be said to have suffered age discrimination or a hostile work environment on account of the errant remark.&nbsp;However, if the 30 year-old employee is the 60 year-old&rsquo;s supervisor and routinely refers to the 60 year-old as a Boomer and the employee suffers some adverse employment action at the hands of the supervisor, the Boomer may have a case under the ADEA or other state anti-discrimination law.&nbsp;Similarly, if the supervisor terminates the 60-year old employer, and near or at the time of the termination refers to the employee as a Boomer, the Boomer may also have a discrimination case.&nbsp;With all that being said, employers should caution their employees at all levels of employment on language that can be perceived as discriminatory.&nbsp;By allowing such language to infiltrate the workplace, employers are simply setting themselves up for a discrimination claim &ndash; regardless if the claim has merit.</p> <p>And finally, Millennials and Gen Z:&nbsp;let&rsquo;s remember that Boomers deserve respect, and even praise, for your culture today.&nbsp;Millennials &ndash; known for their usage of acronyms &ndash; should thank Boomers, as acronyms gained popularity in the 1960s during the Cold War and space race between the U.S. and Soviet Union, laying the groundwork for Millennial acronyms, such as OMG, LOL, BTW, FBF, and IMO.&nbsp;&nbsp;&nbsp; While Millennials use many (some would say ridic) slang terms and phrases., such as &ldquo;on fleek,&rdquo; &ldquo;slay,&rdquo; and &ldquo;turnt,&rdquo;&nbsp;let&rsquo;s also not forget that Boomers are responsible for such slang words and phrases as &ldquo;groovy,&rdquo; &ldquo;gimme some skin (my FAVE!),&rdquo; and &ldquo;outta sight.&rdquo;&nbsp;So maybe there is more in common between Millennials and Boomers than we think?&nbsp;So don&rsquo;t flip your wig, you dig?</p>https://www.bscr-law.com?t=39&anc=368&format=xml&directive=0&stylesheet=rss&records=10