Thursday, May 28, 2015

Watch That Inbox: EEOC Discrimination Charges Via Email

Employers should be aware that Equal Employment Opportunity Commission now has the ACT Digital Pilot Program. Eleven EEOC offices across the country will be implementing this program. It has already begun in Richmond, San Francisco, Charlotte, Greensboro, Greenville, Norfolk and Raleigh. Offices in Denver, Detroit, Indianapolis and Phoenix will be the next to go online.

This program will allow the EEOC and employers to exchange documents electronically. The EEOC is moving towards an online charge system that will include the submission of documents, notices and communications. Under the first phase of this new program, employers can communicate with the EEOC through a secure portal in order to download the charge, review and respond to mediation offers, submit a position statement, and provide contact information. Employers will have password protected login information. Should employers prefer standard paper form, they may opt out of the pilot electronic program.

It is hoped that the new program will ease administrative burdens and improve the EEOC’s responsiveness to the public as well as protect the security of the documents. The goal is for all field offices to have the program by October 2015.

Wednesday, May 27, 2015

$15 An Hour Minimum Wage Looks Like It Is Coming To L.A.

The second largest city in the country is poised to pass legislation that will raise its minimum wage to $15 an hour. It is a huge victory for labor groups and their supporters. What impact will this large increase have across the country?

The federal minimum wage remains at $7.25 per hour. Several other large cities have already raised their wages with many other cities considering similar legislation. Los Angeles’ proposed plan provides for a gradual increase over a five year period commencing in July 2016. Employers with less than 25 employees will have an additional year for each increase. Beginning in 2022, annual increases will be based on the Consumer Price Index. The city attorney has been tasked with the job of drafting the actual language of the law that will then be submitted to the City Council for final approval.

Research shows that these wages are essential for workers to be able to live. However, it is unclear the impact on businesses, particularly small businesses. There are fears that such businesses may be forced to close or relocate owing to the additional costs. In particular, restaurant owners have claimed that they will have to cut their staff by half as they are required to pay the minimum wage even to tipped staff. There is a lack of historical data to predict what the impact of this hike will be according to the New York Times.

Tuesday, May 26, 2015

U–Turn: Fourth Circuit Rules One Incident Can Be Sex Harassment

In 1996, the Fourth Circuit Court of Appeals decided that a single incident of harassment could not meet the legal standard under Title VII. That decision has now been overruled in Boyer-Liberto v. Fountainebleau.

African American Reya Boyer-Liberto was a hostess and server at the Clarion Hotel, a part of Fontainebleau Corporation. Within a 24-hour period, the Food and Beverage Manager called her a “porch monkey” two times. Ms. Boyer-Liberto complained quickly to management. She was later terminated for alleged performance related issues, including a failure to pass the bartender exam.

Both the district court and a three-judge panel of the Fourth Circuit ruled for summary judgment in the employer’s favor. These courts determined that the two incidents were insufficient to meet the threshold for discrimination under Title VII. The full panel of the Fourth Circuit disagreed. “[A] reasonable jury could find that [the supervisor’s] two uses of the ‘porch monkey’ epithet-whether viewed as a single incident or as a pair of discrete instances of harassment-were severe enough to engender a hostile work environment.” In acknowledging that this decision was a change from circuit precedent, the court stated that the prior decision was inconsistent with a U.S. Supreme Court decision on this issue.

The circuit court also held that Ms. Boyer-Liberto had a claim for retaliation. She was protected if she had a reasonable belief that a hostile work environment was in progress. No additional evidence other than the isolated incident was necessary to show that a hostile work environment was likely to occur. This case will now proceed to trial.

Thursday, May 21, 2015

ACLU Turns The Spotlight On Hollywood Gender Discrimination

The American Civil Liberties Union is asking state and federal agencies to look into a pattern and practice of gender discrimination by Hollywood studios, networks and talent agencies. Letters were sent to the EEOC, the California Department of Fair Employment and Housing, the U.S. Labor Department’s Office of Federal Contract Compliance Programs. Apparently, there is precedent for such inquiry. The EEOC held hearings on Hollywood discrimination in the 1960’s. Employment discrimination was found and a settlement was reached.

These current requests for investigation are based on statistical and anecdotal evidence detailing systemic “overt sex stereotyping and implicit bias.” For example, a USC study found that women directed just 1.9% of the top 100 grossing films from 2013 and 2014. In television, the Directors Guild of America found that women directed only 14% of 3,500 episodes during those same years. The anecdotal evidence collected showed explicit discrimination from the men in charge such as: shows not being “women friendly”; or telling agents to “not send women” for jobs; or stating that “we already hired a woman this season” for a job.

Hollywood studios and networks may have some shield from liability should discrimination be found as anti-discrimination laws pertain to employees. Directors are typically categorized as independent contractors. The ACLU has asked for studies and hiring information from major studios, networks and the Directors Guild of America to pinpoint the worst offenders. It seems that ACLU may hope that simply putting more attention and pressure on these male dominated networks and studios will cause them to review their choices.

Wednesday, May 20, 2015

Law Firm Orrick, Herrington Leads Way on Parental Leave

Deciding that it wanted to retain more of its women lawyers, Orrick, Herrington & Sutcliffe has created a generous parental leave policy. All lawyers are entitled to 22 weeks paid leave as well as nine months total off of work without risk of losing their jobs. The law firm considers it the most liberal parental leave for any major U.S. law firm.

Orrick’s CEO reported that the reason for increased leave was the number of women who leave the legal profession. Women make up approximately half of all law school gradates but only makeup a third of the lawyers at law firms. Around 20% of all partners at the biggest firms are women with just 4% of those females achieving the managing partner position.

While the Orrick law firm recently and successfully defended Kleiner Perkins from Ellen Pao’s gender discrimination lawsuit, within its own doors it wants to attract and keep more women lawyers. The firm conducted exit interviews with female lawyers who reported leaving because of the conflict between long hours and caring for children. The firm has also created a “Leave Liaison” to help parents coming back to work after parental leave and to train the firm’s management on how to support these returning parents. Orrick apparently already offers a flexible work program.

Tuesday, May 19, 2015

Zappos’ Experimental Business Model Results In Worker Loss

The Washington Post recently reported that Zappos lost 14% of its workers following its organizational change to a “Holacracy.”

Zappos’ “Holacracy” has been described by the company as a replacement of the traditional corporate hierarchy for one without bosses. Workers will be self-governed within their teams called “circles.” The intention is to “make Zappos a fully self-organized, self-managed organization by combining a variety of different tools and processes.” The new work force will not have managers or job titles. The underlying goal of these changes was to make the company more able to take risks, move quickly, deal with problems and allow new ideas to take root.

Recognizing the unusual structure would not be for everyone, Zappos offered its employees until the end of April to decide if they could get on board with the changes. For employees unwilling to adapt, they were given three months severance. 210 of Zappos’ 1500 employees left. Some left for the guaranteed severance but others left because they were frustrated with the new system.

Thursday, May 14, 2015

Questions About Nationality and Language May Not Always Be Discriminatory

Luz Paradoa used to work for the Philadelphia Housing Authority. One of the employees that she supervised was her cousin. Some of the other employees that Ms. Paradoa supervised complained that she was a bully and showed favoritism towards her cousin. A specific complaint was that the cousins spoke to each other in Spanish about the other employees.

As part of the investigation, Ms. Paradoa was asked if she was Hispanic and if she spoke Spanish at work around her co-workers. Ms. Paradoa was fired after the investigation because her supervision of her cousin violated the anti-nepotism policies. Ms. Paradoa filed a lawsuit alleging discrimination. To establish bias, Ms. Paradoa relied upon the questions about her nationality and her use of Spanish.

Both the district court and circuit court agreed that summary judgment for the employer was appropriate. In the circumstances of this case, the questions about Ms. Paradoa’s use of Spanish arose out of the complaints that she used that Spanish to speak about other employees. The court conceded that the question about her nationality might not be relevant but was insufficient to establish discriminatory intent. This case was not published.