OFCCP Director’s Departure Should Not Change Agency’s Priorities

OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.

What was Harris able to accomplish during his short tenure?  During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff. READ MORE

Third Time’s a Charm? The Republican Majority NLRB Is Re-Examining Section 7 and Company Email

With a new Republican majority in the NLRB, the rules may be changing (again) when it comes to company emails. The NLRB is in the process of re-analyzing when and how employers can restrict employees’ company email use without running afoul of NLRA Section 7, and may begin upholding employer policies with facially neutral restrictions on company email and computer usage again in the near future.

A bit of background: Section 7 of the NLRA protects an employee’s right to engage in “concerted activities,” which occurs “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” The NLRA’s protection of “concerted activities” is a broader concept than “union activities” and covers many different activities, including employee discussions about pay, work conditions, and safety concerns. The NLRB has construed the terms “concerted” and “protected” very broadly and vaguely, to include any activity aimed at affecting employee interests.

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Employers, Victims, and Witnesses Rejoice: California Bars Sexual Harassers from Suing for Defamation

In the wake of #MeToo, California has enacted a new statute aimed to protect victims, witnesses, and former employers from claims of defamation for making complaints or communicating information about alleged sexual harassers to others.  On July 9, 2018, Governor Brown signed into law Assembly Bill 2770. The bill amends Civil Code section 47, which makes certain communications “privileged,” meaning those communications cannot be the basis of a defamation claim.

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NYC Harassment Poster and Notice Released

The New York City Commission on Human Rights has released the Fact Sheet and mandatory Notice referenced in the recent Stop Sexual Harassment in NYC Act (the “Act”).  Effective September 6, 2018, all employers in New York City must conspicuously post the Notice in the workplace and must distribute the Fact Sheet to all new employees upon hire.  Alternatively, the Fact Sheet may be incorporated in an employee handbook distributed to new employees upon hire. READ MORE

Japan Enacts Work Style Reform Law

In Japan, reforms over the years of its labor laws, which have been largely premised on a system of lifetime employment and time based wages, have remained minor and labor related issues such as low productivity, depressed wages, karoshi (death by overwork) from long working hours and power harassment, employers that coerce its employees to perform, but do not pay them properly for, overtime work, and increased prevalence of using contingent  employees (employees paid on an hourly basis, contract employees and dispatched workers) as adjustable and disposable work forces, became entrenched. READ MORE

California Adopts New Regulations Clarifying National Origin Discrimination

California law has long prohibited harassment and discrimination based on national origin. However, articulating the distinction between race and national origin, and identifying conduct that may constitute national origin discrimination in particular, can be challenging. Concerned that national origin was too “opaque,” the state Fair Employment and Housing Council recently proposed new regulations to explicitly define national origin under California law and provide additional examples of prohibited practices. Following a year-long notice and comment period, these new regulations took effect July 1, 2018. See Cal. Code Regs. tit. 2, §§ 11027.1, 11028. READ MORE

The Impact of the Third Gender for Employers in Germany

Germany’s Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has ruled that there must be the option of registering a gender that is neither male nor female on birth certificates. The introduction of a third gender will raise questions for employers too, in particular with regard to gender discrimination.

The Ruling

In late 2017, the BVerfG held that the constitutional rights of individuals who cannot be permanently categorized as belonging to either the male or the female gender are being violated if the law on civil status requires them to register their gender while not allowing any entry other than a positive gender definition as either male or female.

The case was brought by a registered female whose chromosome testing revealed that they were neither of female or male sex. The plaintiff had brought the action after several lower courts had ruled against a bid to introduce the gender options “inter” or “diverse” in the birth register.

In Germany it has been possible since 2013 to leave the gender box blank on the birth certificate or refer to the option “not stated” for people born with characteristics of both males and females. However, the court held that referring those affected to these options does not suffice and is unconstitutional.

According to the grounds, the German constitution protects the sexual identity of a person given that this is at the core of an individual’s personal identity and social perception. This protection also covers the positive description of one’s gender.

Now, the German legislature has until December 31, 2018, to implement new regulations in line with the BVerfG’s guidelines. The category could be called “inter” or “diverse.” Once the law is passed, Germany would become the first European country to offer intersex people the option of identifying as a designation other than male or female.

Some countries, including Australia and New Zealand, do recognize intersex as an option on official documents. In 2015, a law introduced in New York resulted in more than 700 people changing their birth certificates to “intersex.” In 2017, California became the second U.S. state to allow for such change.

Until the new law has passed, according to the court, courts and state authorities should no longer compel intersex people to choose between identifying as male or female. It is highly likely that a third gender will be introduced by such law. In employment law, too, this raises new questions, particularly in relation to discrimination on grounds of gender.

Gender-Neutral Job Advertisements

Discrimination on the grounds of gender must be prevented in accordance with the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). If employers disregard this rule, they face strict liability damages claims and compensation claims on the part of an affected employee. Also, the intangible damage suffered in the form of damage to a company’s reputation in case of gender discrimination is not to be underestimated, especially given the new power of social media where everyone is in the position to cause a PR crisis (aka shitstorm) for a company by just one tweet or post.

Employers must, in particular, design job advertisements in a gender-neutral manner. Since the ruling of the BVerfG, it must be assumed that the term “gender” no longer solely refers to men and women but includes individuals who do not belong to either the male or the female gender.

If one interprets section 1 AGG against the background of the recent ruling, the prohibition of gender discrimination will now no longer only apply to men and women but also to individuals who do not belong to either the male or the female gender. Consequently, there is a strong argument in favor of no longer addressing job advertisements only to women or men but also to a third gender in order to comply with the principle of gender neutrality as newly established by the BVerfG.

What Does the Ruling Mean in Practice?

Employers are well advised to review their current practice regarding job advertisements now and, in any event, no later than when the new law enters into force, presumably on January 1, 2019. The adjustment of job advertisements is also advisable in view of the reversal of the burden of proof under the AGG. If a job advertisement is placed without reference to the third gender, this will likely constitute a fact that gives rise to the presumption that this gender has been discriminated against. As a result, in the event of a dispute, the employer would have to rebut this presumption.

Gender-neutral broader language and job descriptions continue to be safe in view of a possible discrimination on the basis of gender. There is a strong tendency amongst legal advisors, however, to expressly make reference to the third gender in job advertisements. Employers should make it clear in their job advertisements that they are open to all kinds of people, regardless of their gender, and that they welcome their applications.

In this context, if no neutral job title can be found, it may be appropriate to include designations in brackets. The previous addition “(m/f)” does not take account of the third gender and therefore will likely give rise to a presumption of discrimination on the grounds of gender. The mere notice that “m/f” is deemed to include all individuals will likely not suffice to avoid any sanctions under anti-discrimination law. Based on the term “inter/diverse” suggested by the BVerfG, the designation in brackets should be extended to read “(m/f/d),” “(m/f/i)” or “(m/f/x)”.

Action to Take for Employers

Regardless of the need for action which has now clearly arisen on the part of the legislature, employers should pay closer intention to potential gender discrimination and look into the practical consequences of the ruling. Regardless of the decision, employers should create a work environment that is free from discrimination by also taking into account different gender identities.

As the law in this area continues to develop, here are some tips for employers looking to be proactive and minimize risk:

  • If you have not already, consider rewriting non-discrimination and anti-harassment policies to include gender identity and train employees on it.
  • Re-examining gender-based dress codes is a good idea.
  • Employees should have access to restrooms consistent with their gender identity: If possible, add a gender-neutral option or a single-occupant restroom.
  • Keep tabs on case law and legislation so you are prepared.

Wait a Minute…California Supreme Court Says Employers Must Pay for De Minimis Off-the-Clock Work

On July 26, 2018, the California Supreme Court found that employers must compensate workers for the time they spend on certain menial tasks after clocking out of their shifts. In a unanimous decision, the Court held that California wage law did not bar a putative class action brought by a former Starbucks employee who routinely spent several minutes on trivial close-out tasks after his shift. READ MORE

Brett Kavanaugh’s Supreme Court Job Interview: An Employer’s Perspective

The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.

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New California Law Fills in the Blanks of Salary History Ban

Last week, California enacted new legislation updating the prohibition on employers inquiring into the salary history of their applicants and the requirement that employers respond to applicants’ requests for the pay scale for positions. This law, enacting Assembly Bill No. 2282, clarifies key provisions in Labor Code section 432.2 regarding employers’ obligations, which were left undefined in the bill that added Section 432.3 to the Labor Code last year. READ MORE