North Risk Partners August Webinar

Presented by:Mike

Bourgonand

Michelle Super

Topics Covered

• Criminal Background Questions for New Applicants

• Bullying in the Workplace

• EEOC Ruling on Pregnancy Discrimination

Employment and Labor Law Alert: Minnesota

“Bans the Box”

Employment and Labor Law Alert: Minnesota “Bans the Box”

On May 13, 2013, Governor Dayton signed the Criminal Background Check Act (S.F. No. 523) into law in Minnesota, restricting the circumstances under which employers may request information regarding an applicant's arrests or convictions

Employment and Labor Law Alert: Minnesota “Bans the Box”Under the new law, public and private employers may not inquire into, consider or require disclosure of an applicant's criminal history until after the applicant has been selected for an interview, or if there is not an interview, before a conditional offer of employment is made.

Employment and Labor Law Alert: Minnesota “Bans the Box”

Since 2009, Minnesota law has prohibited public employers from requesting criminal background information on job applications

Employment and Labor Law Alert: Minnesota “Bans the Box”

The new law governing both public and private employers goes into effect January 1, 2014, and will be codified at Minnesota Statutes §§ 364.021, 364.06 and 364.09.

Employment and Labor Law Alert: Minnesota “Bans the Box”Alleged violations of the law will be investigated by the Minnesota Department of Human Rights. For violations that occur in the first year—before January 1, 2015—the MDHR will issue a written warning. If not remedied within 30 days, or if subsequent violations are found, employers may be assessed a penalty of up to $500 per violation, not to exceed $500 in a calendar month.

Employment and Labor Law Alert: Minnesota “Bans the Box”For violations that occur on or after January 1, 2015, the MDHR will not issue written warnings, and the size of the penalty assessed will vary based on the size of the employer. Employers with more than 20 employees at one or more sites in Minnesota may be assessed up to $500 per violation, not to exceed $2,000 in a calendar month.

Employment and Labor Law Alert: Minnesota “Bans the Box”

Notably, the law specifies that the MDHR penalties are the exclusive remedy for violations. Private employers are not "otherwise liable" for failing to comply with the statute; thus, there is no private right of action.

Employment and Labor Law Alert: Minnesota “Bans the Box”The law provides an exception for employers with a statutory duty to conduct criminal background checks or otherwise consider applicants' criminal history during the hiring process. Therefore, employers hiring for certain types of positions—for example, positions working with children in schools—are permitted to inquire about criminal history at the application phase.

Employment and Labor Law Alert: Minnesota “Bans the Box”Employers should take care to inquire only about the types of offenses that may be specified by statute, and they should not ask criminal history questions of all applicants, if the employer does not have a statutory duty to conduct background checks for all positions.

Employment and Labor Law Alert: Minnesota “Bans the Box”Minnesota employers should review their job applications and pre-hire procedures to avoid running afoul of the new law. Importantly, questions regarding an applicant's criminal history should be removed from the initial job application, unless the position is covered by a statutory exception.

Employment and Labor Law Alert: Minnesota “Bans the Box”

Criminal history information may be considered later in the hiring process—generally only after applicants are selected for interviews or for conditional offers.

Other Things To ConsiderMake sure your employment application does not ask other illegal questions such as:

• Are you a US citizen?

• Was your military discharge honorable?

• Do you have a disability?

• Have you ever filed a worker’s compensation claim?

Other Things To ConsiderIn addition there should be language included on the employment application to make sure the company is protected. For example, a statement regarding employment-at-will.

Workplace Bullying From a Plaintiff's Perspective

Workplace Bullying From a Plaintiff’s PerspectiveHow do employees combat bullying in today’s world? A good place to begin is a discussion of what constitutes bullying. So what is bullying? Wikipedia – something of a barometer of current cultural understanding – defines workplace bullying as the tendency of individuals or groups to use persistent or aggressive or unreasonable behavior against a co-worker or subordinate.

Workplace Bullying From a Plaintiff’s PerspectiveContinuing, one government agency has defined bullying as repeated, unreasonable actions of individuals directed towards an employee, which are intended to intimidate, degrade, humiliate, or undermine, or which create a risk of health or safety to the employee.

Workplace Bullying From a Plaintiff’s PerspectiveThese definitions vary slightly in their specifics, but generally involve several common elements.

1. Negative commentary or behavior2. Continuing and repeating over time3. Between or among individuals where

there is an imbalance in power or strength.

Workplace Bullying From a Plaintiff’s PerspectiveInteresting, when the concept of bullying is applied to the workplace environment, several things become immediately apparent.

First and foremost, the concept of bullying is inherently difficult to apply in a workplace environment.

Workplace Bullying From a Plaintiff’s PerspectiveThis is essentially due to the fact that the elements of bullying previously defined are key components of most supervisor/subordinate relationships in the workplace. Supervisors regularly provide feedback, including negative feedback, to their subordinates.

Workplace Bullying From a Plaintiff’s PerspectiveSupervisors will often be forced to provide negative feedback repeatedly, and over the course of time, particularly in the case of average or poor performers. This relationship inevitably involves an imbalance in power; thus, in some (albeit extreme) sense, supervisors likely regularly and unthinkingly engage in conduct that can be perceived as bullying by subordinates.

Workplace Bullying From a Plaintiff’s PerspectiveGiven the complexities of workplace bullying, and the general deference of courts to business decisions and judgments, the reluctance of courts to take on workplace bullying with appropriate urgency is not completely surprising.

Workplace Bullying From a Plaintiff’s PerspectiveThe Second Circuit, for example, emphasizes the cautious approach that courts should take with hostile work environment cases to ensure their linkage or correlation to the claim ground of discrimination, because to do otherwise would be to convert federal courts into courts of personnel appeals.

Workplace Bullying From a Plaintiff’s PerspectiveThe Second Circuit was referring to discrimination, which necessarily involves the need for protected class status, such as gender, race, national origin, disability, religion and age, to name a few.

These discrimination claims require protected class status in conjunction with bullying. Bullying without protected class status is not enough. Discrimination needs to be proven. Without protected class status, bullying is flung into deep water.

Workplace Bullying From a Plaintiff’s PerspectiveNumerous articles have analyzed failed efforts by employees to use traditional tort remedies. Employees have brought claims for intentional infliction of emotional distress, negligent infliction of emotional distress, status-protected class-based discrimination and harassment under state law or Title VII, civil assault, civil battery, and whistle-blowing.

Workplace Bullying From a Plaintiff’s PerspectiveOther employees have brought claims under less common torts, including defamation or tortious interference with contract or prospective business relationships.

In a recent Michigan circuit court case, a supervisor was constantly utilizing verbal threats, harassment and bullying.

Workplace Bullying From a Plaintiff’s PerspectiveThe court found that the plaintiff could not file a claim for intentional infliction of emotional distress, and ultimately dismissed the case. Here, the client was forced out of the workplace on a stress-induced leave that was so severe she had physical symptoms.

Workplace Bullying From a Plaintiff’s PerspectiveIn contrast, there have been cases in which bullying conduct has been found to support a viable claim, inevitably involving some conduct that can be reclassified as separately tortious conduct.

Workplace Bullying From a Plaintiff’s PerspectiveThe often-cited Indiana Supreme Court decision of Raess v. Doescher is illustrative. Here, the Indiana Supreme Court did find that the concept of a workplace bully was relevant to the plaintiff’s claim.

Workplace Bullying From a Plaintiff’s PerspectiveLots of testimony regarding bullying was accepted. However, ultimately what enabled the plaintiff to state a viable claim was that Dr. Raess’s conduct separately constituted an assault. The doctor’s conduct had created reasonable apprehension by the plaintiff that he was going to “hit him,” a fact that turned the bullying claim into an assault.

Workplace Bullying From a Plaintiff’s PerspectiveA similar plus-factor existed in a California bullying case. There, the California Court of Appeal upheld the jury’s determination that the defendant’s bullying resulted in the plaintiff’s constructive discharge even though it was status-neutral. The key circumstance in this case, however, was the retaliatory nature of the bullying – i.e., that it was done in response to the plaintiff’s opposition to the defendant’s discriminatory practices.

Workplace Bullying From a Plaintiff’s PerspectiveThus, although such cases reflect the increased receptiveness of courts to claims of workplace bullying, the change is slight, at best. Rather than treating bullying itself as actionable, the case is still an attempt to reclassify the bullying as conduct otherwise actionable under existing tort theories.

Workplace Bullying From a Plaintiff’s PerspectiveStill, the recognition of the trial court and the Indiana Supreme Court of the relevance in workplace bullying (an expert testimony regarding the subject) to a claim of assault or intentional infliction of emotional distress reflects increased recognition of workplace bullying as a distinct form of misconduct.

Workplace Bullying From a Plaintiff’s PerspectiveGiven the general reluctance of the courts to adjudicate workplace bullying through existing tort remedies, there has been increased focus on passing legislation specifically targeting workplace bullying. While anti-bullying legislation has been adopted in response to school bullying (47 of the 50 states), no state has passed anti-bullying legislation focused on the workplace.

Workplace Bullying From a Plaintiff’s PerspectiveDespite the lack of success domestically, such legislative efforts have been fruitful abroad.

Workplace Bullying From a Plaintiff’s PerspectiveInterestingly, separate factors are causing businesses to focus on workplace bullying.

Workplace violence, for example, has been a growing concern for the business community, and has been of greater focus given current economic conditions.

Workplace Bullying From a Plaintiff’s PerspectiveEven beyond its linkage with workplace violence, there is growing recognition of the business costs of workplace bullying. A number of surveys have been conducted, and it was found that 35% of the workforce – over 53 million workers – claim to have been the victim of bullying. 58% of those claiming to have been bullied were women. In fact, bullying is four times more prevalent than illegal harassment.

Workplace Bullying From a Plaintiff’s PerspectiveThe negative ripple effects of such bullying on the bottom line of businesses have been equally eye-opening. An Orlando Business Journal article cited a bullying survey of 9,000 federal employees, and estimated a cost of more than $180 million from bullying due to lost time and productivity alone.

Workplace Bullying From a Plaintiff’s PerspectiveThese costs stem from secondary effects of bullying such as lost productivity, worker turnover, low morale, increased absenteeism, medical and worker’s compensation claims, and increased legal expense.

Workplace Bullying From a Plaintiff’s PerspectiveObviously, from a business perspective, such facts and numbers become difficult to ignore, and as a result, employers are beginning to implement bullying policies out of economic self-interest.

Workplace Bullying From a Plaintiff’s PerspectiveMoreover, pressure from insurer’s regarding the escalating cost associated with bullying is spurring businesses to develop and implement robust anti-bullying policies. Given changing societal values and the evolving perception of workplace bullying, employees may soon find courts more open to litigating workplace bullying claims through traditional tort remedies.

Workplace Bullying From a Plaintiff’s PerspectiveThe passage of anti-bullying and anti-hazing laws reflects growing societal disapproval of bullying, the likely result of increased understanding of the anti-social and destructive nature of bullying.

Workplace Bullying From a Plaintiff’s PerspectiveThis change may eventually permit employees to readdress bullying through tort claims such as intentional infliction of emotional distress, defamation and tortious interference that are based on or include some element reflecting social norms and standards.

Workplace Bullying From a Plaintiff’s PerspectiveFinally, implementation of bullying policies by employers will not only provide internal mechanisms for addressing workplace bullying, but may eventually provide a legal remedy when employers fail to protect their employees from bullying. Many states have developed bodies of law that permit employees to enforce employee policies under the proper circumstances, even when such policies are not part of an employee’s contract.

Workplace Bullying From a Plaintiff’s PerspectiveEmployers that implement policies are likely to actively implement and enforce them, not simply based on economic self-interest, but because of liability risks associated with uneven enforcement.

Such circumstances will help to create expectations in employees regarding the binding nature of the policies, and should eventually permit employees to enforce them to their benefit, where the failure to act by an employer leads to an employee’s constructive discharge.

EEOC Enforcement Guidance on Pregnancy Discrimination Adds ADA

Duties of Reasonable Accommodation

On July 14, 2014, the EEOC issued its long-anticipated Enforcement Guidance on Pregnancy Discrimination and Related Issues.

This guidance not only explains the EEOC's understanding of the law and how it will seek to enforce it, but also attempts to expand the law to provide greatly enhanced protections to pregnant employees.

The Guidance covers the vast expanse of federal workplace laws touching on pregnancy and related conditions including:• Pregnancy Discrimination Act (PDA), • Americans with Disabilities Act (ADA), • Genetic Information Nondiscrimination

Act (GINA), • Affordable Care Act (ACA), • Family and Medical Leave Act (FMLA), • and Executive Order 13152, which

prohibits discrimination in federal employment based on parental status.

The guidance takes the affirmative position that pregnant employees are entitled to accommodation under both the PDA and the ADA.

The Guidance is composed of four sections addressing the PDA, ADA, other laws, and best practices, respectively. The sections covering the PDA and ADA describe the basic precepts of the laws and their application to pregnancy and related conditions, illustrated through examples. The third section briefly summarizes the other laws in the field, and the final section provides a bullet point list of the steps the EEOC recommends that employers take to comply with the EEOC's construction of the law.

Drawing on the PDA's requirement that pregnant individuals be treated the same as others similar in their abilities or inabilities to work, and the EEOC's regulations implementing the ADA, which state that impairments arising from pregnancy may be eligible for accommodation, the Guidance concludes:

• The PDA requires accommodations for pregnant women, regardless of the severity of their pregnancy-related work limitations, if the types of accommodations are provided to other employees with similar abilities or inabilities to work.

• The Guidance incorporates the concepts of "reasonable accommodation" and "undue hardship" into the analysis of an accommodation request. It also provides several examples of what the EEOC considers reasonable accommodations for restrictions arising out of pregnancy.

• The ADA requires accommodation of pregnancy-related disabilities, regardless of their relationship to a healthy and routine pregnancy.

• The assertion that "an impairment's cause is not relevant in determining whether the impairment is a disability" could nullify the provision of the ADA regulations stating that pregnancy is not an impairment.

• Thus, following this approach, conditions present to some degree in most pregnancies, such as balance issues, morning sickness, and changes in body size, could qualify for accommodations under the ADA.

• The PDA requires accommodations for pregnant women where non-pregnant similarly abled or disabled individuals have received accommodations, regardless of whether the accommodations result from laws like the ADA, a policy that prioritizes workplace injuries over other physical limitations, or an employer's choice free from any legal obligations on the matter.

• The EEOC declares that an employer may not confine light duty to those suffering from workplace injuries, but must provide light duty to pregnant employees who need it as well. In doing so, the EEOC explicitly rejects contrary cases from at least four federal circuit courts of appeals.

• The Guidance concludes that employers should now abandon policies requiring different treatment for employees injured on the job and employees with similar disabilities due to pregnancy.

• Common employer policies, such as a policy that restricts sick leave to only 10 days, may disparately impact pregnant women.

• It is likely that a number of pregnancy-related impairments that impose work restrictions will be substantially limiting for ADA purposes, even if temporary, and provides multiple examples.

The Guidance takes the position that employers that provide health insurance must provide prescription contraceptives in health plans, states when coverage must be provided for fertility treatments unique to women, contends that GINA could be violated by an adverse employment action taken to avoid insurance costs arising from the genetic impairments of the employee's child, explains that lactation must be accommodated by employers, and clarifies what forms of parental leave policy are permissible.

The immediate impact of the Guidance will be more aggressive enforcement of the PDA and more ADA/PDA cross-over cases. The courts are likely to give judicial deference to the Guidance, so it will affect the direction of future case law. Several of the Guidance's assertions will substantially change employers' obligations if accepted by courts.

Earlier cases accepted the argument that employees receiving their accommodations under laws other than the PDA are not appropriate comparators for plaintiffs suing under the PDA. The EEOC's Guidance does not agree.

Thus, accommodation may be under the PDA so long as accommodation is required for a comparator under the ADA, possibly even where the ADA comparator is merely hypothetical.

The Guidance also disagrees with the permissibility of workplace policies that provide special treatment to injuries sustained in the workplace but deny those accommodations to pregnant women. A case that will be decided by the U.S. Supreme Court, Young v. United Parcel Services, Inc., will likely shed further light on these arguments.

While most of the Guidance focuses on expanding the rights of pregnant employees, it also provides employers with a few footholds for proving their compliance.

Some of the examples of compliant behavior in the PDA and ADA sections may provide employers with arguments that their decisions are permissible, or at the least should not be the subject of EEOC actions against them.

Either way, the Guidance does not carry the formal authority of regulations, so courts are free to reject portions of the Guidance.

The EEOC provides a long list of Best Practices for compliance, and employers concerned about compliance should consider following at least some of these.

The most important steps are:

• Review anti-discrimination, benefits, leave of absence, light duty, and accommodation policies to make necessary changes to ensure they are compliant with the law.

• Train managers and human resources professionals on rights and responsibilities under the PDA, the ADA, and other statutes that bear on pregnancy, and specifically on the duty to accommodate restrictions related to pregnancy, childbirth, or lactation.

• Focus on qualifications in employment decisions rather than planned pregnancy, pregnancy, recent pregnancy, or caregiver status.

• Take pregnancy discrimination complaints very seriously and protect employees who complain from retaliation.

• Make sure the business reasons for employment actions are well documented.

• Disclose information about fetal hazards to applicants and employees and accommodate any requests for reassignments to the extent feasible.

Mike Bourgon Michelle Super651-270-2281 612-281-9381mike@SynHR.commichelle@SynHR.com

Contact Information

NRP Hotline Line#1-888-603-7872hotline@synhr.com