Are Casting Calls for Actors of Certain Races or National Origins Illegal?

by Stefanie M. Renaud

If you are anything like me, you’ve been glued to your T.V. for the past few weeks, fervently watching the explosive second season of Netflix’s original hit show Narcos.  The show features a dramatized version of Colombia’s cocaine boom, when notorious drug kingpin Pablo Escobar and the Medellin Cartel terrorized the country in a campaign to end American extradition.  Narcos is filmed in Columbia, and the dialogue is conducted primarily in Spanish with English subtitles.

As a former member of “the industry” and a current employment lawyer, the show brought up an interesting question for me: How exactly do you cast actors on a show like Narcos?  Isn’t it illegal to request only actors of “Columbian descent?”  Could you get around this by seeking “Spanish speakers only?”  But what if the part was written for someone of a particular race, national origin, or gender?  Shouldn’t the creative minds behind the show have a right to choose the actor they want to bring their character to life?

This tension arises because casting calls are poised at the intersection two of our most deeply held American beliefs; (1) that everyone should get a fair shot based on their merit, and (2) that an individual’s rights to creative expression should not be infringed.  To the first point, Title VII of the Civil Rights Act of 1964 prohibits employers from engaging in hiring practices that discriminate on the basis of race, color, national origin, and sex (amongst others), unless the protected characteristic is part of a “bona fide” occupational qualification or “BFOQ.”  To the second, the First Amendment protects artistic expression in entertainment, television, and dramatic works.

Recently, this tension came to a very public head when the Broadway blockbuster Hamilton posted a casting notice for “nonwhite” actors.  Public outrage was swift, with many accusing Hamilton of engaging in reverse racism.  Caving to public pressure, the show eventually opened the call to all actors, but Hamilton creator Lin-Manual Miranda was clear that the casting specifications were “non-negotiable” and that casting directors would only be hiring nonwhites for specific roles.  By simply moving the alleged discrimination from the public view (e.g., the casting notice) into the “private” hands of casting directors (e.g., casting specifications), Hamilton was able to avoid further scrutiny, and legal repercussions, while maintaining the exact same “discriminatory” practice that had gotten them in trouble in the first place.  And if you’re thinking that is just a matter of semantics, you’re right!  This cunning use of “verbal gymnastics” allows Hollywood casting calls to exploit “loopholes” in discrimination law created in deference to the First Amendment.

So what loopholes are casting directors using to get away with continuing to illegally discriminate in hiring?  First, some courts have held that the First Amendment’s protection of free speech justifies racial, national origin, or gender “preferences” in casting calls, because “creatives” have a right to exclude persons based on protected characteristics in conflict with their creative “vision.”  The Hamilton creator is on-board: When asked whether creative intent or non-discrimination should carry the day, Miranda stated that “authorial intent wins” every time.  And while Title VII’s BFOQ defense explicitly excludes race as an acceptable factor in hiring, casting directors may choose to hire someone because of their “appearance” and “physical characteristics” without consequence.  This is, obviously, another semantic distinction without a difference, as a person is unlikely to “appear” as another race, unless they are actually a member of that race.  Additionally, characteristics such as accent, speech pattern, dialect, or the ability to speak a foreign language are acceptable hiring criteria, even if they are closely linked with national origin and/or race.  Finally, Hollywood also receives the benefit of case law which allows employers to discriminate because of “customer preference.”  The argument goes that the white majority prefers to see white faces in movies, and thus, casting favoring whites is justified by the preference of the audience.  Because of these exceptions, which all but defeat the purpose of Title VII, casting calls are allowed to engage in behavior that, if used in any other industry, would be obviously illegal.

And, just in case you were worried, there is no indication that Narcos’ casting was based on illegal characteristics: Wagner Moura, the actor who portrays Escobar, isn’t Columbian, he’s Brazilian, and actually had to learn Spanish for the role.

Posted in Discrimination, Title VII | Leave a comment

2016 or 1984?

by Stefanie M. Renaud

Imagine a piece of technology, so small it could be mistaken for a credit card, that tracks every movement an employee makes, analyzes every conversation that employee has, and could tell an employer when that employee was in need of a day off.  What if that technology could identify patterns and traits that you could use to increase productivity by 23 percent?  Would employers want to use this technology?  Of course!  But what about the employees?  Isn’t using technology like this an invasion of their privacy?  We were shocked to learn, and we bet you are too, that because of the way this technology is currently being used, employers actually can monitor every word and movement an employee makes without running afoul of the law.

Boston-based company Humanyze recently made headlines when it announced the success it has had analyzing data collected by employee ID badges, developed at the Massachusetts Institute of Technology, that track employees’ movements and analyze their voices during conversations.  Contained within each badge are Bluetooth, radio frequency identification (“RFID”), and infrared technologies, as well as two microphones.

Each of these particular technologies has a different function and gives Humanyze different information that it can use to identify trends or patterns.  Bluetooth and RFID technology are used to monitor the employee’s physical movements and location within the office.  The microphones allow Humanyze to conduct real time analysis of the speaker’s voice, including the frequency of speaking and interrupting, and how the tone and pitch of the voice change, which can be indicator of stress, although the badge does not record the content of the employee’s conversations.  Finally, infrared technology monitors the wearer’s physiology for signs of stress.  Humanyze analyzes all of the collected data and identifies patterns or trends common to a specified group, such as top performers.  Humanyze then works with companies to explore these trends and use them to the business’ advantage.  For example, Humanyze helped Bank of America save millions of dollars by suggesting that they restructure employee breaks, which increased social interaction between employees and led to a 23% increase in employee productivity.

So, given how invasive this level of employee monitoring is, how could it not be an invasion of privacy?  First of all, this isn’t an invasion of privacy because Humanyze only gathers data from employees who voluntarily offer to be tracked.  Second, the individual’s data is their own; employers cannot see individual data and only receive information about aggregate data trends.  In Massachusetts, employees are protected by statute, Massachusetts Gen. L. Ch. 214, s. 1B, from “unreasonable, substantial, or serious interference” with their privacy.  However, in order to prove an invasion of privacy claim, the employee must show that the employer gathered and then disclosed information “of a highly personal or intimate nature.”  While it is arguable that the data collected by these badges could be deemed highly personal in nature, in this case it’s Humanyze, and not the employee’s employer, who collects and analyzes the information.

For this same reason, Massachusetts employers do not need to worry about personnel records law violations, because the employer is neither creating the records nor is it the owner of the data. And, because the badges do not record audio, there is no concern about violating the Massachusetts wiretapping statute.  So are there any legal hurdles stopping an employer from implementing this type of employee monitoring?  Only one: a workforce governed by a collective bargaining agreement.  Employers with unionized workplaces will almost certainly need to bargain with the union before implementing a new employee tracking system.  Indeed, in another, related circumstance, the Boston Police Department engaged in negotiations with the union representing its police officers over whether or not the officers would be required to wear body cameras, ultimately agreeing with the union that, at least initially, the Department would ask for volunteers.  When no one volunteered, the BPD was allowed to assign the cameras to police officers, but that was after months of negotiations and subsequent litigation.  So, if you have a unionized workforce, you can expect 1) union negotiations and 2) substantial pushback on any requirement that members of the collective bargaining unit wear these badges.

Employers in or with locations outside of Massachusetts that are inclined to experiment with this new employee tracking system should check with labor and employment counsel in those jurisdictions, because state privacy laws can vary widely.  Meanwhile, we’ll keep an eye on this new technology and let you know if there are any new developments.

Posted in Legislation, National Labor Relations Board, Policies, Unions | Leave a comment

Registration Still Open for Skoler Abbott’s Labor and Employment Law Symposium

The DOL’s new overtime regulations go into effect December 1, 2016.  To help employers prepare for these significant changes, the attorneys at Skoler, Abbott & Presser are holding a symposium to address strategies and best practices for handling the new regulations, as well as to provide an overview of other recent developments in state and federal labor and employment law.

In addition to a presentation on the new overtime regulations, the symposium will include breakout sessions on a variety of other topics, including:

  • Massachusetts’ new Pay Equity law
  • Tips for conducting workplace investigations
  • Updates on recent NLRB rulings and other labor law developments
  • Emerging legal issues, including transgender and social media
  • Substance abuse in the workplace, marijuana, and drug testing issues; and
  • Holding difficult conversations with employees

The Symposium takes place Tuesday, September 20, 2016 at the Sheraton Springfield, Boland Way, Springfield, MA  01144 from 8:00 a.m. to 12:00 p.m. Registration and Continental Breakfast begins at 7:30 a.m. 

The cost is $50.00 per attendee (please make check payable to: Skoler, Abbott & Presser, P.C.).

To register, please send your name, job title, company name, company address, telephone number and e-mail address to our Office Administrator, Jamie Martin.  Jamie’s contact information is:

Jamie Martin, Office Administrator
Skoler, Abbott & Presser, P.C.
One Monarch Place, Suite 2000
Springfield, MA 01144
Tel: (413) 737-4753
Fax: (413) 787-1941
.
Posted in Legislation, National Labor Relations Board, Policies, Social Media, Wage/Hour | Leave a comment

MCAD and Attorney General Issue Guidance for Implementation of New Law Prohibiting Transgender Discrimination

by Stefanie M. Renaud

On July 8, 2016, Massachusetts Governor Charles Baker signed Senate Bill 2407 “an Act relative to transgender anti-discrimination,” which bars discrimination against transgender persons in places of public accommodation.  Under the law, no person can be discriminated against in a place of public accommodation because of their gender identity, and transgender persons must be allowed to use the bathroom or locker room corresponding with their gender identity.  The law also required the Attorney General’s Office (“AG”) and the Massachusetts Commission Against Discrimination (“MCAD”) to develop guidelines for implementation of the law, which takes effect on October 1, 2016.

On September 1, 2016, both the AG and the MCAD released their respective guidance..  The MCAD Guidance not only addresses the new public accommodation law, but also includes general guidance about the state of the law in Massachusetts relative to transgender Bay Staters, including protections from discrimination in employment, housing, and credit and lending.  The AG’s Guidance focuses on the public accommodation law and provides companies with valuable guidance for dealing with the sticky situations that may arise when the law is implemented.

The Attorney General’s Guidance

The law prohibits a place of public accommodation from discriminating against an individual because of that individual’s gender identity.  The AG’s Guidance clarifies that a place of public accommodation is any business that is open to and serves the public, which includes:  hotels, stores, restaurants, theaters, sports stadiums, health and sports clubs, hospitals, transportation services, museums, libraries, and parks.  The Guidance also offers examples of the types of actions that may be considered discriminatory under the Act, including: refusing or denying services or offering an inferior class or quality of service because of the person’s gender identity; advertising or publicizing that an organization will not accept business from certain patrons because of their gender identity; lying or misleading someone about the availability of goods, services or facilities because of their gender identity; and harassing or intimidating someone because of their gender identity.

The Guidance also addresses a transgender person’s ability to use “sex-segregated” facilities, such as restrooms, changing rooms and locker rooms.  According to the Guidance, transgender people may use whichever facility is most consistent with their gender identity (rather than their assigned birth sex).  If a patron were to complain about the presence of a transgender person in such a facility, the Guidance says that a company representative should speak first with the complainer, not the subject of the complaint, unless there is a “reasonable basis to believe that person is not using the appropriate facility most consistent with their gender identity.”  The representative should remind the complainer that Massachusetts law protects the right of transgender people to access the facilities consistent with their gender identity.  The representative may, but is not required to, offer an accommodation to the complainer and/or the other patron such as a privacy screen, curtained area, or private facility, such as a unisex bathroom or changing room.  Places of public accommodation may also implement neutral rules that apply to all patrons, such as requiring that clothing be worn in certain areas of a facility.  Significantly, businesses may not require a patron to use a unisex facility because of their gender identity.

While the Guidance reiterates several times that the “misuse of sex-segregated facilities is exceedingly rare,” it also provides suggestions for dealing with suspected misuse.  The Guidance is clear: the place of public accommodation should presume that everyone is using the facility that corresponds with their gender identity, and businesses should not make assumptions about a patron’s gender identity based on the person’s appearance.  Inquiry into a patron’s gender identity “is generally not necessary” but may be appropriate if there is a “legitimate concern,” where the behavior of the person in question creates “reasonable worry” that the person is engaged in “improper or unlawful conduct.”  According to the Guidance, “improper or unlawful conduct” includes: loitering for the purpose of observing others; harassing or threatening violence against an employee or patron; photographing or videotaping others without permission; or violating other laws.

Where there is a “legitimate concern” the company representative may try to resolve the issue through a private and discrete conversation with the person in question.  The representative should approach the patron privately and may ask a generic question about the individual’s gender identity, such as, “Are you using the appropriate facility?”  If the patron answers “Yes,” the Guidance indicates that should end the inquiry; it will rarely be appropriate to request “gender identity” documentation.  If a person seeks to become a member “in an organization that regularly requires documentation of gender for all members,”  the Guidance lists three types of documents that may be used to prove an individual’s gender identity, including a “catchall” provision covering “any other evidence” that demonstrates the person’s gender identity is “sincerely held.”   However, a business cannot use a request for documentation to harass, intimidate, or discriminate against a person because of their gender identity.

Finally, the Guidance emphasizes that the law prohibits the use of gender identity for an improper purpose:  a person cannot use their gender identity to gain access to areas from which they would otherwise be prohibited or for the purpose of engaging in improper or unlawful conduct.  If a place of public accommodation believes a person is engaging in improper or unlawful conduct, they may address the situation consistent with the business’ typical problem resolution procedure, such as asking the patron to leave, or calling security or law enforcement.  Importantly, any call to law enforcement must be based on unlawful conduct, not on appearance, and law enforcement cannot be used to harass or embarrass.

The MCAD Guidance

The MCAD’s Guidance addresses protections from discrimination in employment, housing, and credit and lending for transgender persons, as well as addressing the new public accommodation law and offers many tips and helpful examples.

According to the MCAD Guidance, places of public accommodation include retail stores, restaurants, malls, public agencies, public parks, beaches, and public roads.  Service businesses are also covered, including loan companies, cab services, insurance companies, companies that provide long term disability benefits, and businesses that actively provide testing services.

The MCAD Guidance also offers additional examples of actions that may be considered discriminatory under the new public accommodation law, such as a hotel that refuses to book a room for a person because of their gender identity, a grocery store that refuses to bag a patron’s groceries because of their gender identity, a church refusing to serve a person because of their gender identity at a secular event, such as a spaghetti supper that is open to the general public, a restaurant that refuses to seat a group of transgender patrons because they “will draw too much attention[,]” a bakery or stationary store that refuses to provide wedding services to a  customer because of their gender identity, or a conference center that refuses to host a conference of transgender individuals.

The MCAD Guidance reiterates the AG’s assertion that it will rarely, if ever, be appropriate to request such documentation.  Under the MCAD Guidance, the sincerity of a person’s gender identity may be demonstrated with “any evidence,” which includes, but is not limited to: medical history, medical/psychiatric care or treatment of the gender-related identity; the consistent and uniform assertion of the gender-related identity; sworn witness statements attesting to the sincerity of the belief or the behavioral evidence of the belief; or evidence of an effort to change one’s legal identification documents to reflect the person’s gender identity.   According to the MCAD, the meaning of “sincerely held and part of a person’s core identity” will be developed as “the case law evolves.”  Even so, the MCAD states that “evidence of consistent conduct over a period of time” should be sufficient to demonstrate the sincerity of one’s beliefs regarding their gender identity.

Finally, the MCAD Guidance provides some “best practices” for places of public accommodation, to aid them in complying with the new law.  According to the MCAD, business should consider: (1) revising non-discrimination and other policies to include a statement that discrimination and harassment on the basis of gender identity is prohibited;  (2) prohibiting derogatory comments or jokes about transgender persons by employees, clients, vendors and any others; (3) learning and using the names, preferred pronouns, and other gender-related terms appropriate to each person’s stated gender identity; (4) providing access to sex-segregated facilities based on the person’s stated gender identity; and, (5) incorporating information about transgender individuals in diversity, anti-discrimination, and anti-harassment trainings.

Posted in Discrimination, Legislation | Leave a comment

New Poster Requirements for Employers

by Susan G. Fentin

Employers should be posting two new posters based on regulations issued by the U.S. Department of Labor in early August.  And, as long as you’re at it, you may want to consider replacing another.  See below for details.

FLSA Rights

There is a new poster entitled Employee Rights Under the Fair Labor Standards Act that  includes a section specifically addressing the rights of nursing mothers.  Employers should already be aware that nursing mothers have the right to take reasonable breaks to express milk for a one year period following the birth of a child, that these mothers are entitled to a workplace location shielded from view and free from intrusion, and that this location cannot be a bathroom, but this new poster may be a helpful reminder.

The new FLSA poster also includes information in the “tip credit” section that instructs employers of tipped employees who meet certain conditions that they may claim a partial wage credit based on tips received.   Finally, the poster references misclassification of workers as “independent contractors.”  This is on the federal radar screen for sure, and Massachusetts employers should already be aware that this is a hot button topic, since that state’s statutory requirements are more rigorous than the federal standard.

The poster is provided by the DOL in 10 different languages.  If a substantial portion of your workforce speaks a language other than English, we recommend that you post the poster in that language.  The new FLSA poster is available at: https://www.dol.gov/whd/regs/compliance/posters/flsa.htm.

Employee Polygraph Protection

The second revised poster is the “Employee Rights—Employee Polygraph Protection Act” poster. The only substantive change to this poster was the removal of a reference to the amount of possible penalties. The new poster also contains new contact information for the DOL. This poster, available in English and Spanish, is available at: https://www.dol.gov/whd/regs/compliance/posters/eppa.htm.

FMLA

Finally, for employers with 50 or more employees, the Department of Labor previously released an updated Family and Medical Leave Act (FMLA) poster in April 2016.  The new poster is basically a redesign of the February 2013 poster, which the DOL has already said can be used to fulfill the posting requirement.  But if you have a separate FMLA poster, you may want to print out the new poster in color and use it in the place of the February 2013 version, since it does look significantly different.  The revised poster, available in English and Spanish, is available at: https://www.dol.gov/whd/regs/compliance/posters/fmla.htm.

Posted in Family and Medical Leave Act, Leave Laws, Legislation, Policies, Wage/Hour | Leave a comment

Massachusetts HOME Act Mandates Handbook Revisions

by Susan G. Fentin

At the end of the most recent legislative session, the Massachusetts Legislature passed An Act Relative to Housing Operations, Military Service and Enrichment.  The purpose of the Act was to give greater access to housing for veterans in the Commonwealth where their disability was 100% related to their military service, a laudable goal.  But buried in the statute were two provisions that impact Massachusetts employers and that may require changes to your employee handbook.

The bill amends Mass. Gen. L. Ch. 149, s. 52A½, which allows veterans who desire to participate in a Veterans Day or Memorial Day exercise, parade, or service to take time off to participate in those activities in their community of residence.  Previously, Ch. 149, s. 52A½ required employers to allow veterans to take this time off with or without pay, at the employer’s discretion, but the amendment requires employers of 50 or more employees to provide the veteran employee with paid time off if the veteran takes time off on Veterans Day to participate in services in their community.  Employers may not have a Veterans Day/Memorial Day Leave provision in their handbooks, but if you are a covered employer, and have such a provision in your handbook, you will need to amend it to provide paid leave to veterans who ask for leave on Veterans Day.  If you don’t have a handbook provision covering this leave, you should be sure that your Human Resources Department understands your obligations under this little known Massachusetts statute.  Note that the leave provisions do not apply to employees whose services are “essential and critical to the public health or safety” and whose presence has been determined to be “essential to the safety and security of each such employer or property thereof.”  The statute cross references definitions of veteran in other Massachusetts statutes: for purposes of this leave, a veteran is any person with an honorable discharge who served in any branch of the U.S. military or who served full time in the National Guard under certain conditions.  Any person who served in wartime and was awarded a service-connected disability or Purple Heart is also a qualifying veteran.

In addition, the bill amends the state’s anti-discrimination law, Mass. Gen. L. Ch. 151B by adding the term “status as a veteran” to the list of protected classes.  Previously, Ch. 151B only applied to individuals who were actively serving in the military, but now the statute also protects veterans from discrimination.  Presumably, the definitions of veteran cross-referenced in other sections of the HOME Act will apply here as well.  Employers should check their employee handbooks to see if veteran status is already listed among the protected classes in their anti-discrimination provisions, including their anti-harassment policy, and add this to the list if it is not there already.

This bill was passed as “emergency legislation,” so it is effective upon signature, meaning that as of July 2016, veteran status has been a protected class in Massachusetts.

Posted in Leave Laws, Legislation | Leave a comment

Limiting Exposure Under the New DOL Overtime Rule

by John S. Gannon

A few weeks ago, I had the pleasure of speaking at a fantastic Lunch & Learn event hosted by the Chicopee Chamber of Commerce.  Along with Jenny MacKay from The Gaudreau Group, we discussed compensation and benefit plan concerns stemming from the US Department of Labor’s new overtime exemption rule.

By now, I’m sure most (if not all) of our readers are aware that the minimum annual salary threshold for exempt “white collar” workers will be going up to $913/week ($47,476 annually) on December 1, 2016.   One topic we discussed at length during the Lunch & Learn was how to compensate employees who will be earning less than $913/week as of December 1.  I outlined three of those options in a previous post:  (1) give raises; (2) convert salaried employees to an hourly rate; or (3) maintain salary basis compensation and pay overtime.  It’s the third option that seems to give employers confusion.  Remember, it’s perfectly legal to pay non-exempt employees on a salary basis; you just need to make sure they are paid an overtime premium when they work more than 40 hours in a workweek.  Plus, you can significantly limit overtime compensation exposure by paying salaried, nonexempt employees pursuant to the fluctuating workweek method (FWW).  The FWW method allows employers to pay some employees an overtime rate that is one-half the regular rate of pay, rather than one-and-a-half times the regular rate.  Stated otherwise, if an employee with a regular rate of $20/hour works 10 hours of overtime, under the traditional overtime rule the employee would be due $300 in additional weekly compensation ($20 x 1.5 x 10 hours) for overtime hours worked.  If the employee is paid under the FWW method, s/he would be due $100 in overtime pay ($20 x .5 x 10 hours), all while retaining the morale boost associated with being a salaried worker.  Talk to employment counsel if you think the FWW method might be good for your business.

Another hot topic during the Lunch & Learn was exempt/nonexempt status misclassification.  Although the new overtime rule does not alter the duties tests for the “white collar” exemptions, this is a good a time to correct misclassification errors that have been lingering for years.  Employees are less likely to scrutinize your reasons for reclassifying them if the changes are made in light of the new overtime rule.

To learn more about strategies for complying with the DOL overtime rule, make sure you attend our Labor and Employment law symposium the morning of September 20, 2016.  Attorneys from the firm will be discussing significant developments in state and federal law, including overtime compliance, the Massachusetts pay equity law, proposed changes to EEO-1 reporting requirements, emerging issues like transgender discrimination, and much more.  Contact Skoler Abbott for more details about the Labor and Employment law symposium.

Posted in Legislation, Wage/Hour | Leave a comment

Governor Baker Signs Pay Equity Bill Into Law

by John S. Gannon and Stefanie M. Renaud

Last week, Massachusetts Governor Charlie Baker signed a new law aimed at strengthening pay equity for women in the Commonwealth. The new law amends the state’s Equal Pay Act by imposing rigorous equal pay obligations and prohibiting certain pay-related conduct. The new law goes into effect on July 1, 2018, but employers should immediately start planning for necessary compliance obligations.

According to the new law, pay differences between persons performing comparable work are only acceptable if based upon: (1) a seniority system; (2) a merit system; (3) a per unit or sales compensation scheme; (4) geographic location of the job; (5) education, training and experience, or; (6) the amount of travel required. The new law defines “comparable work” as work that requires “substantially similar skill, effort and responsibility” and is performed under “similar working conditions.” This “substantially similar” language is broader than the “equal pay” language used under federal law, so it will likely lead to more favorable results for plaintiffs who file under the state law.

In addition to defining comparable work, the new law prohibits employers from engaging in several common pay-related practices. For example, employers may not prohibit employees from talking about their salaries nor may employers screen job applicants on the basis of salary or wage history. The law also penalizes employers who require applicants to provide wage and salary history as a prerequisite of being interviewed or considered for a position. Employers similarly cannot seek an applicant’s pay history information from a current or prior employer.

The new law also extends the statute of limitations for bringing an equal pay lawsuit from one year to three years. Employers should note that each issuance of a paycheck under a “discriminatory compensation decision or practice” will be deemed a separate violation, with its own statute of limitations period attached. A successful employee is entitled to recover unpaid wages, an amount equal to unpaid wages as liquidated damages, and attorney’s fees.

Employers may not reduce the salary of an employee in order to comply with the new law. Employers who have unexcused pay differentials will need to “level up” and bring the pay of the lower earners up to the pay of the highest earner doing “comparable work.”

There is one silver lining for employers. The statute provides an affirmative defense to employers who complete a “good faith” self-evaluation of their pay practices and demonstrate “reasonable progress” toward eliminating any wage differentials. This means that employers who adequately audit their pay practices may avoid liability under the new law, but only if the employer’s self-evaluation is “reasonable in detail and scope in light of the size of the employer.” We recommend that employers consider formally auditing their pay practices to ensure compliance with the new law.

Posted in Discrimination, Legislation, Policies | Leave a comment

Court Overrules NLRB and Holds That Labor Arbitration Decisions Are Entitled to Deference

by Ralph F. Abbott, Jr.

For over 30 years, employers have been able to rely upon an arbitrator’s decision as final and binding under a doctrine known as the deferral doctrine.  That doctrine was threatened by a recent decision of the National Labor Relations Board, which overturned an arbitrator’s decision in a case involving Verizon.  Fortunately, the United States Court of Appeals for the D.C. Circuit has overturned that decision and ruled that, in most cases, the NLRB must defer to an arbitrator’s award and not second guess the arbitrator.

The facts in Verizon New England, Inc. v. NLRB, 2016 BL 197813, D.C. Cir., No. 15-1062 (6/21/16) are straightforward.  The collective bargaining agreement between the union and Verizon contained a waiver of the union’s right to picket:  “The union agrees that during the term of this agreement . . . it will not cause or permit its members to cause, nor will any member of the union take part in, any strike of or interference with any of the Company’s operations or picketing of any of the Company’s premises.”

In 2008, a few months before the labor agreement was set to expire, the union planned to picket three Verizon facilities.  Picket signs were prepared, but rather than engage in what is commonly understood as “picketing,” employees visually displayed the signs in the windshields of their cars while parked on Verizon property.  Verizon ordered the employees to remove the signs in their cars, and the employees complied, but the union filed an unfair labor practice with the NLRB.

The Board’s Regional Director declined to rule on the union’s ULP charge and instead directed the parties to arbitration under the labor agreement’s grievance/arbitration procedure, finding that the dispute arose “from the contract between the parties.”  The union submitted to arbitration the issue of whether Verizon’s order that employees remove the signs from their parked cars had violated the labor agreement.  The arbitration panel ruled for Verizon, relying upon the provision in the collective bargaining agreement that expressly waived the union members’ right to picket.  The panel decided that the visible display of the signs in the cars was a form of “picketing.”

Notwithstanding the arbitration panel’s award, the NLRB refused to defer to the panel’s decision and issued a complaint against Verizon, alleging that Verizon had violated Section 8 of the NLRB by ordering employees to remove the signs from the cars.  An Administrative Law Judge ruled that the arbitration award in Verizon’s favor should be deferred to because the decision was not repugnant to the NLRA.  That ruling was overturned by the NLRB on appeal. The NLRB refused to defer to the arbitration panel’s decision and ruled that the arbitration decision was indeed “repugnant” to the Act.  The NLRB found that the union’s waiver of “picketing” did not apply to the employees’ right to display pro-union signs in parked cars.

The D.C. Circuit Court rejected the Board’s refusal to defer to the arbitration panel’s decision.  The court held that the arbitration panel’s view was reasonable and “far from egregiously wrong especially where the cars were lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.”  The court concluded that the panel’s award was neither repugnant to the NLRA nor a “palpably wrong” interpretation of Verizon’s contract with the union and therefore the NLRB should have deferred to the arbitration award.

Lesson 

This decision reinforces the vitality of the deferral doctrine as announced by the NLRB over 30 years ago.  The standard that the Board has long used to review arbitration decisions remains highly deferential to the arbitrator.  In most instances this should result in an arbitration award being final and binding, which is the intent of the parties when negotiating their grievance/arbitration procedures.

Posted in Arbitration, National Labor Relations Board, Unions | Leave a comment

Connecticut Becomes Most Recent State to “Ban the Box”

by Amelia J. Holstrom

On June 1, 2016, Connecticut became the most recent state to “ban the box” when Governor Dannel Malloy signed a bill that prohibits employers from asking questions about an employee’s prior arrests and criminal charges or convictions on the initial application for employment, unless state or federal law requires the employer to ask such questions or a security, fidelity or equivalent bond is required for the position for which the employee is applying.

Employers who fit into one of the two limited exceptions allowing them to ask about criminal history on the initial application must include the following disclaimers in “clear and conspicuous language” on the initial employment application:

  1. any person whose criminal records have been erased pursuant to section 46b-146, 54-76o or 54-142a shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath;
  2. the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to section 46b-146, 54-76o or 54-142a; and
  3. criminal records subject to erasure pursuant to section 46b-146, 54-76o or 54-142a are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled, a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon.

Nothing in the statute prohibits an employer from requesting information about an employee’s criminal history at any point after the initial job application.  As a result, employers may continue to discuss these issues in the job interview or make the inquiry, in writing or verbally, any time other than on the initial application.

Notably, the statute does not provide an individual with a private right of action against the employer.  An applicant may only file a complaint with the state’s Labor Commissioner.

The law will go into effect on January 1, 2017. Between now and then, employers should review their employment applications and make any changes that are necessary to comply with the new law.

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