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A manufacturer has “subjected its employees to an ugly mix of sexism, racism, and xenophobia and violated federal law prohibiting harassment and retaliation” the Equal Employment Opportunity Commission alleged in a lawsuit recently filed in New York. What led to such an inflammatory charge from the EEOC? Among other things, the employer’s implementation of an English-only rule in the workplace.

As the modern workforce in the United States becomes more diverse, an increasing number of employees speak languages other than, or in addition to, English. In response, some employers, like the one facing suit by the EEOC in New York, have enacted English-only workplace policies, mandating that their employees speak English, rather than any other language, while at work. Even if well-intentioned, these policies may serve as the basis for discrimination claims against employers.

In general, rules requiring employees to speak English in the workplace do not violate Title VII or other anti-discrimination laws if the employer has a legitimate, non-discriminatory reason for the rule and employees can practically comply with its restrictions. Non-discriminatory reasons for English-only rules may include maintaining employee morale or preventing alienation of employees, assisting management in supervising employees, and maintaining safety in hazardous environments. Proficiency in the English language may also be a permissible job requirement so long as it is a key component of the job position.

However, the EEOC, in its regulations and published guidance on national origin discrimination, has stated that any rule requiring employees to speak English at all times is presumed to violate anti-discrimination laws.  Blanket rules, requiring employees to speak only English at all times without qualifications, will rarely be justified.  EEOC guidance permits English-only rules in the workplace only if: (1) the rule is applied only in limited situations; (2) the rule is justified by business necessity; and (3) the employer has clearly notified employees of the rule and the penalties for breaking it.  The EEOC explains that a business necessity for imposing English-only rules may arise when English is needed for the employer to operate safely/efficiently, in dealing with customers or coworkers who speak only English, or during emergencies.  The U.S. Department of Labor (“DOL”) echoes these limited exceptions here, allowing for English-only rules, but adds that employers can mandate such policies to enable supervisors who speak only English to monitor the performance of employees whose job duties require communication in English.

Despite guidance from the EEOC, DOL, and other government agencies, there is no bright-line rule for employers regarding English-only policies.  State and federal courts are grappling with the issue on a case-by-case basis.  In New York, for example, courts have held that English-only rules are not per se discriminatory if there is a legitimate business justification for such rules.  New York courts have further explained that so long as employers do not restrict employees’ language during their personal breaks and do not prohibit some non-English languages in the workplace while permitting others, then English-only rules may be permissible in order to ensure workplace efficiency and cooperation. A New Jersey appellate court similarly held that while these rules are not per se unlawful, plaintiffs may be able to recover under the New Jersey Law Against Discrimination if they can prove that an English-only rule was used as a surrogate for discrimination on the basis of national origin, ancestry, or other protected characteristic.  This same court, however, stated that a discharge for speaking another language in the face of an English-only or mainly-English rule is not by itself a violation of New Jersey or federal anti-discrimination laws.

Some states, however, have stricter rules regarding English-only policies and when employers may be justified in implementing them.  For example, the California Fair Employment and Housing Council has enacted rules, effective in July of 2018, that permit English-only rules only when employers can show an “overriding and legitimate business purpose that makes language restriction necessary for the safe and efficient operation of the business.”  The policy must also fulfill the purpose of its implementation and there can be no alternative method to accomplish the employer’s goals with a lesser discriminatory impact.  California’s new law expressly prohibits English-only requirements from being imposed during off-duty hours or employee break times and requires that employees be informed about the details of the policy before being subjected to any discipline for violation.  A recent lawsuit, brought by the EEOC in San Diego federal court against Albertsons, will challenge an unwritten English-only policy, where store management allegedly prohibited Spanish on the premises even while employees were on break, and test the state’s new laws regarding language requirements in the workplace.

Employers should proceed very carefully before implementing English-only workplace policies and should adopt such policies only narrowly with solid business justification.  Even unwritten or informal policies, like a supervisor encouraging employees to speak English, may be construed as an English-only rule that improperly discriminates against certain employees and lead to scrutiny by the EEOC and other government agencies. Any practice that effectively discriminates against non-English speaking employees can leave employers susceptible to discrimination claims, so these policies should be carefully evaluated for any possible discriminatory effects and effective alternatives.  Employers should seek advice from counsel before implementing any new procedure or policy that may treat  certain groups of employees different from others based on their language abilities.

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Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against employment liability and, in some circumstances, the temporary worker may seek to hold the client liable as if it had hired the temporary worker directly, under a “joint employer” theory.

Joint employer liability arises in a number of contexts, including wage and hour, harassment, discrimination, and retaliation. Tests for determining joint employment vary by statute and jurisdiction and are often in flux.  Various federal agencies use differing tests, and even those are in play.

For example, the Trump Administration published its fall regulatory agenda indicating that, among other things, it intends to update the Department of Labor’s policy on when staffing agencies and their clients, and franchisors and their franchisees, share legal responsibility for wage and hour violations with one another. Further, the National Labor Relations Board has published a Notice of Proposed Rulemaking that would narrow the existing joint-employer standard under the National Labor Relations Act.  Under the Proposed Rule, “an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” Comments regarding the NLRB’s proposed rule must be received by the Board on or before November 13, 2018.

State laws vary considerably as well, adding to the complexity for multi-state employers. For example, in New York, courts analyzing whether a joint employer relationship exists for purposes of New York Human Rights Laws have focused on whether the putative employer has “immediate control” over the putative employee, in this case—the temporary worker.

In California in the wage and hour context, the test for who is an “employer” is broad, and includes one who “employs or exercises control over the wages, hours, or working conditions of any person.” That definition reaches situations in which multiple entities control different aspects of the employment relationship, such as when one entity, which hires and pays workers, places them with other entities that supervise the work. The language in California’s wage orders was “specifically intended to include both temporary employment agencies and employers who contract with such agencies to obtain employees within the definition of ‘employer,’’ the California Supreme Court said. Other cases have clarified, though, that merely providing payroll services may not be enough to create joint employer liability. The California Supreme Court’s recent decision in Dynamex caused tremors when it broadened the test for determining who is an employee in the independent contractor context (the “ABC” test). Employers and staffing agencies feared Dynamex’s expansive test might apply in the joint-employer context. However, at least one California Court of Appeals found that the Dynamex court did not intend “for the ‘ABC’ test to be applied in joint employment cases.” Although that Court did analyze the situation under Dynamex’s ABC test “out of an abundance of caution,” it concluded that the test was not met. California businesses are hopeful that this employer-friendly interpretation sticks, but clients of staffing agencies must remain cognizant of this issue. Furthermore, even in a situation where the client is not deemed to be the “joint employer” of the temporary worker, California Law (Labor Code section 2810.3) holds certain companies (of 25 or more employees) jointly liable with staffing agencies for a staffing agency’s violations of wage and hour laws or for its failure to maintain workers’ compensation insurance. This means that a client could be liable to a temporary worker for his or her wages, even if the client fulfilled its obligation by paying the staffing agency for that temporary worker’s wages.

Clients who want to use staffing agencies should consider taking the following steps to limit their risk:

1. Review the Contracts. The contract between the agency and the client should provide that the agency will defend and indemnify the client for losses, penalties and attorney’s fees in connection with the staffing agency’s employees, including wage-related claims. Further, the contracts should contain representations and warranties by the staffing agency assuring the client that agency will completely perform its duties to its employees, including the individuals the agency sends to the client’s premises, and comply with all applicable laws in relation to those employees.

2. Exercise Due Diligence. Clients should research staffing agencies before engaging their services, including the location of their business operations, the number of clients they service, and how long they have been in business. Clients should also request references, and speak to current staffing agency clients. It also may be prudent to conduct a litigation search to determine whether the staffing agency has a history of litigation.

3. Require Proof of Insurance. Clients should require proof of workers’ compensation insurance coverage before engaging a staffing agency, and require verification on frequent intervals. Ideally, the staffing agency will maintain Employment Practices Liability Insurance (EPLI), naming the client as an additional insured.

While the client may want to exercise some oversight of the staffing agency’s compliance with applicable law, such involvement is a double-edged sword. By becoming more involved in the day-to-day practices, the client makes it more likely that it will be deemed a “joint employer” of the temporary workers retained through the agency.

Staffing agencies must take caution, as well. Agencies are often named as defendants in harassment and discrimination lawsuits for alleged wrongful conduct that occurred on the client’s premises. Staffing agencies, among other things, should ensure that their clients have compliant anti-discrimination and harassment policies and practices in place, and act promptly to address and correct any improper activity of which agencies are made aware.

Akerman attorneys are available to provide guidance to employers and staffing agencies wishing to reduce legal exposure.

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A Connecticut federal district court has found an employer liable for discrimination for failing to hire a medical marijuana user based on a drug test.

Prior to the September 5 decision in Noffsinger v. SSC Niantic Operating Co., d/b/a Bride Brook Nursing & Rehab. Ctr., No. 3:16-cv-01938, 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018), https://www.leagle.com/decision/infdco20180906954, it was widely believed that if an employer is subject to the federal Drug-Free Workplace Act (“DFWA”), they do not have to accommodate the use of medical marijuana.

Perhaps not. In Noffsinger, the Plaintiff suffered from PTSD after having a car accident. To treat her PTSD, doctor prescribed her marijuana in the evenings, and plaintiff registered as a qualifying patient with the state.

Plaintiff was recruited to be the director of recreational therapy at Defendant’s nursing home. Her interview was successful, and she was offered the position subject to the completion of pre-employment screenings. During the pre-employment screenings, Plaintiff disclosed that she took prescription medical marijuana and underwent a drug test. After Plaintiff tested positive for marijuana, Defendant rescinded its job offer.

Plaintiff subsequently filed suit under Connecticut’s medical marijuana law, which contains an anti-discrimination provision that bars an employer from refusing to hire a person solely because of the person’s status as a qualifying medical marijuana patient. See Conn. Gen. Stat. § 21a-408p(b)(3).

In a prior decision in the same case, the court refused to dismiss the Plaintiff’s claim, rejecting the Defendant’s arguments that the Connecticut statute was preempted by three federal statutes, the Controlled Substances Act, the Americans with Disabilities Act, and the Food Drug and Cosmetics Act. The court there said the “mere fact of ‘tension’ between federal and state law” was not enough to establish preemption.  The court noted that the Controlled Substances Act did not make it illegal to employ a marijuana user, nor purport to regulate employment practices. The court said the ADA provides that an employer may prohibit the illegal use of drugs at the workplace, but noted that this case did not involve drug use at the workplace. Further, the court found that the ADA’s savings clause, allowing states to enact greater protections than the federal government, was counter to Defendant’s arguments. Finally, like the Controlled Substances Act, the court said the Food, Drug and Cosmetics Act did not purport to regulate employment.

The case proceeded and the court entered judgment on the employment discrimination claim for the Plaintiff, without a trial. In the decision granting judgment on that claim, the court rejected the Defendant’s argument that it was barred from hiring the Plaintiff due to the DFWA. The court found that the DFWA does not require drug testing and plaintiff was not in violation of the statute because her illegal drug use was outside of the workplace.

Noffsinger has significant implications for employers in states like New York that have laws which prohibit discrimination against certified medical marijuana users. In New York, employers can no longer rely on federal law when making employment decisions, and must develop employee policies in line with current state law.

While Noffsinger will not have the same immediate ramifications for employers in states such as Florida and Colorado that do not have anti-discrimination provisions in their medical marijuana statues, we recommend that employers in states with medical marijuana laws take a close look at their state’s statutes and provide clear guidance to their employees as to what their policies are regarding the use of medical marijuana, both during hiring and employment.

Akerman attorneys are available to answer any further inquiries regarding this case, as well as provide guidance as to how employers may want to consider revising their existing policies.

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Can an employee secretly record conversations with a co-worker, supervisor, human resources manager or executive and use that recording in a claim or lawsuit against his/her employer?  It depends.

First, where you live is important. While the federal Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, permits recording as long as one party consents, state laws covering audio surveillance vary widely. In some states only one party need consent to the recording, but in other states both / all parties to the recording must consent.  If you’re in a “one-party” consent state, you are generally permitted to record a conversation even without the other person’s knowledge or consent, whereas in a “two- or all-party consent” state, recordings need the consent of all parties involved. 

Most states and the District of Columbia require only one party to consent (Alabama, Alaska, Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon[1], Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming).  Eleven states currently require the consent of all parties (California, Connecticut[2], Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington). Michigan requires all-party consent but one Michigan case interpreted that law to mean that a participant in a conversation can record the communication without the other party’s consent, but eavesdropping is prohibited.[3]  And Vermont has no statute addressing the topic, but the Supreme Court of Vermont held that secretly recording an in-person communication in a person’s home is considered an unlawful invasion of privacy.[4]

But what if an employee in a “two- or all-party” consent state secretly records a conversation and attempts to use that in a claim or lawsuit against the employer? What now?  While an employer may argue that the recording should be barred as it was made without its consent, some government agencies have disagreed.  For instance, the Department of Labor has taken the position that an employee’s surreptitious recording of workplace safety issues is protected “whistleblowing” activity under the Energy Reorganization Act.  Also, the Securities and Exchange Commission Rule 21F-17 prohibits actions or measures that may impede an individual from communicating with the SEC about possible securities law violations.  This could well mean that the SEC may give weight to secret recordings, even though the employee did not obtain the other party’s or employer’s consent.

Could an employer prohibit its employees from recording conversations at work without all parties’ approval?  A memo that the National Labor Relations Board’s General Counsel issued earlier this year states that policies prohibiting recording of conversations without approval are generally permissible.  However, employers must be cautious in implementing such a policy, as a federal appellate court last year concluded that an employer’s “no-recording” policy was unlawfully overbroad and could “chill” employees’ right to engage in protected activities under the National Labor Relations Act.  Further, in Title VII discrimination cases, while the EEOC has taken the position that an employee’s recording of a supervisor’s alleged harassment was protected activity, courts have also ruled in favor of employers. For example, a Texas court dismissed an employee’s discrimination and retaliation claims although the employee presented evidence – recordings of conversations with supervisors – to support his claims.  The Texas court found that because the employee violated the employer’s “no-recording” policy, the employer was able to articulate a legitimate, non-discriminatory reason for terminating the employee.

This topic indeed invites questions and concerns, particularly with the near-universal presence of smartphones. Employers should familiarize themselves with audio surveillance laws and consult with counsel to discuss when issues arise.

[1] In Oregon, electronic communications only require one party to consent; but in an in-person communication, all parties must consent. Or. Rev. Stat. Ann. §165.540 and § 165.535.

[2] In Connecticut, civil cases require all parties’ consent while criminal cases only require one party to give consent.  C.G.S.A. §53a-187, §53a-189, and §52-570d.

[3] See Sullivan v. Gray, 117 Mich. App. 476, 324 N.W.2d 58 (1982).

[4] See Vermont v. Geraw, 173 Vt. 350, 795 A.2d 1219 (2002).

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Employers are alerted the extended suspension of Premium Processing will mean postponed start-dates for H-1B workers well beyond the expected October 1 annual start date. Moreover, because H-1B change of employer requests filed on or after September 11, 2018 will be subject to “normal” processing times, ranging anywhere from four to six months, employers better move fast to file these H-1B petitions using Premium Processing before September 11. For employers looking to benefit from Premium Processing after October 1, 2018, the government will require deeper pockets to cover the balances due for expedited adjudication.

Employers waiting to hire foreign professional workers are left in limbo over are the latest announcement by the U.S. Citizenship and Immigration Services. The ever-increasing H-1B adjudication process poses potentially disastrous risks for employers, foreign workers and H-1B hopefuls. On August 28, 2018, the Federal Immigration Agency announced it will be prolonging the previously advertised  temporary suspension of Premium Processing for certain H-1B cases for an additional six months. The pause on premium processing for H-1B worker visas subject to the fiscal year 2019 lottery was originally slated to last until September 10, 2018, but that suspension is now being extended through an estimated date of February 19, 2019.

Beginning September 11, 2018, the suspension of premium processing—a 15-day expedited service offered in exchange for a $1,225 filing fee—will also be expanded to spoil a wider scope employment opportunities for U.S. employers and businesses alike that benefit from the foreign worker program. To complicate matters further, starting October 1, the standard filing fee for Premium Processing will increase to $1,410-nearly a 14.92% increase since this fee was last adjusted in 2010.

For F-1 students currently maintaining status under the H-1B “Cap-Gap” extension, lengthy H-1B processing times are more likely to result in a lapse in work authorization as H-1B visa approvals become less likely to arrive via mail by October 1. Students in F-1 status who have been pursuing employment through valid Optional Practical Training (OPT) will be forced to forego further employment in the United States after October 1 until their H-1B petitions are approved. Travel outside the U.S. after an H-1B petition is filed is not recommended for any applicant requesting an initial change of status to H-1B classification. Travel during this timeframe may revoke Cap-Gap privileges, including legal work status for F-1/OPT students and could give rise to a determination by USCIS that the candidate abandoned their H-1B petition.

With the exception of a limited group of exempt cases, the expanded Premium Processing suspension applies to nearly all H-1B cases filed at the Vermont and California Service Centers. USCIS will continue Premium Processing for H-1B petitions that are not currently suspended if the employer properly files an associated request for Premium Processing service before September 11, 2018. The temporary suspension of Premium Processing does not apply to any other nonimmigrant visa classification for which a petition on Form I-129 is required.

USCIS will refund the Premium Processing fee to an employer in the following case:

  • The petitioning employer files a request for premium processing service on Form I-907 for an H-1B petition before September 11, 2018; and
  • USCIS does not take adjudicative action on the case within the 15-calendar-day processing period.

Premium processing will remain available for certain H-1B visa petitions, including:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the H-1B worker will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. H-1B petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
  3. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
  4. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

According to USCIS, the extended suspension will help the Immigration Agency to reduce overall H-1B processing times by allowing the Service to:

  • Process long-pending petitions, which USCIS has been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

While Premium Processing is suspended, employers may submit a request to expedite an H-1B visa petition if they meet certain Expedite Criteria established by USCIS. The employer must be able to demonstrate that they meet at least one of the expedite criteria, and should be prepared to submit documentary evidence to support their expedite request. USCIS reviews expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

To avoid adverse consequences to H-1B employers facing the Premium Processing suspension that will remain in effect until February 19, employers should contact an immigration attorney regarding any H-1B worker who may be impacted by anticipated processing delays, and may experience difficulty with international travel.

Akerman continues to monitor this situation and will report immigration developments as they occur.

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