It’s been twenty-five years since I hung out the shingle for Nierenberg Employment Law! In that time, we’ve helped organizations to succeed throughout the upper Midwest, New York, California, and a few other places. Thank you to the clients, colleagues, and friends who have supported this firm and our efforts to help clients manage their workforce.
Religious Preference in Federal Contracting
Background
Executive Order 11246 requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. (Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.) Title VII of the Civil Rights Act of 1964, prohibits employment discrimination based on race, color, religion, sex and national origin.
There is a limited exemption in Title VII for religious organizations to give hiring preference to members of their own religion. This exemption was carried over to E.O. 11246.
Despite the exemptions for religious organizations in Title VII and E.O. 11246 and the myriad court cases that developed related standards, the U.S. Department of Labor in December 2020 adopted a rule “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption,” which was billed as an effort to clarify the applicable rules.
Recent Development
The U.S. Department of Labor has now rescinded the December 2020 rule. As the Labor Department put it in their press release, “The rescission ensures a return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order 11246 consistent with Title VII principles and case law.” The Office of Federal Contract Compliance Programs (OFCCP) explained in their FAQ on the subject that there was a need to return to prior standards, because the December 2020 rule “resulted in increased uncertainty about the religious exemption because of its divergence from the approach to the Title VII religious exemption taken by courts and the Equal Employment Opportunity Commission, as well as from OFCCP’s past practice.”
Result
As the Agency noted, “OFCCP is rescinding the entire rule to return to the agency’s prior approach of aligning the Executive Order 11246 religious exemption with Title VII case law as applied to the facts and circumstances of each case. The rescission preserves the Executive Order 11246 religious exemption and does not change religious entities’ ability to pursue federal contracts.:
Assistance
This firm frequently represents organizations across a range of affiliations and denominations that qualify for the religious exemption in Title VII, federal contractors that qualify for the religious exemption in the regulations implementing E.O. 11246, and organizations with activities that fit within the “ministerial exception” to the First Amendment. If your organization would benefit from additional information or assistance about any of these topics, please contact us.
E.E.O.C. Updates Guidance on Hearing Impairments in the Workplace
The U.S. Equal Employment Opportunity Commission on January 24, 2023, announced an updated guidance document addressing hearing impairments in the workplace through the perspective of the Americans with Disabilities Act. The update is intended to assist employers and other interested persons navigate the A.D.A. as it applies specifically to hearing impairments on the job.
The updated guidance includes information about workplace hearing issues generally; about an employer’s acquiring and using medical information about an applicant or employee; about maintaining the confidentiality of medical information; about accommodating hearing impairments of applicants or employees; about safety concerns; about harassment; and about retaliation.
Other E.E.O.C. resources relating to disabilities in the workplace are linked here.
Hospitality Workers’ Right to Recall
The city of Minneapolis joins Los Angeles, Oakland, Detroit, Philadelphia, and other major metropolitan areas in enacting an ordinance that provides some workers in the hospitality sector with recall rights as the economy reopens. Effective May 1, 2021, the Minneapolis ordinance provides recall rights to employees who had been laid off from work at hotels or event centers–including “contracted, leased, or sublet premises connected to or operated in conjunction with the Event Center’s purpose”–within city limits, subject to limitations as provided in the law. The ordinance generally provides rights to employees who had worked for covered employers at least half of the year prior to March 13, 2020, and who were laid off without cause after that date. A concise summary of the ordinance, as well as contact information for the City’s Labor Standards Enforcement Division, can be found at this page. For additional answers, please see our contact form.
The New Work Order: Respect in the Virtual Workspace
It’s a new workspace now. Communicating effectively and working together respectfully might even be more difficult and important, when the cues and consequences happen virtually. Here’s a must-read for the emerging work world.
Covid-19, Minnesota Employers, Paid Time Off, Unemployment Insurance, Compensation Changes
This post addresses several related personnel issues, including furloughs, unemployment insurance, paid time off, compensation options, and health benefits.
The past two days have brought several developments in the overlap of covid-19 and personnel issues. On Monday, March 16, Minnesota’s Governor Walz issued an executive order closing many places of public accommodation.
Tuesday, March 17, Governor Walz issued another executive order, concerning unemployment insurance and covid-19.
This brief post is intended to answer a few frequently asked questions with reference to the March 17 E.O. and related information. First, the order.
Unemployment Insurance
The Governor’s March 17 executive order results in the following changes to remain in effect during the current peacetime emergency. (These are simplified summaries; the text of the order and related law should be reviewed before relying on these bullet points.)
- Strict compliance with the unemployment statutes will not be required
- For unemployment insurance benefit applications between March 1 and December 31 of this year, there will be no waiting week
- Benefit recipients are required to search for “suitable employment.” “Suitable employment” does not include jobs that present a safety or health risks for the applicant or others
- Suspensions from employment—such as leaves of absence, inactive status, furloughs—due to Covid-19 will not disqualify applicants for unemployment insurance benefits
- Unemployment insurance payouts related to Covid-19 will not be considered when determining a business’s future unemployment insurance tax
- Business owners will not be subject to the prior five-week limit on benefits
Layoffs: Employees who have been terminated because the Governor has ordered their place of employment to close or to reduce operations substantially should be entitled to unemployment insurance benefits (assuming no other, disqualifying circumstances). Some people are referring to this as being laid off.
Furloughs: Employees who have been placed on inactive status because the Governor has ordered their place of employment to close or to reduce operations substantially should be similarly entitled to unemployment insurance benefits (assuming no other, disqualifying circumstances). Some people are referring to this as being furloughed.
Health Insurance
Furloughed employees may be allowed to retain their employer-sponsored group health insurance, and employers may be allowed to continue funding the health benefits for their employees on inactive status, depending on the terms of the insurance plan (or self-funded benefits plan). The summary plan description might provide guidance, but a definitive answer can come only from the plan documents. At least one health insurer doing business in Minnesota will allow furloughed employees to retain their group health benefits while on inactive status. Check with your insurer to learn more about your situation.
Sick and Safe Time
In Minneapolis, “an employee may use accrued sick and safe time for … the closure of the employee’s place of business by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material or other public health emergency.” If an employee has been terminated because their employer has closed due to the covid-19-related peacetime emergency order in Minnesota, they would be entitled to their accrued sick and safe time. For employers who have included S.S.T. in a broader Paid Time Off plan, the employee would be entitled to their accrued P.T.O. (or such portion of their P.T.O. as may have been designated previously as sick leave).
Nothing would prevent an employer from asking to negotiate (a) the timing of the payment(s) or (b) the retention of a furloughed employee’s accrued P.T.O. until the employer reopens, if resuming operations is a reasonable likelihood. The decision, however, of whether to receive or to defer the payment of P.T.O. remains the employee’s.
Outside of Minneapolis, St. Paul, and other locations with local sick/safe time ordinances, paid time off is considered a component of wages. And like wages, the timing, amount, and circumstances in which P.T.O. (or sick/vacation) is payable depends in part on the arrangement struck between the employer and employee (or union). If the funds are clearly payable, then, as above, employers might be able to negotiate the timing; but unless there is a lawful basis for withholding any of the accrued leave time, employees are entitled to payment.
Irregular hours: Employers who will be staying open with reduced operations and whose employees will be working fewer and potentially irregular hours have a few options on how to pay those workers. Nonexempt workers could continue to be paid on an hourly basis or on a fixed salary for fluctuating hours (but note that the latter option has particular overtime compliance requirements). Exempt workers whose hours will be reduced could have their salary reduced accordingly, but note that exempt employees must be paid a week’s salary for any workweek in which they do any work. (Note also that some exemptions require the employee to supervise others, and some exemptions do not have that requirement; since January 1, 2020, an employee must also be paid at least $684 per week in order to retain the exemption.) A previously exempt worker might also be reclassified as nonexempt in order to manage workload uncertainty; the primary differences are entitlement to overtime and, for some, pride. In any event, please be aware that remote work and required availability are compensable.
This post is intended to be a summary of key points that have been raised frequently over the past two days. This is not intended to be a comprehensive treatment of the topics addressed. This is only a starting point; nothing here should be relied upon without further research or consultation. There are always details that spell the difference between compliance and liability. Additionally, legal requirements and best practices are changing daily as the situation evolves.
Planning for Coronavirus
We don’t know how disruptive the novel coronavirus will be, but there are reasons to believe that the virus, officially named Covid-19, will infect many people. Few workplaces will escape having to manage problems related to staffing and mission execution. Even if—or because—we can’t predict the scope of harm, it is necessary to prepare now. Adequate preparation is likely to be the only path to limiting the spread of the virus in the workplace and to preserving the viability of the organization.
The following is from the U.S. Centers for Disease Control and Prevention. Updates to the information can be found here.
Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020
This interim guidance is based on what is currently known about the coronavirus disease 2019 (COVID-19). The Centers for Disease Control and Prevention (CDC) will update this interim guidance as needed and as additional information becomes available.
CDC is working across the Department of Health and Human Services and across the U.S. government in the public health response to COVID-19. Much is unknown about how the virus that causes COVID-19 spreads. Current knowledge is largely based on what is known about similar coronaviruses.
Coronaviruses are a large family of viruses that are common in humans and many different species of animals, including camels, cattle, cats, and bats. Rarely, animal coronaviruses can infect people and then spread between people, such as with MERS-CoV and SARS-CoV. The virus that causes COVID-19 is spreading from person-to-person in China and some limited person-to-person transmission has been reported in countries outside China, including the United States. However, respiratory illnesses like seasonal influenza, are currently widespread in many US communities.
The following interim guidance may help prevent workplace exposures to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance also provides planning considerations if there are more widespread, community outbreaks of COVID-19.
To prevent stigma and discrimination in the workplace, use only the guidance described below to determine risk of COVID-19. Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-29. There is much more to learn about the transmissibility, severity, and other features of COVID-19 and investigations are ongoing. Updates are available on CDC’s web page at www.cdc.gov/coronavirus/covid19.
Recommended Strategies for Employers
Actively encourage sick employees to stay home:
- Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
- Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
- Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
- Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
Separate sick employees:
- CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employee:
- Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
- Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
- Visit the coughing and sneezing etiquette and clean hands webpage for more information.
Perform routine environmental cleaning:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
- No additional disinfection beyond routine cleaning is recommended at this time.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
Advise employees before traveling to take certain steps:
- Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which you will travel. Specific travel information for travelers going to and returning from China, and information for aircrew, can be found at on the CDC website.
- Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
- Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
- If outside the United States, sick employees should follow your company’s policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A U.S. consular officer can help locate healthcare services. However, U.S. embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private U.S. citizens overseas.
Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19
- Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
- If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
Planning for a Possible COVID-19 Outbreak in the US
The severity of illness or how many people will fall ill from COVID-19 is unknown at this time. If there is evidence of a COVID-19 outbreak in the U.S., employers should plan to be able to respond in a flexible way to varying levels of severity and be prepared to refine their business response plans as needed. For the general American public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low. The CDC and its partners will continue to monitor national and international data on the severity of illness caused by COVID-19, will disseminate the results of these ongoing surveillance assessments, and will make additional recommendations as needed.
Planning Considerations
All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace in the event of an outbreak in the US. They should identify and communicate their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains. Some of the key considerations when making decisions on appropriate responses are:
- Disease severity (i.e., number of people who are sick, hospitalization and death rates) in the community where the business is located;
- Impact of disease on employees that are vulnerable and may be at higher risk for COVID-19 adverse health complications. Inform employees that some people may be at higher risk for severe illness, such as older adults and those with chronic medical conditions.
- Prepare for possible increased numbers of employee absences due to illness in employees and their family members, dismissals of early childhood programs and K-12 schools due to high levels of absenteeism or illness:
- Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
- Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
- Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
- Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each locality.
- Coordination with state and local health officials is strongly encouraged for all businesses so that timely and accurate information can guide appropriate responses in each location where their operations reside. Since the intensity of an outbreak may differ according to geographic location, local health officials will be issuing guidance specific to their communities.
Important Considerations for Creating an Infectious Disease Outbreak Response Plan
All employers should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. During a COVID-19 outbreak, all sick employees should stay home and away from the workplace, respiratory etiquette and hand hygiene should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.
Employers should:
- Ensure the plan is flexible and involve your employees in developing and reviewing your plan.
- Conduct a focused discussion or exercise using your plan, to find out ahead of time whether the plan has gaps or problems that need to be corrected.
- Share your plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.
- Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts.
Recommendations for an Infectious Disease Outbreak Response Plan:
- Identify possible work-related exposure and health risks to your employees. OSHA has more information on how to protect workers from potential exposures to COVID-19.
- Review human resources policies to make sure that policies and practices are consistent with public health recommendations and are consistent with existing state and federal workplace laws (for more information on employer responsibilities, visit the Department of Labor’sexternal icon and the Equal Employment Opportunity Commission’sexternal icon websites).
- Explore whether you can establish policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others if state and local health authorities recommend the use of social distancing strategies. For employees who are able to telework, supervisors should encourage employees to telework instead of coming into the workplace until symptoms are completely resolved. Ensure that you have the information technology and infrastructure needed to support multiple employees who may be able to work from home.
- Identify essential business functions, essential jobs or roles, and critical elements within your supply chains (e.g., raw materials, suppliers, subcontractor services/products, and logistics) required to maintain business operations. Plan for how your business will operate if there is increasing absenteeism or these supply chains are interrupted.
- Set up authorities, triggers, and procedures for activating and terminating the company’s infectious disease outbreak response plan, altering business operations (e.g., possibly changing or closing operations in affected areas), and transferring business knowledge to key employees. Work closely with your local health officials to identify these triggers.
- Plan to minimize exposure between employees and also between employees and the public, if public health officials call for social distancing.
- Establish a process to communicate information to employees and business partners on your infectious disease outbreak response plans and latest COVID-19 information. Anticipate employee fear, anxiety, rumors, and misinformation, and plan communications accordingly.
- In some communities, early childhood programs and K-12 schools may be dismissed, particularly if COVID-19 worsens. Determine how you will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children if dismissed from school. Businesses and other employers should prepare to institute flexible workplace and leave policies for these employees.
- Local conditions will influence the decisions that public health officials make regarding community-level strategies; employers should take the time now to learn about plans in place in each community where they have a business.
- If there is evidence of a COVID-19 outbreak in the US, consider canceling non-essential business travel to additional countries per travel guidance on the CDC website.
- Travel restrictions may be enacted by other countries which may limit the ability of employees to return home if they become sick while on travel status.
- Consider cancelling large work-related meetings or events.
Resources for More Information
CDC Guidance
- COVID-19 Website
- What You Need to Know About COVID-19pdf icon
- What to Do If You Are Sick With COVID-19pdf icon
- Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposure in Travel-associated or Community Settings
- Health Alert Network
- Travelers’ Health Website
- National Institute for Occupational Safety and Health’s Small Business International Travel Resource Travel Plannerpdf icon
- Coronavirus Disease 2019 Recommendations for Ships
Other Federal Agencies and Partners
Employers May Restrict Use of Organization’s E-mail
Reversing prior, if contentious, law, the National Labor Relations Board held this week that an employer’s property interest in its e-mail system would allow it to restrict employees from using the system for communications unrelated to their jobs, as long as (a) alternative means are available for employees to communicate effectively with each other concerning the terms and conditions of their employment, and (b) the rules do not discriminate against the exercise of employees’ protected rights to concerted action.
We recognize that there may be some cases in which an employer’s email system furnishes the only reasonable means for employees to communicate with one another. Consistent with the principles stated above, an employer’s property rights may be required to yield in such circumstances to ensure that employees have adequate avenues of communication. Because, in the typical workplace, employees do have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment, we expect such cases to be rare.
We hold … that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.
Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 N.L.R.B. No. 143 (2019) , slip op. at 8. The decision can be found at this link.
Employers May Require Confidentiality During Investigations
In a decision released today, the National Labor Relations Board reversed prior law concerning confidentiality during open workplace investigations. Commenting on the employer rules in the case, the majority wrote:
The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline. Rather, they narrowly require that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation. Employees not involved in an investigation are free to discuss such incidents without limitation, and employees who are involved may also discuss them, provided they do not disclose information they either learned or provided in the course of the investigation. Further, the rules do not restrict employees from discussing workplace issues generally or limit the employees’ ability to discuss disciplinary policies and procedures. Finally, we note that the rules do not prohibit a union-represented employee from requesting the help of a union representative during such an investigation (if the Respondent’s employees were to unionize), pursuant to NLRB v. J. Weingarten, 420 U.S. 251, 267 (1975).
Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019), slip op. at 8. The full decision can be found at this link.
E.E.O.C. Announces September 30, 2019, Deadline for 2018 EEO-1 Submissions Including Component 2 Data
Brief History
Annual EEO-1 survey data must be reported (a) by employers that are covered by Title VII and have more than 99 employees and (2) by federal contractors and their immediate subcontractors that are covered by E.O. 11246 and have more than 49 employees and a relevant contract of at least $50,000.
In 2016, the E.E.O.C. expanded the kinds of data that should be reported in the EEO-1. The expanded data, “Component 2 data,” included compensation data analyzed by pay tier, category, age, race, sex, and ethnicity.
In 2017, the O.M.B. revoked its Paperwork Reduction Act approval of the E.E.O.C.’s 2016 expansion of required EEO-1 data. The National Women’s Law Center and others challenged the validity of O.M.B.’s action. The court sided in part with the plaintiffs, and invalidated O.M.B.’s stay. E.E.O.C. suggested that employers and the agency itself might need substantial time to prepare their procedures to submit and to accept the Component 2 data. The Court required an accelerated response.
Recent Development
On April 3, E.E.O.C. filed its response to the Court’s efforts to move the process along more expeditiously. The Agency has rescheduled the EEO-1 submission deadline for 2018 data, including Component 2 data, to September 30, 2019.
The EEO-1 reporting portal is not yet capable of receiving the Component 2 data. Presumably, E.E.O.C. will issue instructions over the coming months, as the reporting enhancements come on line.