This article was written by  and originally posted to Kelley Drye’s Labor Days Blog.

The coronavirus pandemic has forced employers and health care providers to make difficult decisions about how to protect their customers, employees and patients, while at the same time protecting their personal information. Even during a national health emergency, however, covered entities (e.g., health plans and providers) must continue to comply with the privacy and security rules of the Health Insurance Portability and Accountability Act (“HIPAA”).

In recognition of the unique challenges being faced by covered entities in meeting their HIPAA obligations, the Department of Health and Human Services (“HHS”) has issued various forms of HIPAA-related guidance and enforcement relief, which we have summarized below.

  • Telehealth Applications. HHS has announced it will not impose penalties on healthcare providers who do not meet certain HIPAA standards by providing services in good faith via non-public facing applications, such as FaceTime and Zoom. HHS encourages healthcare providers to enter into business associate agreements (“BAAs”) with such video communication vendors, but states that it will not impose penalties against a healthcare provider if no BAA is in place. This exercise of enforcement discretion only applies during the COVID-19 public health emergency.
  • PHI Disclosures for Public Health and Health Oversight. HHS has announced it will not impose penalties for violations of certain HIPAA privacy rules against healthcare providers or their business associates for uses and disclosures of PHI for public health and health oversight activities. This exercise of enforcement discretion only applies during the COVID-19 public health emergency.
  • PHI Disclosure to First Responders and Others.  HHS has clarified and provided examples of circumstances under which a covered entity may disclose the PHI of an individual who has been infected with COVID-19 to keep first responders and the public safe. For example, disclosure of PHI without the individual’s consent is permissible when made to a public health authority to prevent or control the spread of disease.
  • PHI Disclosure to Family, Friends and Others. HHS has issued guidance on how a covered entity can share PHI with an infected individual’s family members, friends or other care givers. For example, prior to sharing PHI with such parties, a healthcare provider should either (i) when possible, get verbal permission or be reasonably able to infer consent, or (ii) if the individual is incapacitated, make a determination that sharing PHI would be in the best interest of the patient.
  • Limited Waiver of HIPAA Sanctions. HHS has temporarily waived sanctions and penalties against covered hospitals that do not comply with certain provisions of the HIPAA privacy rule, including patient rights to request privacy restrictions and confidential communications. The waiver became effective March 15, 2020 and only applies: (i) in the emergency area identified in the HHS public health emergency declaration, (ii) to hospitals that have instituted a disaster protocol, and (iii) for up to 72 hours from the time the hospital implements its disaster protocol.

Despite the above described guidance and enforcement relief, the applicable rules for securing, protecting and disclosing PHI remain the same. As such, covered entities should continue to adhere to their standard HIPAA policies and procedures, but may want to consider providing additional HIPAA training specific to public health emergencies.

If you have any questions about HIPAA’s privacy and security rules, including related COVID-19 relief, please contact a member of our Employee Benefits Group.

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The U.S. Department of Labor has just issued over one hundred pages of detailed temporary regulations, effective from April 1, 2020 to December 31, 2020, implementing the Families First Coronavirus Response Act (“FFCRA”). The regulations provide much-needed clarity on a range of issues that many employers have struggled with over the past week.

Below is a summary of key points:

The definition of “healthcare providers” under the FFCRA includes a wide variety of medical professionals and workers.

  • The regulations caution that employers should be judicious when using the definition to exempt healthcare providers and emergency responders from leave.
    • “Quarantine” order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by a federal, state, or local government causing an employee to be unable to work.
  • Notably, an employee subject to one of these orders cannot take paid sick leave where the employer does not have work for the employee (i.e. the employer suffered a downturn in business due to COVID-19 and stay-at-home orders).
  • “Seeking a medical diagnosis” for purposes of paid sick leave, includes time spent making, waiting for, or attending an appointment for a test for COVID-19.
    • Employers should require employees to provide the name of the healthcare provider advising self-isolation.
    • However, if an individual is self-quarantining and teleworking, he or she is not eligible for paid sick leave.
  • For those seeking leave to care for a child due to school closure or because a childcare provider is unavailable, the employer can require the employee to provide:
    • The name of the child being cared for;
    • The name of school or provider that has closed or is unavailable;
    • A statement that no other suitable person can care for the child.
  • Documentation of any leave, whether oral or written statements from the employee, should be maintained for four years.
  • EPSL and EFMLEA may be taken intermittently as long as the employer and employee agree; absent agreement, no leave under FFCRA may be taken intermittently.
  • For part-time employees who have varying schedules throughout the work week, the number of paid sick leave hours must be:
    • Fourteen times the average number of hours the employee was scheduled to work per calendar day, over a 6 month period (or the entire period of employment, if employed less than 6 months).

Please give us a call if you have any questions regarding the regulations and any specific scenarios related to your workforce.

 

This article was written by and originally posted to  Kelley Drye’s Labor Days Blog.

The Families First Coronavirus Response Act (“FFCRA”) is effective today, April 1. In honor of this undoubtedly daunting occasion for employers with less than 500 employees, we analyze the most significant provisions from the Department of Labor’s updated FAQs, which fill in gaping holes in the legislation that left employers (and counsel) puzzled.  For employers with fewer than 50 employees, we also examine recent DOL guidance on the “small business exemption” and identify the ways in which employers can qualify for this exemption.

Intermittent Leave

The FFCRA failed to address whether employees were entitled to take intermittent leave either under the emergency paid sick leave provision or the expanded FMLA provision. The FAQs clarify that employees are not entitled to intermittent leave in either case. However, employers have the discretion to approve requests for intermittent leave, but only under certain circumstances, which depend upon whether an employee works remotely or onsite.

For employees who work remotely, as long as an employer approves and the employee and employer agree on a schedule, an employee can take intermittent emergency paid sick or expanded FMLA leave in any increment.

For employees who work onsite, intermittent leave is only available if an employer approves, the employee and employer agree on a schedule, and the intermittent leave is being taken to care for a child whose school has closed. Intermittent leave is not available for employees who are sick or caring for sick family members, as that would defeat the purpose of providing employees with paid sick leave in the first place-to keep employees from spreading the virus to others.

Furloughs and Worksite Closures

The FAQs provide welcome reassurance to employers who furlough workers or close worksites on or after April 1. In both cases, employees are not entitled to FFCRA benefits. Further, if an employee is on leave and an employer closes the employee’s designated worksite, the employee is only entitled to FFCRA benefits up to the date of the site closure.

Amount of FMLA Leave

The FAQs confirm that employees are not entitled to more than 12 weeks of FMLA leave in a 12-month period regardless of whether an employee takes paid leave under the expanded FFCRA FMLA provision or “regular” unpaid FMLA leave for reasons unrelated to COVID-19.

Small Business Exemption

DOL guidance also sheds new light on the requirements of the FFCRA’s “small business exemption.” Under the new guidance, small businesses (defined as employers with fewer than 50 employees) do not need to provide employees with FFCRA leave if an employee is requesting leave due to a COVID-19 related school closure or child care provider unavailability, and an authorized officer of the business has determined that providing leave would “jeopardize the viability of the small business.” There are three ways in which an employer can establish that providing leave would jeopardize the viability of a business:

  1. Business expenses and financial obligations would exceed available business revenues and cause the small business to cease operating at a minimal capacity if leave was provided;
  2. An employee’s (or multiple employees) absence would present a substantial risk to the financial health or operational capabilities of the small business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

While employers can evidently interpret the factors above, the factors are seemingly subjective and if an outsider is making an objective assessment, there is a substantial risk that the employer’s “proof” will not be enough. However, the most significant aspect of the DOL guidance is that an authorized officer may use his or her judgment to determine whether the business will be in jeopardy. Therefore, the “judgment call” rests with the employer, which is good news for small businesses.

Importantly, however, the small business exemption only applies to paid leave for school closures and does not exclude small businesses from having to provide FFCRA emergency paid sick leave due to other COVID-19 related reasons.

This article was originally posted to Kelley Drye’s Labor Days Blog.

On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the COVID-19 “public health emergency”; and (2) emergency paid sick leave. The previous version of the bill, which we reported on here, placed a significant financial burden on employers (limited to those with under 500 employees) by requiring them to provide 12 weeks of paid leave for employees who went on leave for COVID-19 related reasons, including COVID-19 exposure, quarantine, or due to a school closing.

The amended version lessens this burden.  It still requires employers covered by the act to provide employees with two weeks of emergency paid sick leave for COVID-19 related reasons; however, only employees who are out due to a school closing would be entitled to the additional 10 weeks of paid leave (at two-thirds salary).

We stress none of this is law yet, and has to be voted on by the Senate.

A more detailed analysis of the new corrections can be found below.

Read More

 

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With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.

Know Your Resources

Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:

Keep Your Workforce Informed

Employers can and should provide their workforce notice regarding potential exposure. However, when doing so, less is more. Employers should not identify diagnosed individuals by name, or provide other identifying information, which could expose confidential employee health information. This is because under federal, state, and local laws, infectious diseases may constitute disabilities, and thereby confer protected status. Employers should nevertheless address in detail the steps taken to mitigate exposure to COVID-19, including environmental cleaning and other preventative measures, such as supplying antibacterial wipes for employees to use at workspaces and hand sanitizer for use throughout the employer’s facility.

Understand the Interplay with Employment Laws

Although the breadth of COVID-19’s impact remains to be seen, employers must be careful to avoid discrimination against employees who are disabled or perceived as disabled because they are exhibiting symptoms of COVID-19, or because they belong to races or nationalities linked to the virus. Employers should also be aware that COVID-19 might present other legal risks. For example: employees suffering from, or caring for a family member suffering from COVID-19, may be eligible for protections under the FMLA;  employees who contracted COVID-19 through occupational exposure may have Workers’ Compensation claims; and employees raising collective concerns regarding working conditions or changes to operations as a result of the virus may be protected under the NLRA.

Employer Tips

While much is still unknown regarding the scope of COVID-19’s impact on businesses and workforces throughout the US, employers should consider the following tips:

  • Develop a written plan of action if someone become sick with COVID-19, which includes steps to ensure the confidentiality of any employee health information.
  • Request employees limit non-essential travel to the affected regions, and provide notice in the event of such travel.
  • Consider flexible work arrangements for pregnant or immunocompromised employees, or in the event of a worsening outbreak flexible work hours for employees that commute.
  • Understand your workforce vulnerabilities, how staffing shortages could potentially interrupt your operations, and the implications (if any) on applicable collective bargaining agreements.
  • Temper employee fears by circulating information from the CDC and other reliable sources.
  • Never make determinations regarding employee risk based on race, or national origin.
  • Combat potential discrimination by monitoring employee conduct and enforcing anti-bullying and anti-harassment policies.

Finally, and perhaps, most importantly, when an employee issues arises because of COVID-19, employers should consult legal counsel to mitigate risks and forestall potential litigation.

 

This article was written by   and originally posted to Kelley Drye’s Labor Days Blog.

As we close the books on 2019, and enter the new decade, New York employers should keep a list of all new legislation handy. Below is our brief summary of legislation effective 2020.

New York State Human Rights Law (NYSHRL)

In August 2019, Governor Cuomo signed groundbreaking legislation amending the NYSHRL, which we covered.  Several pieces of the law will become effective in the upcoming months, including the following:

  • January 1, 2020: Settlement agreements cannot bar individuals from speaking to an attorney, the New York State Division of Human Rights, the EEOC, local human rights commissions, or any other form of law enforcement.
  • February 8, 2020: NYSHRL will be applicable to employers of all sizes who do business in the state.
  • August 12, 2020: Statute of limitations for filing sexual harassment claims with the State Division of Human rights will be expanded from one to three years.

Additionally, employers should ensure they are in compliance with the 2019 changes to the NYSHRL and cognizant of new legal standards which became effective last year:

  • The “severe or pervasive” standard no longer applies to discriminatory and retaliatory harassment claims;
  • Employers can no longer rely on the Faragher-Ellerth defense to liability. In other words, if an employee fails to utilize the employer complaint procedure and fails to make an internal harassment complaint, the company may still be liable.
  • Employers are prohibited from mandating arbitration of all claims of discrimination (expansion from previous legislation, which prohibited mandatory arbitration of sexual harassment claims only);
  • Employers are prohibited from including non-disclosure provisions in settlement agreements for all claims of discrimination—not only sexual harassment claims—unless the condition of confidentiality is the plaintiff’s preference.

Further, employers should ensure they are up to date on the 2019 amendments which prohibit discrimination on the basis of:

  • Transgender status, gender identity and expression;
  • Hairstyle, including hair texture and protective hairstyles such as braids, twists, and locks;
  • Facial hair or religious attire.

New York City Human Rights Law

  • Effective January 11, 2020, the City law will apply to independent contractors. Further, the law applies to employers that maintain four or more employees, contractors, or freelancers at any time during the 12 months before the start of the discriminatory act.
  • The law was amended in late 2019 to prohibit retaliation against individuals requesting a reasonable accommodation.

Reproductive Rights

The NYSHRL was recently amended to prohibit employers from discriminating or retaliating against employees for reproductive health decisions, including but not limited to, “the decision to use or assess a particular drug, device or medical service.”  Under the new law, employers are specifically prohibited from:

  • Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making without the employee’s prior informed affirmative written consent;
  • Requiring an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions; or
  • Discriminating or taking any retaliatory personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because of or on the basis of the employee’s or dependent’s reproductive health decision making.

Effective January 7, 2020, employers must also issue a notice in their handbook of employees’ rights and remedies with respect to the new law.

New York City Pre-Employment Marijuana Testing

Effective May 10, 2020, many NYC employers will be prohibited from requiring prospective employees to take a marijuana or THC drug test as a condition of employment.

There are specific jobs excluded from the new law, including 1) safety and transportation related positions; 2) caregivers; 3) jobs where the drug testing is required by federal or state law, or required pursuant to a contract with the federal government; and 4) jobs in which a collective bargaining agreement requires drug testing.

New York City Salary History Ban

  • For NYC employers with more than 11 employees, the minimum wage will remain at $15.00.
  • For employers with 10 or fewer employees, minimum wage will increase from $13.50 to $15.00.
  • Minimum wage will increase to $13.00 for employees in Long Island and Westchester.

New York Paid Family Leave Benefits

NY PFL benefits will remain at 10 weeks of leave; however, the benefits will increase to 60% of the employee’s average weekly wage, and will be capped at a weekly amount of $840.70.

Fair Labor Standards Act

The salary threshold for an “exempt” employee under the FLSA executive, administrative, or professional exemption is now $648 per week, or $35,568 annually. This is increase to the previous threshold of $455 a week, or $23,660 annually. The “highly compensate employee” exemption also increased from $100,000 to $107,432 annually.

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In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020.  In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois.  In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.  Cannabis Act at § 10-50.

Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions.  One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use.  The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”  820 ILCS 55/5(a).  Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.

On November 14, 2019, the Illinois legislature passed an amendment to the Cannabis Act that clarifies much of the lingering uncertainty.  This amendment was signed into law by Governor Pritzker on December 4, 2019.  The amendment specifies that the Cannabis Act does not open employers up to liability for “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”  SB1577 § 705-10(50)(e)(1).

This provision directly addresses whether employers can revoke employment offers from applicants who test positive for cannabis.  Under the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/5, it is unlawful for an employer “to refuse to hire or to discharge any individual … because the individual uses lawful products off the premises of the employer during nonworking hours.”  820 ILCS 55/5(a).  The passing of the Cannabis Act made recreational cannabis use legal in Illinois, and the law itself says that “lawful products” means “products that are legal under state law.”  Cannabis Act at § 900-50.  After an employee receives a job offer, any conduct he engages in prior to beginning his employment is technically “during nonworking hours,” and therefore it appeared that an employer may not withdraw an offer because of the use of “lawful products” during that time.

The November 14, 2019 amendment clarifies that an employer may retract a job offer based on an applicant’s cannabis use prior to beginning employment.  SB1577 § 705-10(50)(e)(1).  In other words, as amended, the Cannabis Act specifically allows employers who have offered an applicant a position conditioned on clean drug test to rescind that offer if the applicant subsequently tests positive for cannabis use.

In addition to this employer protection, employers remain able to discipline or terminate employees based on a “good faith belief” that the employee is under the influence of cannabis at work, which occurs when the employee “manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”  Cannabis Act at § 10-50(d).  This good faith belief may serve as a basis for subjecting an employee to a “reasonable” drug test, thereby insulating the employer from liability for taking action against an employee who fails or refuses to take a drug test.  Cannabis Act at § 10-50(e).

There remains the possibility that an employee will challenge a disciplinary action by claiming that the employer lacked a good faith basis to believe that the employee was under the influence or that the employer’s policies are not reasonable.  Therefore, the amendment does not entirely limit employers’ exposure to potential lawsuits, but it helps to clarify how employers may address potential workplace impairment due to marijuana use.

In short, the protections afforded employers under the Cannabis Act, as amended, are not absolute, but do provide a defense.  Moreover, the recent amendments do not change the protections afforded employees under Illinois’s Compassionate Use of Medical Cannabis Program Act.  Employers in Illinois should consider both laws when drafting drug testing policies for their employees.  Specifically, the Cannabis Act, as amended, permits policies (1) requiring employees to refrain from using or being under the influence of cannabis at work, (2) requiring employees to submit to a drug test if they exhibit behaviors consistent with being under the influence of marijuana, and (3) requiring applicants to test negative for marijuana prior to beginning their employment.  As with any change in employment policies, it is important that a company clearly communicates how it addresses potential marijuana use, including drug testing, both for applicants and current employees and ensures that these policies are consistently enforced.  In addition, employers should be aware that drug testing requirements under the U.S. Department of Transportation regulations and Illinois’s Substance Abuse Prevention on Public Works Projects Act (820 ILCS 265) remains unaffected by the amended Cannabis Act.

It should be noted that there is also a practical hurdle to marijuana testing because the current testing methodologies cannot determine the specific time period when an individual last used marijuana.  The THC molecule (a common term for delta-9-tetrahydrocannabinol), which is the active ingredient in marijuana that cause the user’s “high,” will appear in urine tests for up to 30 days after use. Moreover, tests cannot determine the degree of impairment.  Therefore, a positive marijuana test does not indicate if the employee used or was under the influence of marijuana while on the employer’s premises.  Employers planning on using drug testing generally may want to consider excluding marijuana from the drug test panel administered and tracking the studies that are being performed on the efficacy of newly developed drug tests for marijuana use.

If you have questions about your policies regarding drug testing, please contact Kelley Drye’s Labor and Employment Team.

 

This article was originally posted to Kelley Drye’s Labor Days Blog.

On Wednesday, December 4th, Barbara Hoey, Co-Chair of Kelley Drye’s Labor and Employment Practice and David Frulla, Chair of the firm’s Campaign Finance and Political Law Practice hosted a one hour webinar focused on best practices of handling all aspects of politics in the workplace. They reviewed federal and state rules regarding employees’ political activity and speech in the workplace, and compliance issues related to federal campaign finance laws when a company or its executives engage in political activity. Additional topics covered include:

  • Political statements on social media,
  • When talking politics can turn into discrimination and harassment,
  • Corporate partisan and non-partisan political communications,
  • Employee volunteer activity, and
  • Do’s and don’ts for executive fundraising.

To view a recording of the webinar, click here.

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The labor movement sent a powerful and potentially revolutionary signal to the tech industry this past week on September 24: contract employees of HCL Technologies, working under a renewable contract with Google, voted to unionize for better salaries, benefits, and working conditions. Nearly 80 contract HCL employees stationed in Google’s Pittsburgh office joined the United Steelworkers trade union, which represents more than 850,000 American employees across various industries. Significantly, this marked the first time contract tech workers have unionized in the United States in an industry that is almost entirely non-union.

The vote for union representation strikes at the heart of the business model used by companies like HCL, a multinational Indian IT services company. Although the HCL employees who have been contracted out to Pittsburgh work alongside Google employees in similar positions, they contend that they receive less favorable benefits and less compensation for their work than do those employed directly by Google. This is often the case for contract workers, who are heavily utilized in the technology industry thanks to the lower costs of employing them. But these same contract employees have historically been less inclined to unionize, fearing that their employers will respond by declining to renew their contracts when the time comes. Indeed, some HCL Technologies employees expressed this exact concern, recognizing the possibility that Google would decline to renew its contact with HCL as a result of Tuesday’s vote.

Other hurdles to unionization have traditionally existed with regards to employment in the technology sector. There has historically been an inclination to associate unions with blue-collar work; well-paid engineers may not think they would derive any additional benefits from joining a union. Similarly, in a world of tech startups, employees may not view management as strict authority figures against whom they should engage in the often adversarial process of negotiating for better pay, benefits and working conditions. All of these factors have formed a headwind against the unionization of tech, since tech companies unaccustomed to unionization efforts may not hesitate to show hostility towards, or even penalize, employees for trying to unionize.

But the direct unionization of HCL’s tech workers was perhaps not entirely unpredictable or without an overall context in which unions have gained footholds among tech giants. Despite a historical lack of interest in unionization, unions have taken aim at their employers, but just with other kinds of workers, even before Tuesday’s vote. Security guards and bus drivers employed by large tech companies like Google and Facebook are now unionized; employees at Amazon and Salesforce campaigned for changes in their working conditions. And Google employees staged a 20,000-person walkout in 2018 to protest unfavorable company policies. Each of these signals a new level of union activism in the technology sector, and each has helped pave the way for employees like those at HCL Technologies to advocate for better wages and working conditions.

Whether the HCL employees’ recent vote to bring in a union is an aberration or, rather, an indication of a real trend has yet to be seen. But multinational tech companies whose labor models are built on the low costs of contract workers should take note: nothing in federal labor law prevents employee unionization, as HCL learned.  Tech employers would do well to consider how attractive a target they may be for unionization and address employee concerns well before a petition for a union election is filed with the National Labor Relations Board.

Kelley Drye’s labor and employment group regularly counsels employers across industries and has deep experience in working within the tech industry. We would be pleased to provide more information about unionization issues.

 

This article was originally written by  and posted to Kelley Drye’s Labor Days Blog.

A Los Angeles jury awarded a black former UCLA phlebotomist nearly $1.6 million in damages for being subjected to racial harassment by co-workers. Birden v. The Regents of the University of California, No. BC6681389 (Los Angeles Superior Court May 30, 2017).

Birden, who worked at UCLA as a per diem phlebotomist for approximately one year, alleged that she was subjected to racial slurs and disparaging remarks by Latino co-workers who referred to her as “lazy,” a “dark woman,” and used the “N” word in her presence. Birden claims that she reported the harassment to her supervisors but the school did not take action.

In his opening statement at trial, the attorney for the UC Board of Regents described one of Birden’s co-workers as a “good guy,” claimed “[h]e wasn’t doing it to try to offend somebody” with the use of the “N” word and argued that Birden was fired because of a clear pattern of performance issues. Birden’s counsel argued that Birden had no disciplinary history and offered testimony of Birden’s strong work ethic.

Ultimately, the jury agreed that Birden was subjected to severe and pervasive harassment by her co-workers due to her race and awarded Birden (1) $500,000 for past emotional distress and mental harm, (2) $800,000 for future emotional distress and mental harm, (3) more than $190,000 for past economic loss and (4) more than $86,000 for future economic loss. However, the jury did reject Birden’s claim that she was terminated because of her race.

What Lessons Can Be Learned From This Case?

Hindsight is always 20/20, single-plaintiff verdicts like this one remind employers to focus on cultivating a respectful and inclusive work culture for employees at all levels because non-supervisory employees have the power to do as much damage as management.

How do you focus on cultivating a respectful work culture? Here are some tips:

  • There is no such thing as too much training, but the training must be effective. We find the most effective training focuses on work culture instead of formulaic legal tests (e.g., what constitutes severe or pervasive). If you find yourself analyzing whether a conduct is severe or pervasive, it is inevitably too late.
  • Anti-harassment policy – having one is never the problem (you should have one). The problem arises when employees either do not receive the policy or forget it exists because it is buried in a handbook. Typically, it is the latter. Employers can change this by reminding employees of anti-harassment policies on an annual basis. This reminder also provides employers with the opportunity to re-emphasize that the company does not tolerate harassment and employees should not be afraid to raise or report concerns.

To learn more, join partners Barbara Hoey and Mark Konkel on a Lexology hosted webinar, entitled “The New Sexual Revolution: Radical Changes to US Harassment Laws” on September 24, 2019. For more information and to register, click here.