Spring is a time of renewal; it is a good time to dig into our files and clean up any messes. Below are some tips from our employment, immigration and employee benefits attorneys to assist you in making a fresh start and getting your workplace practices organized.

1.Refresh/Reinvigorate Your Annual Discrimination/Harassment-Prevention Training With A Focus on Retaliation-Avoidance and Reasonable Accommodation.
Training managers and employees, annually, is one of the most important preventive measures an employer can take to reduce the risk of an employee lawsuit. Many managers have no idea what constitutes unlawful retaliation and even the best managers unwittingly may engage in unlawful retaliation. Now– more than ever– your annual training should focus on retaliation prevention and reasonable accommodation of disabilities and religious practices. Here’s why:

A. Retaliation tops all charges filed with EEOC. For the 2nd year in a row, retaliation charges were the largest category of charges filed with the EEOC—approximately 1/3 of the nearly 100,000 charges filed in Fiscal Year 2011 (more than any category of discrimination charge). Remember that even where a discrimination claim is meritless, an employer may still face exposure on a retaliation claim arising from a complaint about alleged discrimination.

B. Damages for successful retaliation and discrimination claims can be costly.
In 2012:

• $168 Million – California jury verdict in a case where a former employee alleged that, among other things, her employer fired her in retaliation for complaining about sexual harassment.

• $417,955 – damages award upheld by the 2nd Circuit Court of Appeals (which includes New York) against an employer for retaliating against a former employee by suspending and threatening to prosecute her for making unauthorized copies of pay stubs for use as evidence of gender discrimination, and by falsely implying to reporters that the former employee was a poor performer who stole co-workers’ paychecks.

C. Reasonable Accommodation Claims Are Also On the Rise. Many managers do not realize that they must reasonably accommodate disabled job applicants and employees unless doing so would pose an undue hardship on the business (or the individual poses a direct threat of harm). Some employers may not realize that inflexible attendance and leave of absence policies may violate the Americans with Disabilities Act (ADA) by not taking into consideration that an employee may need a variance from the policy (like an extended leave of absence) as a reasonable accommodation for a disability.
The EEOC has been vigorously targeting employers for violating the ADA due to alleged failure to reasonably accommodate disabilities. In 2011 and already this year, the EEOC has brought multiple ADA lawsuits. Among the most notable was the EEOC’s largest settlement in a single disability discrimination case—a $20 million settlement last year in a lawsuit alleging violation of the ADA based on an employer’s inflexible “no fault” attendance policy. The EEOC alleged that the Company failed to reasonably accommodate individuals with disabilities by refusing to make exceptions to its “no fault” attendance policy for employees whose “chargeable absences” were caused by their disabilities and, in some cases, disciplining or terminating those employees.

The “take-away”: Train managers on the concept of reasonable accommodation and on properly handling requests for reasonable accommodation for disabilities (and religious practices). Make sure your attendance and leave of absence policies comply with the law and contain flexibility to accommodate a disabled employee.

2. Review Your Hiring Practices. Conduct a self-audit of your hiring practices (with your legal counsel to be able to invoke the attorney-client privilege; otherwise it is discoverable in a litigation). Examine whether your neutral policies may be adversely impacting a legally protected group. The EEOC has been targeting employers that create barriers to hire—for instance, use of criminal background checks and credit histories in hiring that adversely impact applicants in legally protected categories (like minorities); exclusion of women from consideration for hire in traditional male occupations (like mechanic); use of job requirements that may adversely impact a legally protected group.
• The EEOC recently settled a lawsuit for $3 Million in which the EEOC alleged that a Company’s criminal background checks policy had a disparate, discriminatory impact on African-Americans.

Additionally, when recruiting job candidates, critically analyze whether all of the requirements in a job posting are job-related and consistent with business necessity (i.e., is a high school diploma truly a necessary and job-related requirement?).

3. Update Job Descriptions. Ensure job descriptions are current, contain the essential functions of the job, reflect the duties employees are actually performing, and are job-related and consistent with business necessity. Accurately identifying and documenting the essential functions of all jobs can be helpful in many ways: managing a disabled employee’s/applicant’s request for a reasonable accommodation for a disability, assisting in defending against claims of unlawful pay disparity or other forms of discrimination, providing some basis of objectivity in evaluating performance, and assisting in defending against a wage-and-hour audit or lawsuit challenging the exempt status of an employee.

On that note, clean up your worker classifications. There were more than 7,000 wage-and-hour lawsuits filed in federal court last year, up 32% from 2008. In fiscal year 2011, the U.S. DOL recovered $225 million in back wages for employees, up 28% from fiscal year 2010. The U.S. DOL also has increased the number of wage-and-hour investigators by 40%, to 1,050. In light of the increasing wave of lawsuits alleging misclassification of workers as exempt from overtime laws and increased federal and state government enforcement of wage and hour laws, your organization should review all of its worker classifications for accuracy with legal counsel (employee versus independent contractor and exempt versus nonexempt from overtime pay).

4. Internally Audit Personnel Files. Regularly conduct and complete performance appraisals and ensure they are reviewed and signed by both the employee and the reviewing supervisor. Ensure that I-9s for all employees are complete and kept in a separate file that can be produced in the event of a government audit. Ensure that medical records are not kept in employees’ personnel files, but instead in a separate set of secured medical files accessible only on a need-to-know basis.

5. Examine the Likely Effects of Any Group Terminations and Retirement Practices. In March, 2012, the EEOC issued its final rule on disparate impact and the “reasonable factors other than age” defense to claims of age discrimination under the Age Discrimination in Employment Act (ADEA). According to the EEOC, the final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age.

Review the impact of reductions-in-force on legally protected groups, including any mandatory retirement practices that may violate the Age Discrimination in Employment Act (ADEA). The EEOC recently sued an employer alleging that the Company unlawfully laid off workers over the age of 45 in a series of reductions-in-force in violation of the ADEA. It also claimed that the Company denied workers over the age of 45 leadership training and then laid them off to make way for younger leaders. The Company settled the case with the EEOC for approximately $3 million. The EEOC also recently sued and settled with a national law firm for allegedly violating the ADEA because of a firm policy requiring partners to relinquish their equity stake in the partnership at age 70.

6. No Requirement To Post NLRB Notice Regarding Workers’ Right to Unionize (At This Time): You may recall that the NLRB issued a final rule requiring employers subject to the NLRB’s jurisdiction– most private-sector employers (even if they do not have union workers) — to post a notice of workers’ right to unionize. The NLRB’s rule had been scheduled to take effect on April 30, 2012. On April 13, 2012, however, a federal district court judge in South Carolina struck down the posting rule, in its entirety, as unlawful, finding that the NLRB lacked the authority to promulgate the rule. On April 17, 2012, the D.C. Circuit Court of Appeals temporarily enjoined the NLRB from enforcing its final rule. Thereafter, the NLRB announced that it would not implement its final rule pending resolution of the issues by the D.C. Circuit Court. The NLRB also plans to appeal the South Carolina District Court decision and a portion of the D.C. District Court’s decision which invalidated certain of the rule’s enforcement sanctions (although it upheld the posting requirement). Stay posted for further developments because the ultimate fate of this posting rule is uncertain. Contact your employment counsel to find out what labor postings your State requires.

Lisa M. Brauner, FSB Partner– Employment Law

Spring is a time of renewal; it is a good time to dig into our files and clean up any messes. Below are some tips from our employment, immigration and employee benefits attorneys to assist you in making a fresh start and getting your workplace practices organized.


1.Refresh/Reinvigorate Your Annual Discrimination/Harassment-Prevention Training With A Focus on Retaliation-Avoidance and Reasonable Accommodation.
Training managers and employees, annually, is one of the most important preventive measures an employer can take to reduce the risk of an employee lawsuit. Many managers have no idea what constitutes unlawful retaliation and even the best managers unwittingly may engage in unlawful retaliation. Now– more than ever– your annual training should focus on retaliation prevention and reasonable accommodation of disabilities and religious practices. Here’s why:

A. Retaliation tops all charges filed with EEOC. For the 2nd year in a row, retaliation charges were the largest category of charges filed with the EEOC—approximately 1/3 of the nearly 100,000 charges filed in Fiscal Year 2011 (more than any category of discrimination charge). Remember that even where a discrimination claim is meritless, an employer may still face exposure on a retaliation claim arising from a complaint about alleged discrimination.

B. Damages for successful retaliation and discrimination claims can be costly.
In 2012:

• $168 Million – California jury verdict in a case where a former employee alleged that, among other things, her employer fired her in retaliation for complaining about sexual harassment.

• $417,955 – damages award upheld by the 2nd Circuit Court of Appeals (which includes New York) against an employer for retaliating against a former employee by suspending and threatening to prosecute her for making unauthorized copies of pay stubs for use as evidence of gender discrimination, and by falsely implying to reporters that the former employee was a poor performer who stole co-workers’ paychecks.

C. Reasonable Accommodation Claims Are Also On the Rise. Many managers do not realize that they must reasonably accommodate disabled job applicants and employees unless doing so would pose an undue hardship on the business (or the individual poses a direct threat of harm). Some employers may not realize that inflexible attendance and leave of absence policies may violate the Americans with Disabilities Act (ADA) by not taking into consideration that an employee may need a variance from the policy (like an extended leave of absence) as a reasonable accommodation for a disability.
The EEOC has been vigorously targeting employers for violating the ADA due to alleged failure to reasonably accommodate disabilities. In 2011 and already this year, the EEOC has brought multiple ADA lawsuits. Among the most notable was the EEOC’s largest settlement in a single disability discrimination case—a $20 million settlement last year in a lawsuit alleging violation of the ADA based on an employer’s inflexible “no fault” attendance policy. The EEOC alleged that the Company failed to reasonably accommodate individuals with disabilities by refusing to make exceptions to its “no fault” attendance policy for employees whose “chargeable absences” were caused by their disabilities and, in some cases, disciplining or terminating those employees.

The “take-away”: Train managers on the concept of reasonable accommodation and on properly handling requests for reasonable accommodation for disabilities (and religious practices). Make sure your attendance and leave of absence policies comply with the law and contain flexibility to accommodate a disabled employee.

2. Review Your Hiring Practices. Conduct a self-audit of your hiring practices (with your legal counsel to be able to invoke the attorney-client privilege; otherwise it is discoverable in a litigation). Examine whether your neutral policies may be adversely impacting a legally protected group. The EEOC has been targeting employers that create barriers to hire—for instance, use of criminal background checks and credit histories in hiring that adversely impact applicants in legally protected categories (like minorities); exclusion of women from consideration for hire in traditional male occupations (like mechanic); use of job requirements that may adversely impact a legally protected group.
• The EEOC recently settled a lawsuit for $3 Million in which the EEOC alleged that a Company’s criminal background checks policy had a disparate, discriminatory impact on African-Americans.

Additionally, when recruiting job candidates, critically analyze whether all of the requirements in a job posting are job-related and consistent with business necessity (i.e., is a high school diploma truly a necessary and job-related requirement?).

3. Update Job Descriptions. Ensure job descriptions are current, contain the essential functions of the job, reflect the duties employees are actually performing, and are job-related and consistent with business necessity. Accurately identifying and documenting the essential functions of all jobs can be helpful in many ways: managing a disabled employee’s/applicant’s request for a reasonable accommodation for a disability, assisting in defending against claims of unlawful pay disparity or other forms of discrimination, providing some basis of objectivity in evaluating performance, and assisting in defending against a wage-and-hour audit or lawsuit challenging the exempt status of an employee.

On that note, clean up your worker classifications. There were more than 7,000 wage-and-hour lawsuits filed in federal court last year, up 32% from 2008. In fiscal year 2011, the U.S. DOL recovered $225 million in back wages for employees, up 28% from fiscal year 2010. The U.S. DOL also has increased the number of wage-and-hour investigators by 40%, to 1,050. In light of the increasing wave of lawsuits alleging misclassification of workers as exempt from overtime laws and increased federal and state government enforcement of wage and hour laws, your organization should review all of its worker classifications for accuracy with legal counsel (employee versus independent contractor and exempt versus nonexempt from overtime pay).

4. Internally Audit Personnel Files. Regularly conduct and complete performance appraisals and ensure they are reviewed and signed by both the employee and the reviewing supervisor. Ensure that I-9s for all employees are complete and kept in a separate file that can be produced in the event of a government audit. Ensure that medical records are not kept in employees’ personnel files, but instead in a separate set of secured medical files accessible only on a need-to-know basis.

5. Examine the Likely Effects of Any Group Terminations and Retirement Practices. In March, 2012, the EEOC issued its final rule on disparate impact and the “reasonable factors other than age” defense to claims of age discrimination under the Age Discrimination in Employment Act (ADEA). According to the EEOC, the final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age.

Review the impact of reductions-in-force on legally protected groups, including any mandatory retirement practices that may violate the Age Discrimination in Employment Act (ADEA). The EEOC recently sued an employer alleging that the Company unlawfully laid off workers over the age of 45 in a series of reductions-in-force in violation of the ADEA. It also claimed that the Company denied workers over the age of 45 leadership training and then laid them off to make way for younger leaders. The Company settled the case with the EEOC for approximately $3 million. The EEOC also recently sued and settled with a national law firm for allegedly violating the ADEA because of a firm policy requiring partners to relinquish their equity stake in the partnership at age 70.

6. No Requirement To Post NLRB Notice Regarding Workers’ Right to Unionize (At This Time): You may recall that the NLRB issued a final rule requiring employers subject to the NLRB’s jurisdiction– most private-sector employers (even if they do not have union workers) — to post a notice of workers’ right to unionize. The NLRB’s rule had been scheduled to take effect on April 30, 2012. On April 13, 2012, however, a federal district court judge in South Carolina struck down the posting rule, in its entirety, as unlawful, finding that the NLRB lacked the authority to promulgate the rule. On April 17, 2012, the D.C. Circuit Court of Appeals temporarily enjoined the NLRB from enforcing its final rule. Thereafter, the NLRB announced that it would not implement its final rule pending resolution of the issues by the D.C. Circuit Court. The NLRB also plans to appeal the South Carolina District Court decision and a portion of the D.C. District Court’s decision which invalidated certain of the rule’s enforcement sanctions (although it upheld the posting requirement). Stay posted for further developments because the ultimate fate of this posting rule is uncertain. Contact your employment counsel to find out what labor postings your State requires.

Lisa M. Brauner, FSB Partner– Employment Law

2. Make Effective Harassment-Prevention Training for Employees A Top Priority. In 2011, discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) — the federal agency that enforces the federal laws prohibiting certain kinds of workplace discrimination — hit a new record high. According to the EEOC’s annual Performance and Accountability Report, released Nov. 15, 2011, the EEOC received 99,947 charges of employment discrimination in fiscal year 2011, the highest number of EEOC charges filed in a single year since the EEOC’s founding 46 years ago. The agency also obtained $364.6 million in back pay and penalties for workplace discrimination complainants.

One way to minimize discrimination claims is to implement annual training on preventing workplace discrimination and harassment for managers/employees. Training reinforces your organization’s written anti-discrimination/harassment policies and complaint procedures. In fact, having an effective harassment-prevention policy and complaint procedure may provide a legal defense to an employer later charged with a hostile work environment harassment claim. Make training a top priority for your organization in 2012.

3. Review Your Organization’s Employee Policies and Handbook to ensure they are narrowly tailored to accomplish your organization’s goals and to ensure they reflect recent legal developments.

4. Keep Workplace Law Postings Current. Effective April 30, 2012, private-sector employers covered by the NLRA’s jurisdiction must inform their workers in a written 11 x 17- inch notice of workers’ right to organize (i.e., join a union), pursuant to a final rule recently established by the NLRB. The effective date of this employee rights notice-posting rule has now been postponed twice, following litigation against the NLRB regarding the legality of the NLRB’s edict. The required notice, which must be posted in the same place as all conspicuous and other worker postings at your worksite, is available at http://www.nlrb.gov/poster. With respect to other federal, state and local laws that must, by law, be posted at your workplace in a visible location, be sure to maintain current postings.

5. Ensure Your Organization Is Properly Classifying Independent Contractors and Exempt/Nonexempt Employees. In 2010 alone, the New York State Department of Labor (NYSDOL) returned $26.6 million in unpaid wages to New York workers. That same year, New York’s joint task force on employee misclassification identified 18,500 instances of employee misclassification, discovered more than $314 million in unreported wages, assessed over $10.5 million in unemployment taxes, over $2 million in unpaid wages and over $800,000 in workers’ compensation fines and penalties. In 2011, the NYSDOL obtained a $5.1 million settlement with the sandwich chain Lenny’s in New York City for minimum wage and overtime pay violations.
Do not assume that the worker classified as an “independent contractor” is indeed an independent contractor simply because you have a written agreement saying so; that individual may be your employee.

Do not assume that your organization’s salaried employees are exempt from overtime pay laws merely because they are paid on a salary basis rather than on an hourly basis; that may not be the case. Instead, carefully review with your legal counsel whether your organization has properly classified workers as exempt or non-exempt from overtime pay laws and/or whether independent contractors are, in fact, employees.

The U.S. Department of Labor (DOL), the IRS, and the NYSDOL all have been zealous in their pursuit of misclassifications of employees as independent contractors, and are conducting audits like never before in their quest for additional revenue. The federal and state Departments of Labor also are investigating whether workers are properly classified as exempt or non-exempt from overtime pay laws. New York employers may be subject to hefty damages, penalties and fines for failure to pay unemployment insurance taxes, failure to maintain workers’ compensation and disability insurance coverage for their employees, and failure to pay overtime pay to employees who should have been properly classified as non-exempt, rather than exempt, employees.
Be proactive now in reviewing your worker classifications rather than reactive when the DOL comes to audit your pay practices.

6. Ensure Legal Compliance with Other Wage/Hour Issues. New York employers must be careful not to take improper deductions from wages like deductions for employee loss or damage of company equipment, recovery of inadvertent overpayment of wages, vacation and other advances, loans or other obligations to them. Employers must also ensure proper payment of wages to nonexempt employees for all hours worked, includes those hours worked remotely by email, Blackberry, Smartphone, or other mobile device.

If your organization destroyed the exempt status of an employee by making impermissible, inadvertent deductions from an employee’s salary, you should consider maintaining a written “safe harbor” policy to help reduce potential liability. In order to invoke a “safe harbor” policy, an employer must have a written policy prohibiting improper deductions and must have “clearly communicated” that policy to its employees; it must have established a complaint mechanism for employees who believe their wages have been improperly deducted; it must reimburse employees for any improper deductions; and it must make a good-faith commitment to comply in the future.

7. Make Sure Job Requirements Are Necessary and Job-Related. In a recent “informal discussion letter,” the EEOC said an employer’s job requirement of a high school diploma may violate the Americans with Disabilities Act (ADA) if it screens out an otherwise qualified candidate who did not graduate from high school because of a learning disability that meets the definition of a disability under the ADA. The EEOC further stated that a high school diploma requirement– long a standard criterion for screening potential employees– must be “job-related for the position in question and consistent with business necessity.” The EEOC has recently been targeting and suing employers for alleged disability discrimination. Be sure any job requirements are truly necessary and job-related to minimize the potential for scrutiny by the EEOC.

8. Be Prepared for Increased OSHA Audits and Inspections and Implement A Workplace Violence Prevention Plan. OSHA–the federal agency charged with enforcement of workplace health and safety laws– has hired more inspectors and anticipates conducting more inspections this year so be prepared in the event of an audit. New York employers have already been targeted by OSHA this year. On January 6, 2012, OSHA announced its proposal of a $90,040 fine against a New York manufacturer for repeat and serious safety hazards, including inadequate employee training.

- Smaller Businesses Targeted. Additionally, OSHA’s Site Specific Targeting (SST) Program for 2012 will be focusing its inspections on non-construction businesses with 20 or more employees that report high injury rates instead of businesses with at least 40 employees as in the past, which means that more small businesses than ever before will be targeted by OSHA.

- OSHA Issues Directive on Workplace Violence. On September 8, 2011, for the first time, OSHA issued a Compliance Directive entitled “Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence.” The directive establishes uniform procedures for OSHA field staff to respond to workplace violence incidents and complaints and conduct inspections in industries considered especially susceptible to workplace violence, such as healthcare, social service settings, and late-night retail establishments.

Employers may face fines from OSHA for failure to maintain a safe workplace for their workers including inadequate safeguards to provide a “safe and healthful workplace,” separate and apart from legal liability employers may face for a worker’s compensation claim by an employee or a third-party negligence or assault claim arising out of a workplace violence incident (or a claim of negligent hiring or negligent retention of a dangerous employee in jurisdictions other than New York that permit such claims).

Do you have effective policies, processes, and protocols to help identify and prevent threatening behavior and workplace violence, and to address and resolve threats and violence that may have occurred? Who have you designated to handle prevention, investigation, incident management and resolution efforts?

- OSHA on the lookout for employee misclassification. As noted above, the DOL is increasing efforts to identify misclassification of employees as independent contractors, and this effort now includes training OSHA inspectors to recognize where misclassification is occurring and to refer such situations to the proper DOL division for enforcement. Ensure your organization has a written workplace violence prevention plan and is compliant with OSHA’s legal requirements before OSHA comes knocking at your door.

9. March 15, 2012 Compliance Deadline for Places of Public Accommodation under the ADA. March 15, 2012 is the deadline set by the U.S. Department of Justice (DOJ) for compliance with the new Americans with Disabilities Act (ADA) Title III Regulations that create a new level of accessibility standards. The new ADA regulations adopt the 2010 ADA Standards for Accessible Design, which, according to the DOJ, have been updated to be “more user-friendly for building code officials, builders, and architects, and have been harmonized with state and local accessibility codes.” The 2010 standards also include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities.

On or after March 15, 2012, all newly constructed or altered facilities must comply with all of the requirements in the 2010 Standards for new construction, alterations, program accessibility, and barrier removal. If elements in existing facilities already comply with corresponding elements in the 1991 Standards (the Standards issued before the 2010 Standards) and are not being altered, then entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

March 15, 2012 also is the compliance date for provisions governing hotel reservation policies. For example, on or after March 15, 2012, reservations staff (of a hotel or a third party) will be required to identify accessible features in guest rooms (e.g. guest room door widths and availability of roll-in showers) and other hotel amenities in sufficient detail so that an individual with a disability can make an independent assessment whether the hotel meets his or her accessibility needs.

For more information, see www.ada.gov.

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by public accommodations. It requires places of “public accommodations” to accommodate disabled patrons, customers and members of the public to ensure that they can equally access and enjoy the goods and services offered by public accommodations just as non- disabled individuals do. To that end, the ADA requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with certain accessibility standards.

Places of public accommodation are facilities that are open to the public, including, but not limited to, restaurants, hotels, shopping malls, retail stores, theaters, convention centers, dry cleaners, Laundromats, pharmacies, doctors’ offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, recreation facilities, swimming pools, health spas and bowling alleys.

Conclusion
Be prepared. Don’t be caught unawares by employment litigation or government investigations/audits of your workplace practices. Dig into the necessary projects now to be fully employment-law-compliant in 2012. Employers should consult with their labor and employment counsel to head off any potential problems. Maintaining, reviewing and implementing a complete checklist of all of the areas in which you need to be compliant with employment laws is one way to ensure that you start off the New Year headed in the right direction.