Independent contractor. Owner. Partner. Member of a limited liability company. Whatever “label” employers use, the U.S. Department of Labor (“DOL”) has a message for them – most workers are employees under the Fair Labor Standards Act (“FLSA”).
Yesterday, the Supreme Court of the United States issued its long-awaited opinion in EEOC v. Abercrombie & Fitch Stores, Inc., where it addressed questions surrounding the obligation of an employer to make a religious accommodation. The decision is an important one, so an understanding of what the Court exactly concluded and how its dictates should be adopted for employers on a day-to-day basis is essential. In order to truly gain that understanding, though, let’s briefly take a bit of a bigger-picture look at the issue of religious accommodation in general first.
On February 25, 2015, the United States Supreme Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, Inc, a case where religious articles of clothing have come to clash with an employer’s neutral dress code policy. In this case, a Muslim teenage girl applied for a job at an Abercrombie & Fitch store. Abercrombie requires all of its employees to adhere to a “Look Policy” which, among other things, prohibits wearing black clothing or headgear. Consistent with her religion, the applicant normally wore a hijab, a type of headscarf, for modesty purposes. The applicant’s headscarves, however, were different than those frequently worn by devout Muslim women. Unlike others, her headscarves did not cover her neck, were not tightly bound, and were often bought at ordinary mall clothing stores.
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
Employers often are leery of retaliation claims, and rightfullly so, since they are among the most dangerous to defend in court. Typically, however, employers confront allegations of retaliation only from current or just-made-former employees. Now, in a recent decision issued by the Fourth Circuit, even applicants can go the retaliation route in the right circumstances.
Many employers understandably want to perform a criminal background check on potential employees. It is possible for employers to lawfully ask about criminal convictions on applications or to administer a criminal background check. However, it is not “open season” on criminal background checks, and you need to be careful when conducting this kind of inquiry.
The Pennsylvania Superior Court recently ruled in Socko v. Mid-Atlantic Systems of CPA, Inc., that non-compete agreements signed during employment are not enforceable unless the employer provides its employee additional consideration in exchange for signing.
The Sixth Circuit Court of Appeals — encompassing Michigan, Ohio, Kentucky, and Tennessee — recently affirmed a trial court’s dismissal of a lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”), which alleged that an employer’s use of credit checks to screen potential employees for certain positions unfairly discriminated against African-Americans. This was a major victory for employers, who, as we discussed in a previous blog, are in a “damned if you do, damned if you don’t” situation when it comes to background checks.
In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”). The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire. With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination. Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.
We in the Human Resources and employment law field have an alphabet soup of federal statutes to keep on top of: FLSA, FMLA, ADA, ADAAA, and ADEA, among others. But there’s a relatively young law that you may not be aware of, but should be—GINA. GINA is the Genetic Information Nondiscrimination Act of 2008.