10. Telecommuting was (briefly) recognized as a reasonable accommodation.
In April of 2014, the Sixth Circuit arrived at the common-sense conclusion that telecommuting might be a reasonable accommodation under the Americans with Disabilities Act. In EEOC v. Ford Motor Company, a resale steel buyer with severe Irritable Bowel Syndrome brought a failure-to-accommodate ADA claim against Ford after it refused to grant her request to telecommute four days per week. Ford moved for summary judgment, arguing the employee was not qualified for her position because she could not be physically present at the Ford offices and that telecommuting was not a reasonable accommodation. The district court agreed and granted the motion. The Sixth Circuit reversed. Observing that “attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location” and recognizing the need for law to “respond to the advance of technology in the employment context,” the court found that physical presence was not necessarily an “essential function” of the employee’s job. Likewise, it held that Ford was not entitled to summary judgment on the issue of telecommuting as an unreasonable accommodation. This was a big deal because of the long line of cases, cited by the dissent, extolling attendance (at the office) as an essential requirement of virtually any job.
Unfortunately, the Sixth Circuit vacated the opinion in August pending en banc review. Stay tuned for updates.
9. Sarbanes-Oxley’s whistleblower provision was applied to private contractors and bad-mouthing bosses.
Courts in 2014 confirmed that whistleblower protection under the law is expansive. In Lawson v. FMR, for example, the U.S. Supreme Court held that Sarbanes-Oxley’s whistleblower protections extended to employees of private contractors and subcontractors. And in Halliburton v. ARB, the Fifth Circuit found that an employer’s informing of coworkers that an employee blew the whistle was actionable retaliation. These decisions might help shed light on other recent whistleblower laws, such as the Consumer Product Safety Improvement Act and the False Claims act.
8. The Supreme Court confirmed that you actually do have to view facts in the light most favorable to the non-moving party at summary judgment.
The case, Tolan v. Cotton, was not an employment case, but it may prove helpful to employees fighting summary judgment. In Tolan, the U.S. Supreme Court reversed a Fifth Circuit decision for violating summary judgment procedures. Tolan sued Cotton, a police officer, for using excessive force after Cotton shot at him three times, hitting him once in the ribs, while Tolan was unarmed on his parents’ porch. Cotton claimed that Tolan had approached him and shouted threateningly at him before he opened fire. Tolan denied Cotton’s versions of events, testifying that he was on his knees and was not shouting when he asked Cotton to take his hands off his mother, whom Cotton had shoved into the garage. Cotton moved for summary judgment, arguing that he was entitled to qualified immunity. The district court granted the motion and the Fifth Circuit affirmed, finding that Cotton had the right to use deadly force because he had an objectively reasonable belief that Tolan presented an immediate threat to his safety. The Supreme Court vacated the Fifth Circuit’s opinion. It held that the court had improperly credited Cotton’s version of events and ignored key evidence from Tolan before finding for Cotton. It remanded with instructions to follow proper summary judgment procedure.
7. The EEOC went after employers’ overbroad, smothering severance agreements, but had a hard time doing so.
Consistent with its enforcement priority of preserving access to the legal system, the EEOC sued CVS and CollegeAmerica for meddling with that access. It alleged that the companies’ severance agreements, which included non-disparagement clauses and required employees to contact the company before speaking with the EEOC, were unlawfully overbroad and deterred employees from bringing charges or cooperating voluntarily with EEOC investigators. Both cases were dismissed, CVS in its entirety and CollegeAmerica in part, because the EEOC failed to conciliate before bringing suit. The EEOC has not given up though, so be on the lookout for a decision on these issues in 2015.
6. The Supreme Court said it would consider the Abercrombie religious accommodation case.
This October, the U.S. Supreme Court granted cert in EEOC v. Abercrombie & Fitch Stores. The plaintiff, a Muslim woman, wore a hijab and was denied a job because the hijab violated the company’s “Look Policy.” The district court granted summary judgment for the EEOC, but the Tenth Circuit reversed on the ground that the plaintiff never told Abercrombie that she wore the hijab for religious reasons or made an express request for an accommodation. The fact that the decision-maker assumed the hijab was worn for religious purposes was not enough, according to the court.
5. The NLRB expanded concerted activity to include work email and Facebook “likes.”
The NLRB issued several pro-employee decisions this year. In Purple Communications, it held that employees could use company email systems for concerted activity so long as the employees already had access to the email system and the emailing was done during non-work hours. In re Three D, d/b/a Triple Play Sports Bar, the NLRB held that the employer violated the National Labor Relations Act by discharging two employees for “liking” a Facebook discussion involving the employer’s payroll mistakes.
4. Paid sick leave became reality in some jurisdictions.
2014 saw California, Massachusetts, and several cities in California, Oregon, and New Jersey endorse paid sick leave laws. They join Connecticut; the District of Columbia; San Francisco; Portland, Oregon; New York City and Jersey City in the ranks of places where workers are guaranteed access to earned paid sick days. With prospects for federal legislation on paid sick leave as bleak as ever, campaigns for similar laws continue in other states including Minnesota.
3. Pregnant employees received important federal protections.
Over the summer, the EEOC issued updated enforcement guidance on pregnancy discrimination. The guidance is the first comprehensive update in decades. It addresses the gap between the ADA and Title VII that pregnant workers often fell between when they needed accommodations for pregnancy-related conditions. For one, it affirms that employers cannot discriminate against employees based on medical conditions related to pregnancy or childbirth, such as lactation and abortion. It also clarifies that employers must treat pregnant workers needing accommodations the same way they treat other employees needing accommodations, providing light-duty work when appropriate. Parental leave is also addressed: it must be provided equally to male and female parents. Lastly, the EEOC prohibits discrimination on the basis of past and future pregnancies as well as current pregnancy.
You can get a more comprehensive review of the enforcement guidance and its impact on pregnancy cases from Nichols Kaster Attorneys Kate Fisher and Janet Olawsky in their upcoming CLE. More details about the CLE are forthcoming.
2. Minnesota blazed the trail with comprehensive protections for its female workforce.
Governor Dayton signed the Women’s Economic Security Act into law this year, an omnibus law with unprecedented scope, addressing issues ranging from familial status discrimination to stalking and sexual assault. The law is too big to do justice to it here, but some of the major provisions: (1) add familial status as a protected category under the Minnesota Human Rights Act; (2) require private nursing rooms for working mothers; (3) add pregnancy and pregnancy-related conditions as a conditions requiring unpaid leave as an accommodation under the Minnesota Parenting Leave Act; (4) doubles the amount of unpaid leave under the MPLA; (5) broaden parenting leave rights to include leave for adoptive parents, prenatal care, and pregnancy-related conditions; (6) prohibit employers from declining accommodations of more frequent restroom, food, and water breaks for pregnancy and pregnancy-related conditions; (7) prohibit employers from requiring employees to take leave or accept accommodations that are not requested; (8) permit employees to use existing sick leave to take care of in-laws and grandchildren; (9) allow victims of stalking and sexual assault to receive unemployment benefits after quitting a job to escape the stalking or assault; (10) remove the requirement that victims of domestic assault provide documentation of the assault before receiving unemployment benefits; (11) permit victims of violence or stalking to use existing sick leave as safety leave; (12) prohibit retaliation against employees for requesting or taking safety leave; (13) require certification from large government contractors of their equal pay compliance; (14) prohibit employers from requiring nondisclosure agreements regarding employee wages, and provide a private right of action for violations; (15) establish grants for organizations that promote women entering skilled trade, science, technology, engineering, and math occupations; (16) appropriate money for promoting women-owned businesses; and (17) launch a study into a state retirement plan that would help older workers be more economically secure. The Women’s Economic Security Act is one of the first of its kind in the country, so be proud, Minnesotans.
1. Minimum wages rose across the country.
More than a dozen states and the District of Columbia passed legislation giving their minimum wage workers a well-deserved pay raise. Minnesota passed legislation that will increase its minimum wage for large businesses to $9.50/hour come 2016. Even red states like Alaska, South Dakota, Arkansas, and Nebraska got in on the action. The cities of Seattle and Chicago also raised their minimum wage bar to an unprecedented $15 and $13/hour, respectively. For the most part, changes will be realized incrementally over the course of several years. President Obama did his part too, signing an executive order raising the minimum wage for federal contract workers to $10.10/hour.
