Stoel Rives Summer Associate Dexter Pearce co-authored this post.

In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.

Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.Continue Reading U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive

1790100On July 3, 2015, the San Francisco Retail Workers Bill of Rights becomes operative. This ordinance creates major changes for many companies doing business in San Francisco.

Employers Affected

The law applies to “formula retail” businesses with (a) 20 or more locations worldwide, and (b) 20 or more employees in San Francisco, as well as their janitorial and security contractors. Pending amendments to the law, if passed, would change from 20 to 40 the number of retail establishments worldwide for a formula retail business to be covered by the law.

A “formula retail” business is any business that maintains two or more of the following features:

  • Standardized array of merchandise
  • Standardized façade
  • Standardized décor and color scheme
  • Uniform apparel
  • Standardized signage
  • Trademark or service mark

Requirements

1.  Advance Notice of Work Schedule

Employers must provide new employees with a good-faith initial estimate of the number of scheduled shifts the employee will receive each month, along with the days and hours the shifts will occur.

Employers must also provide employees with their schedules two weeks in advance. Schedules may be posted in the workplace or provided electronically, so long as employees are given access to the electronic schedules at work. If the posted schedule is changed, the employer must notify the employee of the change by in-person conversation, phone call, email, text message, or other electronic communication.  This requirement doesn’t apply if the employee requested the change.
Continue Reading San Francisco Is About to Begin Enforcing the Retail Workers Bill of Rights – Are You in Compliance?

The folks at KUER ran a report yesterday on Utah’s ground breaking LGBT antidiscrimination law, which went into effect yesterday. Titled the Antidiscrimination and Religious Freedom Act, the law prohibits workplace discrimination on the basis of sexual orientation and gender identity on the same terms as discrimination on the basis of race, gender, national origin…

As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.

Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.

The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time.
Continue Reading Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective

Here’s a couple updates related to the Seattle Minimum Wage Ordinace.  Alas for Seattle employers, this is no April Fools joke.

Seattle’s $15 Minimum Wage Ordinance Becomes Law

As we’ve blogged about before, Seattle’s Minimum Wage Ordinance becomes law on April 1, 2015, raising the minimum hourly wage for Seattle’s lowest paid workers. On…

The U.S. Supreme Court handed a defeat to United Parcel Service (UPS) this week. At issue was whether UPS violated the Pregnancy Discrimination Act (PDA) by requiring a pregnant woman with lifting restrictions to go on leave during her pregnancy, while workers in certain other categories (such as those with on-the-job injuries) were allowed light duty. We consider the ruling and the lessons it holds for employer leave and accommodation policies below.

In a decision announced March 25, 2015, the Supreme Court ruled that the district court, which had dismissed Young v. UPS (PDF) on summary judgment, must proceed to trial on the question of whether intentional discrimination occurred when a pregnant UPS employee was treated less favorably than others in similar situations.

The Court ruled in Young that under the PDA an employee can make a prima facie case of discrimination by showing that she was denied accommodation, while other sick or disabled workers with a similar inability to work were allowed accommodation. The employer then must show that it had a legitimate non-discriminatory reason for the difference in treatment to avoid liability, and if it makes such a showing the plaintiff can rebut the showing through evidence of pretext.
Continue Reading Supreme Court Sends UPS Pregnancy Accommodation Case to Trial

In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces.  On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA).  The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics.   Non-union employers may be asking, “Why do I care?”  But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.  If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.

We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance.  The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions.  And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies.
Continue Reading NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA

Utah legislators made national headlines last night when they approved a bill providing antidiscrimination protections to LGBT employees coupled with protections for religious expression in the workplace. Titled the Utah Antidiscrimination and Religious Freedom Act (the “Act”), the bill received support from across Utah’s political spectrum, including the Church of Jesus Christ of Latter-Day Saints, the ACLU of Utah, and some of Utah’s leading LGBT advocacy groups. Utah Governor Gary Herbert has pledged to sign the bill into law later today.

The bill could serve as a template for other so-called “Red States” also seeking to balance concerns about religious liberty and expression with the need for workplace antidiscrimination protections for LGBT employees. Our objective in this article is to describe how the new law will impact Utah employers, their obligations under the Act, who is protected and who is exempt, and how the law’s religious belief protections for employees are meant to apply.
Continue Reading Utah Legislators Make History, Pass LGBT Antidiscrimination/Religious Freedom Bill

5352901The City of Seattle’s Minimum Wage Ordinance is set to take effect April 1, 2015.  When it does, Seattle will have the highest minimum wage in the nation, outpacing larger metropolises like San Francisco and New York City. Initially, Seattle workers will see a large increase above the State of Washington’s current $9.47 an hour minimum wage, up to either $10 or $11 an hour, depending on the size of the employer. Thereafter, the Seattle minimum wage will rise under a phased-in approach so that employee wages increase incrementally over the next three to seven years until the $15 per hour minimum is met by all employers. Once the $15 minimum is attained, wages will adjust with inflation. Below is a brief guide to the legislation and how it affects Seattle-area employers.

Draft Regulations Just Issued

On February 19, 2015, Seattle released long-awaited draft regulations interpreting the Ordinance, which will be discussed further below. Seattle is taking comments on the draft regulations through Friday, March 6, 2015. The text of the Ordinance and the draft regulations, the phased-in minimum wage schedules, and other information about the Ordinance can be found here: http://www.seattle.gov/civilrights/labor-standards/minimum-wage.Continue Reading Uncharted Territory: Seattle’s $15 Minimum Wage Ordinance