Key Provisions of “Colorado Overtime and Minimum Pay Standards Order (COMPS Order) # 36” (US)

COMPS Order 36 (“Order 36”) is scheduled to go into effect March 16, 2020 and makes major changes to wage regulations affecting Colorado employers. Order 36 applies both to hourly and salaried employees and requires significant compliance adjustments for employers.

The key changes of Order 36 are summarized below. Colorado employers should carefully review Order 36 to verify coverage and closely evaluate whether there is any the need to modify their practices along with their policies and handbooks, postings and record keeping requirements. Ideally, this assessment should be done in a privileged setting with input from counsel. Continue Reading

Employer Update: DHS Issues New Form I-9 with Mandatory Use by May 1, 2020 (US)

United States Citizenship and Immigration Services (“USCIS”) recently issued a new version of its Form I-9, Employment Eligibility Verification, which is used to verify the employment authorization and identity for all employees in the United States.

Although employers may now begin to use the new version, which has a 10/21/2019 version date on the bottom, they will be required to use it beginning on May 1, 2020. Failure to use the proper Form I-9 version can result in significant penalties. Continue Reading

A little knowledge is a dangerous thing – or when ignorance is not bliss (UK)

Here’s a question. Employee Mr U is accused of sexually assaulting A. She goes to the Police about it and simultaneously U’s employer starts an investigation into his conduct. The investigator J concludes that there is a case to answer, based in part on A having gone to the Police. On the back of J’s report, once issued, a disciplinary process is convened and U is summarily dismissed by a separate manager, F. Sounds all fair enough so far, yes?

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NMW enforcement finally heeds user concerns – whatever next? (UK)

Following the Government’s review into the enforcement of the National Minimum Wage Regulations 2015, it has announced a number of changes which are to be introduced in April of this year. Whilst the headlines focus on the reintroduction of naming and shaming of those who pay below the NMW, other aspects of the changes are in our view of far more significance to employers. Indeed, it would appear this is one of those rare occasions where government has listened to the concerns of employers and, with uncustomary swiftness, sought to implement positive, proactive change.

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Backdating disability status – sometimes easier than it sounds (UK)

As soon as your employee announces that he is suffering from a mental health condition, there is a temptation on the part of both employer and employee to assume that he is thereby necessarily disabled under the Equality Act and so that with immediate effect he is entitled to all the protections available under it. However, even if you do not dispute the fact of his condition, is he right? In some parts yes, but in others (says the EAT in Tennant v Tesco Stores this month), potentially not.

In the usual course, an employee will count as disabled when his impairment is “long term”. That means in broad terms that it must either: (a) have lasted 12 months; or (b) be expected to last 12 months.

In Tennant, the EAT considered the position of someone whose condition had indeed lasted 12 months, but where there was no evidence that it had been expected to do so. The treatment which Tennant alleged to be discriminatory had taken place during that 12 months, so the question was whether she could be discriminated against on disability grounds during that “waiting period”. In effect, was the fact that she had shown herself disabled at the end of that period retroactive in its effect?

On the facts, no. Because there had been no evidence on which the Tribunal could find that her condition could reasonably have been expected to last a year, the only basis for the conclusion that she was disabled had to be under (a) above, i.e. that the impairment had actually lasted 12 months. Until it had done so, she was not disabled, and so no protection against direct discrimination or any obligation to make reasonable adjustments arose.

Lessons for employers

  • However, and this was not part of Tennant, that reasoning would not apply to a victimisation claim. Under Section 27 Equality Act, that protection arises where the employee does a “protected act”. That includes “making an allegation (whether or not express) that [the employer] has contravened this Act”. He might raise his illness in the context of defending allegations of poor performance or misconduct, for example, and argue that by picking him up on those things, his employer was discriminating against him, and/or had failed to make the adjustments necessary for him to meet the necessary standard.
  • It is well established that such an allegation is a protected act even if it is objectively incorrect, unless it is made in bad faith. “Bad faith” in the circumstances would mean that the employee knew at the time he made that complaint that he was not disabled, and/or that his illness actually had no bearing on his poor conduct or performance. Especially where mental health issues are concerned, proving one of those is a very high hurdle for the employer. The condition makes it even harder than usual for it to get inside the employee’s head and expose his thought processes convincingly enough to the Employment Tribunal. In addition, it faces a real risk of compounding any injury to feelings by the assertion implicit in defending a victimisation claim on that basis, i.e. that the employee was lying. Not just confused or wrong, that is, but actively lying. Therefore an employee whose disclosure of a putative disability is accompanied or followed by an allegation that the employer is in breach of some Equality Act duty connected with it, can (despite Tennant) gain a level of protection against detriment without waiting until he becomes actually legally disabled.
  • Would the employee also be protected against disability-related harassment under Section 26 during that waiting period, or is it open season until the 12 months are up? There is no need for a harassment claimant to possess the particular personal characteristic protected under Section 26. Therefore if an employee were mocked or excluded by his management or peers because they believed him to have a serious mental health issue, then that would be actionable even if it had not yet lasted long enough to become a disability or, in fact, never became so at all.
  • What about his position under Section 15 Equality Act, then? Can he also make a claim in respect of unfavourable treatment during that waiting period because of something arising in consequence of his disability (for example, the pre-emptive strike on performance or conduct management procedures mentioned above)? No – Section 15 requires the “something” to arise from the disability, so unless and until he is properly disabled at law, that “something” doesn’t qualify.
  • So Tennant is a very sensible outcome on the facts, but beware – it does not in any way give carte blanche for the unfavourable treatment of an employee because he has said he is unwell but the condition has not yet lasted 12 months.

State Law Round Up: Philadelphia’s Salary History Ban Upheld and More! (US)

Philadelphia’s Salary History Ban Upheld

On February 6, 2020, the U.S. Court of Appeals for the Third Circuit ruled in favor of the City of Philadelphia, upholding the constitutionality of the City’s Wage Equity Ordinance under the First Amendment. The City may now enforce the Ordinance and prohibit employers from asking applicants about their salary history.

As one of the first jurisdictions to enact such a law, Mayor Kenney signed the Ordinance into law on January 23, 2017. The Ordinance made it unlawful for any business that employs individuals in the City of Philadelphia to ask applicants about their wage history (“Inquiry Provision”) or to rely on an applicants’ wage history to determine wages for the job for which the applicant applied (“Reliance Provision”). Continue Reading

More Handbook Guidance: NLRB Shows When It Will Uphold Policies Regarding Confidentiality, Cell Phones, and Email Usage

NLRB LogoSince the National Labor Relations Board issued the precedent-changing Boeing Company decision in late 2017, the Board has continuously illustrated when employment policies will survive scrutiny under the National Labor Relations Act.  Recently, in Argos USA LLC, the Board clarified its position about three common types of employment agreements or policies, i.e., those concerning confidentiality, use of an employer’s e-mail system, and the possession of cell phones in certain workplace areas.

As background, the Board has recognized for decades that employment policies may violate the NLRA if they limit or prohibit ‘protected concerted activities,’ i.e., efforts by employees to improve group working conditions (including, but not limited to, union activities).  A policy can violate the NLRA in this regard even if it is ‘facially neutral’ and does not explicitly prohibit union activities or other protected concerted activities.  In Boeing, the Board announced a new standard for determining when such a ‘facially neutral’ employment policy will violate the NLRA (as we previously discussed here).  Since Boeing, the Board has clarified how that new standard will apply to certain common types of policies, including media contact policies (discussed here) and policies addressing workplace investigations. Continue Reading

Update: Obesity as a Disability in the Ninth Circuit (US)

Courthouse close with Justice inscribedAs we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”).

The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the company unlawfully refused to hire him in violation of the WLAD because of his obesity.  Six years later, a federal district court granted summary judgment in favor of the railway company, holding that because the applicant could not prove that his obesity was caused by a physiological condition or disorder or that the employer perceived his obesity as stemming from such a source, his obesity discrimination claim under state law could not proceed.  The applicant appealed, and the Ninth Circuit Court of Appeals  concluded that whether obesity unrelated to any physiological condition or disease is a disability was an unresolved issue under state law, and that rather than decide the issue, it certified the question to the Washington Supreme Court to decide.  After considering the plain language of the WLAD, along with publications from the medical community, the Washington Supreme Court held last year that “obesity always qualifies as an impairment” under the plain language of the WLAD, and therefore, it is unlawful for employers in Washington to discriminate against otherwise qualified applicants because the employer perceives them to be obese.    Continue Reading

Mental health and employers (UK)

Mental health is clearly an important concern for all employers who wish to promote the wellbeing of their employees. UK employers are now facing costs of up to £45 billion per year because of their employees’ poor mental health, making this an important area for investment. This figure was revealed in the “Mental health and employers: Refreshing the case for investment” report published earlier this year by Deloitte and mental health charity Mind.

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Pandemic or Pandemonium? Employers Brace for the Coronavirus (US)

You can’t escape the panic spreading through mass and social media regarding the 2020 Wuhan Novel Coronavirus, a virus that has resulted in fatalities in China and infected thousands worldwide. Symptoms mimic that of influenza (fever, cough), but can include difficulty breathing, pneumonia, kidney failure, and death in severe cases. Despite the panic, there are only a handful of confirmed cases in the U.S., but this has done little to quell paranoia. With fear of the bug’s spread, many employers are bracing themselves the possibility of employee absences, either due to illness or fear of contagion in congested workplaces. Employers and human resources professionals can immunize themselves against some risk by implementing steps in advance. Continue Reading