At a press conference this morning, Georgia Governor Nathan Deal announced that he will veto HB 757, the “Free Exercise Protection Act” that Georgia’s legislature passed less than two weeks ago. Deal has faced intense pressure from Georgia’s business community, which warned of the severe economic consequences that would follow passage of a bill that appears to permit LGBT discrimination. Deal proclaimed that “Georgia is a welcoming state” that does not need to discriminate against anyone to protect religious liberty.
The Supreme Court ruled today that Plaintiffs’ use of average donning and doffing times was proper and sufficient to affirm a $5.8 million judgment against Tyson Foods. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016). Plaintiffs (employees in a pork processing plant in Iowa) relied at trial on an industrial relations expert’s calculations of the average time it took for employees to don and doff required protective gear. Tyson argued basing individual damages on the expert’s average failed to consider differences in the composition of the gear that may have altered the time each spent donning and doffing.
The Court disagreed. The employer’s failure to keep adequate time records created an “evidentiary gap” and the Plaintiffs had to fill that gap through the expert’s study. Tyson could have argued the representative evidence was statistically inadequate or based on implausible assumptions (under Daubert) but it did not challenge the methodology. The Court distinguished Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), where the Court ruled the individual class members could not rely on the experiences of other workers in different stores to establish discrimination against the class members generally. Here, Plaintiffs worked in the same Tyson facility, did similar work, and were paid under the same policy. Thus, the Court found, each class member could have introduced the expert’s study in his/her individual suit. For those reasons, the Court held that the representative evidence was a permissible means of showing individual hours worked.
Plaintiffs’ attorneys will now undoubtedly argue that the Court is signaling some backtracking from Dukes. The workers are similarly situated, for class or collective action purposes, in part because they are subject to the same employer policy. But crucial here is also the fact that there were no relevant individualized records for the Court’s use. “Trial by Formula” might not be dead, but the formula must be proper.
On March 4, 2016, OSHA issued new procedures to deal with reported injuries and illnesses. These new procedures deserve attention from employers facing a reportable injury or illness. Under the new procedures, OSHA will ask employers to conduct and provide a detailed internal investigation. Despite a new “safe harbor” which purportedly stops OSHA from using the employer’s investigation report to cite violations, employers need to be aware of the pitfalls.
On Wednesday, the Georgia legislature passed the “Free Exercise Protection Act” (HB 757), which combines aspects of a proposed Pastor Protection Act and Religious Freedom Restoration Act. Many Atlanta-based companies and industry groups oppose the bill and have urged Governor Nathan Deal to veto it.
Sponsors claim the bill is necessary to protect religious freedom and “faith based organizations.” Opponents, however, argue the First Amendment already provides the necessary protections, and that the bill opens the door to discrimination in social services and employment against LGBT people. Although the bill states it shall not permit discrimination “on any grounds prohibited by federal or state law,” opponents claim the bill could undermine local non-discrimination ordinances that protect LGBT people, will create an “Indiana-style backlash” from corporations and organizations, and will negatively impact the state’s tourism and convention industries. Regardless of the bill’s legal effect if signed by the Governor, the negative media attention many hoped to avoid has already begun.
By Bill Wright
A federal trial court in California rejected an employer’s attempt to compel arbitration over an employee claim; the employer didn’t keep its own policy exceptions in mind. In 2009, the employer’s job application provided that any significant change in the terms and conditions of employment had to be approved by the Director of Human Resources. In 2013, the employer rolled out an arbitration agreement, signed by the Vice President of Human Resources. To cut a long story short, the Court rejected the employer’s attempt to rely on the arbitration agreement, because the arbitration agreement was a significant change in the terms and conditions of employment and there was no evidence that the Director of Human Resources approved it. Of course, there might not still be a Director of Human Resources. Smith v. H.F.D. No. 55, Inc., No. 2:15-cv-01293-KJM-KJN (E.D. CA. March 8, 2016).
We need to watch out for those little restrictions we place on our own ability to contract with employees.
By Bill Wright
California’s new regulations concerning employment discrimination come into effect soon. Briefly, they require beefy policies and supervisor training concerning reporting discrimination and harassment. Naturally, they include protection for sexual orientation and gender identity. General “abusive conduct” is also covered.
Also of note, however, is how California is dealing with the application of its regulations to employers with employees outside California. In part of the definition of “employer,” the regulations say: “[E]mployees located outside of California are not themselves covered by the protections of the Act if the wrongful conduct did not occur in California and it was not ratified by decision makers or participants located in California.” Translation: if you have HR or managers in California who are responsible for employment actions occurring elsewhere, agency action and lawsuits based on those employment actions might arise in California, under California law. Be prepared!
By Joe Hunt
The EEOC filed two lawsuits yesterday alleging – for the first time – that discrimination on the basis of sexual orientation violates Title VII. As you know, sexual orientation is not expressly protected under Title VII, so these suits mark the EEOC’s expansive interpretation of its statutory authority.
One EEOC complaint, filed in Pennsylvania federal court, alleges discrimination against a male employee because of his sexual orientation, and the second complaint, filed in Maryland federal court, alleges discrimination against a female employee because of her sexual orientation. Each complaint alleges the relevant employer subjected the employee to homophobic epithets and other offensive remarks about the employee’s sexual orientation.
The EEOC’s underlying rationale for these lawsuits is that an employer’s harassing conduct of an employee based on his or her sexual orientation is inherently discrimination based on sex. The EEOC argues that the employer’s unlawful conduct is motivated by an employee’s sex by virtue of his or her non-compliance with sex stereotypes or heterosexually defined gender norms. The Pennsylvania complaint can be found here and the Maryland complaint here.