Employment Law News: A Recap Of Recent, Notable Developments

Monday, October 1, 2007 - 00:00

Over the last several months, there have been several important employment law developments. The following are general summaries of some of these developments. Readers are advised to contact employment counsel for a more comprehensive review of the topics discussed below.

Are You Stereotyping Caregivers?

The EEOC recently issued an enforcement guidance document regarding unlawful disparate treatment of workers with caregiving responsibilities. The guidance document was issued to assist investigators, employees, and employers in assessing whether a particular employment decision affecting a working parent or caregiver might unlawfully discriminate on the basis of characteristics protected under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990. The guidelines do not create any new protected categories, but rather illustrate circumstances in which stereotyping or other forms of differential treatment of employees with caregiving responsibilities may violate federal law.

The document provides guidance regarding issues such as sex-based stereotyping. For example, the EEOC cautions that women with caregiving responsibilities may be perceived as more committed to caregiving than to their jobs and as less competent than other workers, regardless of how their caregiving responsibilities actually impact their work, while male caregivers may face the mirror image stereotype: that men are poorly suited to caregiving and therefore should not receive parental leave or other benefits routinely afforded their female counterparts. Actions based on these stereotypes violate the discrimination laws.

In all, the guidance document provides twenty specific hypothetical examples of the types of stereotyping and discrimination relating to caregiving responsibilities that the EEOC will consider to be violations of federal law. The examples include refusing to grant a man a part-time position because part-time slots are reserved for new mothers, denying a promotion to a woman because the new job has long hours and the decision maker believes that it would keep her away from her children too much, asking female job candidates how many children they have or if they plan on having children in the near future, and granting more leave to white caregivers than minority caregivers.

The full text of the new guidelines may be found at: www.eeoc.gov/pol-icy/docs/ caregiving.html.

Nursing Mothers Get A Break

On August 22, 2007, New York Governor Eliot Spitzer signed legislation that requires New York employers to (a) provide reasonable unpaid break time (but all breaks under twenty minutes must be paid), or permit an employee to use paid break time or meal time, each day to allow an employee to express breast milk for her nursing child; and (b) make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. Employers are also prohibited from discriminating against employees for exercising their rights under the statute. In passing the new law, New York has joined a growing number of states, including California, Connecticut, Georgia, Illinois, Minnesota, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, and Texas, by providing protection for working mothers who are nursing.

The other state statutes regarding expressing milk at work are substantially similar to New York's new law. However, under the California, Connecticut, New Mexico, and Rhode Island statutes, employers are required to provide a private space for the expression of milk, as opposed to only making a reasonable effort to provide a private space. As yet, the New York legislature has not provided any details regarding what constitutes "reasonable efforts," and there is no case law from other "reasonable effort" jurisdictions to serve as guidance.

Time To Donate Blood

A recent amendment to the NY Labor Law requires all New York employers with at least twenty employees to grant at least three hours of leave in any twelve-month period to any employee who seeks to donate blood. The new law, which takes effect on December 13, 2007, also prohibits retaliation against an employee who requests leave to donate blood. Illinois already has a similar law that requires employers of more than fifty employees to grant up to one hour of paid leave every fifty-six days (the American Red Cross's minimum number of days between blood donations) for employees to donate blood.

Married To The Military

New York State recently passed legislation providing leave rights to spouses of members of the United States armed forces and National Guard. Specifically, employers with more than twenty employees must provide "[t]he spouse of a member of the armed forces of the United States, national guard or reserves who has been deployed during a period of military conflict, to a combat theater or combat zone of operations" an unpaid leave of up to ten days. The term "period of military conflict" is defined as a period of war declared by the United States Congress or when a member of the reserves is ordered to active duty.

New York joins Illinois, Nebraska, Indiana, Maine, and Minnesota, which each have laws requiring employers to grant a period of leave to certain family members of military personnel called to active duty. Such laws vary in their requirements. For example, the Illinois law provides - subject to certain statutory conditions - that employers must grant the spouse or parent of a person called to military service lasting longer than thirty days an unpaid leave of up to fifteen days, or thirty days for employers of fifty or more.

California's New Sexual Harassment Training Compliance Requirements

The California Fair Employment and Housing Commission (the "Commission") has issued new regulations, effective August 17, 2007, which will help California employers comply with their sexual harassment training requirements. Effective January 1, 2006, all California employers with fifty or more employees must provide at least two hours of sexual harassment training to their managers.

The new regulations provide guidance regarding the content and format of the required training, who may give the training, and how compliance may be tracked.

Content : The regulations contain eleven elements that must be included in the training sessions, including:

The types of conduct that constitute sexual harassment;

Strategies to prevent sexual harassment in the workplace;

The employer's obligation to conduct an effective workplace investigation of a harassment complaint; and

Remedies available for sexual harassment.

Employers are also required to give each supervisor a copy of their anti-harassment policy and require each supervisor to read and acknowledge receipt of that policy.

Format: The regulations allow for (i) in-person classroom instruction, (ii) individualized, interactive, computer-based training, which must provide access to a trainer who shall answer any questions within two business days, (iii) an Internet-based "webinar" delivered in real-time and attended by managers who actively participate and have the opportunity to ask questions to the trainer, or (iv) other "effective interactive training" and education, which may include audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training. Under any format, the instruction must include questions that assess the participant's understanding of the material and hypothetical scenarios with discussion questions to keep the participants engaged in the training.

The new regulations also clarify that trainers must be able to train participants with regard to harassment law, anti-harassment policies, complaint procedures and investigations, and retaliation law. Trainers must be (i) an employment attorney admitted to the bar of any state for at least two years, (ii) a human resources professional or harassment prevention consultant with a minimum of two years practical experience in designing or conducting sexual harassment prevention training, responding to or investigating sexual harassment complaints, or advising employers regarding discrimination and retaliation, or (iii) professors or instructors in law schools, colleges or universities with a post-graduate degree and at least two years experience teaching about employment law.

For a full copy of the regulations visit www.fehc.ca.gov/act/pdf/11-14-06_reg. pdf.

The State Of Release Agreements In California

An appellate court in California recently held that requiring an employee to sign a general release of "any and all actions, causes of action " as a condition of future employment is a wrongful act that may give rise to a claim for tortious interference. The plaintiff argued, and the court agreed, that such language would release the company from its obligations under Labor Code section 2802, which requires companies to indemnify their employees for losses incurred in the discharge of their duties, and California law prohibits the wavier of such rights.

The California Supreme Court has since accepted review of this case to answer the question, "Does a contract provision releasing 'any and all' claims encompass nonwaivable statutory protections, such as the employee indemnity protection of Labor Code section 2802?"(Interestingly, the case will also answer, "To what extent does Business and Professions Code section 16600 prohibit employee noncompetition agreements?") Thus, at this time, the appellate ruling is deemed to be "not citable - superseded by grant of review." Nevertheless, it may be advantageous to add language to California release agreements (and even release agreements in other states) specifically providing that the release does not extend to those rights that cannot be waived as a matter of law.

These summaries are provided for informational purposes only and are not exhaustive. They should not be considered to be legal advice. Accordingly, you should consult an attorney with any questions regarding any of the issues referenced in this article.

The authors are attorneys in the New York firm of Davis & Gilbert LLP. Gregg A. Gilman is a Partner in and Co-Chair of the Employment Practices Group. Gregg Brochin is an Associate in the Employment Practices Group. The authors gratefully acknowledge the invaluable assistance of their colleague, Corey Biller, in the preparation of this article.

Please email the authors at ggilman@dglaw.com or gbrochin@dglaw.com with questions about this article.