Preventing National Origin Discrimination Claims: Rely on policies not the Luck of the Irish

America – the world’s melting pot!  However, even though the United States represents the most diverse population in the world, those populations have not always blended so well together.  While many Americans will hoist a pint of green beer this month and engage in the “Wearing O’ the Green,” -whether by birthright or adoption – our Irish-American ancestors, among others, were not always so well celebrated.

Despite the fact that compared to most countries in the world America is clearly still the land of opportunity for all, lingering biases do still exist. Regardless of any individual’s personal opinions or beliefs, the workplace is no place for the expression of such biases.

While discrimination laws are not intended to eliminate all camaraderie and fun from the workplace, as a general rule, if the “butt” of a joke or comment relies upon individual’s national origin (or any other protected classification) it’s probably not appropriate in the workplace. While an isolated comment here or there does not amount to unlawful discrimination, a regular pattern or practice of comments directed at an individual based upon their national origin does.

When employees feel ridiculed or demeaned based upon personal characteristics such as their national origin there will usually be a poor workplace environment.  This, in turn, leads to poor morale, disciplinary and attendance problems, and high turnover – all costly for an employer. For employers to have the “luck of the Irish” and promote workplace harmony, it is important to ensure publication of your nondiscrimination and harassment policies and the provision of regular employee education and training on the subject. Doing so not only promotes a positive work environment, it also provides a potential defense for employers in those instances where an employee, despite the employer’s best efforts and education, chooses to engage in inappropriate shenanigans.

Kacey (Cavanagh) Coleman

Kacey is Of Counsel with Sturgill, Turner, Barker & Moloney, PLLC and focuses her practice on employment law, education law and governmental liability defense. Kacey previously served as general counsel for a major state university and is well-versed on the areas of the law that affect schools, colleges and universities, such as teacher performance, hiring and dismissal, student discipline, the Civil Rights Act, Title IX compliance and the Americans with Disabilities Act (ADA). Kacey also defends employers in all aspects of employment related litigation, handling claims of sexual harassment, race, age and gender discrimination and violations of wage and hour laws and the Family and Medical Leave Act (FMLA). She also represents a variety of public entities, and is knowledgeable about issues unique to the public sector including whistleblower claims, conflicts of interest, constitutional issues (state and federal),  open records and open meetings laws, and immunity for government agencies and officials.

When Love Isn’t in the Air

It’s Valentine’s Day!  Yes, it’s that day when “love is in the air,” – and profit on the minds of flower, jewelry and card companies.  All kidding aside, Valentine’s Day does provide a suitable segue for employment lawyers to remind employers of the problems caused by claims and controversies involving issues of sexual harassment.

Of course, issues arising from sexual harassment (which is a form of gender discrimination) are rarely associated with issues involving love, dating, or other activities we associate with voluntary relationships.  Instead, sexual harassment involves those circumstances where an employee is not open to the advances, overtures or sexually motivated behavior of a supervisor or a coworker.  While sexual harassment often involves an abuse of power by someone holding a power differential over the victim, sexual harassment occurs when an employee is subject to unwelcome sexual conduct or comments whether by a supervisor, a co-worker, or even a customer or other third party with whom your company does business.  This can occur in multiple formats, including, but not limited to, same sex harassment.  Regardless of the source or format, an employer has a duty to investigate complaints of sexual harassment and, if needed, to clip the misguided Cupid’s wings.

If you think Valentine’s Day is a costly holiday, it pales in comparison to the potential costs (productivity, time and money) to an employer of a sexual harassment claim.  Employers should be vigilant in educating and training their work force about the perils of sexual harassment, (including the line between acceptable and unacceptable conduct) and recognize the loss of productivity which occurs when these issues permeate the work place. The law requires that any complaints involving unwelcome conduct constituting harassment must be investigated and resolved promptly.  Allowing these issues to linger is a sure way to lose the love of your employees – as well as business, profits and workplace morale. Valentine’s Day is a good reminder to make sure your workplace policies and procedures are up to managing the slings and arrows of love’s misfortune.

This post was jointly authored by Stephen L. Barker and Kacey Coleman.

SLB

Steve, a certified mediator, has been a trial lawyer for more than 35 years and focuses his practice on employment and education law. Steve defends and counsels employers in all aspects of the employment relationship and has knowledge of issues affecting higher education institutions stemming from his three decades as counsel to a number of colleges and universities and his involvement with the National Association of College and University Attorneys. Steve was named the 2011 recipient of the Henry T. Duncan Award, the highest honor bestowed by the Fayette County Bar Association to recognize annually a member of the bar whose integrity, leadership and professional conduct exemplifies the high ethical and professional standards that benefit the community. He serves as Kentucky’s only representative member in the Employment Law Alliance—a network of more than 3,000 lawyers that provides labor and employment law expertise in all 50 states and more than 130 countries—and he was recently recognized by Best Lawyers as Lexington’s 2011 “Lawyer of the Year” in the area of labor and employment law.

Kacey Coleman

Kacey is Of Counsel with Sturgill, Turner, Barker & Moloney, PLLC and focuses her practice on employment law, education law and governmental liability defense. Kacey previously served as general counsel for a major state university and is well-versed on the areas of the law that affect schools, colleges and universities, such as teacher performance, hiring and dismissal, student discipline, the Civil Rights Act, Title IX compliance and the Americans with Disabilities Act (ADA). Kacey also defends employers in all aspects of employment related litigation, handling claims of sexual harassment, race, age and gender discrimination and violations of wage and hour laws and the Family and Medical Leave Act (FMLA). She also represents a variety of public entities, and is knowledgeable about issues unique to the public sector including whistleblower claims, conflicts of interest, constitutional issues (state and federal),  open records and open meetings laws, and immunity for government agencies and officials.

Sandifer v. U.S. Steel Corporation: The US Supreme Court defines “changing clothes”

In Sandifer v. U.S. Steel Corporation, the Supreme Court of the United States issued a new decision regarding when employers must compensate employees for “donning and doffing” work clothes under the federal Fair Labor Standards Act (“FLSA”).  Specifically at issue was the amount of time spent by steelworkers putting on and taking off several items of protective work gear – e.g., flame-retardant pants and jackets, work gloves, steel-toed boots, hard hats, safety glasses, earplugs, etc.  Time spent changing into and out of clothes for work is generally compensable if it is an “integral and indispensable part of the principal activities” of the employee.  The protective work gear at issue in Sandifer meets the “integral and indispensable” test because that gear is necessary for steelworkers to do their jobs safely.  However, the FLSA has an exception that permits employers to not compensate time spent “changing clothes” if negotiated as part of a collective bargaining agreement.  U.S. Steel had a collective bargaining agreement with that exception.

The dispute before the Supreme Court was whether the “changing clothes” exception applies to work gear that’s primarily purpose was for “protection” instead of “comfort.”  The Supreme Court rejected this distinction because clothes ordinarily do both.  Broadly speaking, most of the protective gear were kinds of clothes (pants, jackets, boots, hats, gloves,), which satisfied the Supreme Court.  However, some of the protective gear would not ordinarily be considered clothes, such as work glasses and earplugs.  For these non-clothes items, the Supreme Court evaluated the changing process “on the whole” to determine how to treat the time spent putting on and taking off those items.  If the changing process involves mostly clothes, the entire period qualifies for the “changing clothes” exception under the FLSA.  If the changing process involves mostly non-clothes items, the entire period does not qualify for the “changing clothes” exception.

The Sandifer decision provides new guidance for those employers with collective bargaining agreements that take advantage of the “changing clothes” FLSA exception.  For all other employers, the general rule remains unchanged requiring compensation for time spent changing into and out of clothes for work if it is an “integral and indispensable part of the principal activities” of the employee.

Derrick T. Wright

Derrick is an associate at Sturgill, Turner, Barker & Moloney, PLLC  and concentrates his practice on public entity and government defense, constitutional law and civil rights, as well as employment and labor law. He regularly defends local governments and officials against claims involving Section 1983, Title VII, the ADA, the ADEA, the FLSA , the Kentucky Civil Rights Act and the Kentucky Wage and Hour Act.

The ENDA debate begins again

Late yesterday afternoon, the U.S. Senate voted to move forward on discussion and debate on the Employment Non-Discrimination Act.  The Employment Non-Discrimination Act, ENDA, would forbid employers with more than fifteen employees from discriminating on the basis of sexual orientation or gender entity.  This same bill was up for debate in the Senate and came to a full vote in 1996 at which time it lost by one vote.

If ENDA becomes law, sexual orientation and gender identity will be added to the list of protected classes currently protected by Title VII. ENDA would also maintain the current religious exemptions set out in Title VII. Although a large number of Americans believe employers are already prohibited by law from discrimination based on sexual orientation or gender identity, only 21 states and the District of Columbia have, in fact, protected those classes.  In addition, a number of local governments and municipalities, both in Kentucky and across the nation, have chosen to protect those classes of people in one way or another.  It is unclear whether this bill will pass the Senate and move to the House for consideration, but if it does the impact will be significant.

 

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, immigration law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.

What you need to know: The end of the government shutdown and H1B visa applications

As recently discussed, the federal government shutdown affected the processing of H1B visas, particularly the LCA (Labor Condition Application) portion of the visa application.  Since the government shutdown ended on October 17, 2013, things have slowly been getting back to normal.  On Friday, October 18, 2013, it was been reported that the Department of Labor is once again processing LCAs.  Thus, processing for any H1B visa application filed prior to or during the government shutdown can now be completed. Additionally, USCIS has announced that it will consider the government shutdown an extraordinary excuse for failing to make a timely filing for H-1B, H-2A, or H-2B extensions or status changes.

Looking forward, the opening date for filing an H1B visa for the fiscal year of 2015 is April 1, 2014.  Due to the large number of visa applications in recent years, employers may want to begin preparing now.

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, immigration law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.

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