Why Many Executive Orders are Hot Air

On May 4, 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty.  Could this order allow discrimination against LGBTQ individuals and women, as feared?   Will this impact the workplace? No. Here is the line to remember: Existing laws cannot be overturned by Executive Orders.

Let’s take a look at this Order as a good example. The portion of the Order that pertains to Federal law is:

_Sec_. _4_. _Religious Liberty Guidance_. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Attorney General Jeff Sessions can issue guidance until the cows come home: The US Equal Employment Opportunity Commission (EEOC) does not answer to him.  The EEOC is an independent federal agency charged with enforcing federal laws against illegal discrimination in the workplace. Laws like the ADA, ADEA, FLSA, FMLA and Title VII are under the purview of the EEOC for enforcement and guidance. Congress may make changes to the laws and the courts can overrule, clarify or uphold the laws.

Executive Orders might be good optics but cannot impact the rule of federal. state or local law in the workplace.

Landmark decision: A federal appeals court rules Title VII bars sexual orientation bias in the workplace

“..[I]t is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex…” wrote Chief Circuit Judge Diane P. Wood of the 7th Circuit Appeals Court,  wiping away prior ambiguity surrounding Title VII protections based on sexual orientation. The 8-3 decision, held in a rare en banc hearing, arose out of Indiana professor Kimberly Hively’s lawsuit against her former employer Ivy Tech Community College. Hively claimed her denial of promotions, tenure and her eventual termination were because she is a lesbian.

The 7th Circuit completely bypassed the issue of Congressional intent of the word “sex” in Title VII. Judge Posner opined that the court was not the “obedient servants of the 88th Congress (1963-1965)” and the court was “[T]aking advantage of what the last half century has taught.”

This case matters beyond Illinois, Indiana and Wisconsin. This decision reflects what many state and local government have already done to protect LGBT workers, and similar cases will be heard in other circuits.  Most importantly, it is a best practice to implement policies, procedures and training that prohibits discrimination based on sexual orientation in the workplace.

We can help. Contact us at info@foleylawpractice.com or call 508.548.4888 to update your handbook and policies. Visit http://www.foleylawpractice.com for more resources.

 

The EEOC reaches out to young workers about religious discrimination.

Religious discrimination remains an issue in the American workplace. In fiscal year 2015, EEOC received 3,502 charges alleging discrimination on the basis of religion, with the top issues alleged being discharge, harassment, terms and conditions of employment, and reasonable accommodation.

The EEOC has issued a one page fact sheet “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.”

If you have young workers in your employ, check out the EEOC Fact sheet.

Questions? We can help. 508-548-4888 or info@foleylawpractice.com

 

 

 

 

 

Let Freedom Ring–Happy July 4th

May the sun in his course visit no land more free, more happy, more lovely, than this our own country! ~Daniel Webster We have exciting news at Foley & Foley, PC –Attorney Mikaela McDermott will join our team July 12, 2016. She brings years of experience in public and private sector employment and labor law. She will make our strong team even stronger. The Massachusetts legislature has been busy. Two bills that will impact employers are still in the works and may land on the Governor’s desk soon: Noncompete reform The Massachusetts House passed a comprehensive noncompete reform bill on June 29, 2016. Because the Senate passed a fairly similar measure last year, the bill is expected to be approved by the Senate before the session closes on July 31, 2016. Whether Governor Baker will sign the bill is unknown at this time. The major changes: By far the most significant change would introduce what is referred to as a “Garden Leave” clause requirement. Under the current version of the law, employers would have a choice of paying either 50% of the employee’s salary for the length of the non-compete or “other mutually-agreed upon consideration… .” Noncompete period is limited to 12 months in duration unless the employee has breached a fiduciary duty or taken property, in which case 24 months is allowed; Noncompetes are not allowed for several categories of workers: Employees terminated for cause or laid off; Non-exempt (OT eligible) employees; Ages 18 or younger; and Undergraduate or graduate interns. Noncompete must include a right to consult with counsel before signing, and must be provided to the employee by a formal offer or 10 business days before the start date, whichever is earlier. Any noncompete entered during employment must be supported by additional consideration beyond continued employment. A court may not strike out unlawful provisions of a noncompete in violation of this law–the entire agreement will be invalid, which is not the practice now. Should this bill become law many current noncompetes in Massachusetts will need to be rewritten. Pay Equity The Senate Bill Proposal – 2119 “An Act to Establish Pay Equity” is gaining momentum. Attorney Mike Foley recently presented on this topic at a Government Affairs Committee of the New Bedford Chamber of Commerce – more about his presentation Here is the bottom line: For decades, it has been illegal in the United States for an employer to discriminate against women, including discrimination against women in terms of compensation. In Massachusetts, employees who believe that they are underpaid on the basis of their gender currently have recourse to four statutes when seeking relief: The Federal Equal Pay Act (FEPA); Title VII of the Civil Rights Act of 1964 (Title VII); The Massachusetts Equal Pay Act (MEPA); and Chapter 151B of the General Laws of Massachusetts (151B). Depending upon your perspective, here are the highlights or low lights regarding the pending pay equity law: Significantly changes the definition of “comparable work” under MEPA. That critical phrase under the proposed law “shall solely mean work that is substantially similar that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.. .” The key question is how will this impact merit pay, commission pay and any pay system that is not seniority driven. It would become unlawful for an employer to seek the salary history of any prospective employee. Employers could not prevent employees from disclosing their wages, benefits or other compensation or inquiring about or discussing the wages of any other employee. There is more to this far ranging bill and we will, of course, keep you informed. As always, please contact us with any concerns or questions. We can help.

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Understanding the Zone in the Workplace

-Attorney Timothy G. Kenneally

Retaliation protection in the workplace is defined by the “zone of interests” standard. If an employee falls within the interests sought to be protected under the law (Title VII) that employee is shielded against retaliatory adverse employment action.

A recent decision by the Massachusetts Commission Against Discrimination (the “Commission”) in Schillace v. Enos Home Energy Therapy illustrates how the zone works. Schillace charge Enos with terminating her employment because her fiancé, who had also worked for Enos, had previously charged the company with retaliation.  The Commission concluded that the fiancé relationship was “a close personal association” for Schillace, and therefore she was protected against any adverse employment action motived by or related to her fiancé’s claim.  The Commission concluded that Schillace was entitled to back pay and damages for emotional distress due to the wrongful termination of her employment. In other words, she was in the zone of protection.

How should employers properly define the zone and react to it?  For starters, employers must acknowledge that the focus on a zone of interests, in practice, creates a unique type of protection for each employee.  This personalized zone is defined by any and all of the employee’s known close personal associations with members of protected classes. Close personal associations have been defined to include blood relatives, relatives by marriage, adoptive relations, and of course, a fiancé.  However, we hesitate to suggest that a Court or the Commission will not define the group more broadly to include other persons closely tied to the employee.

Before taking adverse employment action, employers must consider all of the employee’s known close personal associations.  Do any of those persons fall within protected classes?  Can the adverse action be viewed as retaliation related to a person associated with the employee?  Only through a measured and careful analysis, can an employer minimize its risk of running afoul of the ZONE.

If you have any questions about the zone of interests, feel free to contact me at tim@foleylawpractice.com.