Ripped From the Headlines: 2017 Employment Law Issues
What's been bugging in-house employment counsel in 2017?
December 07, 2017 at 05:32 PM
5 minute read
What a year 2017 was for employment law, with sexual harassment, LGBTQ rights and medical marijuana grabbing the headlines. And five of the top employment law bloggers on Thursday discussed what those headlines mean for employers.
While noting the high profile of sexual harassment cases recently, Robin Shea advised employers “not to freak out.” Shea is a partner at Constangy, Brooks, Smith & Prophete in Winston-Salem, North Carolina, and author of the Employment & Labor Insider blog,
She noted that the cases are still evolving and creating fallout, with U.S. Sen. Al Franken agreeing to resign on Thursday over sexual harassment allegations. Also this week, a bipartisan group in Congress introduced bills in both the House and Senate that would end the ability of companies to force sexual harassment cases into arbitration and secret settlements.
Shea said the recent headlines have focused on high-profile people who are both the perpetrators and the victims of harassment. “It's not an epidemic,” she said. “Don't assume harassment in this scale would happen in a normal workplace.”
But she also warned employers to be ready for a rash of harassment complaints. She said they should take an opportunity to review their harassment policies; conduct training that includes employees, executives and boards of directors; investigate all complaints, even ones that may be years old; and ensure due process for the accused.
On sexual orientation, Jon Hyman, who writes the Ohio Employer's Law blog, said the Equal Employment Opportunity Commission has taken the stance that it is illegal to discriminate based on sexual orientation or gender identity under Title VII of the Civil Rights Act. “And some courts have started to pick it up as well,” added Hyman, a partner at Meyers, Roman, Friedberg & Lewis in Cleveland.
In Hyman's opinion, “at some point, LBGTQ discrimination will become universally illegal in the U.S. So I say, what side of history do you want to be on when the issue is finally resolved correctly?”
On another point, Hyman discussed a recent memo from the general counsel of the National Labor Relations Board that, in effect, put on hold worker-friendly changes in labor law that were made under the Obama administration. He said the biggest area to be affected by the memo is probably protected concerted activity, an area the Obama administration had broadened to protect workers' speech and social media posts.
Hyman said companies need to explain to employees that what they post online can affect their jobs.
“The central principle of what social media has done is the breaking down of the wall between one's personal life and one's private life,” he said. “That wall doesn't exist any more. And most of your employees don't understand that.”
Eric Meyer, who writes The Employer Handbook Blog, reinforced that point, saying not just online posts are important. “What you do on your free time can impact your workplace,” he said.
Meyer, a partner at Dilworth Paxson in Philadelphia, cited how at least two men were fired from separate companies after published photos showed them participating in a white supremacist march earlier this year. And a woman was fired after a published photo showed her riding a bike and “flipping the bird” to President Donald Trump's motorcade.
Dan Schwartz, author of the Connecticut Employment Law Blog, talked about how medical marijuana has affected the workplace. Schwartz, a partner at Shipman & Goodwin in Hartford and Stamford, discussed a Massachusetts case in which a company withdrew a job offer when the job candidate who legally used medical marijuana tested positive in a drug screening.
The Massachusetts court allowed the plaintiff to claim discrimination under a state disability law. “Other jurisdictions may follow,” Schwartz warned, and he suggested employers review their policies and decide how to address drug testing.
On another workplace issue, Jeff Nowak asked, “When is enough [leave time] plenty?” There is no clear answer, said Nowak, who writes FMLA Insights and is a partner at Franczek Radelet in Chicago.
But he said a recent case upholding the firing of an employee in the Seventh Circuit (which includes Illinois, Wisconsin and Indiana) suggests that a few weeks or even two months of leave might be OK. But beyond that may not be covered by federal laws protecting disabilities, as in this case.
“The message to employers is you can be more aggressive on extended leaves of absence,” at least in the Seventh Circuit, Nowak said.
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