In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Tim Garrett provided insight on a 2015 National Labor Relations Board (NLRB) ruling that reinstated a worker who made racist remarks to replacement workers during a strike. Tim states that an employer that does nothing in response to racist slurs risks liability under Title VII Civil Rights Act of 1964, regardless of NLRA protections. In this case, Tim stated “the board accepted a ‘vicious personal attack’ based on stereotypes that society is trying to overcome.”

Recent NLRB decisions, such as the one in this case protecting free speech as part of concerted activity, are contradictory to guidance issued by the Equal Employment Opportunity Commission (EEOC) recommending training all employees on civility. The SHRM article outlines the inconsistent approach between the two agencies and ways to overcome the differences.

The full article, “EEOC Guidance on Harassment Calls for Civility Training,” was published by SHRM online on January 13, 2017, and is available online.

On July 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a revised version of its proposal to expand pay data collection from federal contractors and other employers with more than 100 workers. The revised proposal pushes back the date of the first required employer report to allow for the use of W-2 wage and salary reports.

The EEOC initially published its proposed rule in late January. The proposed rule expands the information certain employers must report to the federal government on an EEO-1 report. The EEOC’s proposal would add data on pay ranges and hours worked to the information currently collected.

The EEOC considered and adopted specific suggestions made by commenters during the initial 60-day comment period that ended earlier this year. For example, the EEOC moved the due date for the EEO-1 survey from September 30, 2017 to March 31, 2018, to simplify employer reporting by allowing employers to use existing W-2 pay reports, which are calculated based on a calendar year. In addition, the EEOC agreed to give employers the choice of reporting either a 40-hour week for full-time exempt and 20-hour week for part-time exempt workers, or in the alternative, providing an annual report for such employees. This change is in response to employer concerns for the non-standard weekly hours for this category of workers. The updated rule comes with a fresh, 30-day comment period that runs until August 15, 2016.

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Employers often must balance the mandates of seemingly competing directives. A challenging example arises in the area of possible mental impairment.  An employer may hear concerns that an employee is acting abnormally, or has hinted at a desire to hurt herself, or is exhibiting other possible signs of mental impairment.  The employer does not wish to stereotype the employee unfairly, or unlawfully “regard” the employee as disabled; yet, the employer also must ensure a safe work environment for other employees and others on the premises. Continue Reading Mental Impairments: When Can an Employer Require a Fitness-for-Duty Exam?

The EEOC recently announced two new lawsuits it has filed alleging that employers have violated Title VII’s protections against gender bias to include prohibitions against sexual orientation bias. The lawsuits are not very surprising in light of the EEOC’s position last July, in Baldwin v. Department of Transportation. There, in a case involving a federal employee, the EEOC took the position that discrimination against a person based on sexual orientation is, by its nature, discrimination on the basis of sex. Continue Reading EEOC Alleges in Two Lawsuits That Title VII Prohibitions Extend to Sexual Orientation Bias

The Equal Employment Opportunity Commission (EEOC) has taken the position that Confederate flag displays in the workplace constitute evidence of a racially hostile work environment; some courts (but not all) have agreed. In light of these developments and the public debates regarding the Confederate flag and other (potentially) offensive symbols, how should an employer respond? Continue Reading Confederate Flags in the Workplace: How Should an Employer Respond?

Bass, Berry & Sims attorney Tim Garrett wrote an article summarizing the SEC’s April  1 announcement that it had settled an enforcement action over an employer’s use of a restrictive confidentiality agreement.

Tim made the point that the SEC’s action was consistent with similar efforts by the National Labor Relations Board and the Equal Employment Opportunity Commission. “These agencies have been reviewing critically the confidentiality provisions of severance agreements and documents used as part of internal investigations,” he wrote. “This announcement from the SEC is a further reminder that employers should have such confidentiality provisions reviewed by counsel or risk similar consequences.”

The full article, “SEC Settles Enforcement Action for Overly Restrictive Confidentiality Agreement” was published by Employee Benefit Adviser on April 2 and is available online.

Bass, Berry & Sims attorney Tim Garrett commented on the Supreme Court decision, Young vs. UPS, questioning whether an employer must provide equal accommodations regarding limited duty to employees who have pregnancy-related limitations and those whose limitations are not pregnancy-related. The Supreme Court referred the case back to the 4th Circuit for review. In light of this ruling, companies are urged to review policies related to pregnant employees. Tim commented on the status this ruling provides to pregnant employees.

The full article, “Businesses Should Review Practices, Policies for Pregnant Workers after Supreme Court Ruling,” was published by InsideCounsel on March 27 and is available online.

Bass, Berry & Sims attorney Tim Garrett authored an article outlining steps that companies should consider to provide a safe workplace. In the wake of recent incidents of violence at the workplace, Tim asserts, employers should adopt policies and procedures to foresee issues and be prepared when situations arise. The article discusses some factors contributing to employers’ concerns and what practical steps employers should take in response.

The full article, “Subduing Violence at Work: Setting Policies to Help Safeguard the Workplace,” was published by Workforce magazine on March 18 and is available online.