Gender Identity in the Workplace: Best Practices

On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.

Although the notion of transgender individuals using public restrooms remains a lightning rod for controversy in many places, for some time now employers have had to find practical solutions to this issue. To date, more than 220 cities and municipalities (including Phoenix, Los Angeles, Oakland, San Diego, Denver, Dallas, Washington D.C., Miami, Atlanta, Baltimore, Boston and Detroit) have enacted ordinances which prohibit discrimination in the workplace based on both sexual orientation and gender identity, and eighteen states (Washington, Oregon, Nevada, California, Utah, Colorado, New Mexico, Minnesota, Iowa, Illinois, Maine, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Hawaii and Maryland) have amended their anti-discrimination laws to confer those same protections. Moreover, President Obama signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity.
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Employers Should Review Their FCRA Disclosure Forms

Retailer Big Lots Stores, Inc. is facing a putative class action in Philadelphia, wherein the plaintiff alleges that the company “systematically” violated the Fair Credit Reporting Act’s (“FCRA”) “standalone disclosure requirement” by making prospective employees sign a document used as a background check consent form that contained extraneous information. Among other things, the plaintiff alleges that Big Lots’ form violates the FCRA because it includes the following three categories of extraneous information: (1) an “implied liability waiver” (specifically, a statement that the applicant “fully understand[s] that all employment decisions are based on legitimate nondiscriminatory reasons”); (2) state-specific notices; and (3) information on how background information will be gathered and from which sources, statements pertaining to disputing any information, and the name and contact information of the consumer reporting agency.

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NLRB Regional Director Orders Second Election For Voter List Non-Compliance

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

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1.7 Million Reasons to Review Your Company’s Attendance and Leave Policies

This week, the EEOC announced that an Illinois-based packing company, Pactiv LLC, agreed to pay $1.7 million to resolve a charge alleging that the company discriminated against employees who needed time off from work for medical reasons.

According to the EEOC, the company maintained a nationwide policy that assessed “attendance points” to employees who needed time off for medical reasons. The company also allegedly failed to provide employees with intermittent and extended leave as a “reasonable accommodation” under the Americans with Disabilities Act.

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EEOC Allowed Broad Access to Private Information, Including Social Security Numbers

In EEOC v. McLane Co., Inc., the Ninth Circuit recently held that the EEOC has broad subpoena powers to obtain nationwide private personnel information, including social security numbers (“SSNs”), in connection with its investigation of a sex discrimination charge.

Damiana Ochoa, a former employee of a McLane subsidiary in Arizona, filed a charge with the EEOC alleging sex discrimination (based on pregnancy), claiming that when she tried to return to work after taking maternity leave, the company informed her that she could not return to work until she passed a physical capability strength test. Ochoa alleged that the company requires all new employees and all employees returning from medical leave to take the test and acknowledged that she failed this test three times. Based on her failure to pass the test, the company terminated Ochoa’s employment.

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You’re Invited: Systemic Discrimination Under the EEOC and OFCCP

The Department of Labor is increasingly focused on identifying and pursuing claims of systemic discrimination, both in EEOC charge investigations and OFCCP audits. In this type of claim, the government challenges a policy or practice that (allegedly) disadvantages an entire group of protected employees. These claims are dangerous for employers because they can cover hundreds of work locations and thousands of employees. Employers often unwittingly set themselves up for these claims, by failing to recognize the implications of a seemingly routine information request.

This webinar will discuss:

• Enforcement trends
• Real-life case examples
• Warning signs of a systemic investigation
• Strategies for preventing or minimizing scope of systemic review
• Best practices of handling systemic investigations

Thursday, December 3, 2015
1:00 p.m. ET – 2:00 p.m. ET


You’re Invited: IT/Procurement Leadership Forum

Hunton & Williams is pleased to bring together industry experts in technology and procurement to host our next IT/Procurement Leadership Forum in Richmond. Join us as we discuss some of the most pressing legal and business issues facing customers in the technology and procurement space.

This forum will provide guidance on a number of key topics, including autonomics and robotic process automation, the legal implications of the National Labor Relations Board’s new joint employer decision, and software audits and IT contracting best practices. These forums are designed to provide an in-depth understanding of these issues, as well as key practical and legal principles to apply on a routine basis.

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NLRB Issues New Edition Of ALJ Bench Book

On October 19, 2015, the Judges Division of the NLRB updated its 2010 ALJ Bench Book by issuing a new 2015 edition. The Bench Book serves as a procedural and evidentiary reference for ALJs and litigants during and in preparation for NLRB trials. As such, the Bench Book, and the precedent and authorities within, are often cited to throughout the course of litigation at an NLRB trial.

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NLRB Strikes Again With Joint-Employer Test

As we have reported in this space, the National Labor Relations Board (“Board”) made waves several weeks ago with its highly controversial new test for determining if an entity is a “joint employer” of another entity’s employees. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The Board has wasted no time in seeking to extend its new test to the health care industry.

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New Commuter Benefits Requirement for District of Columbia Employer

Starting January 1, 2016, many employers in the District of Columbia will be required to provide commuter benefits to their employees. The Program applies to any District of Columbia employer with 20 or more employees. The term “employees” is defined broadly to include “any individual employed by an employer.” Covered employers must offer the commuter benefits to any employee regardless of the number of hours worked.

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