Two months ago, many Americans were unfamiliar with the term “Ebola."  It’s amazing how quickly things can change.  Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak.  Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans.  If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus.  Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are:  fever, fatigue, muscle pain, headache, and sore throat.  As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to:  nausea, vomiting, diarrhea, a rash, and impaired organ function(s).  The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q:  What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue.  If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:

• Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
• Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
• Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
• Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
• National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.

Q:  May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA.  Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard?  The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so.  As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present:  (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q:  To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored.  In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus.  Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q:  May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances.  In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others.  Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk.  The governing standard here is one of reasonableness.  For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms.  Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q:  What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury.  Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm.  According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States.  Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern.  Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q:  What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed.  In other words, don’t panic.  Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:

• Educate the workforce.  Lack of information or misinformation spawns unnecessary hysteria.  The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
• Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
• Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
• Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
• Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
• Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.

It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States.  However, what is abundantly clear is that this situation is constantly changing.  What may seem reasonable today may need to be modified tomorrow.  As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.

On July 5, 2014, Governor Cuomo signed the Compassionate Care Act, making New York the twenty-third state to legalize medical marijuana.  This new law creates a medical marijuana program for individuals suffering from certain severe, debilitating, or life-threatening conditions (e.g., cancer, ALS, Parkinson’s disease, epilepsy, etc.).  The goal of the program is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety.  To that end, the law will be regulated by the New York State Department of Health, which will certify physicians to administer the drug, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of “serious conditions,” and regulate the price of the drug.  This program is expected to be up and running within the next 18 months.  In the meantime, employers should become familiar with the ways in which this law may impact the workplace. Notably, the law creates certain protections for employees who legally use medical marijuana.  In this regard, employers are prohibited from taking disciplinary action against employees because of their lawful use of the drug.  In addition, employees lawfully using medical marijuana are deemed to have a “disability” under the New York Human Rights Law.  As a result, employers who discipline or terminate an employee for lawfully using medical marijuana may open themselves up to a disability discrimination claim.  Furthermore, employers will be required to consider making workplace accommodations for individuals who utilize medical marijuana. While this aspect of the law will likely present new challenges for employers, there are certain things employers should be mindful of that will assist them in managing these situations:

1. The law does not prevent employers from enforcing policies and procedures prohibiting employees from performing their job duties while impaired by a controlled substance.  Accordingly, employers can lawfully prohibit all employees, including those that utilize medical marijuana, from working while impaired.  As a practical matter, an employer who is on notice that an employee is certified to use medical marijuana may find it helpful to request information from the employee’s doctor to determine if and to what extent the employee may be impaired in the performance of his/her job duties.  The employer may need to consider whether accommodations can be provided to allow the employee to work unimpaired (such as modifying the employee’s hours of work based on his/her medical use regime).
2. The law does not require employers to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding.
3. An individual must obtain a registration identification card and must carry the registration card whenever the individual has marijuana in his or her possession.  This registration card will make it easier for employers to verify whether employees are lawfully in possession of marijuana in the workplace.  If an employee has marijuana in his or her possession and is not able to produce the registration card upon demand, the employee is not lawfully utilizing the drug and is not entitled to the employment protections detailed above.
4. In addition to a registration card, an individual must also have a valid prescription from a certified physician in order to lawfully use medical marijuana.  Employers should be aware of this in the event an individual tests positive for marijuana use.  That is, a positive result for marijuana may not necessarily be a test result that justifies adverse employment action.
5. Certified individuals are strictly prohibited from smoking medical marijuana.  Therefore, if an employee smokes marijuana in the workplace or if the employer reasonably concludes based on other evidence that the employee is smoking marijuana recreationally (e.g., smelling of marijuana smoke), the employee will be outside the scope of employment protection.
6. Certified individuals are prohibited from consuming marijuana (in any form) in a public place.  Public place is not currently defined; however, the Commissioner of Health was granted the authority to issue regulations defining “public place.”  If the Commissioner defines “public place” to include the workplace, employers will not be required to accommodate employees by allowing them to consume the drug in the workplace (and, of course, if ingestion at work would result in impairment, this would not be required in any event).

Any final guidance to employers must await the regulations issued by the Commissioner of Health.  However, it is not too early for employers to begin to consider how this new law will affect their workplaces.  The most obvious change that will likely be necessary is to misconduct policies that address the use of drugs.  Employers will need to ensure that their policies appropriately carve out an exception for (or otherwise do not subject to discipline) lawful medical use of marijuana.

The Affordable Care Act creates new incentives to promote employer wellness programs.  However, employers should not rush to establish such programs without first considering the implications of the Americans with Disabilities Act.  Why?  The Equal Employment Opportunity Commission has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, despite placing this issue on its Semiannual Regulatory Agenda in May 2014.  In fact, the EEOC does not anticipate that any administrative direction on this issue will be forthcoming in the immediate future.  Despite a lack of guidance, the EEOC is actively pursuing litigation in this area.  In this regard, the EEOC recently filed two cases against employers, claiming that their wellness programs violated the ADA. In the first case, the EEOC filed a complaint against Orion Energy Systems, Inc., alleging that through its voluntary wellness program, Orion required an employee to submit to medical examinations and inquiries that were not job-related or consistent with business necessity in violation of the ADA.  According to the EEOC, Orion’s wellness program required employees to complete multiple medical history forms and submit to blood work.  One employee, Wendy Schobert, objected to participation in the wellness program.  She asked whether participation was voluntary and whether the medical information would be maintained in a confidential file.  The EEOC claims that Orion’s personnel director and Ms. Schobert’s supervisor told Ms. Schobert not to express any opinions about the wellness program to her co-workers.  Ultimately, Ms. Schobert decided to opt out of Orion’s wellness program.  As a result, the EEOC asserts that Orion failed to pay Ms. Schobert’s insurance premium costs because she did not participate in the wellness program and subsequently terminated her employment. In the second case, the EEOC filed a complaint against Flambeau, Inc.  Similar to the Orion case, the EEOC alleges that the employer’s wellness program violated the ADA by requiring employees to submit to medical examinations and inquiries that were neither job-related nor consistent with business necessity.  Specifically, Flambeau’s wellness program required employees to complete biometric testing and a health risk assessment.  As part of this process, employees needed to disclose their medical histories and submit to blood work and measurements.  Flambeau covered approximately 75% of the health insurance premiums for employees who completed this voluntary process.  One employee, Dale Arnold, was not able to complete the biometric testing and health risk assessment as scheduled because he was on a medical leave of absence.  According to the EEOC, Mr. Arnold tried to complete the biometric testing and health risk assessment when he returned from his medical leave, but Flambeau did not permit him to do so and instead terminated his health insurance coverage.  Since Mr. Arnold could not afford to pay the entire premium cost for his health insurance under COBRA, his health insurance was canceled. Until the EEOC provides further guidance on this issue, employers should ensure that their wellness programs are truly voluntary.  Moreover, employers should make sure to avoid either significant penalties for employees who choose not to participate and/or significant rewards for employees who do participate in these programs.  Finally, any medical information that employers obtain through a wellness program should be kept confidential and should not be used as a basis for making employment decisions involving the employee.

On October 1, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13658, which establishes a minimum wage requirement for certain federal contractors.  The final rule was published in the Federal Register today, October 7. As we stated in a prior blog post, Executive Order 13658 requires that certain types of new federal contracts and subcontracts contain a clause specifying that the minimum wage to be paid to workers must be at least $10.10 per hour beginning January 1, 2015.  The new $10.10 minimum wage will also apply to disabled employees who are currently working under a special certificate issued by the Secretary of Labor permitting payment of less than the minimum wage. The final rule defines "new contract" as a contract that results from a solicitation issued on or after January 1, 2015, or a contract that is awarded outside the solicitation process on or after January 1, 2015.  A contract that was entered into prior to January 1, 2015 will constitute a "new contract" if, through bilateral negotiation, on or after January 1, 2015:  (1) the contract is renewed; (2) the contract is extended (unless the extension is made pursuant to a term in the existing contract providing for a short-term limited extension; or (3) the contract is amended pursuant to a modification that is outside the scope of the existing contract. The final rule also clarifies, to some degree, the types of federal contracts and subcontracts covered by the Executive Order.  The following types of contracts and subcontracts are covered:  (1) procurement contracts for construction covered by the Davis-Bacon Act; (2) contracts for services covered by the Service Contract Act; (3) contracts for concessions, including any concessions contract excluded from coverage under the Service Contract Act; and (4) contracts entered into in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.  Grants, within the meaning of the Federal Grant and Cooperative Agreement Act, are expressly excluded from coverage. Beginning January 1, 2016, and annually thereafter, the minimum wage for federal contractors will be increased by the Secretary of Labor based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, and rounded to the nearest multiple of five cents.  The Secretary of Labor is required to publish the new minimum wage at least 90 days before the new minimum wage is scheduled to take effect. For tipped employees, the hourly cash wage paid by a federal contractor must be at least $4.90 beginning on January 1, 2015.  In each subsequent year, the federal contractor minimum wage for tipped employees will be increased by 95 cents until it equals 70 percent of the federal contractor minimum wage in effect for non-tipped employees.  If an employee’s tips, when added to the hourly wage, do not add up to the federal contractor minimum wage for non-tipped employees, the federal contractor will be required to supplement the employee’s hourly wage to make up the difference. The final rule also provides an investigation and enforcement procedure with respect to alleged violations of Executive Order 13658.  The potential remedies and sanctions that could be imposed include:  (1) requiring payment of back wages owed; (2) withholding of amounts due to the contractor under the federal contract to the extent necessary to satisfy the contractor's wage obligations; and (3) debarment for a period of up to three years. The Department of Labor's Wage and Hour Division has published on its web site a list of frequently asked questions and a fact sheet about Executive Order 13658.

A recent Second Circuit case highlights the potential perils of basing employment decisions upon subjective judgments which are susceptible to multiple interpretations.  In Abrams v. Department of Public Safety, the court reversed a summary judgment decision granted to an employer based upon the hiring supervisor’s assessment that a non-minority applicant for a detective position in a special major crimes group would “fit in better” than a minority applicant for that position. The minority detective, Frederick Abrams, brought a variety of discrimination and retaliation claims against a state law enforcement agency based upon his non-selection for a major crimes unit position and his subsequent reassignment to a casino unit following his internal complaints about not receiving the major crimes job and various other things.  The district court granted the law enforcement agency’s motion for summary judgment on Abrams’ discrimination claims, but found that there were sufficient questions of fact surrounding the retaliation claim to warrant those claims proceeding to trial.  In granting the summary judgment motion, the district court refused to consider the “fit in better” comment, finding that it was an inadmissible hearsay statement.  Abrams appealed to the Second Circuit after a jury ruled in favor of the law enforcement agency following a three-day trial. On appeal, the Second Circuit ruled that the lower court had improperly excluded the “fit in better” statement, finding that it was not hearsay and was admissible evidence.  The court explained that this statement was not being offered to establish its truth – that Abrams would not be a good fit – but rather only to show that the statement was made and that it referred to Abrams. The central question, the court observed, was whether this racially neutral statement was sufficient to create an inference of discrimination sufficient to avoid summary judgment.  Relying on an earlier Fifth Circuit decision, the Second Circuit noted:

[T]he phrasing "better fit" or "fitting in" just might have been about race; and when construing the facts in a light most favorable to the non-moving party, those phrases, even when isolated, could be enough to create a reasonable question of fact for a jury.  It is enough of an ambiguity to create a reasonable question of fact.

The case was therefore remanded to the district court for further proceedings and perhaps a second trial. This case plainly illustrates the vulnerability of employment decisions based upon ambiguous, subjective judgments and shows the ease with which these decisions can be attacked and challenged, even on appeal.  Because of the conflicting inferences that can be drawn from these judgments, employers are obviously well-served to base their employment decisions upon consistent, measurable, job-related criteria whenever possible.

On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"), announced a final rule amending its injury and illness recording and reporting requirements.  Although the rule has not yet been published in the Federal Register, it has been submitted for publication.  The final rule will be effective on January 1, 2015. The most notable change in the rule pertains to the reporting requirement for hospitalizations following work-related accidents.  Under the current rule in effect until December 31, 2014, an employer must report an “in-patient hospitalization of three or more employees as a result of a work-related incident” within eight hours.  Under the proposed rule, an employer must report an “in-patient hospitalization of one or more employees or an employee’s amputation or an employee's loss of an eye, as a result of a work-related incident” within 24 hours.  The rule also provides another means (besides calling the OSHA Area Office or the 1-800-321-OSHA hotline) for reporting a fatality or hospitalization:  electronic submission through a web portal at www.osha.gov.  There is also one important distinction:  “in-patient hospitalization” in the revised rule is defined as “formal admission to the in-patient service of a hospital or clinic for care or treatment”; the preamble to the rule makes clear that if the admission is for observation or diagnostic testing only, it is not required to be reported.  The requirement to report fatalities within eight hours remains unchanged under the revised rule. The rule also amends the list of industries that do not need to keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  The revised list can be found in the amendment to the Non-Mandatory Appendix A to Subpart B of Part 1904 in the final rule.  Employers with ten or fewer employees still need not keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  All employers, regardless of size or industry, must comply with the 8/24 hour reporting requirements for work-related fatalities, hospitalizations, amputations, or loss of an eye as set forth in the rule.

On August 22, 2014, the National Labor Relations Board ("NLRB") issued companion decisions in Three D, LLC d/b/a Triple Play Sports Bar and Grille, holding that the employer violated the National Labor Relations Act ("NLRA") by terminating two employees for participating in an online discussion on Facebook.  The Triple Play decision is yet another reminder to employers to exercise caution in imposing discipline against employees for conduct that takes place on social media.  The decision also underscores the need for employers to review their existing social media policies to ensure that the policies are not so overly broad that employees might interpret them to prohibit complaints and conversations about their terms and conditions of employment. Triple Play is a bar and restaurant whose employees are not unionized.  In January 2011, Jillian Sanzone and another employee discovered that they owed more in State income taxes than they had expected due to a withholding error by Triple Play.  While at work, Sanzone complained about this issue to other employees who, in turn, complained to the employer.  In response, the employer planned to hold a meeting in February with its staff members and payroll company to discuss the employees' concerns. On January 31, 2011, Jamie LaFrance, who had left her employment with Triple Play in November 2010, posted the following “status update” to her Facebook page:  "Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!!  Now I OWE money . . . Wtf!!!!"  Several employees and non-employees responded to LaFrance’s post with various comments, most of which used profanity and criticized Triple Play's owners.  One employee, Vincent Spinella, did not post a comment, but did select the “Like” button under LaFrance’s original comment.  Sanzone posted her own comment, stating:  “I owe too.  Such an asshole.” One of Triple Play's owners learned about the Facebook discussion through his sister, who was a Facebook “friend” of LaFrance.  When Sanzone reported to work on February 2, 2011, Triple Play's owners notified her that she was being discharged because of her Facebook comment.  On February 3, 2011, when Spinella reported to work, Triple Play’s owners called him into a meeting, questioned him about the Facebook conversation, and informed him that he was being discharged because his selection of the "Like" button meant that he supported the "disparaging and defamatory comments" of the other participants in the conversation. The NLRB affirmed the Administrative Law Judge’s decision that the Facebook discussion constituted concerted activity under Section 7 of the NLRA and “was ‘part of an ongoing sequence’ of discussions that began in the workplace about the Respondent’s calculation of employees' tax withholding.”  The NLRB also held that Sanzone and Spinella were engaged in protected concerted activity because the Facebook discussion related to “workplace complaints about tax liabilities, the Respondent’s tax withholding calculations, and LaFrance’s assertion that she owed back wages.”  Notably, the NLRB found that Spinella’s selection of the “Like” button “expressed his support for others who were sharing their concerns and ‘constituted participation in the discussion that was sufficiently meaningful as to rise to the level of’ protected, concerted activity.” In balancing the interest of Triple Play's owners in preventing disparaging comments by their employees, the NLRB held that Spinella's and Sanzone’s comments were not “so disloyal” as to lose protection under the NLRA.  Accordingly, the NLRB affirmed the Administrative Law Judge’s decision that Triple Play violated the NLRA by interrogating and discharging Spinella and Sanzone because of their participation in the Facebook conversation. Notably, the NLRB also found that Triple Play's “Internet/Blogging” policy violated Section 8(a)(1) of the NLRA.  Although the policy did not explicitly restrict protected activity, the NLRB held that the policy, insofar as it prohibited employees from engaging in “inappropriate discussions about the company,” was overly broad.  In light of Triple Play's discharge of Spinella and Sanzone, the NLRB reasoned that Triple Play's other employees could reasonably interpret the policy as prohibiting discussions regarding their terms and conditions of employment.

The Second Circuit’s recent decision in Moll v. Telesector Resources Group, Inc. is a good reminder to employers that a sexually hostile work environment claim can be based on more than just sexually explicit or sexually offensive statements and conduct.  Such a claim can also be established by facially sex-neutral statements and conduct under certain circumstances. Cindy Moll, the plaintiff in that case, was employed as a Systems Analyst for Verizon from 1997 until 2002.  Ms. Moll alleged that she was subjected to a sexually hostile work environment because her supervisor had done such sexually offensive things as:  leave her three “inappropriate” notes in 1998-1999; repeatedly ask her to come to his hotel room while they were on a business trip in 1999; and leave her a note in 2001 that said he thought about her when he was taking a shower.  She also claimed, however, that other facially sex-neutral conduct engaged in by her supervisor also contributed to the sexually hostile work environment that she experienced.  For example, Ms. Moll alleged that her supervisor:  required her to communicate with him only in person, as opposed to by phone or email; told her she could not be assessed for a promotion because of an alleged promotion freeze, even though two of Ms. Moll’s male colleagues were promoted during the alleged freeze; put Ms. Moll on a job performance improvement plan in 2002; told her she could no longer work from home in 2002, even though other male employees were allowed to do so; denied Ms. Moll’s request to take vacation in 2002, even though the same requests from her less senior male colleagues were granted; and excluded her from work-related social events, including attending professional hockey games. In September 2003, Ms. Moll filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) regarding, among other things, the above conduct that she alleged constituted an unlawful sexually hostile work environment under Title VII of the Civil Rights Act (“Title VII”).  She subsequently filed a lawsuit in the U.S. District Court for the Western District of New York. In response to Ms. Moll’s complaint, Verizon made a motion to dismiss her hostile work environment claim because, it argued, no sexually offensive conduct was alleged to have occurred within the applicable statute of limitations period.  In New York, a plaintiff is generally required to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful conduct.  When a hostile work environment claim is alleged, at least one incident of harassment must be shown to have occurred within the 300 days prior to filing with the EEOC.  Verizon argued that because the last incident of sexually offensive conduct (i.e., the supervisor’s note in 2001) occurred more than 300 days before Ms. Moll’s charge was filed with the EEOC, her hostile work environment claim was untimely and should be dismissed. The District Court agreed with Verizon and dismissed the plaintiff’s hostile work environment claim.  Ms. Moll then appealed the dismissal of her claim to the Second Circuit Court of Appeals. The Second Circuit reversed, holding that the District Court had improperly failed to consider all of Ms. Moll’s allegations in their totality, particularly the alleged conduct that was not sexually offensive in nature.  The Second Circuit determined that, based on Ms. Moll’s allegations, a reasonable fact-finder could have found the alleged facially sex-neutral conduct was sex-based and therefore contributed to the sexually hostile work environment.  As the Second Circuit explained:

To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse. . . .  Facially sex-neutral incidents may be included . . . among the “totality of the circumstances” that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.

The Second Circuit reversed the dismissal of Ms. Moll’s hostile work environment claim because the District Court did not consider whether the sex-neutral conduct alleged by Ms. Moll occurred within the applicable statute of limitations period. The Moll decision serves as a good reminder of what must be considered by employers faced with an internal complaint from an employee that he/she is experiencing a sexually hostile work environment.  Even if the sexually explicit statements and sexually offensive conduct about which the employee complains occurred in the distant past, the employer must still review the totality of the circumstances, including all facially sex-neutral statements and conduct alleged by the employee, to determine whether a sexually hostile work environment exists.  If so, the employer must act promptly and decisively to remedy the situation, or else face potential liability.

On August 6, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a proposed rule requiring covered Federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation.  Prior to this proposed rule, President Obama signed a Presidential Memorandum on April 8, 2014, instructing the Secretary of Labor to propose a rule within 120 days to collect compensation data from Federal contractors and subcontractors. The Equal Pay Report applies to contractors and first-tier subcontractors who are required to file EEO-1 Reports, have more than 100 employees, and have a Federal contract, subcontract, or purchase order worth $50,000 or more that covers a period of at least 30 days.  The Report requires contractors to submit:

• Total number of workers within a specific EEO-1 job category by race, ethnicity, and sex;
• Total W-2 wages, defined as the total individual W-2 wages for all workers in the job category by race, ethnicity, and sex; and
• Total hours worked, defined as the number of hours worked by all employees in the job category by race, ethnicity, and sex.

According to the OFCCP, this data will allow the OFCCP to direct its enforcement resources towards Federal contractors whose summary data suggests potential pay violations.  However, according to a Fact Sheet and FAQs published by OFCCP, the Equal Pay Report will not collect individual pay data or additional factors that may affect pay. The OFCCP is proposing a reporting window of January 1 to March 31.  The data would be based on W-2 earnings for the prior calendar year for all employees included in the contractor’s EEO-1 report for that year. The OFCCP plans to develop a web-based portal for reporting and maintaining compensation information that conforms to applicable IT security standards.  The OFCCP has indicated it intends to protect the confidentiality of the data to the maximum extent permitted under the Freedom of Information Act. Comments regarding the proposed rule must be submitted by November 6, 2014.

Sun Tzu's seminal work “The Art of War” has long been required reading in leading business schools.  As a definitive work on strategy, the impact of “The Art of War” crosses a great many sectors.  In its most basic sense, Sun Tzu has a great deal of wisdom to offer anyone charged with motivating a workforce, changing a culture, achieving collective goals, and negotiating with and/or defeating hostiles. This leads us to the Art of War’s relevance to litigation, and in particular, employment litigation.  Of course, we do not equate the trials and tribulations of employment litigation with the sacrifice and horrors of actual war, but we use Sun Tzu merely as a guide to the importance of strategy in litigation.  As we are all keenly aware, profligate employment claims bring with them attendant legal fees, in terrorem settlements, potential runaway juries, and loss of time and energy.  For every in-house counsel and human resources executive overseeing such claims, reference to this ancient text can serve as a valuable guidepost to effectively manage the case from the proverbial “General’s” chair. Sun Tzu:  Now the general who wins a battle makes many calculations in his temple ere the battle is fought.  The general who loses a battle makes but few calculations beforehand. Strategy is an often overlooked complement to litigation defense.  Each case is different, making rote defenses unacceptable.  At the very outset of the case, the “General” needs to know:  what is our strategic plan for confronting this particular case, before this particular judge, on these unique facts. Sun Tzu:  What the ancients called a clever fighter is one who not only wins, but excels in winning with ease. Winning with “ease” in employment cases means winning pre-trial and preferably pre-discovery.  Consequently, a threshold question is:  do we have a motion to dismiss? Courts have become far more accepting of dismissing complaints that are based solely on conclusory allegations.  See, e.g., Zucker v. Five Towns College, 2010 WL 3310698 (E.D.N.Y. 2010) (granting motion to dismiss, finding that allegations concerning plaintiff’s satisfactory work performance, termination, and much younger replacement do not -- by themselves -- suffice to plead an age discrimination claim).  If a motion to dismiss is available, it could save discovery costs or possibly paying an in terrorem settlement to avoid those discovery costs.  An ill-conceived motion to dismiss, however, only runs up unnecessary costs and, in the view of the deciding judge, may undermine the credibility of any subsequent motion for summary judgment.  Dig down deep into the case law to find cases within the jurisdiction in which complaints with similar factual allegations have been dismissed. Sun Tzu:  There is no instance of a country having benefited from prolonged warfare. Winning after expensive discovery and an expensive trial is not, in Sun Tzu’s philosophy, truly “winning.”  This brings us to the concept of a “reasonable” settlement.  Often times, there is a fear that if we settle, every terminated employee will believe they can exact a payout upon the mere presentation of a complaint, even if that complaint is utterly specious.  On the flip side, standing on principle and “fighting to the death” is expensive and time-consuming. Perhaps the most important thing to consider with such a conundrum is:  who is our judge?  Some judges have no problem granting pre-trial motions to dismiss or for summary judgment.  Other judges virtually never grant a pre-trial motion.  Knowing this at the outset is critical.  Even if standing on principle is important, if you know that winning the case will in all likelihood require the cost of a full blown trial, settling at the inception of the case for less than the defense costs to win at trial (and taking away the risk of losing at trial and paying prevailing party fees) may be the better part of valor. Sun Tzu:  Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting. At first blush, this sounds vastly easier said than done.  But, one way to subdue an enemy in employment cases is to make the enemy defend against a counterclaim.  In our experience, viable counterclaims are often overlooked.  Enter the “faithless servant” doctrine.  If a former employee plaintiff has been terminated for misconduct, that employee may be subject to a claw-back of all of the compensation he/she was paid during the period of such misconduct.  The possibility of not only losing the employment claim but also having to forfeit back already received compensation dramatically changes the leverage in terms of settlement or making the plaintiff simply go away.  See, e.g., William Floyd Union Free Sch. Dist. v. Wright, 61 A.D.3d 856, 877 N.Y.S.2d 395 (2d Dep't 2009) (affirming grant of summary judgment which required employees to forfeit all compensation during the period of their disloyalty and to forfeit all forms of deferred compensation). Sun Tzu:  If we do not wish to fight, we can prevent the enemy from engaging us even though the lines of our encampment be merely traced out on the ground.  All we need do is to throw something odd and unaccountable in his way. Something “odd and unaccountable” in the eyes of a plaintiff, and most particularly in the eyes of a plaintiff’s lawyer, is the possibility of fee-shifting not just against the plaintiff, but also against the plaintiff’s lawyer.  The availability of prevailing party fees to the plaintiff creates a Damoclean incentive to settle.  Little known, however, is that in some cases the threat of fees against the plaintiff, and more specifically the plaintiff’s lawyer, can quickly level that playing field. A hidden gem in federal law allows for full fee-shifting against a plaintiff’s lawyer who has been put on notice that the plaintiff’s complaint is frivolous.  28 U.S.C. § 1927.  While a plaintiff’s lawyer may initially laugh off such a threat, do not hesitate to send the lawyer a case where a substantial fee shift was imposed.  See, e.g., Capone v. Patchogue-Medford Union Free Sch. Dist., 2006 U.S. Dist. LEXIS 96016 (E.D.N.Y. 2006) (imposing full fee-shifting against plaintiff’s counsel in employment case).  When done right (notice, etc.), a fee-shifting claim can be a potent weapon in an employer’s self-defense arsenal. Conclusion Litigation is about strategy -- playing offense when available, breaking the enemy when possible, and avoiding a prolonged fight.  There is no one rote method of responding to an employment discrimination claim.  In-house counsel and human resources executives should be provided by their counsel with a full range of options and facts to support those options, particularly as to whether the current case -- as assigned to a specific judge -- ought to be quietly and quickly settled or vigorously litigated.

On July 15, 2014, the Occupational Safety and Health Administration ("OSHA") issued a policy memorandum to its Regional Administrators, explaining in greater detail the agency’s Temporary Worker Initiative ("TWI").  The TWI, which was launched on April 29, 2013, is an initiative intended to prevent work-related injuries and illnesses among temporary workers.  Employers who have temporary employees hired through staffing agencies should be aware that OSHA has a particular focus on the health and safety of those temporary employees, and should ensure that those temporary employees are provided with proper protective equipment and training to minimize any potential workplace hazards. Perhaps the most interesting portion of the memorandum is the agency’s explanation that “in general, OSHA will consider the staffing agency and host employer to be ‘joint employers’ of the workers in this situation” and, thus, that both employers will be responsible for protecting the safety and health of the worker.  OSHA noted that these “obligations will sometimes overlap” and that -- depending on the circumstances of any violations of the Act -- the agency will “consider issuing citations to either or both of the employers.”  Notably, while the memorandum states that a host employer will normally have “primary responsibility for determining the hazards in their workplace and complying with worksite-specific requirements,” it adds that the temporary agency or staffing firm also has a “duty to diligently inquire and determine what, if any, safety and health hazards are present at their client’s workplaces.”  The memorandum includes the following example:  “If a staffing agency is supplying workers to a host where they will be working in a manufacturing setting using potentially hazardous equipment, the agency should take reasonable steps to identify any hazards present, to ensure that workers will receive the required training, protective equipment, and other safeguards, and then later verify that the protections are in place." The memorandum indicates that additional bulletins and a compliance directive regarding the TWI will be issued.

On July 31, 2014, President Obama signed the "Fair Pay and Safe Workplaces" Executive Order, which requires bidders on federal procurement contracts for goods and services (including construction) in excess of $500,000 to disclose labor law violations that have occurred within the three-year period immediately preceding the bid.  In addition, the Executive Order requires federal contractors to provide individuals who perform work under the federal contract with information regarding hours worked, overtime hours, pay, and any additions made to or deductions made from pay.  The Executive Order also prohibits federal contractors with contracts in excess of $1,000,000 from entering into mandatory pre-dispute arbitration agreements with their employees or independent contractors to resolve complaints under Title VII of the Civil Rights Act ("Title VII") or tort claims arising out of alleged sexual assault or harassment. For procurement contracts for goods and services, including construction, where the estimated value of the supplies acquired and services required exceeds $500,000, each bidder must disclose whether there has been any administrative merits determination, arbitral award or decision, or civil judgment against the bidder within the preceding three-year period for violations of any of the following labor laws and Executive Orders:

• the Fair Labor Standards Act;
• the Occupational Safety and Health Act;
• the Migrant and Seasonal Agricultural Worker Protection Act;
• the National Labor Relations Act;
• the Davis-Bacon Act;
• the Service Contract Act;
• Executive Order 11246 (Equal Employment Opportunity)
• Section 503 of the Rehabilitation Act;
• the Vietnam Era Veterans' Readjustment Assistance Act;
• the Family and Medical Leave Act;
• Title VII;
• the Americans with Disabilities Act;
• the Age Discrimination in Employment Act;
• Executive Order 13658 (Minimum Wage for Federal Contractors); and
• equivalent state laws.

A bidder's disclosure of labor law violations will not necessarily automatically disqualify the bidder from receiving the federal contract, but the information will be considered in determining whether the bidder is a responsible source that has a satisfactory record of integrity and business ethics.  Federal contractors are also obligated to require prospective subcontractors to disclose labor law violations within the preceding three-year period, and are required to consider the information obtained in awarding subcontracts.  During the performance of a federal contract, each federal contractor subject to the Executive Order is required to update its own labor law violation disclosure and to obtain an updated labor law violation disclosure from each subcontractor every six months. Federal contractors who are awarded procurement contracts for goods and services (including construction) in excess of $500,000 are also required to provide each individual performing work under the contract with a document containing information regarding the individual's hours worked, overtime hours, pay, and any additions made to or deductions made from pay.  Employees who are exempt from the overtime compensation requirements of the Fair Labor Standards Act need not be given information regarding their hours worked.  Compliance with any state or local requirements that the Secretary of Labor has determined are "substantially similar" to the requirements of the Executive Order (such as, presumably, the requirements of the Wage Theft Prevention Act) will be deemed compliance with the terms of the Executive Order.  If a federal contractor is treating an individual performing work under the federal contract or subcontract as an independent contractor, the federal contractor must provide the individual with a document informing the individual of this status. Finally, the Executive Order provides that for all contracts where the estimated value of the supplies acquired and services required exceeds $1,000,000, federal contractors and subcontractors must agree that the decision to arbitrate claims under Title VII or tort claims arising out of alleged sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after the dispute arises.  Thus, federal contractors and subcontractors may not enter into mandatory arbitration agreements with employees or independent contractors to resolve Title VII claims or sexual assault/harassment tort claims before a dispute actually arises.  This prohibition does not apply to employees who are covered by a collective bargaining agreement, nor does it apply to employees or independent contractors who entered into a valid arbitration agreement prior to the contractor or subcontractor bidding on a contract covered by the Executive Order. The Executive Order directs the Federal Acquisition Regulatory ("FAR") Council (in consultation with the Department of Labor and the Office of Management and Budget) to amend the Federal Acquisition Regulation to identify considerations for determining whether serious, willful, or pervasive violations of the labor laws demonstrate a lack of integrity or business ethics.  In addition, the Secretary of Labor is directed to develop guidance and processes to implement the provisions of the Executive Order.  The Executive Order will apply to all solicitations for contracts as set forth in any final rule issued by the FAR Council.