Newsletter August 2023

Jul 03, 2023

THE SUPREME COURT MUDDIES THE WATER ON RELIGIOUS ACCOMODATION

With some of the other Supreme Court decisions recently handed down, employers may have missed the Groff v. DeJoy case. In Groff, the Court essentially changed the standard for employers when dealing with employee requests for reasonable accommodation for religious beliefs. Unfortunately, they increased the burden for an employer to show that a requested accommodation would be an undue hardship.

Under federal law (Title VII) an employer with 15 employees is required to provide reasonable accommodation to an employee when a work requirement conflicts with the employee’s sincerely held religious belief, unless the accommodation would create an undue hardship to the employer’s business.

Since a previous Supreme Court case in 1977, an employer has been able to show that a requested accommodation would be an undue burden if it would require more than a de minimis cost. In Groff, the Court changed the standard, requiring an employer to accommodate an employee’s religious practice as long as the proposed accommodation does not create “substantial increased costs in relation to the conduct of the company’s particular business.”

The facts in the 1977 case, and Groff, dealt with an employee requesting to not have to work on their weekly day of religious observance. The specific factual issue in Groff was whether exempting an employee from Sunday work — requiring his co-workers to pick up the slack — constituted an undue hardship. The Groff court noted that “an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.” Clarifying this point, the court noted that companies must explore other available options, and that “[f]aced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.”

Further, the court stated that “a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue,’” meaning that even a co-worker’s objection to having to change their schedule to accommodate another employee is likely not enough.

So, an employer faced with a request for religious accommodation must now give much more thought to each such request. While the Court did not go so far as to raise the standard to that of an accommodation request under the ADA, a prudent employer should now take similar steps when evaluating a religious accommodation request. We can assist with that.

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THE EEOC IS BUSY ENFORCING ITS NEWEST LAW (PWFA)

01 Oct, 2024

Employers should take note that the EEOC has filed at least 3 lawsuits in the past month related to the Pregnant Workers Fairness Act, PWFA, which took effect in June of last year. We believe these are the initial lawsuits filed by the EEOC, and most likely indicates that this is a new strategic point of emphasis for the EEOC. What are the cases about? In one case, a pregnant employee who worked on an assembly line requested an accommodation that would not require excessive bending or lying on her stomach. The employer placed her on leave without engaging in the interactive discussion process with her, which constituted a forced accommodation according to the lawsuit. In another case, the employer refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments and required her to work mandatory overtime despite knowing that her physician had restricted her from working over forty hours per week during her pregnancy. Because of her pregnancy-related absences, the company assessed attendance points against her and warned that she would be terminated if she acquired another point. As a result, the employee resigned to avoid termination and protect her pregnancy. In the third case, a specialty medical practice did not allow a medical assistant to sit, take breaks, or work part-time as her physician had advised to protect her health and safety during the final trimester of her high-risk pregnancy. Instead, the practice forced her to take unpaid leave and refused to guarantee she would have breaks to express breastmilk. When she would not return to work without those guaranteed breaks, her employment was terminated. What should employers do? They should review their accommodations policies to ensure that that they include requests related to pregnancy, childbirth, and related medical conditions. This may also include creating or revising interactive process paperwork that should be used to review requests for accommodations, and engage in the required interactive process. By doing so, the risk of failing to engage in the interactive process with pregnant employees who are in need of an accommodation can be reduced, and there will be documentation of the process itself. The EEOC has provided examples of possible reasonable accommodations: Frequent breaks; Sitting or standing; Schedule changes, part-time work, and paid and unpaid leave; Telework; Parking; Light duty; Making existing facilities accessible or modifying the work environment; Job restructuring; Temporarily suspending one or more essential function; Acquiring or modifying equipment, uniforms, or devices; and Adjusting or modifying examinations or policies. The analysis to consider whether an accommodation request is an undue hardship is whether it causes significant difficulty or expense for the employer’s operations. Under the PWFA, employers must conduct an individualized assessment when determining whether an accommodation will impose an undue burden. If you believe a request constitutes an undue hardship, you should review the matter thoroughly with your HR advisor.

FTC'S NON-COMPETE RULE STRUCK DOWN

21 Aug, 2024

Yesterday, a Texas federal court struck down the FTC’s proposed ban on non-competition agreements on a nationwide basis , meaning employers will not have to comply with the proposed Rule, and can continue to maintain non-competes as their state laws allow. While there is a slim chance the Rule could be resurrected by a federal appeals court in the future, that is doubtful at best. In case you missed it, here is information regarding the now invalid Rule from our April 24 Newsletter on this topic: The Fair Trade Commission, FTC, issued a final Rule that would have prohibited employers from utilizing non-compete agreements with almost all employees. Specifically, under the Rule, employers would have no longer been able to: Enter into non-compete agreements with employees; or Enforce existing non-compete agreements, unless they are with “Senior Executives,” defined as those earning more than $151,164 annually, with policy making responsibilities. Additionally, before the effective date of the Rule, employers would have been required to provide an explicit Notice to employees and former employees that their non-compete agreements were no longer enforceable.

Final Regulations That Make it Harder for Businesses to do Business

23 Apr, 2024

The Department of Labor, DOL, issued a final rule raising the salary that an employee must be paid to be Exempt from overtime pay, “OT” under the so-called white-collar Exemptions: Executive; Professional; Administrative; and Computer Employees. On July 1, 2024, the minimum salary to qualify for these Exemptions will jump from $684 per week

Pregnant Workers Fairness Act “PWFA” Final Rules

16 Apr, 2024

As you may recall, we sent out an AHEAD Newsletter last May regarding the Pregnant Workers Fairness Act “PWFA,” which went into effect last June 27. As a refresher, the law: Covers employers with 15 or more employees. Protects employees and applicants who have limitations related to pregnancy, childbirth, or related medical conditions.

Employers with Timekeeping Rounding Policies May Want to Rethink Them

21 Feb, 2024

A recent case from the Eighth Federal Circuit Court raises an issue about a longstanding common practice of some employers use of rounding policies when tracking hours worked by employees. In the case, the employer used an automated timekeeping system which rounded to the next quarter hour when an employee clocked in within 6 minutes of the scheduled shift start time, or out within 6 minutes of the scheduled end time.