Employment Law Update - May 17, 2024

By Susan Baird Motschiedler

EEOC Issues Additional Guidance on Workplace Harassment and Provides Additional Examples of Racial, Sex Based, and Religious Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) issued its long anticipated final guidance on workplace harassment, and provided specific and timely examples of behavior that constitutes unlawful harassment in the workplace. The guidance is organized by the three components of a harassment claim: 1) Covered Bases and Causation; 2) Discrimination with Respect to a Term, Condition, or Privilege of Employment; and 3) Liability. The guidance includes 77 examples of various harassment scenarios that might arise in the workplace – many with citations to existing caselaw – and states how the EEOC would view each scenario. The guidance also addresses current workplace concerns, including telework, intraclass discrimination (i.e. one member of a protected class discriminating or harassing another member of the same protected class on the basis of that class); guidance on the legal standard of liability (i.e. automatic, vicarious, or negligence) in harassment cases depending on the harasser’s relationship to the employer; and guidance on establishing an affirmative defense to a claim of harassment.?

The guidance is intended to consolidate prior guidance documents so employers won’t have to pick through six different documents to obtain guidance. The final guidance addresses a broad range of types of discrimination and includes topics such as remote work, the #MeToo movement and the U.S. Supreme Court’s opinion in Bostock v. Clayton County, Georgia, which held that sex-based discrimination includes bias involving sexual orientation or gender identity. The EEOC also included a summary of key provisions: a document for employees to consult and a fact sheet targeted at small businesses that typically don’t have legal departments and may not have a human resources division. Some of the detailed examples provided include the following:

• The EEOC confirmed that a single incident of harassment can amount to a hostile work environment if sufficiently severe.
• The EEOC emphasized that sex-based harassment under Title VII includes harassment based on pregnancy, childbirth or related medical conditions (including the decision to have, or not have, an abortion).
• The EEOC clarified its view of the broad protections for LGBTQ+ workers based on the Supreme Court's decision in Bostock v. Clayton County, 590 U.S. 644 (2020). Significantly, the guidance notes that harassing conduct based on sexual orientation or gender identity includes “outing (disclosure of an individual’s sexual orientation or gender identity without permission); ... repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
• The EEOC explained how conduct within a “virtual” work environment, such as sexist comments or racist imagery in the background of a video meeting, can contribute to a hostile work environment. The guidance also explains that posts on social media generally will not, standing alone, contribute to a hostile work environment if they do not target the employer or its employees.
• The EEOC described key elements necessary to establish that an employer exercised reasonable care to prevent and correct harassment. These elements are: a broadly disseminated policy against harassment; a process for addressing harassment complaints; training to ensure employees understand their rights and responsibilities; and monitoring of the workplace to ensure adherence to the employer’s policy. The guidance also details the components and details of effective policies, implementation, complaint process, training and implementation of policies.

Finally, an advance most employers welcome: the EEOC also expressed its intent to overhaul the paperwork employers fill out in response to a Charge to give employers a chance to raise defenses earlier in the process and – hopefully – simplify the process and reduce all parties’ burdens.

Utah One of 17 States to Sue the EEOC Over the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023, and requires a covered employer to provide a reasonable accommodation to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of, pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA applies only to accommodations. The EEOC is currently accepting charges brought under the PWFA.

On April 15, 2024, the EEOC issued final regulations?to carry out the law. The regulations are summarized here and go into effect on June 18, 2024. The rule states that the PWFA covers “having or choosing not to have an abortion” as medical conditions related to pregnancy or childbirth. The text of the final rule states that the effects of accommodation for abortion will likely be limited to leave from work. The rule also makes clear that it cannot be used to require an employer’s health care plan to pay for any procedure, including abortion.

Seventeen states, including Utah, are suing the EEOC over the rule. The states’ complaint cited the compliance costs associated with the PWFA that would be imposed on state governments. The complaint also alleged infringement on state sovereignty because many of the states that brought suit have laws that “prohibited or limited abortion with rare exceptions.” The complaint noted that many pro-life groups had supported the passage of the PWFA because of its “pro-family aim.”

So far, no nation-wide injunction has been issued against the rule on the basis of the states’ lawsuit, however, a federal district court in Texas has held that the EEOC is barred from enforcing the law against the state of Texas. The injunction does not apply outside of Texas.

Former Google Employees File Complaint with the NLRB After Google Fired Them for Protesting Google Contract with Israel

In another case that warrants watching before the National Labor Relations Board (NLRB), dozens of former employees of tech giant Google filed a complaint with the NLRB) last month after they were fired or placed on administrative leave for protesting a contract between Google and the Israeli government. The complaint alleges that the workers were retaliated against for their participation in the protest and seeks reinstatement and back pay.

At least one of the employees asserted that the protests were directly and explicitly connected to their terms and conditions at work because they were “asking for ethical application of their labor.” The employees protested the company’s cloud computing contract with the Israeli government after the Oct. 7, 2023, attack on Israel by Hamas militants and Israel’s counteroffensive attacks on Gaza. The death toll from Hamas’ attack was 1,200 and Israel’s attacks in Gaza currently stand at more than 34,000, most of whom have been women and children.

In defense of the terminations, Google stated that the protests were “a very clear case of employees disrupting and occupying work forces, and making other employees feel threatened and unsafe.” The protests involved sit-ins inside Google offices in several locations as well as entry into the Google Cloud CEO’s office. After investigating and determining the employees involved, Google terminated about 50 involved employees and sent a company-wide missive urging employees to keep “politics” out of the workplace.

NLRB Rules that Amazon CEO Violated Federal Labor Laws by Stating Workers Looking to Unionize Would be “Better Off Not Doing So”

Another case before the NLRB involving unionization at Amazon warrants watching: In a recent ruling, NLRB Administrative Law Judge Brian D. Gee held that Amazon CEO Andy Jassy violated federal labor law by making statements in April 2022 on the CNBC show “Squawk Box” that if workers’ unionized, “employees would be less empowered in the workplace,” and “things would be done less quickly and more bureaucratically.” Judge Gee noted that “Jessy’s comments [that workers would be better not to unionize] amounted to “unprotected threats” and were “accompanied by his coercive predictions about the effects of unionization.” Judge Gee recommended that Amazon and officers be prohibited from “threatening its employees by telling them that they would be less empowered with a union, that it would be hard to get things done quickly with a union since unions are slower and more bureaucratic, and that employees would be better without a union.” Judge Gee also recommended the company be required to post notices stating the NLRB found that that Amazon violated federal labor law as well as informing workers of their right to form or join a union and choose representatives to bargain with the company, among other recommendations.

Amazon intends to appeal the decision.

Question Corner - Understanding FLSA Onboarding Requirements

By Patrick M. Ngalamulume

Q. What is considered compensable time during the onboarding process under the Fair Labor Standards Act (FLSA)—for example, time completing paperwork before the start date as well as time reviewing policies and procedures and completing training?

A. Employee onboarding involves the incorporation of new employees into the organization by providing necessary knowledge and skills to succeed. As an employer welcomes new employees into their company, it is important to understand what constitutes compensable time during the onboarding process under FLSA.?

Under the FLSA, compensable time means any period spent on work-related activities for which an employee must be compensated. In addition to actual work performed, work related activities include activities that are considered by law to be essential to the functions of employment.

A standard workweek generally includes the time during which an employee is required to be on the employer’s premises on duty or at a precise work location.?According to the FLSA, a “workday" refers to the period between the time on any particular day when an employee commences his or her "principal activity" and the time on that day at which he or she ceases such principal activity or activities. During the onboarding process, different activities benefit both the employee and the employer. These activities include orientation sessions, training programs, completing necessary paperwork and any other work-related tasks mandated by the employer. While these activities may occur before an employee begins their employment or their principal activity they are still deemed compensable time under the FLSA. Compensating employees for this time during the onboarding process guarantees that employees are amply equipped to comply with company guidelines from the onset of their employment. Countless employers provide onboarding training to new employees to enhance their skills and expertise necessary to accomplish their responsibilities in the workplace. Onboarding training for employees may include safety training, work-specific training and compliance training. Likewise, completing paperwork, such as filling out tax forms, employment agreements and health benefits enrollment forms is also considered compensable time. Although these tasks may seem administrative in nature, they are essential for verifying employment relationships and confirming legal compliance.

For further context, the following criteria outlined by the FLSA determines if time spent at meetings and training programs counts as work hours:

• The event, meeting or training is outside normal business hours
• It is voluntary to attend
• It is not job-related
• No other work is being performed

If all four points are satisfied, then employers are not obligated under the FLSA to pay the employee for that time. In contrast, onboarding is normally mandatory, occurs during business hours and includes filling out paperwork related to the job. Accordingly, employees must be paid for the time spent during the onboarding process. It is imperative for employers to precisely record and compensate employees for all compensable time during the onboarding process. Failure to do so can lead to violations of the FLSA and potential legal consequences.