Law Offices of Stanley E. Niew, P.C.

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These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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JUNE 2016

Inside This Issue

1.    EEOC Continues to Expand the Boundaries of Title VII    

2.    USDOL Overtime Rule Change Effective December 1, 2016

3.    Can Schoolyard Type Bullying Be Applied to the Workplace?

4.    NLRB Carves Out “Shop Talk” Exception to Anti-Harassment Policies

EEOC Continues to Expand the Boundaries of Title VII

Title VII of the Civil Rights Act of 1964 is the federal statute prohibiting discrimination in the workplace. Earlier this year, the Equal Employment Opportunity Commission (EEOC) filed two suits alleging discrimination based on employees’ sexual orientation in violation of Title VII.  However, unlike race, gender and other characteristics, sexual orientation is not expressly protected under Title VII. The EEOC posits that such discrimination is nonetheless prohibited by Title VII based on the theory that discriminating against Lesbian Gay Bisexual Transgender (LGBT) employees constitutes sex discrimination.

The EEOC had not previously alleged sexual orientation discrimination in litigation, although its position has been clear for years. The EEOC’s most recent Strategic Enforcement Plan for fiscal years 2013-16 combating discrimination against LGBT individuals is one of its “national priorities.” Additionally, last July the EEOC issued a federal agency sector decision which concluded that sexual orientation discrimination fell within the purview of Title VII. The EEOC reports a 28% increase in sex discrimination charges filed in fiscal years 2014 to 2015.

Illinois is one of 22 states which already prohibits sexual orientation discrimination by state law. However, the EEOC’s recent litigation should warn employers to expressly prohibit sexual orientation and gender identity discrimination in their written policies. Similarly, supervisors should be trained to recognize and deal with comments and situations which could be construed as disparaging to LGBT employees.

USDOL Overtime Rule Change Effective December 1, 2016

The U.S. Department of Labor (USDOL) recently announced that rule changes proposed last year will become effective on December 1, 2016. Since 1940, the USDOL’s regulations have generally required each of three tests to be met for one of the Fair Labor Standards Act’s “white collar” exemptions to apply: (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed; (2) the amount of salary paid must meet a minimum specified amount; and (3) the employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations. The new rule includes the following key changes to the current overtime rules, which focus primarily on the compensation levels needed for executive, administrative and professional workers to be exempt:

  1. The standard salary level will change from $455/week to $913/week; This change in minimum annual salary changes from $23,600 to $47,476 (The new standard salary level is set at the 40th percentile of earnings of full-time salaried workers in the lowest wage census region – currently the South);
  2. The total annual compensation requirement for highly compensated employees overtime exemption, subject to a minimum duties test, will be raised from $100,000 to $134,004 (Set at the equivalent of the 90th percentile of full-time salaried workers nationally).  The minimum duties test requires employees customarily and regularly perform at least one of the exempt duties or responsibilities of an executive, administrative, or professional employee identified in the standard tests for exemption.
  3. The new rule establishes a mechanism for automatically updating the salary and compensation levels every three years, beginning on January 1, 2020, to maintain the equivalent percentile levels.

The USDOL blog provides the following options for employers to consider in light of the new rule:

  1. Raise employee salaries to the new threshold in order to keep them exempt from overtime compensation eligibility;
  2. Instead of raising salary, reclassify current exempt employees as non-exempt, and pay time-and-a-half their weekly regular rate of pay for overtime work;
  3. Leave the employee at his/her current salary, and pay the employee time-and-a-half for hours in excess of 40 hours in any work week;
  4. Limit workers to 40 hours of work per week;
  5. Evaluate and realign hours and staff workload in an attempt to make working overtime unnecessary.

Can Schoolyard Type Bullying Be Applied to the Workplace?

According to the Workplace Bullying Institute, bullying is defined as:

“Workplace bullying is repeated, health
harming mistreatment of one or more
persons (the targets) by one or more
perpetrators.  It is abusive conduct that
is:  Threatening, humiliating, or
intimidating, or; work interference-
sabotage which prevents work from
getting done, or; verbal abuse.”

Examples of bullying behavior can include hovering over employees, social isolation, being sworn at, constant blame without facts, micromanaging or unrealistic work deadlines.  While the list is not all encompassing, it is designed to provide employers with examples of bullying.  Thus far, there is no Illinois Statute or case law which expressly makes bullying  illegal harassment.  However, other states have adopted anti-bullying statutes which deem bullying as illegal harassment and provide employees damages.  Absent the statute, this can be a one-on-one cause of action for intentional infliction of emotional distress.  In Illinois such claims may be covered under the Worker’s Compensation Act.

Employers may wish to revise their policies to include bullying as a form of harassment.

NLRB Carves Out “Shop Talk” Exception to Anti-Harassment Policies

Nearly all employers have anti-harassment policies which prohibit profanity in the workplace directed to a fellow employee or a manager.  Most of these policies prohibit repeated infliction of verbal abuse, derogatory remarks, insults or physical contact that a person would perceive as threatening. 

In a series of cases, the NLRB carved out the “shop talk” exception which permits profanity and shouting in the workplace in limited circumstances. By way of example, two waitresses engaged in a profane shouting match with a third waitress in front of customers and management.  In this case the NLRB reversed the employer’s termination of the two waitresses who engaged in the profane shouting match.  Similarly, a barista who was off duty became engaged in a heated conversation with a manager making obscene comments in the presence of customers.  Again the NLRB reversed the firing of this barista.    In another case the NLRB reversed the discipline of employees involved in screaming profanities at each other to managers and to co-workers. 

It is very difficult to square these NLRB cases with required anti-harassment policies.  The only explanation is managers were involved.  Without managers being involved, the results may have been different.  The conclusion is employers are cautioned not to fire every abusive employee under a harassment policy without considering the “shop talk” exception. Always check with competent legal counsel.

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