Tag: small business attorney

Covid-19 Pandemic Related Caregiver Discrimination

August 26, 2022

For individuals with caregiving responsibilities (“caregivers”), the effects of the Covid-19 coronavirus pandemic go beyond work obligations. While navigating hybrid work schedules and tighter shifts, they must also find time for their duties to spouses, children, and disabled relatives. These individuals may live with children too young to receive the vaccine or relatives who are immunocompromised. As they juggle work and caregiving duties, they may face employment related discrimination because of these pandemic-related caregiving responsibilities. Fortunately, the US Equal Employment Opportunity Commission (EEOC) provides regulations to protect employees from workplace prejudice because of any caregiving obligations they may have to family members and loved ones. This article will summarize those guidelines to assist employers and employees in addressing pandemic-related caregiving discrimination. 

When Does Workplace Caregiver Discrimination Violate US Employment Laws? 

According to the EEOC, employers violate US employment laws when they discriminate against an employee/applicant with caregiver responsibilities based on their sex (sexual orientation and gender identity), pregnancy status, race, age, national origin, religion, disability, or genetic information. It is also unlawful for an employee to discriminate against an employee/applicant based on their association or caregiving responsibilities to people with disabilities or other protected characteristics (race, ethnicity, etcetera). 

What About Caregiving Triggers Discrimination Considerations?

Making employment decisions based on gender stereotypes is also illegal. For example, when the company fails to hire female applicants because they assume they would focus more on caring for their children and elderly relatives than on their work. Even further, EEOC regulations prohibit punishing female employees more harshly than male colleagues for absences or missed deadlines because of pandemic-related caregiving obligations. These regulations apply to discrimination against male employees, as well. It is unlawful to discriminate against male staff who are caregivers based on gender stereotypes that women are caretakers while men are breadwinners. Employers may not deny male employees leave or requests for a flexible schedule to attend to family members or loved ones infected with COVID-19 if they grant such requests to female staff. 

What About LGBTQ Employees and Applicants?

EEOC regulations prohibit discrimination against LGBTQ employees and applicants with caregiving responsibilities because of their sexual orientation. Employers may not deny requests for flexible hours or office leave from these individuals because of their gender identity if they grant permission to such requests from other staff members. They may also not require these employees to grow through rigorous procedures before granting their leave requests if other workers do not go through such processes. 

What About Discrimination Against an Employee With Caregiving Responsibilities Based on Race and Ethnicity?

Discriminating an employee with caregiving obligations because of their race, ethnicity, or national origin is illegal under EEOC laws. 

For instance, managers may not require black or Asian employees to go through burdensome processes to obtain leave or a flexible work schedule to take care of a relative, while others have their requests granted without such procedures. 

Employers may also not deny an employee’s requests for leave to care for a loved one from another country with a COVID-19 infection because a COVID-19 variant was identified in the infected individual’s home nation. 

Caregiver workplace harassment or discrimination based on citizenship or immigration status is also unlawful under Department of Justice laws. 

What About Discrimination Because of Caregiving Responsibilities to an Individual With Disabilities?

Under EEOC regulations, it is illegal to discriminate against an employee who is a caregiver to an individual with disabilities because of their association with the care recipient. Some instances where such discrimination can occur include refusal to: 

  • promote or hire an applicant/employee who is a parent to a child with a mental health disability that escalated during the pandemic because the applicant/staff would not show commitment to their duties due to their caregiving obligations. 
  • hire an applicant who has a spouse with a disability that has a risk of severe illness from COVID-19 infection because the employer wants to avoid the increased health insurance costs when the company includes the ailing spouse in its healthcare plan. 
  • include the applicant’s spouse in the company’s health insurance plan after hiring the applicant because of the disability mentioned above.

Reasonable Accommodation for Caregivers Under US Federal Employment Laws

EEOC regulations do not give US employees a right to workplace accommodations (telework, flexible schedules, overtime, etcetera) because of their caregiving duties. 

However, other US laws make provisions for such employee rights, such as the Family and Medical Leave Act. The act allows workers to request office leave for caregiving purposes. 

Other state and local laws also provide reasonable accommodations for workers with caregiving obligations. That said, employers can grant workplace accommodations to staff who are caregivers at their discretion, as long as they do so in a non-discriminatory manner. 

How Employees Can Respond to Discrimination Based on Covid-19 Related Caregiver Status 

Employees with caregiver status who are victims of discrimination because of their race, gender, sexual orientation, or affiliations with a person with a disability should report the harassment/discrimination to their employers. 

State, local government, and private sector employees should report discrimination incidences to the EEOC, state, or local government agencies responsible for employment discrimination. They may file their complaints with the EEOC within 180 in states without a local EEO agency and 300 days in states with a local EEO agency. 

Federal workers should report discrimination cases to their agency’s EEO office within 45 days. State and local government anti-discrimination agencies also have timelines for state and local government employees to report harassment cases. 

Employers and their staff can obtain further details on caregiver discrimination from the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document. 

To sum it up…

US employment laws prohibit all kinds of workplace discrimination. If you’ve been a victim of workplace harassment because of your caregiver status, you can take steps to protect your rights and those of other employees. At the Law of Office of Sheri Oluyemi, we bring our experience in US employment laws to help employees get justice at work. Reach out to us today to request a free teleconference, and let’s safeguard your right to fair treatment in your workplace.

Discrimination Based on Hair?: The CROWN Act 

July 5, 2022

Crown Act passes US House of Representatives

On March 18, 2022, the US house of representatives passed the CROWN ACT banning “discrimination based on an individual’s texture or style of hair.” The bill, first introduced to the house in 2021 by Representative Bonnie Watson Coleman, was passed in a vote of 235-189. It currently is being read in the US Senate.

While this is the first time the bill is getting approval at the federal level, it has already made its way into state legislation across several states in the US. In 2019, California became the first state to pass the CROWN ACT into law by a unanimous vote. Twelve other states, including New York, Washington, Nebraska, Delaware, Oregon, and Colorado, would eventually follow suit between 2019 and 2021. Here in Georgia, the CROWN ACT is not yet law.

What Is the Crown Act as Relates to Discrimination Based on Hair?

The CROWN ACT stands for Creating a Respectful and Open World for Natural Hair. According to the bill, “Routinely, people of African descent are deprived of educational and employment opportunities because they are adorned with natural or protective hairstyles in which hair is tightly coiled or tightly curled, or worn in locks, cornrows, twists, braids, Bantu knots, or Afros.”

Black people have often faced racial discrimination across corporate America because of how they groom their natural hair. According to one study, employers perceive black women with natural hairstyles as less competent and professional (and less likely to be recommended for job interviews) than black or white women with straight hairstyles. In 2016, Sabrina Chiodo, assistant manager at Jack Astor’s Bar and Grill, sent home 20-year old Akua Agyemfra for wearing her hair in a bun (contrary to restaurant policy that all female staff wear their hair down). Elsewhere, in Louisiana, Imani Jackson lost her job at American Screening LLC within a month of wearing her natural hair in a bun instead of the wig she had worn during her interview and her first month working at the company. But it’s not only African-American women that suffer from racial discrimination because of their hair. In 2018, Andrew Johnson, a black high school wrestler, was told by a referee to cut his dreadlocks or forfeit a wrestling match. It is cases like these that the CROWN ACT seeks to address and outlaw. 

What Are the Effects of the CROWN ACT on Discrimination?

The CROWN ACT prohibits racial discrimination based on a person’s hair. This discrimination is often unspoken in US workplaces but ladened in employee handbooks that specify company policy. As such, the CROWN ACT would be a significant step to enabling a more diversified and inclusive corporate America. In the wake of the CROWN ACT, more companies will adopt new policies that allow women of color to groom their natural hair the way they deem fit without discrimination. Also, before the CROWN ACT, cases of race-based hair discrimination that have made it to US courts have failed to yield substantial results. For instance, in 2014, US District Court Judge Charles R. Butler Jr dismissed a race-based hair discrimination case involving Chastity Jones and Catastrophe Management Systems.  In 2016, a three-judge panel of the 11th Circuit Court of Appeals upheld the district court’s decision and further attempts to get the US Supreme Court to intervene failed to yield results. 

However, if the US Senate passes the CROWN ACT into law, it would provide the necessary legal protection for victims of race-based hair discrimination, especially since there’s currently no other federal legislation in the US that protects people of color from stigmatization because of their hair. 

Furthermore, since its inception in California in 2019, the CROWN ACT has created awareness and kick-started healthy conversations about racial discrimination based on a person’s hair. These conversations will only become more mainstream once the bill becomes federal law. 

Conclusion

Workplace discrimination based on hair is more common than we realize for people of color. The stigma behind natural hair for black people has often deprived them of educational and employment opportunities. However, the narrative should change once the CROWN ACT becomes federal law. If you’re a black person in the US facing race-based hair discrimination at your workplace or school, hiring legal help is the best course of action to protect your rights.

Or, if you are an employer seeking to create an inclusive dress policy or dress code with specifications about hair, contact us.If you want to review your company’s policy surrounding natural hair in the wake of the CROWN ACT, our expert team of lawyers can also assist you throughout the process and ensure there are no grey areas that could get you into a potential lawsuit.

At the Law Office of Sheri Oluyemi, we have the best legal hands in US employment law to handle workplace discrimination. Reach out to us today; let’s look at your case and begin proceedings to get you justice.

How to Reduce Risk of Litigation: Mandatory Covid-19 Vaccine Religious Exemption

September 9, 2021

As we attempt to escape the dark days of the COVID-19 pandemic, thanks in no small part to the availability of a vaccine, new changes are still being made in offices across the United States and the world to make that exit a reality. In the US, several  employers require staff members to take vaccinations to keep the office safe and free from health scares.

But one size does not fit all — several employees are requesting an exemption from compulsory vaccinations on various grounds, including religious reasons. But is this a conversation worth having? And what does US federal law say about the rights of individuals to exempt themselves from compulsory vaccinations on religious grounds? Let’s find out.

Understanding Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religious beliefs or practices. In the case of the mandatory COVID-19 vaccinations, this law requires small business owners to accommodate a staff member’s request to be exempted from compulsory vaccinations because of sincerely-held religious beliefs.

Of course, this does not mean employers must accept an employee’s plea not to take the vaccine without question. Based on specific clauses in Title VII, company executives can look into religious objections made by employees to determine whether their requests are legitimate and fall in line with the requirements of the law.

Quickly, let’s look at some clauses in Title VII that may help small business owners handle issues surrounding religious exemptions from COVID-19 vaccinations.

Determining Whether the Employee’s Request is Based on Sincerely Held Religious Beliefs

While US laws require company executives to accommodate a staff member’s sincerely held religious beliefs, it can be tricky to recognize this belief, faith, or practice.

For clarity, Title VII does not recognize philosophical, political, and social ideologies under religious beliefs. As such, employees cannot use those factors as a basis to exempt themselves from vaccinations. Title VII also does not cover personal preferences.

That said, when an employer is not clear on the religious beliefs of a staff member, the employer can request additional information – either through documentary evidence of the tenants and dogma of the faith or one-on-one explanations – to clarify the situation. However, before casting doubt on an employee’s beliefs, the employer must ensure her reservations are objective and not coming from a place of discrimination. To be on the safe side, though, we would recommend companies consult legal help for complete clarity and guidance before making any move to question a team member’s religious objections.

Refusing Appeals for Religious Vaccination Exemptions Because of Undue Hardship

Under Title VII of the Civil Rights Act, employers may deny a staff member’s plea for exemption if granting the request would cause undue business hardship. For better understanding, approving a request for religious accommodation may cause undue hardship if:

●      It will significantly decrease business efficiency and productivity

●      It will infringe the rights and privileges of other members of the workforce

●      It puts staff and  customers at risk of workplace hazards

●      It may require other members of the team to execute more than their quota of hazardous tasks

●      The accommodation is too costly

Accommodations to Consider in the Event of Religious Exemptions from Mandatory COVID-19 Vaccinations

If an employer decides to grant an employees’ requests to be exempted from COVID-19 vaccinations, the employer may need to make some changes around the office to accommodate these individuals. Some of the steps an employer can take for exempted employees may include:

●      Mandatory wearing of face masks

●      Social distancing within office premises

●      Remote working

●      Isolation to a specific workplace

●      Alterations to employee’s work schedule to limit interactions with clients and other members of the workforce

Before putting these measures in place, the employer will need to review company policies on religious accommodation with company executives and managers; discuss with employees the proposed accommodations to be put in place around the office; and, appoint a supervisor to process and respond to all requests for religious accommodations.

Get Legal Help 

Employment laws in the US can be tricky, and when it comes to religious exemptions from COVID-19 vaccinations, small business owners may require the aid of a legal professional to navigate the muddy waters and avoid any potential litigation.

Therefore, if you are in need of an attorney to help you with issues relating to religious exemptions from COVID-19 vaccinations, consider contacting The Law Office of Sheri Oluyemi, LLC. We have an experienced team of professionals who specialize in employment law cases for small businesses, and we can provide your company with the legal counsel to respond to religious accommodations for COVID-19 vaccinations.

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

* * *

As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.

Positive Drug Test? Now What?

October 28, 2019

What does a public employer do when a job applicant’s test comes back positive? 

In the business world, employers sometimes ask job applicants to submit themselves to drug tests. A drug test can be completed either through a urine sample or hair follicle, depending on the County or State. So, what happens when the test results come back positive?

A few 11th Circuit decisions have weighed in on the issue of the best way for public employers to deal with a job applicant’s positive test results.  In Voss v. City of Key West, Voss applied for a position as a Solid Waste Coordinator at a train station. When asked to undergo a preemployment drug test, she refused, and filed an action challenging the constitutionality of the city’s workplace policy after she was not hired. The United States district court, in making its decision, gave employers three things to look out for before making an employment decision after an applicant’s test results return positive. 

 1.     Verify the importance of the test to the company or organization to determine whether it justifies a fourth amendment intrusion. In Voss, the Court decided that the reasons that the city gave for conducting a drug test for job applicants were not justified. The city claimed that the test was created to protect the public from motor vehicle accidents and personal injury to the employees and the public; stating that employees who use illegal drugs tend to be “less productive, less reliable and prone to greater absenteeism.”

2.     Ensure the desired position is one that is safety-sensitive. The position at issue in Voss was a Solid Waste Coordinator and the court found that this was not really a safety-sensitive position. Because, among other reasons, the city does not subject the Solid Waste Coordinator to random drug testing to which it subjects employees the policy classifies as “public safety positions”. 

3.     Distinguish between employees and applicants before carrying out a drug test. If the tests are disclosed to applicants before they apply, then they have the opportunity to withdraw their applications or not apply at all before any invasive tests are carried out. The court advised that employers should make sure that applicants have knowledge of the test before they submit their applications. 

More recently, as the issues of opioid and medical marijuana workplace pervasiveness rise to a head, both public and private sector employers must remember to consider the requirements of the American Disability Act. 

The ADA requires employers who are aware of a disability to provide a reasonable accommodation that would permit the disabled employee to perform the essential functions of her job. Accordingly, when an applicant’s drug test comes back positive the employer should inquire whether the applicant is taking such medication for medical reasons before making a decision on hiring the applicant. Essentially the results of this inquiry could lead to a requirement to commence, and participate in, the interactive process pursuant to the ADA.

In conclusion, if an employer is able to justify their reasons for requesting a pre-employment drug test, show that the position for which the test is required is safety-sensitive, disclose the requirement for a test to the applicant in advance of the application, and consider its obligations under the ADA, only then is the employer is free to make decisions based on its employee relations policies.

Hot Off the Press: New Overtime Rules

October 4, 2019

The Federal Labor Standards Act requires employers to pay overtime to employees who work over 40 hours in a workweek, unless the employee works in an “exempt” position. There are various classes of exempt employees, one of which is the executive, administrative and professional employees (i.e., the “white-collar” exemption). Generally, to qualify for the “white-collar” exemption, an employee:

  • must be paid a fixed weekly salary (the “salary basis test”), and

  • must primarily perform executive, administrative or professional duties in accordance with the Department of Labor regulations (the “duties test”).

Released on September 24, 2019 but effective January 1, 2020, the Trump Administration has announced its intention to revise the salary threshold for white collar employees and highly compensated employees. The new regulations do the following:

  1. Increase the threshold salary earnings for exempt executive, administrative and professional employees (i.e., the “white-collar” exemption) by 50% from $455 per week ($23,660 annually) to $684 per week ($35,568 annually) and for highly compensated employees from $100,000 annually to $107,432 annually.

  2. Allow employers to use non-discretionary bonuses and incentive payments, in kind commissions paid at least annually, to satisfy up to 10 percent of the salary threshold.

  3. Permit employers to make a “catch up” payment if an employee does not earn enough non-discretionary bonuses or incentive payments in a given year, as long as the payment is made within one payday of the end of the 52-week period.

  4. Omit any automatic updates to the salary threshold and instead reiterates its determination to update the earnings thresholds more regularly through notice-and-comment rulemaking.

Repercussions for Employers:

  1. Employers who fail to satisfy the minimum salary level will lose the exemption for their employees and be required to pay overtime at the legal rate.

  2. Thus, employers must immediately audit and reclassify affected employees in order to ensure overtime eligible employees are paid their due, that salaries are increased or other compensation is introduced to avoid overtime eligibility. The Department of Labor estimates that 1.3 million workers will become non-exempt when the proposed rule becomes effective, yours might be one of the 1.3 million to be affected.

    1. An audit would consist of reviewing payroll records for salary history, reviewing job descriptions for exempt/non-exempt classification, consider options to pay the affected employees more, or reassign their duties to avoid the need for overtime hours.

    2. An audit should also include a review and revision of benefit plans that determine eligibility and other metrics on salary or exempt/non-exempt status.

  3. Some states have thresholds higher than the federal even after this change, such as New York. Georgia follows the federal rules. Apply the rules appropriate to the state in which you have employees.

  4. Call our office or visit the Department of Labor’s website for more information on how to implement these changes in your workplace.