In This Issue
December 2019 – March 2020 | Volume 7 Issue 1
- Comprehensive FAQs For Employers On The COVID-19 Coronavirus
- The CROWN: Anti-Hairstyle Discrimination Legislation Protecting Natural Hairstyles in the Workplace
- Compliance with Changing State and Local Laws is Nonstop
- Employers Must Use A New I-9 Form For 2020
- Supreme Court Sides with Employee Who Said He Didn’t Read ERISA Disclosures
- Take Steps to Keep Political Discussions Civil at Work
Fisher Phillips has assembled a cross-disciplinary taskforce of attorneys across the country to address the many employment-related issues facing employers in the wake of the COVID-19 coronavirus. The COVID-19 Taskforce has created a Frequently Asked Questions (FAQ) document, which has been continually updated since first published on March 3 and will continue to be updated as events warrant. You can contact your Fisher Phillips attorney or any member of the Taskforce with specific questions, and a full listing of the Taskforce members and their practice areas is at the end of this publication.
The Taskforce has separately summarized the Families First Coronavirus Response Act, the federal legislation signed on March 18 that includes an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law, among other things. A detailed summary can be found here.
- WORKPLACE SAFETY ISSUES
- ISSUES FOR WORKFORCES THAT TRAVEL
- REMOTE WORK
- INTERNATIONAL WORKFORCES
- IMMIGRATION ISSUES
- HEALTHCARE/HIPAA ISSUES
- BENEFITS/GROUP HEALTH PLAN ADMINISTRATION
- WAGE AND HOUR ISSUES
- EMPLOYEE LEAVE/ADA
- DISCRIMINATION/HARASSMENT/EEO ISSUES
- WARN ACT/PLANT CLOSINGS
- USERRA AND MILITARY LEAVE ISSUES
- WORKERS’ COMPENSATION
- INDUSTRY-SPECIFIC AND PRACTICE GROUP GUIDANCE
- FISHER PHILLIPS COVID-19 TASKFORCE MEMBERS
By: Reba Letsa
The Creating a Respectful and Open World for Natural Hair (CROWN) Coalition conducted a 2019 study surveying 2,000 working women aged 25 – 64, who are employed in an office setting, or had been employed in a corporate office within the last six months.1 The findings of this study revealed that African-American women are 80 percent more likely to change their natural hair to conform to social norms or expectations at work, and that African-American women’s hair is approximately three times more likely to be perceived as unprofessional in the workplace.2 Discrimination based on the appearance of an individual’s natural hair affects both women and men of color. To illustrate, in 2018, New Jersey high school wrestler Andrew Johnson was given 90 seconds to make the determination of whether to have his dreadlocks cut off or forfeit a wrestling match.3
Natural Hairstyle Discrimination Claims Pre-CROWN
In 2013, the Equal Employment Opportunity Commission (EEOC) sued an employer on behalf of an African-American female applicant whose job offer was rescinded after she refused to cut off her dreadlocks at the employer’s request.4 The employer asserted that the applicant’s dreadlocks ran afoul of their personal grooming policy, which required hairstyles to “reflect a business professional image” and prohibited “excessive hairstyles.”5 The U.S. District Court for the Southern District of Alabama dismissed the EEOC’s complaint, holding that a hairstyle constitutes a “mutable characteristic” which is not afforded Title VII protection.6 On appeal, the Eleventh Circuit affirmed the District Court’s decision, noting that although dreadlocks are a natural outgrowth of the texture of black hair, that does not make them an immutable characteristic of race.7
States and Localities that Have Enacted or Introduced the CROWN Act
The Catastrophe Management decision was one of the many cases that inspired California Senator Holly Mitchell to seek reform. On July 3, 2019, California Governor Gavin Newsom signed SB 188 into law, which made California the first state to enact the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act.8 California’s CROWN Act went into effect January 1, 2020.9 Senator Mitchell, who introduced the CROWN Act in the California legislature, testified before the state assembly that “It’s 2019, and from my perspective, any law that sanctions a job description that immediately excludes me from a position, not because of my capabilities or experience, but because of how I choose to wear my hair is long overdue for reform.”10
California’s CROWN Act expands the definition of “race” under the California Fair Employment and Housing Act (FEHA) to include traits historically associated with race, such as hair texture, and natural or protective hair styles such as braids, dreadlocks, and twists.11 After January 1, 2020, employees who allege discrimination based on the appearance of their natural hair are permitted to seek remedies under California’s FEHA which include back pay, front pay, reinstatement, out of pocket expenses, attorney’s fees, and punitive damages.12 California’s CROWN Act applies to employers who employ five or more persons throughout the state.13
Similar legislation has also been enacted at the local government level. On November 5, 2019, the Montgomery County Council unanimously voted to enact the CROWN Act.14 Under the Montgomery County CROWN Act, “race” includes traits historically associated with race, including hair texture and protective hairstyles, and “protective hairstyles” includes hairstyles such as “braids, locks, afros, curls, and twists.” The Montgomery County CROWN Act is distinct, in that the law establishes its own remedy, permitting individuals who are discriminated against because of the appearance of their natural hair to seek up to a $5,000 penalty through the Montgomery County Office of Human Rights.15 Montgomery County’s CROWN Act is not limited to the employment context and applies to other places of public accommodation such as taxi services, and group homes.16 Montgomery County’s CROWN Act went into effect February 6, 2020, and applies to all employers in Montgomery County with one or more employees.17
Other states and local jurisdictions have followed California’s lead in enacting similar anti-hairstyle discrimination legislation including New York and New Jersey.18 According to the CROWN Coalition, approximately 20 states have introduced, or formally declared their intent to introduce, their own anti-hairstyle discrimination legislation such as Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Nebraska, Oregon, Pennsylvania, South Carolina, Tennessee, Virginia, Washington, West Virginia, and Wisconsin.19 Cincinnati, Ohio’s law took effect on January 1, 2020, and applies to any individual who employs ten or more persons within the City of Cincinnati.20
Anti-hairstyle discrimination reform has also been introduced at the federal level. On December 5, 2019, Cory Booker, a U.S. Senator from New Jersey, introduced a federal CROWN Act bill in the United States Senate, and companion legislation was also introduced in the House of Representatives.21
One of the most recently introduced state anti-hairstyle discrimination bills is Maryland’s Senate Bill 0531, which was introduced on January 30, 2020.22 This bill proposes to expand the term “race” to include “protective hairstyles,” which is defined in the bill as a hairstyle designed to protect the ends of the hair by decreasing tangling, shedding, and breakage including braids, twists, and locks.23 Employees alleging discrimination based upon the appearance of their natural hair would be permitted to file an employment discrimination claim, with the Maryland Commission on Civil Rights as they would for Sex, Age, or National Origin Discrimination claims. If enacted, Maryland’s state CROWN law would take effect October 1, 2020.24
Best Practices for Employers in States that Have Enacted the CROWN Act
The CROWN Act movement quickly evolved into a nationwide trend, and we anticipate that most states will eventually enact some form of this legislation in the foreseeable future. Accordingly, employers in the jurisdictions in which CROWN Acts have been enacted should review their policies to ensure compliance with the CROWN laws. Below are a few best practices for employers to implement to ensure that your personal grooming policy is CROWN Act compliant:
- Avoid utilizing subjective and vague terminology in personal grooming policies such as “excessive hairstyles,” as was in the policy challenged in the Catastrophe Management decision, or policies requiring for an employee’s hair to be “smooth,” “contained” or “pulled back,” unless the employer has a legitimate health or safety justification, and consistently enforces the provision without regard to race or ethnicity.
- Add clarifying language to your existing personal grooming policy. If your employee handbook currently has a policy in place that requires for an employee to physically present in a manner that is “professional” or to reflect a “corporate or business image,” add clarifying language in the policy that states that the term “professional” is defined to include natural hairstyles such as braids, dreadlocks, and twists.
- Avoid outright prohibitions on specific hairstyles historically associated with race, such as dreadlocks, twists, afros, or braids. As the proponents of the CROWN laws suggest, these prohibitions historically have caused a disparate impact on minorities.
- Ensure that management and Human Resources professionals in your organization are adequately informed about natural hairstyle discrimination by conducting a training session or providing information to management and staff about the requirements of the CROWN laws. Awareness alone can serve as an effective tool to combat implicit bias.
1 Crown Coalition, The Crown Research Study, https://www.thecrownact.com/research (last visited Feb. 13, 2020).
3 Laurel Wamsley, Adults Come Under Scrutiny After HS Wrestler Told To Cut His Dreadlocks Or Forfeit, Nat’l Pub. Radio (Dec. 27, 2018, 1:43 PM), https://www.npr.org/2018/12/27/680470933/after-h-s-wrestler-told-to-cut-his-dreadlocks-or-forfeit-adults-come-under-scrut.
10 Ray Sotero, Senate votes to end hair discrimination in the workplace and schools, Ca. Senate, https://sd30.senate.ca.gov/news/press-releases/2019-04-22-april-22-2019-video-senate-votes-end-hair discrimination-workplace (last visited Feb. 13, 2020).
18 New York’s anti-hairstyle discrimination law went into effect July 12, 2019 and covers employers with four or more employees. N.Y. Exec. L. § 292.38. New Jersey’s anti-hairstyle discrimination law went into effect on December 19, 2019 and the statute does not include an employee threshold. N.J. Stat. Ann. § 10:5-5.
19 The CROWN Coalition is an organization founded by the National Urban League, Color of Change, Western Center on Law & Poverty that sponsors anti-hairstyle discrimination bills nationwide. CROWN Coalition, https://www.thecrownact.com/ (last visited Feb. 13, 2020).
By: Jeffrey Winchester
The federal government just released an updated Form I-9, and although you aren’t required to use the new version until May 1, 2020, best practices dictate that you should start using it immediately. It has been a few years since United States Citizenship and Immigration Services (USCIS) updated the Form I-9, which verifies the identity of new hires and ensures they are authorized to work in the United States. But with this recent announcement, you should take immediate steps to come into compliance or risk financial penalties.
By:Lisa Nagele-Piazza, J.D., SHRM-SCP
By: Kathy Gurchiek
March 3 is Super Tuesday—the day prior to the presidential election when the most states hold primary elections and caucuses to choose candidates—but discussing politics and political issues in the workplace isn’t always so super. With the approaching presidential election, tempers can flare and heated debates can create tension among co-workers. In some cases, disagreements escalate into name-calling, hurling insults or shunning colleagues who hold opposing views.
“Politics is often an emotional topic because government policies impact our deeply held beliefs and values,” said Heidi Collins, vice president of people operations at 15Five, a performance management software company in San Francisco.
“Enforcing an outright ban on political discussion is nearly impossible,” she noted, “unless you want to establish a culture of micromanaging and intrusive monitoring. Stifling communication is also incongruent with modern-day workplace practices.”
A recent survey of more than 1,000 U.S. employees found that more than half of the men (58 percent) and 40 percent of the women fear that disagreeing with their boss or co-workers could hurt their performance review.
“It’s concerning that half of the American workforce is worried that disagreeing with their managers about politics might have repercussions for their career,” said Greg Brown, CEO of Reflektive, a performance management company also based in San Francisco.
“As an employer, you want your employees to have diversity of thought,” Brown noted. “Your job isn’t to suppress this [conversation], but you do need HR, leadership and management to set the boundaries, communicate them to employees and lead by example.”
And people do talk politics. Research from the Society for Human Resource Management suggests many workers are involved in such discussions at work and those discussions are leading to conflicts:
- 56 percent of U.S. employees said politics and the discussion of political issues have become more common in the last four years.
- 42 percent have personally experienced political disagreements in the workplace.
- 34 percent said their workplace is not inclusive of differing political perspectives.
- 12 percent have personally experienced political-affiliation bias.
VitalSmarts, a leadership training company in Provo, Utah, found in a February survey of 1,060 of its newsletter subscribers that discussing politics outside of work can have a small trickle-down effect on careers. Managers were asked how they would respond to being at a dinner party and hearing a co-worker they oversee speak sarcastically about a presidential candidate the manager favors:
- 6 percent said this would greatly hurt the employee’s promotability.
- 15 percent it would hurt promotability a little.
- 51 percent said it would have no impact.
- 23 percent it would help the employee’s promotability a little.
- 6 percent said it would help a lot.
“It’s important to establish and reinforce company values and a culture where the goal is inclusivity and an appreciation for diverse perspectives,” 15Five’s Collins said. “Still, that doesn’t mean the office should be a perpetual segment of ‘Meet the Press,’ especially if it hinders productivity.”
If your culture is one of infighting, toxicity and competition, she said, “it’s probably a good idea to establish firm rules around political discussions, including an outright ban. But if your culture is one where you actively train employees on how to communicate with compassion, awareness and a focus on connection, HR can just reiterate that when it comes to political conversations, with a suggestion that people try to avoid these conversations at work.”
Those conversations can go beyond “my candidate versus your candidate,” dipping into political hot-button topics such as abortion, religion, gun control and immigration.
Joseph Grenny, co-author of the New York Times best-seller Crucial Conversations: Tools for Talking When Stakes Are High (McGraw Hill Education, 2011), offered the following tips on how to share political opinions at work without dissolving into hard feelings and loss of respect:
Frame your conversation as a chance to learn from each other, not to change each other’s minds. Simply being curious about another’s position is sufficient motivation to engage. That may sound like:
- “I know what I think about this issue, but I’m curious about why you feel so differently. Would you be open to sharing your position with me?”
Explain that you aren’t trying to change the person’s mind or attack his or her position. Then ask for permission to talk about the sensitive topic. Here are some examples:
- “I’m not wanting a debate, and I’m not trying to change your mind. I just want to understand. I see this issue very differently. Would it be OK if I explained my perspective?”
- “I’d also like to share my thoughts and get your reaction, if you’re interested.”
Show respect. Others will not engage with you if they don’t feel respected by you. Over-communicate your respect for the other person and his or her opinion:
- “I value you and your perspective. I want to hear from you. I don’t assume I’m right.”
- “I would like the benefit of your perspective.”
- “What have you experienced or learned that led you to feel that way?”
Look for areas of agreement rather than disagreement. If the conversation takes a more dramatic turn, look for the greater principle governing both opinions. Say things like:
- “I want to find the goals we share and then look at the issue with those goals in mind.”
- “Sounds like, for you, this ties to lots of things that are also very important to me.”
- “Can you help me understand why this matters so much to you?”
“Even if you agree with people, but do so in a way that is defensive, posturing or aggressive, it decreases the likelihood they’ll respect you or the outcome will be amiable,” Grenny said. “However, if you can express your opinion skillfully, you can associate with anyone. Ultimately, the key to successful dialogue is to make it safe for others to not only hear you, but to share their own ideas.”
Collins suggests being aware of your environment when having these talks.
“Can others hear you, who may not want to be part of the conversation? Perhaps you can go get coffee or a drink after work if you want to have these conversations.”
And don’t forget the “pause button,” she added.
“It’s important when you’re having emotion-forward conversations to take a moment to breathe before responding back to the person you’re speaking with. In conversations where there can be differing views, taking a breath will help you be more mindful before you speak.”