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Employment Law Alerts​

EEOC Guidance on Workplace Harassment

The Equal Employment Opportunity Commission (the federal agency which investigates and prosecutes various claims of discrimination, harassment and retaliation), issued an updated Guidance on Workplace Harassment.    It does not contain any earth shattering revelations, in my opinion, but does bring to the forefront some of the more current issues and revisits many longstanding issues.  Much of it addresses what we, as attorneys, need to be aware of in defending these cases.  From a client standpoint,  here are the highlights of  the 189 pages of which we think you should be aware.  We have divided them into categories:

Harassment Generally

  1. The EEOC explicitly recognizes what it refers to as cross-base issues.  By way of example –

    1. Harassment based on the misperception that someone falls within a protected class;

    2. Harassment based on an employee’s association with someone in a protected class;

    3. Harassment where the harasser shares the same protected class trait as the target (intraclass harassment);

    4. Harassment where the target has more than one protected characteristic (intersectional harassment); and

    5. Harassment based on stereotypes.

  1. For something to constitute harassment, the conduct must be severe (only one occurrence required) or pervasive.  We generally advise clients that a rape or a noose in the workplace is severe in and of itself.  The EEOC provides other examples of where one occurrence might meet the “severity” standard –

    1. Sexual assault;

    2. Sexual touching of an intimate body part;

    3. Physical touching of the threat of physical violence;

    4. The display of symbols of violence or hatred, such as a swastika an image of a Klansman’s hood, or a noose;

    5. The use of denigrating animal imagery;

    6. A threat to deny job benefits for refusing sexual advances; and

    7. The use of the “n-word” by a supervisor in the presence of a Black subordinate.

  1. Harassment can occur even when the complaining employee is not the target.

  1. Harassment during an off-site employer-hosted party can be sufficiently related to the work environment to be unlawful.

  1. Harassing conduct can be work-related if it occurs through the use of an employer’s communication-related technology.

  1. “Revenge porn” is a form of sexual harassment.

  1. Conduct that occurs completely outside of work, such as on employees’ private social media platforms, can constitute unlawful harassment, if it impacts the workplace.  Here are 2 examples provided by the EEOC:

Example 56: Conduct on Social Media Platform Outside Workplace Contributes to Hostile Work Environment. Rochelle, a Black woman born in the United States, works at a tax firm. She alleges that two Black coworkers of Caribbean descent, Martina and Terri, subjected her to a hostile work environment based on national origin. The investigation reveals that Martina’s and Terri’s harassing conduct included mocking Rochelle, blocking doorways, and interfering with her work, and that it culminated in an offensive post on a popular social media service that they all use. In the post, Martina and Terri included two images of Rochelle juxtaposed with an image of the fictional ape Cornelius from the movie The Planet of the Apes, along with text explicitly comparing Rochelle to Cornelius. Rochelle learned about the post from another coworker, Jenna. Based on these facts, the combined conduct, including the social media post, was sufficient to create a hostile work environment.

Example 57: Conduct on Social Media Platform Outside Workplace Does Not Contribute to Hostile Work Environment. Michael, a courier for a management consulting firm, believes that women should dress conservatively on romantic dates and limit their food intake to appear lady-like. Michael shares these beliefs in posts on his private social media accounts. He also shares posts criticizing women’s sexual behavior, such as stating, “Why would a man buy a cow when you can get the milk for free?” Michael’s coworker Donna finds some of Michael’s posts online and is deeply offended even though there is no connection between the posts and the firm or any of its employees, and Michael has never spoken to Donna about these views. These posts, on their own, do not contribute to a hostile work environment based on sex because they do not have an impact on Donna’s work environment.

  1. There are no “magic words” that must be used to initiate a harassment complaint.  Your supervisors and managers must be trained on what it means to “be on notice” of possible harassment.

  1. Investigations must be conducted promptly.  What is “prompt” depends on the circumstances.

  1. Consider whether interim measures need to be taken during the investigation process.

  1. Remember that conduct might be welcome at first, but later turn into unwelcome, harassing conduct, such as when a romantic relationship ends, or someone no longer is tolerant of jokes targeting ethnicity.


Race Harassment

  1. Harassment towards someone with a multi-racial background is prohibited.

  1. Harassment towards someone based on traits or characteristics linked to a person’s race, such as the individual’s name, cultural dress, accent, manner of speech or hair texture/style is prohibited.

Color Harassment

  1. Harassment based on color refers to treatment related to a person’s pigmentation, complexion, of skin shade or tone. Harassment on the basis of color may exist where a supervisor harasses Black employees with a darker skin tone, but not those with a lighter skin tone.  Harassment on the basis of color may also exist when employees tell a brown-skinned employee that his skin is the color human feces.

National Origin Harassment


  1. The prohibition of harassment based on national origin includes physical characteristics, ancestry, attire or diet, accent of lack of English fluency.


Sex Harassment

  1. Sex based harassment falls into a variety of categories –

    1. Sex;

    2. Pregnancy (including termination of a pregnancy), Childbirth or Related Medical Conditions (including morning sickness and lactation); and

    3. Sexual Orientation and Gender Identity (including denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

  1. Purposely misgendering an employee can constitute harassment.  Misgendering occurs when an employee has changed their name, is using gender pronouns other than the ones which were assigned at birth, and/or is presenting other than the gender assigned as birth.  For example, a transgender employee now uses the name Jennifer and presents as female.  It is harassment for employees to intentionally and frequently refer to Jenniger by her former male name and male pronouns; and to ask her questions about her anatomy and assert that she is not female.


Religious Harassment

  1. Religious harassment encompasses explicitly or implicitly coercing employees to engage in religious practices at work  (Google “EEOC and Aurora Renovations” for an example of this).

  1. It is not religious harassment where one employee tries to convince another employee of the correctness of their religious beliefs.  However, it may become religious harassment where the employee warns the coworker that she is on the wrong spiritual path and continues to proselytize to the coworker after being asked to stop.

Age Harassment

  1. Age-based harassment includes actions based in stereotypes, such as discouraging older individuals from taking technology-dependent roles because of the perception that older workers are not well-suited to such work, or encouraging older workers to retire.  I have included the EEOC’s example because the conduct mentioned is very similar to things I routinely hear:

Example 16: Age-Based Harassment. Lulu, age sixty-eight, is a makeup artist and salesperson at a department store. Lulu’s manager repeatedly asks Lulu about her retirement plans, despite Lulu expressing that she has no interest in retiring. Lulu’s manager also tells her that the brand needs “fresh faces” and “high energy.” When Lulu makes even a minor mistake, her manager disparages Lulu for having “senior moments.” Further, on one occasion, the manager snapped at Lulu, “Nobody wants makeup advice from their granny.” Based on these facts, the manager’s harassing conduct toward Lulu is based on her age.


Disability Harassment

  1. Harassment about a personal’s physical or mental disability, whether general or specific, is prohibited.  This includes stereotyping, and harassing someone because of their request for, or receipt of, a reasonable accommodation.


*****


The entire document can be found here —

https://www.eeoc.gov/laws/guidance/enforcement-guidance-harassment-workplace


By way of summary –

            *Conduct workplace harassment training;

             *Conduct bystander training;

             *Provide additional training for your managers and supervisors;

*Have detailed policies in place, describing what is prohibited (with non-exclusive examples) and how to report (have multiple avenues for reporting);

*Ensure that your entire workforce can understand the policy;

*Ensure your policy about anti-retaliation is crystal-clear and provides examples of overt and subtle retaliatory activity; and

*Work towards establishing a workplace where employees are comfortable coming to you before they feel they have no alternative to see a lawyer or contact a government agency.



CHANGES TO FEDERAL OVERTIME RULES

Executive, Administrative and Professional Exemptions

 

Yesterday the U.S. Department of Labor (DOL) issued new rules to take effect on July 1, 2024, increasing the minimum salary requirements for employees to be eligible for the executive, administrative, and professional exemptions from overtime pay under the Fair Labor Standards Act (FLSA).   The changes are, as of:

*July 1, 2024, to $844 per week from $684 per week  (or $43,888 annually, currently $35,568 annually); and
*Jan. 1, 2025, to $1,128 per week (or $58,656 annually).

 

The Highly Compensated Employee Exemption
The new rule also impacts the exemption for highly compensated employees (HCE). An HCE is currently deemed exempt from the payment of overtime under the FLSA if:

*The employee earns total annual compensation of $107,432 or more, which includes at least $684 per week paid on a salary or fee basis; and
*The employee’s primary duty includes performing office or non-manual work; and
* The employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee.

Thus, for example, an employee may qualify as an exempt HCE if the employee customarily and regularly directs the work of two or more other employees, even though the employee does not meet all of the other requirements in the standard test for exemption as an executive.

The total annual compensation level for the HCE exemption will increase from its current $107,432 per year as of:

*July 1, 2024, to $132,964 per year; and
*Jan. 1, 2025, to $151,164 per year.

The DOL plans on increasing the salary amount every three years beginning July 1, 2027, absent unforeseen economic or other conditions.

 

So, are you telling us more people are going to be overtime eligible?
Yes, that is exactly what we are saying.

 

How do we calculate the annual or weekly salary?  What is included?
An employee’s regular rate of pay for overtime purposes is not simply the employee’s hourly rate of pay, annual salary, or weekly salary. Under the FLSA, an employee’s regular rate of pay is based on “all remuneration” earned from employment (with some specific exceptions, such as vacation pay or 401(k) contributions). This can include non-discretionary bonuses, commissions, shift differentials, and can even include some non-cash payments depending on the circumstances.

To calculate the overtime premium for an employee paid on an annual salary basis, divide the annual salary by 52 (weeks) to calculate the employee’s weekly salary. Add in any other compensation paid during that pay period. Divide the weekly salary and any additional compensation by the number of hours worked in the workweek. This is your regular hourly rate for this workweek. You then need to calculate the overtime hourly rate. Because you have already accounted for the overtime hours once in calculating the regular hourly rate, you will need to multiply the regular hourly rate by 0.5 (instead of 1.5) to get the overtime hourly rate. You then multiply the overtime hourly rate by the number of hours worked in the pay period over 40 hours and add that to the employee’s compensation for the workweek.

To calculate the overtime premium for an employee paid based on a weekly salary basis, take the weekly salary and add in any other compensation paid during that pay period. Divide the weekly salary and any additional compensation by the number of hours worked in the workweek. This is your regular hourly rate for this workweek. You then need to calculate the overtime hourly rate. Because you have already accounted for the overtime hours once in calculating the regular hourly rate, you will need to multiply the regular hourly rate by 0.5 (instead of 1.5) to get the overtime hourly rate. You then multiply the overtime hourly rate by the number of hours worked in the pay period over 40 hours and add that the employee’s compensation for the workweek.

 

What do we do now?
Develop a strategy to make any necessary changes to workforce and your budgets by the July 1, 2024, deadline. Such strategies could include:

  • Identifying those currently exempt employees who do not satisfy the $844 weekly minimum salary threshold;
  • Making sure these employees meet the job duties tests to qualify for the executive, administrative, professional or outside sales employees’ exemptions;
  • Tracking these employees’ hours worked so you can make a decision on whether to either
    • increase salaries for those employees to meet the new threshold on July 1, 2024, or
    • keep the employees at the same pay rate and pay the overtime premium if they work over 40 hours in a pay period paid, or
    • ensure those employees work no more than 40 hours in one workweek.