One of the many things Donald Trump has been attacked for in the news lately are non-disclosure agreements. As discussed previously on this site, Mr. Trump’s campaign requires all staffers to sign agreements forbidding them from speaking about the campaign while they work for the campaign, after they leave the campaign, and even after the campaign has finished. There have been further concerns about Mr. Trump’s running of the Miss USA, Miss Universe, and the associated Miss State Pageants. It turns out that the agreement all contestants must sign includes a similar non-disclosure clause. This highly contentious political figure has thrust what would otherwise be an esoteric issue of business law into the public spotlight. Criticism of non-disclosure agreements abound. It is valuable then to ask, why have non-disclosure agreements? What value do they add to justify their existence?
Boundaries on the Relationship
Non-disclosure agreements are usually set out at the beginning of a professional relationship whether between employer and employee, contest and contestant, or any other such relationship. The agreement, at its most basic level, recognizes the signer’s free speech rights. That is, by even making the agreement, the one who made the agreement understands that, normally, the signer would be within their rights to speak about what they’ve learned. To allow for the professional relationship to work, the one making the contract requests that the signer keep information secret. This is usually done to protect hard work and business by both the maker and signer of the contract.
For a business, this might be protecting some secret idea, formula, or recipe. Coca-Cola might want someone who works for them to ensure that the Coca-Cola formula is kept secret. For a contest, this might be protecting some knowledge that could skew the contest. The current Miss USA might learn who will be the judges for next year’s contest. If some of the new contestants were to know this information, it might skew the contest. Non-disclosure agreements therefore are not only useful in facilitating professional relationships, but are sometimes necessary. There are, however, concerns about their use.
A valid concern about non-disclosure agreements states that such agreements can prevent concerned employees from addressing issues within the organization. Non-disclosure agreements may prevent or dissuade whistleblowing. A well-written non-disclosure agreement should protect secret information while allowing for concerns to be aired without fear of repercussion.
A company should have strong internal whistleblowing policies that allow an employee to voice their concerns internally without fear of repercussions. This sort of policy benefits both the company and the employee. The employee can voice their concerns without fear. The company then can either prevent issues from developing or deal with issues internally before regulators and media attention have the chance to impose penalties on the company.
A company should realize, no matter how thoroughly activities are monitored, management can never be privy to everything that goes on in the company. A company should realize that their employees are the prime sources of information pertaining to possible threats to a company and, accordingly, should encourage them to provide this information. An employee in a foreign office may notice bribery taking place that company headquarters has missed. Through robust whistleblowing policies the company can foreclose any further bribery which may expose the company to liability under US bribery law, the Foreign Corrupt Practices Act.
Unfortunately, in some cases, companies have opted to censor this valuable source of information. Policies that enforce this censorship virtually ensure that, if there is a leak of corporate wrongdoing, the fallout will be catastrophic. One major example of this was the 2008 financial crisis. Mortgages were knowingly made to those who could not afford them and any whistleblowing, if it occurred, was ignored.
This issue has been recently addressed by the US government in the Dodd-Frank act, adopted by the US Securities and Exchange Commission in Rule 21F-17. The rule forbids publicly traded companies from preventing their employees from blowing the whistle on corporate issues to the Securities and Exchange Commission. In addition, most states have their own laws protecting whistleblowers. For example, California strengthened its protection of whistleblowers in 2014 by providing additional protections in the California Whistleblower Protection Act.
Authored by Tom Bird, LegalMatch Legal Writer
7-11, the nationally recognized convenience store, is being sued by Equal Employment Opportunity Commission (EEOC) for disability discrimination. EEOC v. Brown-Thompson d/b/a 7-Eleven is a case that sheds some light on disability discrimination. Casey Crothers was a disabled employee at a 7-11 distribution center, which forced him to take on a different role. 7-11 in response decided to fire him. The EEOC brings a claim of disability discrimination, alleging the termination violates the American with Disabilities Act (ADA). EEOC seeks back pay along with both compensatory and punitive damages and injunctive relief to prevent the convenience store from committing any future disability discrimination.
Americans with Disabilities Act
The ADA is a federally recognized labor law that prohibits unjustified discrimination based on disability. Crothers was a stocker at a distribution center. He wanted to be transferred due to restrictions that would prevent him from staying in the position. This transfer would keep away from the job for three days and 7-11 decided to terminate him on this ground.
The EEOC claims that under the Family and Medical Leave Act, there was justification for the leave. His disability prevented him from staying on and had to be transferred and needed the three days for the transfer to take place. 7-11 has seemingly discriminated against Crothers because of his disability. Where leave is a reasonable accommodation for a medical condition covered by the ADA, an employer must provide it.
This applies to the Crothers case here. There is no undue hardship on the employer to allow for Crothers to take three days off so that he could transition into a role that is more suitable for him. The point of ADA and these other agencies that aim to protect disabled individuals is to give them certain flexibilities and such a scenario would warrant being flexible.
Of course, not all acts against disabled individuals are immediately a concern for ADA regulation. On the contrary, there are numerous occasions where disabled individuals must be let go for well-justified reasons. For instance, if the individual is taking off too many days or is simply unfit to do the job under any circumstance, this is valid grounds for termination without legal action. There has to be some evidence that actual discrimination has taken place. Big companies with surplus cash are often targeted for discrimination and many of these claims are meritless. Actual or circumstantial evidence should be given by plaintiff to show that they were terminated or mistreated for their disability in accordance with ADA standards. Otherwise, exploitation of the system will take place putting the legal system in disarray, giving these people who claim discrimination certain advantages that might be unwarranted.
Disability discrimination is quite prevalent in the U.S. and most of it goes unnoticed. At the same time, there have been far too many baseless claims of discrimination. A line needs to be drawn as to what constitutes discrimination and up until now, the ADA has not always done the best job in enforcing this. Until the ADA and other like agencies become more clear in their goals, such claims will keep arising and simultaneously many cases will be ignored.
Authored by Sam Behbehani, LegalMatch Legal Writer
Many consider the way they dress an extension of who they are as a person. Their appearance is a form of self-expression. Sometimes your appearance is even more than this, sometimes it is intrinsically tied to your history and cultural identity.
Appearance, and the legal peculiarities surrounding it, have been in the news lately after an 11h Circuit ruling declared earlier this week that employers can ban dreadlocks at work. The ruling comes after a black woman—Chastity Jones—was denied employment after she refused the would-be employers demand that she cut off her dreadlocks. The company had a policy which blanket forbade “non-professional hairstyles.” The HR representative which spoke with Ms. Jones said that dreadlocks fell under this policy because they “tend to get messy.”
The ruling in this case focused primarily on defining race discrimination—whether race was confined to the biological aspects of race or includes cultural aspects associated with a specific race. However, it has raised the question—when can an employer discriminate based on somebody’s appearance?
Classy Looks Not a Protected Class
Federal law bars employers from taking adverse employment action (not hiring somebody, firing somebody, refusing promotions, etc.) based on a protected classification such as race, national origin, religion, gender, veteran status and disability. You’ll notice that appearance is nowhere in that list. That’s no mistake because, generally, employers are totally free to discriminate based on your appearance.
However, like almost everything in law, there are exceptions to this general rule. Where appearance overlaps with a protected class feature—such as disability, religion, or gender—the rules change a little bit. What’s more, while there are no federal laws protecting against appearance based discrimination, there are a number of local laws that change how an employer must behave.
Obesity and the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) protects against discrimination based on an actual or perceived (by your employer) disability. You may be asking, how does disability relate to appearance? The answer is that the ADA can potentially limit how an employer can discriminate based on appearance when it comes to weight—specifically obesity.
Exactly how the ADA treats obesity is something that varies wildly based on the court and where you are. In some places, morbid obesity is outright protected as a disability, in others its protected only if it stems from a different underlying condition. The same goes for "normal" obesity, with rulings as recent as earlier this year limiting the situations where it counts as a disability. The situation continues to develop and change in the courts—with a trend towards counting all obesity as a disability.
What this means is that, if obese or morbid obesity count as disabilities where you live, your employer must make reasonable accommodations for your disability and cannot take adverse employment action based on your obesity.
Discriminatory Dress Codes?
Most workplaces, like the workplace in the dreadlocks case, have some sort of dress code that they enforce. Where these dress codes are written to be totally neutral, and are neutral in practice, there’s no problem. An employer is, barring the rest of the exceptions discussed in this article, has a surprising amount of leeway when it comes to restricting your appearance as they wish. However, when the code is applied in a discriminatory manner, an employer may run into problems.
First and foremost, a dress code must be generally applied. Dress codes that single out either an individual or a protected group—such as gender or religion—are a no-no. For instance, your employer is not allowed to enforce a dress code that either explicitly, or in effect, unfairly burden one gender more than another.
However, employers are often allowed to apply different dress codes to men and women—cases have dealt with issues such as codes requiring makeup for women only. Employer codes can also generally enforce required weight and height so long as it is neutrally applied to men and women. They can also generally enforce grooming requirements and the covering up of tattoos and body piercings. A workplace can even require, so long as there are legitimate business requirements, “sexy” clothing and uniforms.
Employers must make reasonable accommodations—any accommodation that would not cause undue hardship for the employer—for religious garb and grooming within the workplace. Employees may also often insist on standards of modesty based on their religious beliefs.
The law also requires an employer to allow an employee to express their gender identity through accepted characteristics—although employers can require work clothing to conform to accepted social norms.
Where Appearance Discrimination Meets Other Kinds of Discrimination
So we’ve established that the law does not protect your appearance, employers have a great deal of leeway in limiting your appearance and—perhaps not surprisingly—hiring, firing, or refusing promotions based on your appearance.
An employer can’t, however, make adverse employment decisions based on your appearance where that determination also is founded on gender stereotypes or discrimination against religious garb or grooming.
There are a few places where appearance based discrimination has some teeth based on local laws. The state of Michigan forbids discrimination based on obesity. There are many cities which prohibit discrimination based on height, weight, or physical characteristics. These cities include: San Francisco and Santa Cruz in California, Madison in Wisconsin, Binghampton in New York, and Urbana in Illinois. Washington DC takes a slightly different approach, forbidding discrimination based on outward appearance subject to business requirements or standards.
Massachusetts has introduced legislation to prevent weight or height based discrimination several times, as recently as last year, but has yet to succeed in passing such a law. Their most recent attempt at such a law would also have prevented discrimination based on “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”
Why Isn’t Appearance Protected?
Beyond these local rules and overlap with protected classes, your appearance is not protected from discrimination under the law. The legal reasoning behind this is that it does not check the required boxes to be a protected class.
Protected classes are generally immutable characteristics of a class that has historically been discriminated against. The way you dress or groom yourself can be easily changed and is thus not a likely candidate for a protected class. The same approach is generally taken with weight, although this ignores medical afflictions which may prevent a person from losing weight.
Height is a bit of an odd one, while it is certainly immutable, there could be some question as to whether it has been historically discriminated against—although very short and very tall people may think differently. The issue has been more and more addressed locally and, as the dreadlocks case shows, is beginning to be more visible on a national scale. Perhaps soon we’ll see federal law outlining exactly how much of appearance is protected from discrimination. However, given how long the federal government has been silent on this issue, I wouldn’t hold your breath; it is likely to remain primarily an issue of state and local law for the foreseeable future.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
On 7/1/2018, Massachusetts’ Act to Establish Pay Equity will come into effect. Frequently billed as the strongest wage equality law in the United States, most of the media coverage of the Act focuses on its rules about discussing salary histories. Under the law, employers cannot ask about a job candidate’s salary history until a job offer is extended. It also allows employees to share salary information without fear of punishment. The goal of this provision is to put all candidates and employees on equal footing in salary negotiations—regardless of race, religion, disability, national origin, or gender.
However, the salary history provision is only one part in the Massachusetts law. The law’s requirement of equal pay for comparable work is equally important—and was one of its initial goals.
The History of the Pay Equity Act
Massachusetts has had equal pay legislation since 1945. However, most courts interpreted these laws narrowly, only requiring equal pay for almost identical work. This interpretation permitted employers to pay different wages to men and women doing similar (but technically different) jobs. Unscrupulous employers could avoid paying equal wages by making small changes to job duties and titles.
In 1989, a group of 41 female cafeteria workers sued the Everett Public Schools, alleging unequal pay. The cafeteria workers, who engaged in heavy lifting and the sanitization of kitchens, were paid significantly less than male janitors. The case was litigated for nine years. Eventually, the Superior Judicial Court denied the women’s claims, finding that “comparable work” should be narrowly defined to jobs that were very similar.
Beginning in 1998, a group of legislators and activists worked to change Massachusetts’ law to require equal pay for truly comparable work. Governor Charlie Baker finally signed the Pay Equity Act in 2016. One of the Everett cafeteria workers was present at the signing.
What Is Comparable Work?
The Pay Equity Act requires employers to pay equal pay for comparable work. It defines “comparable work” as “work that is substantially similar in that it requires… similar skill, effort and responsibility and is performed under similar working conditions.” A finding of comparability cannot be limited to a review of job titles or job descriptions. Under the new Act, it is likely that the Everett cafeteria workers would have been entitled to equal pay.
Additionally, the Pay Equity Act prevents an employer from reducing a worker’s seniority due to Family Medical Leave Act time off (including time off for pregnancy and caregiving duties).
Why Is Equal Pay For Comparable Work Important?
57% of American women are in the workforce. Today, more women earn college degrees than men. However, statistics show that women are regularly paid less than their male counterparts. The Massachusetts law, along with the Lilly Ledbetter Fair Pay Act, and recent state laws in New York and California are an important recognition of the value of all American’s work.
Many Americans are familiar with the concept of equal pay for equal work. The media has publicized high profile claims by female professional athletes (most recently the U.S. Women’s national soccer team) who have fought for equal compensation. However, the average American woman still earns $0.79 to a male worker’s $1.00. This number is even lower for some women of color.
This inconsistency is multi-factorial. Women are more likely to work part-time. They are also more likely to be the targets of caregiver discrimination and subtle gender bias. Some employers assume that women are more likely to be distracted by family obligations, leading to a decrease in promotions and job responsibilities. These stereotypes have also led to an increased push for paid leave and other legal protections for mothers, fathers, and other caregivers.
The Massachusetts law is a significant strengthening in equal pay protections and may cause a ripple effect through other states. Thirteen states and the District of Columbia have already enacted laws prohibiting pay secrecy. Reframing salary discussions may increase pay equity. Giving workers the legal right to equal pay for comparable is another important tool.
It is also worth noting that equal pay laws protect all Americans, not just women. If a man believes he is receiving unequal pay for comparable work, he may also have a legal claim. As Dorothy Simonelli, one of the Everett cafeteria workers commented, ““I have 10 grandchildren – five boys, five girls,” Simonelli said. “This is for them and all the future women in the workplace. R-E-S-P-E-C-T.”
Authored by Leigh Ebrom, LegalMatch Legal Writer
How often do you wish you could post a tweet telling your boss and your workplace exactly what you really think of them? How many of you have actually done just that? In March of this year, the National Labor Relations Board (NLRB) ruled on an issue involving just that. An employee of Chipotle, James Kennedy, took to twitter to air his grievances about what he considered to be poor working conditions and unfair wages in his job at Chipotle.
Upon seeing the tweets, Chipotle demanded, pursuant to their social media policy, that Mr. Kennedy take down the tweets critical of their business. Their social media policy forbad Chipotle employees from posting “incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements.”
Mr. Kennedy took down the tweets in response to his manager’s demands. However, after he was fired a few months later for circulating a petition among employees demanding they be provided legally mandated break time, Mr. Kennedy brought his case before the NLRB. The fact that Chipotle forced him to take down these tweets was among his grievances.
The March NLRB ruling held that the policy was a violation of the National Labor Relations Act (NLRA)—a sweeping federal law which is designed to protect the collective bargaining rights of employees. Among the many protections offered by the NLRA is assurance of an employee’s right to discuss workplace conditions or act as a group to convince management to fix workplace issues. The NLRB felt that Chipotle’s social media policy was a violation of these guaranteed rights.
This shouldn’t have come as a total surprise to Chipotle. The NLRB has advised employers that certain types of social media restrictions would violate the NLRB since as long ago as 2012. However, this was one of the first cases where the NLRB enforced those warnings. Don’t post that tweet just yet though, just last month the NLRB made some serious updates to its initial ruling.
The NLRB’s August Reversal
Just last month, the NLRB changed course on Mr. Kennedy’s tweets. Many of the tweets he was forced to take down were ruled to not be an issue under the NLRA because they either didn’t involve work-related concerns or weren’t part of a concerted employee effort to fix something wrong in the workplace.
However, don’t worry too much about Mr. Kennedy. The August ruling also found that firing Mr. Kennedy over distributing his petitions independently violated the NLRA and required Chipotle to rehire him and pay his lost earnings.
What’s more, while Mr. Kennedy’s specific tweets didn’t create a situation where Chipotle was violating his rights, the NLRB has stuck to its guns as to the Chipotle’s social media policy. The August ruling upheld the judge’s original finding that Chipotle’s social media policy itself violated the NLRA.
Fortunately for employers and employees alike, the NLRA ruling also provided a bit more guidance as to the exact issues with Chipotle’s social media policy—breaking down nearly every word of Chipotle’s policy and explaining why it violated the NLRA.
The Dos and Don’ts of Social Media Policies under the NLRA
First, the ban on sharing confidential information is a no-go. However, the NLRB didn’t put a stop on any limitation of sharing confidential information through social media. As you might imagine, companies have a serious—and very legitimate—interest in keeping confidential material secret. The issue the NLRB took with the policy is the failure to define exactly what constituted confidential material. This meant that the scope of the restriction could include speech protected by the NLRA.
The restriction on disparaging language in the Chipotle social media policy was similarly found to be too broad to be acceptable. Once again, the lack of definition left too many possibilities for abuse. This means that some restrictions on posting things that place a company in a poor light might be acceptable—so long as the restrictions do not prevent employees from speaking to issues within the workplace.
The rest of the restrictions—forbidding false, incomplete, inaccurate, or misleading posts—are explicitly forbidden in social media policies by the NLRB. There is previous case law which prevents employers from implementing policies which bar social media posts on the grounds of a false or misleading nature. There must first be proof that the employee had a malicious motive in making the post before the employer can force an employee to take down a social media post.
Finally, the NLRB ruled that a disclaimer isn’t enough to make a social media policy comply with the NLRA. Chipotle’s policy included a disclaimer which explicitly stated that the social media policy didn’t prevent any post which was protected under the NLRA or any other laws. However, the NLRB ruled that a catchall provision isn’t sufficient to make a policy legal where there are specific elements—such as the restrictions on false or misleading posts—which violate the NLRA.
Since the original ruling in March, Chipotle has updated its social media policy to one that it says complies with the requirements of the NLRB. However, it seems very likely that this case may be the tip of the iceberg for a number of cases involving social media policies to come—only time and tweets will tell.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law