OFCCP Updates Voluntary Self-Identification of Disabilities Form for Federal Contractors

 Last month, the OFCCP implemented a new self-identification form for federal contractors to provide to job applicants and employees. The new form lengthens the list of possible disabilities, replaces the current version which can be used until July and will remain valid until May 2026.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

City of Columbus Enacts Salary History Ban for Job Applicants

 Last month, the Columbus City Council passed Ordinance 0709-2023 (to be codified at CCC §2335) banning inquiries (to an applicant or other employer) into a job applicant’s salary history starting next year on March 1, 2024.  This will require most employers with 15+ employees employed within the City limits to modify their job applications and processes, except for the state, federal and county governments.  It does not cover independent contractors, collective bargaining agreements and permits employees to discuss their salary history during negotiations for new compensation.  Employers may also rely on their own records of salary history for their current and recently former employees.  Employers also may not retaliate against applicants who refuse to disclose their salary history.  I’ve included the key language of the ordinance below.

Chapter 2335 - PROHIBITED SALARY HISTORY INQUIRY AND USE 

2335.01 - Definitions  

(A) "Applicant" means any person applying for employment to be performed within the geographic   boundaries of the City of Columbus, and whose application, in whole or in part, will be solicited, received,  processed, or considered in the City of Columbus, regardless of whether the applicant is interviewed. 

(B) "Employer" means an individual, firm, limited liability company, partnership, association, labor organization, corporation, or any other entity whether or not organized for profit, that employs fifteen (15)   or more persons on a qualifying wage, commission, or other compensation basis within the City of   Columbus. “Employer” includes job placement and referral agencies and other employment agencies   when such agencies operate on behalf of an entity that otherwise meets the definition of “Employer”.   “Employer” does not include any unit of local, state, or federal government, except the City of Columbus. 

(C) "Employment" means any occupation, vocation, job, or work, including but not limited to, temporary   and seasonal work, part-time work, contracted work, contingent work, work on commission, and work   through the services of a temporary or other employment agency for which the applicant is to receive   wages or a salary. Employment does not include work as an independent contractor. 

(D) "Inquire" means to communicate any question or statement to an applicant, an applicant's current or   prior employers, or a current or former employee or agent of the applicant's current or prior employers, in   writing or otherwise, for the purpose of obtaining an applicant's salary history, or to conduct a search of   publicly available records or reports for the purpose of obtaining an applicant's salary history, but does not  include informing the applicant in writing or otherwise about the position's proposed or anticipated salary  or salary range. 

(E) "Salary history" includes the applicant's current or prior wage, benefits, or other compensation. "Salary   history" does not include any objective measure of the applicant's productivity such as revenue, sales, or other production reports.  

2335.02 - Purpose  The purpose and intent of this chapter is to elevate the best practices for hiring that promote pay equity.   The practices addressed in this chapter can, if used, perpetuate issues of systemic discrimination related to   the wage gap and wealth gap for women, especially women of color. To promote pay equity across the   workforce in the City of Columbus, the following prohibitions are established.  

2335.03 - Unlawful discriminatory practices regarding the use of salary history. 

(A) Except as otherwise provided in division (B) of this section, an employer shall not do any of the   following: 

(1) Inquire about the salary history of an applicant for employment;  

(2) Screen job applicants based on their current or prior wages, benefits, other compensation, or salary   histories, including requiring that an applicant's prior wages, benefits, other compensation or salary   history satisfy minimum or maximum criteria;  

(3) Rely solely on the salary history of an applicant, except as provided in division (C) of this section, in   deciding whether to offer employment to an applicant, or in determining the salary, benefits, or other   compensation for such applicant during the hiring process, including the negotiation of an employment   contract;  

(4) Refuse to hire or otherwise disfavor, injure, or retaliate against an applicant for not disclosing salary  history to an employer. 

(B) Notwithstanding division (A) of this section, an employer may, without inquiring about salary history,   engage in discussion with the applicant about their expectations with respect to salary, benefits, and other   compensation, including but not limited to unvested equity or deferred compensation that an applicant   would forfeit by resigning from their current employer.

(C) The prohibitions contained in this section shall not apply to any of the following: 

(1) Any actions taken by an employer pursuant to any federal, state, or local law that specifically   authorizes the reliance on salary history to determine an employee's compensation; 

(2) Applicants for internal transfer or promotion with their current employer; 

(3) A voluntary and unprompted disclosure of salary history information by an Applicant; 

(4) Any attempt by an employer to verify an applicant's disclosure of non-salary related information or   conduct a background check, provided that if such verification or background check discloses the   applicant's salary history, such disclosure shall not be solely relied upon for purposes of determining the  salary, benefits, or other compensation of such applicant during the hiring process, including the  negotiation of a contract;

(5) Applicants who are re-hired by the employer within three years of the Applicant's most recent date   of termination of employment by the Employer, provided that the employer already has past salary history data regarding the Applicant from the previous employment of Applicant; 

(6) Employee positions for which salary, benefits, or other compensation are determined pursuant to   procedures established by collective bargaining; 

(7) Federal, state, and local governmental employers, other than the City of Columbus.  

2335.04 - Complaint Procedure  An applicant may file a complaint with the Community Relations Commission under Section 2331.05(A)   alleging that an employer has engaged in or is now engaging in any violations of section 2335.03.   

2335.05 - Civil Penalties  Upon an administrative finding of violation by the commission, an employer may be subject to civil   penalties outlined in Section 2331.05(B). 

 2335.06 - Severability  If any provision or section of this chapter or the enforcement of any such provision or section is held to be   invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not   affect or render invalid or unenforceable any other provision or section of this chapter. To this end, each   of the provisions and sections of this chapter are severable.  

2335.07 - Effective Date  This Chapter shall take effect on March 1, 2024.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects De Minimis Employment Actions As Insufficient Grounds for Disability and Retaliation Claims

 Last week, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims for disability discrimination and FMLA retaliation.  Erwin v. Honda North America, Inc., No. 22-3823 (6th Cir. 4/21/23).  The Court found that the plaintiff had failed to identify any materially adverse employment actions which she had suffered after taking various medical leaves of absence due to her mental health issues.  She complained about a change in her job duties and reporting relationships, but none of the changes were substantial and merely involved reporting full time to one of her two managers and working full-time for that manager doing the same type of work she had previously been assigned.   The suspension of her ability to work remotely was only temporary while she was being trained.   None of these slight changes affected her compensation, job title, benefits, status, level of responsibilities, shifts, etc.

Having worked for the company for more than two decades, the plaintiff had been a recruiter since 2017.  She took a lot of FMLA leave for mental health issues.  At one point, she recruited only for full-time positions, at other points only for contingent positions.  In 2019, she recruited for both and reported to two different managers (one for full-time positions and one for contingent workers).   When a new FMLA leave request was denied for failing to supply medical documentation, she was given leave under company policy.  When she returned, she was assigned to only recruit for full-time positions and to report to one manager and to relocate her desk to be near that manager.  When she complained about that manager, the manager was disciplined for making unprofessional comments about her, but it was also found that she had poor attendance that was unrelated to her FMLA leave.  She took another FMLA leave and then resigned rather than return.  Although she later applied (and was hired) for a contingent position, she brought suit alleging disability discrimination and FMLA retaliation.

The Court found that she had not suffered an adverse employment action.  The change in her job duties back to recruiting only full-time positions did not affect anything about her job and she didn’t even testify that she preferred recruiting for contingent workers.   A mere alteration of job responsibilities is not an adverse employment action.

A change in management that did not affect her job status likewise was not an adverse employment action.

The requirement that [she] work in person, at her relocated desk, does not qualify in these circumstances either. The record shows that [her] suspension from remote work was only temporary, while she completed training. Because the revocation was temporary and “no economic loss occurred,” [her] loss of remote work capability is “properly characterized as a de minimis employment action that does not rise to the level of a materially adverse employment decision.” Bowman, 220 F.3d at 462. As for her desk being moved, Erwin doesn’t explain the significance; she simply notes that it was moved. And although she complains about increased supervision, even “intense supervision” is not an adverse employment action where, as here, Erwin was not “terminated or demoted,” and did not have her “pay rate reduced, benefits lessened, or responsibilities diminished.” Broska v. Henderson, 70 F. App’x 262, 267 (6th Cir. 2003).

The court also rejected her constructive discharge claim:

. . . Constructive discharge occurs when an employer creates “an objectively intolerable work environment to deliberately force [an] employee to resign.” . . . “[I]ntolerability is a demanding standard.” Id. The conditions must be “so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. (citation omitted). “[C]riticism and negative feedback do not suffice.” Id. So [her] fear of returning to work because she might face increased supervision and critical feedback does not show her work environment was intolerable. [She] has failed to show that a “reasonable person” would find the “conditions objectively intolerable.”  . . . . And [she] offers no evidence that Honda acted “deliberately” to “force” her to resign.  . . .. Even when construing the facts in [her] favor, she has not shown she was constructively discharged.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects EFMLEA Claim Where Employer's Final Offer of Reinstatement Was Not Shown to Be a Violation and Revocation of Flexible Class Schedule Affected More Than Just the Plaintiff.

On Friday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on claims by a medical assistant that it interfered with her EFMLEA leave by refusing to reinstate her to her former position or on the same terms and conditions by changing her job duties during the COVID pandemic and revoking her prior flexible work schedule.  Clement v. The Surgical Clinic, PLLC, No. 22-5801 (6^th Cir. 4-21-23).  The Court found that reassignment claim lacked merit because, after she objected to the change in job duties, she was offered a suitable transfer which she had accepted and which was willing to accommodate her job schedule.   While the revocation of her flexible schedule (to attend classes) constituted a prima facie violation of the statute, the employer was able to show that it revoked all prior authorizations of flexible schedules to attend classes – regardless of whether the employee had utilized EFMLEA or FMLA – because of the emergency situation created by the pandemic.  This was not only a legitimate and non-discriminatory reason, it applied regardless of whether the employee took EFMLEA or not.  Employees taking EFMLEA are not entitled to greater rights than employees who do not take such leave. 

According to the Court’s opinion, the plaintiff was hired for the clinic’s downtown (and busiest) clinic in 2018 where she would assist one physician and sometimes engage in patient triage.  She was allowed to shift her schedule by 30 minutes each day because of childcare responsibilities and to start two hours later when she had class (which required the employer to find replacement coverage for those hours).  When the pandemic began, the plaintiff utilized two months of leave under the Emergency Family and Medical Expansion Act.  When she sought to return to work, she was informed that she would be assigned to engage in triage on a full-time basis and that she could no longer report to work later than the rest of the staff.  When she objected, the employer found that one of its other offices was willing to give her a non-triage position and permit her to start work 30 minutes later each day.  However, around the same time, the employer notified all of its clinics that employees could no longer miss work in order to attend class because of the staffing shortage caused by the pandemic.  The plaintiff and at least one of the employee resigned because of the new policy of no longer accommodating class schedules and the plaintiff filed suit, claiming that these changes violated her rights under the EMFLEA.

The EFMLEA entitles qualified employees to reinstatement to the same position they held prior to taking leave—or, at least, to an “equivalent position.”  . . . An equivalent position is “one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status” and which “involve[s] the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). Among other things, employees are generally entitled to work the same or an equivalent work schedule upon their return from leave. Id. § 825.215(e)(2). That said, “[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job.” Id. § 825.215(f).

The Court refused to find any interference with the plaintiff’s EFMLEA right to reinstatement based on its initial condition of assigning her to full-time triage work and revoking her authorization to start and end work 30 minutes after the rest of the staff because it was not the employer’s final offer.

But we are aware of no authority suggesting that an employer’s offer that it later revises is binding for purposes of establishing interference. On the other hand, it is well-established that plaintiffs must prove they suffered harm from an employer’s interference with their statutory rights. . . . To assess harm, we must evaluate the employer’s action that prompted the employment outcome, and it would seem that early offers would be superseded by the final offer on which the plaintiff was required to act. Notably, we have also consistently held that “the FMLA is not a strict-liability statute.” . . . approach tends toward strict liability in that it would deprive even the most well-meaning employers the opportunity to course-correct from potential EFMLEA violations—for example, by returning to the table with their employees to work out acceptable terms of employment.

 . .. To be considered equivalent, an employee’s new role must be identical in pay, benefits, and working conditions. 29 C.F.R. § 825.215(a). There is no dispute that [her] compensation and benefits would have gone unchanged following a transfer to The Vein Centre. What’s more, [she] would have continued working as a medical assistant at The Vein Centre, which is located a short distance away from TSC. And although she argues that TSC’s first reinstatement offer entailed substantially altered job duties (in that TSC would have assigned her to triage full-time, for example), she makes no effort to establish how or why TSC’s final offer suffered from the same shortcomings. Nor has she developed any argument on appeal that working at The Vein Centre, in and of itself, would deprive her of an equivalent position. Thus, even viewing the facts in the light most favorable to Clement, nothing suggests that the position at The Vein Centre would have involved anything less than “the same or substantially similar duties and responsibilities” as Clement’s previous role. And TSC agreed to accommodate her preferred 8:00 a.m. start time at The Vein Centre—a fact which Clement concedes. Thus, no reasonable factfinder could determine that her pre- and post-leave positions were inequivalent in this regard.

However, the revocation of her two-hour schedule delays when she previously would have attended class presented a different issue and outcome. 

The district court held that this series of events raised a question of fact as to whether TSC restored Clement to the same or an equivalent position at the company. We agree. 29 C.F.R. § 825.215(e)(2) provides that employees are generally entitled to “the same or an equivalent work schedule” following leave. There is no dispute that TSC did not allow Clement to work the same schedule she had before her EFMLEA leave. And TSC’s proposed altered schedule, excluding time away during the workday to attend classes, made it impossible for her to balance her school and work obligations—ultimately leading to her resignation from TSC. We thus cannot say that this schedule change was de minimis as a matter of law. See id. § 825.215(f).

Nonetheless, “interference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

The FMLA relatedly provides that it “shall [not] be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.”  . . .  Thus, employees who request FMLA or EFMLEA leave “have no greater protection against [their] employment being terminated for reasons not related to [their EFMLEA] request than [they] did before submitting that request.” . . . This means a plaintiff has no actionable interference claim if her employer can show that it would have made the same decision at issue even had the employee not exercised her EFMLEA rights.

The employer had no difficulty proving that it would have the same scheduling decision even if the plaintiff had not taken EFMLA leave:

 . . . employees testified that accommodating [her] school schedule “put a hardship on [it]” even before the pandemic. Then, after the COVID-19 outbreak in March 2020, [its] staff had to balance increased demand at their clinics with staffing shortages. Under these circumstances, [it] concluded it could no longer permit staff to leave the office during working hours for school. It therefore enacted a company-wide policy prohibiting flexible school and work schedules. This pandemic-related change was not specific to [her] and would have occurred regardless of her EFMLEA leave. Therefore, [it] proffered a legitimate justification for its decision.

The plaintiff attempted to prove that the policy change was related only to her reinstatement.  However, when the employer initially revoked her authorization to attend class during work hours, it did so in connection with the pandemic scheduling challenges – the same justification for the company-wide policy.  This was not inconsistent with the employer’s explanation for the policy.  While the pandemic cannot be a magic bullet justification for every employment decision, in this case, even the plaintiff acknowledged the challenges facing the medical profession.    It was also undisputed that the employer’s decisions affected (and motivated the resignations) of individuals besides the plaintiff.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

What's New?

 There have been a few interesting decisions in the past month involving the retroactivity of the amendments to Ohio's fair employment statute at Ohio Revise Code Chapter 4112, subdivision immunity, first amendment defense of churches accused of discrimination and the hiring claim of a "plainly superior" candidate. 

In Burch v. Ohio Farmers Ins. Co., 2023-Ohio-912, the Delaware County Court of Appeals reversed the dismissal of a complaint of pregnancy discrimination and retaliation under ORC 4112 which had been filed in December 2021 more than two years after the claims accrued, but were based on claims that accrued prior to the April 15, 2021 effective date of the Employment Law Uniformity Act (“ELUA”).  The ELUA had shortened Ohio’s limitations period for ORC 4112 claims to two years and eliminated individual supervisory liability.   The unanimous court found that the EULA was not retroactive and therefore the claims were governed by the prior legal standards, which permitted claims to be filed within 6 years of when they accrued and permitted claims against individual supervisors.    Accordingly, ORC 4112 claims which accrued prior to April 2021 may be brought in Ohio courts until April 14, 2027. 

In Kubala v. Smith, 2023-Ohio-99, the Trumbull County Court of Appeals affirmed the summary judgment denial of statutory individual and political subdivision immunity to the county engineer, who was alleged to have created a hostile work environment in a same sex harassment case by making numerous crude and offensive statements to and about the plaintiff.  The statute denies immunity where the alleged actions are manifestly outside the scope of the defendant’s employment or official responsibilities and where the alleged acts were malicious, in bad faith or in a wanton and reckless manner.  The court agreed that even if some of the crude comments were made during workplace discussions of county projects, none of the county’s business was being furthered or promoted by the alleged comments and thus could be found by a jury to be manifestly outside the engineer’s official responsibilities.  There was also enough evidence to survive summary judgment that the conduct was malicious, in bad faith or reckless because it was inferentially or explicitly sexual in nature. 

In Levine v. DeJoy, No. 22-1388 (6^th Cir. 4-10-23), the Sixth Circuit reversed an employer’s summary judgment on a Title VII claim when it failed to promote as customer services supervisor a black 27-year employee, with greater managerial experience, who had received perfect mystery shopper awards, and held AD, BA and MBA degrees instead of a white employee with less than 8 years of experience and no post-secondary education who was serving as the acting customer service supervisor, but who the plaintiff was then asked to help train for the supervisory position.   The hiring manager explained that the interviews were the deciding factor since the plaintiff seemed too accommodating to employees and the white employee was extremely knowledgeable about the collective bargaining agreement and holding employees accountable and possessed superior knowledge of the particular position.  The Court’s majority found that the plaintiff presented sufficient evidence of pretext to challenge the employer’s explanation for its hiring decision when her qualifications were significantly better than and “plainly superior to” those of the successful candidate:

In the instant case, [the plaintiff] has provided an abundance of evidence substantiating that she is arguably more qualified for the position than Peare. “[W]hen qualifications evidence is all (or nearly all) that a plaintiff proffers to show pretext, the evidence must be of sufficient significance itself to call into question the honesty of the employer’s explanation” for its hiring decision. . . . . In determining whether a plaintiff has provided enough evidence “to raise a genuine issue of fact of discriminatory motive,” the Court recognizes that employers “are generally free to choose among qualified candidates . . . .”  . . . With those principles in mind, a court ruling on a motion for summary judgment must consider that:

[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate—something employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture

In Montgomery v. St. John’s United Church of Christ, 2023-Ohio-1168, the Stark County Court of Appeals affirmed the church’s summary judgment on sexual harassment claims brought by two dismissed ministerial employees.  The employees complained about being terminated after objecting to the comments and lifestyle of a leading parishioner who had sought their advice and listening ears.  They both admitted that he had not sought sex with them, but merely discussed his own sex life, and personal issues.  The Court agreed that the First Amendment precluded courts from evaluating decisions about religious ministers because it would necessarily involve the court evaluating religious issues. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.