One of the most significant benefits of seeking advice from your lawyer are the ethical rules that generally require that the communications with your lawyer are confidential.  This means that, except in some limited circumstances, information that a business or individual client conveys to the business’s or the individual’s attorney remains confidential.  One such exception to this general rule is if an employee uses the employer’s email domain to communicate with employee’s lawyer.  Confidentiality may be lost in that instance.

Consider this example:  If Emily, an employee, wants to communicate with her lawyer about her employer, ACME, Inc., regarding her concerns about sexual harassment in the workplace, she ordinarily may do so with every confidence that the communication will not lose its confidential nature.  However, one way that the private, confidential nature of Emily’s communication to her lawyer may be lost is if she and/or her lawyer uses the ACME email domain/server to communicate.  This is particularly true in instances where the employer has made it clear in its handbook that employees have no expectation of privacy in communications made over the company’s email server.

If an employee uses an employer’s email domain to communicate with his or her lawyer, there is a significant risk that the communications may lose the protection of confidentiality.  This was the case in a recent Florida case, where the court said that the information sent between client and attorney over the employer’s email domain and server was not protected by rules of confidentiality and the attorney client privilege.

As such, an employee is well-advised to use an email domain other than one that is provided by the employer when communicating with their lawyer.  The employer is well-advised to specify as part of its policies in its employee handbook that employees should not expect privacy or confidentiality for matters that are shared over the employer’s email domain.  In other words, employers should consider drafting a well-written policy that there is no expectation of privacy if the employee uses the employer’s server or email domain for personal purposes.  Finally, although it may be inconvenient, a person or business that communicates with an attorney should take care to use a method of communication that maintains confidentiality, one of the greatest benefits of seeking legal advice from an attorney.

 

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace because of sex.  Title VII applies to employers with 15 or more employees.  By contrast, the Wisconsin Fair Employment Act prohibits discrimination on the basis of sex and sexual orientation.  The WFEA applies to employers with one or more employees.

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the federal agency that is empowered to investigate allegations of discrimination under Title VII.  The EEOC recently sued El Tio Tex-Mex Grille, a restaurant in Gainsville, Virginia, with intentionally allowing harassment of one of its employees based on sex.

The EEOC alleged that El Tio employees, including servers and kitchen staff, routinely subjected a gay male server to unwelcome harassing and offensive behavior that included the use of homophobic epithets and taunts about his sexuality.  The same employees similarly harassed the server’s straight friend, a busser, based on their friendship.  The server and the busser reported the harassment to El Tio’s management several times, but management allegedly ignored their complaints, failed to take reasonable measures to curb the harassment, and neglected to implement any anti-harassment policies or training. The harassment continued, according to the EEOC.

As a settlement, El Tio has agreed to pay Forty Thousand Dollars ($40,000.00) and provide specific and extensive training to its employees for a three-year period following the settlement, with monitoring by the EEOC.

For Wisconsin employers, state law forbids harassment based on an employee’s gender, as well as his or her sexual orientation. Consequently, Wisconsin employers are well advised to maintain a workplace that is free from homophobic taunts or similar verbal or physical harassing activity, lest the employer become the subject of a complaint filed with the EEOC or the Wisconsin Equal Rights Division. Employers should not ignore complaints. Every employer should have an up-to-date anti-harassment policy as part of its employee handbook.  The U.S. Supreme Court has held that such a policy may be a partial or complete defense to a complaint of sex harassment in certain instances.  For more information concerning compliance with state and federal workplace laws, consult with your employment attorney.

 

All Wisconsin employers likely are aware of the requirement to dialogue with a disabled employee about whether a reasonable accommodation would assist the employee to effectively perform the essential functions of the job.

While the requirement is well-known, applying it to a specific fact situation can prove challenging because what is reasonable or effective will necessarily vary from situation to situation.

Bath and Body Works, LLC, a national chain with more than 1,600 retail stores selling a range of home fragrance products, learned the hard way that there are differences in opinion with respect to whether an accommodation is reasonable under the circumstances. Bath and Body Works will pay over $38,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission.

According to the lawsuit, a Bath and Body Works store in Minnetonka, Minnesota refused to supply a reasonable accommodation to a lead sales associate with type-1 diabetes suffering retinopathy. The employee asked for a larger monitor screen for the cash register, but instead, the manager purchased an inexpensive, hand-held magnifying glass.

The EEOC maintains that the manager’s conduct violated the Americans with Disabilities Act, which requires an employer to provide employees and applicants with a reasonable accommodation for a disability, unless it causes the employer an undue hardship.

The EEOC then filed suit in federal court. Under the ensuing consent decree that settled the lawsuit, Bath and Body Works will pay the employee $38,000 and is required to adopt district-wide policies to prevent future violations of the ADA.

What is the lesson for employers and employees? An employer should be aware of and have access to past cases and how the “reasonable accommodation” rule may be interpreted by the EEOC and the Wisconsin Equal Rights Division (the state counterpart to the EEOC) in a given matter. Both employers and employees should know that an accommodation is not reasonable merely because it is requested by an employee. Rather, the accommodation must be effective and not pose a hardship to the employer. In the Bath and Body Works case, it is apparent that the EEOC viewed the purchase of a magnifying glass for the disabled employee as a failure of the employer to meet its duty of reasonable accommodation under the ADA. For further assistance in assessing what a reasonable accommodation may or may not be, contact your employment law attorney.

 

Most employers know that it is illegal to discriminate in the employment process. Employment discrimination commonly occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, gender, disability, religion, or age, among other factors. It is also against the law to retaliate against an employee or job applicant who makes a claim of unlawful discrimination.

Many employers may be unaware of the law that prohibits discriminating against work-authorized, non-U.S. citizens when verifying their work authorization at the start of employment. The Immigration and Nationality Act (“INA”) prohibits discrimination against individuals who are otherwise authorized to work in the U.S., even if they are not U.S. citizens.

Mrs. Fields’ Original Cookies, Inc. recently learned the hard way that it may not discriminate against non-U.S. citizens when verifying their work authorization for employment. The U.S. Justice Department disclosed in December 2018 that Mrs. Fields had been requiring lawful permanent residents to provide specific documentation to prove their work authorization status, while not imposing that specific documentation requirement on U.S. citizens.

Under the INA, all work-authorized individuals, regardless of citizenship status, have the right to choose which document to present to employers, from a range of valid documents, to demonstrate their authority to work in the United States. In the employment context, work authorization typically arises at the point in the hiring process when an employer needs to verify an employee’s work authorization. This is accomplished by following the guidance under Form I-9.

Although all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment, the INA provides a specific list of acceptable documents evidencing identity and employment authorization. An employer, as Mrs. Fields now knows, may not pick-and-choose what documents it will accept. Rather, an employer must accept any valid authorization document presented by an applicant.

Under the settlement reached with the Justice Department, Mrs. Fields will pay $26,400.00 in civil penalties to the United States and be subject to monitoring and reporting requirements.

What lessons may be learned from the Mrs. Fields experience? First, acknowledge that it is not desirable for an employer to create a recipe for employment verification that differs from the recipe set forth within federal law, to use a baking metaphor. Second, employers should be aware that all U.S. citizens, lawful permanent residents and other work-authorized individuals are protected from national origin discrimination in the workplace. Employers may not request more or different documents than are required to verify employment eligibility, as set forth under the I-9 process, with the purpose or intent of discriminating on the basis of citizenship or national origin. We suggest consulting with your employment law attorney with any questions or for a review of your hiring practices to make sure that they comply with applicable state and federal law.

 

The civil liberties of gay couples and the religious rights of a Colorado business owner were recently on a collision course. Then, on June 4, 2018, the U.S. Supreme Court found a detour to avoid the collision…at least for now.

The Court held that, in some instances, a balance must be struck between protecting gay persons in the exercise of their civil rights and the rights of a business owner to express his religious-based objection to gay marriage. The majority of the Supreme Court held that the Colorado commission’s treatment of the baker violated Colorado’s duty under the First Amendment not to have laws or regulations that express an overt hostility to a religion or a religious viewpoint. This case is known as the Masterpiece Cakeshop case.

This case is of special interest to human resources professionals and business owners because the same policy intersection could easily arise in an employment context in Wisconsin. Wisconsin has a law similar to the Colorado law that makes it unlawful to give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry. In Wisconsin Statutes § 106.52(3), a person who feels that he or she has been a victim of unlawful treatment under the law may file a claim with the Equal Rights Division of the Wisconsin Department of Workforce Development, the same entity that considers violations under the Wisconsin Fair Employment Act.

In addition, certain Wisconsin employers may have the constitutional protection of the Free Exercise Clause of the First Amendment to the U.S. Constitution. That clause states that “Congress shall make no law . . . prohibiting the free exercise” of religion.

The rights and remedies available to everyone under state and federal law — whether state fair employment or public accommodation laws, or Title VII, the Americans with Disabilities Act, or similar federal laws — often create policy conflicts for employees, employers and businesses in general. The wise HR professional will stay alert to the intersection and potential conflicts that will necessarily arise in the workplace and in the marketplace. For now, the resolution to the underlying policy conflict in Masterpiece Cakeshop between public accommodation rights for gay couples and the religious expression rights of small businesses will need to be addressed another day.