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Splitting Hairs: Proposed Kansas Law Would Prohibit Discrimination Based on Hairstyle
By: Morgan Hammes

Throughout the United States, a trend is emerging within state legislatures to amend state anti-discrimination laws to protect hairstyles such as afros, braids, locs, and twists. California, New York, and New Jersey were the first states to pass such laws, and Kansas may be next.

Recently introduced Senate Bill 250 would amend the definition of “race” under the Kansas Act Against Discrimination to include hairstyles. Specifically, the bill would expand the definition of “race” to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” And it would define “protective hairstyles” to “include, but not [be] limited to, such hairstyles as braids, locs, and twists.”

Proponents of the bill believe the amendment is necessary to protect against race-based discrimination of African Americans in the workplace. Some do not believe the bill goes far enough by failing to expressly include afros.

Those who disagree with the bill are concerned the amendment could undermine employer grooming policies and dress codes and put workers at risk if there are bona fide safety or hygienic reasons that require employees to secure their hair back.

Regardless of whether the bill becomes law, it may be a good idea for Kansas employers to review their dress codes and grooming policies with these considerations in mind. The EEOC has already taken the position that “race” is not limited to skin color and includes other physical and cultural characteristics associated with race, including a particular hairstyle or      Continue Reading...

Confidentiality in Workplace Investigations
By: Morgan Hammes

Employers often ask employees involved in a workplace investigation to refrain from discussing details of the investigation. But confidentiality in workplace investigations has become a hot topic in recent years due in part to contradictory guidance given by the National Labor Relations Board (NLRB) on one hand, and the Equal Employment Opportunity Commission (EEOC) and Occupational Health and Safety Administration (OSHA) on the other.

The EEOC and OSHA consider confidentiality a valuable part of workplace investigations. Indeed, the EEOC suggests anti-harassment policies specifically include “assurance that the employer will protect confidentiality of harassment complaints to the extent possible.” Consistent with the EEOC’s and OSHA’s view, many employers consider admonishing witnesses to keep their interview confidential a critical part of workplace investigations.

However, the NLRB hasn’t always been on the same page. In 2015 the NLRB determined that an HR consultant violated Section 7 of the National Labor Relations Act (NLRA) – which protects employees’ rights to engage in “concerted activity” for better workplace conditions – by asking employees not to discuss ongoing investigations with their coworkers. Thus, according the NLRB’s view at the time, blanket confidentiality policies violate the NLRA, and the only way an employer can require employee confidentiality in a workplace investigation is if it can show a legitimate business justification specific to the investigation that outweighs an employee’s Section 7 rights. Banner Estrella Medical Center, 362 NLRB 1108 (2015).

But late last year the Trump Administration NLRB reversed course and overruled that prior decision. It explained that “the justifications associated      Continue Reading...

Looking Ahead: Hot Employment Law Issues for 2020
By: Morgan Hammes

What issues and trends do we see on the horizon for employers in 2020? Here are some hot employment law issues that may impact your organization or give you food for thought. 

  • Arbitration Provisions. The Supreme Court has made it clear that class action waivers in employment agreements requiring employees to arbitrate legal disputes are valid and enforceable. More and more employers are using such arbitration agreements to limit liability exposure for employment law claims. Is this a good option for your company?
  • Marijuana Legalization. Colorado has legalized recreational marijuana; Oklahoma and Missouri have legalized medical marijuana; and Nebraska has decriminalized marijuana usage. What does the future hold for Kansas? Even aside from potential legal changes, some Kansas employers have decided to stop testing for marijuana use in light of the tight labor market and changing public perceptions.
  • Ban the Box. Kansas state employers under Governor Kelly's jurisdiction and employers in Kansas City, Missouri, are now prohibited from asking about criminal history until after a conditional offer has been made. Many other states and cities have also “banned the box.” As an employer, should you continue to use criminal history to automatically disqualify job applicants?
  • LGBTQ Protections. In 2020, the U.S. Supreme Court is expected to decide the hotly debated question whether Title VII’s prohibition of discrimination based on sex extends to sexual orientation and/or      Continue Reading...
"Magic Words" Not Needed to Trigger ADA Obligations
By: Morgan Hammes

The Tenth Circuit Court of Appeals (which has jurisdiction over Kansas) recently reiterated the rule that employees do not need to use “magic words” to request a reasonable accommodation for a disability.

This case involved a garbage truck driver named Roy Mestas who worked for the town of Evansville, Wyoming. Mestas slipped on the ice while working, hurt his back, and was on medical leave for six weeks. Mestas claimed that when he returned, his bosses treated him worse than his co-workers because they were upset with him for getting hurt and missing so much work.  
One day, when he was assigned to remove snow, Mestas asked his boss if he could use his own snowblower to assist with the task, which he thought would help with his back pain. The boss denied this request. The next day, Mestas asked his supervisor to be excused from shoveling snow because he reinjured his back, but the boss just hung up in response. Mestas alleged that when he called back, his supervisor said he “didn’t want to hear [his] sh**.”
Mestas said that when he returned to work a week later, his supervisor fired him because “things were not working out,” and told him to go “take care of [his] back and whatever.”
Mestas sued under the ADA. On appeal, the Tenth Circuit found that he had raised a triable issue of fact about whether he had      Continue Reading...
New Whistleblower Protections Under Taxpayer First Act
By: Morgan Hammes

On July 1, President Trump signed the Taxpayer First Act, giving new protections to IRS whistleblowers. Before this act, the IRS could only protect whistleblowers by concealing their identity.

Even without protections against retaliation, the Whistleblower Office of the IRS has still been able to collect over $5 billion in unpaid taxes under the program. This may have something to do with the requirement that the IRS award the whistleblower a percentage of the unpaid taxes collected by the IRS. For 2018, the Whistleblower Office reported that it paid 217 awards to whistleblowers, totaling more than $300 million. The IRS pushed for additional protections for employers in an effort to incentivize more employees to come forward.
The Act creates a private right of action for whistleblowers to sue their employers for retaliation. Employers can no longer discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee for assisting the IRS without risk of liability. Not only does the private right of action apply to the employer, but it applies to individuals as well, such as officers, employees, contractors, subcontractors, or agents of the company. Employees are free to report a company, provide information, or assist a government agency in an investigation for tax underpayments and tax fraud. The employee is also protected from retaliation for reporting anything else the employee reasonably believes is a violation of the IRS tax laws.
Remedies for violations include: reinstatement; 200 percent of back pay and all lost benefits;      Continue Reading...

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