Federal "Me Too" Law Signals End of Forced Arbitration of Sexual Harassment and Assault Claims
|
03/14/2022
|
By: Travis Hanson
|
On
March
3,
2022,
President
Joe
Biden
signed
into
law
the
“Ending
Forced
Arbitration
of
Sexual
Assault
and
Sexual
Harassment
Act
of
2021,”
commonly
referred
to
as
the
“Me
Too”
law.
The
act,
which
amends
the
Federal
Arbitration
Act
and
becomes
effective
immediately,
prevents
employers
from
utilizing
employment
agreements
that
require
mandatory
arbitration
of
workplace
sexual
assault
and
harassment
claims
—
enabling
victims
of
the
same
to
pursue
relief
through
the
courts
if
they
so
desire.
What
does
the
bill
say?
The
main
provision
of
the
bill
is
short
and
to
the
point,
stating:
“[A]t
the
election
of
the
person
alleging
conduct
constituting
a
sexual
harassment
dispute
or
sexual
assault
dispute,
or
the
named
representative
of
a
class
or
in
a
collective
action
alleging
such
conduct,
no
predispute
arbitration
agreement
or
predispute
joint-action
waiver
shall
be
valid
or
enforceable
with
respect
to
a
case
which
is
filed
under
Federal,
Tribal,
or
State
law
and
relates
to
the
sexual
assault
dispute
or
the
sexual
harassment
dispute.”
What
does
the
bill
do?
- First,
employers
may
no
longer
require
the
arbitration
of
claims
of
sexual
harassment
or
sexual
assault
brought
under
federal
or
state
law.
- Second,
employees
are
prohibited
from
waiving
their
right
to
bring
claims
of
sexual
assault
or
sexual
harassment
via
a
class
action.
- Third,
the
act
applies
to
claims
of
both
sexual
harassment
and
sexual
assault,
and
is
not
limited
to
employment
Continue Reading...
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Kansas Human Rights Commission Expands LGBTQ Protections
|
08/27/2020
|
By: Travis Hanson
|
On
August
21,
2020,
the
Kansas
Human
Rights
Commission
(“KHRC”)
decided
to
begin
accepting
complaints
of
“sex”
discrimination
in
employment,
housing,
and
public
accommodations
based
on
an
individual’s
LGBTQ
status
under
the
Kansas
Act
Against
Discrimination
(“KAAD”).
This
decision
follows
the
U.S.
Supreme
Court’s
ruling
in
Bostock
v.
Clayton
County,
where
the
Supreme
Court
held
that
Title
VII
protects
individuals
from
employment
discrimination
on
the
basis
of
their
sexual
orientation
and
gender
identity.
Notably,
the
KHRC’s
decision
expands
on
Bostock
in
two
important
ways.
First,
the
KAAD
applies
to
Kansas
employers
with
four
or
more
employees,
whereas
Title
VII
only
covers
businesses
with
15
or
more
employees.
Second,
the
KHRC’s
decision
expands
protections
to
individuals
alleging
discrimination
in
housing
and
public
accommodations.
In
an
e-mail
to
interested
parties,
the
KHRC’s
Executive
Director
indicated
that
formal
guidance
will
be
forthcoming.
Kansas
employers
should
contact
counsel
to
determine
the
impact
the
KHRC’s
decision
will
have
on
their
business.
And,
if
they
haven’t
already,
Kansas
employers
should
review
their
anti-discrimination
and
harassment
policies
to
ensure
that
sexual
orientation
and
gender
identity
are
included
as
protected
categories.
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|
DOL Releases Updated FMLA Forms
|
07/20/2020
|
By: Travis Hanson
|
The
U.S.
Department
of
Labor
(“DOL”)
recently
published
seven
new
Family
and
Medical
Leave
Act
(“FMLA”)
forms.
These
optional-use
forms
can
be
used
by
employers
to
provide
required
notices
to
employees,
and
by
employees
to
provide
appropriate
certification
of
their
need
for
leave.
However,
employers
are
still
free
to
use
their
own
forms,
so
long
as
they
provide
the
same
basic
notice
information
and
require
only
the
same
basic
certification
information.
The
new
forms
are:
- WH-380-E
–
Employee’s
Serious
Health
Condition
–
for
use
when
a
leave
request
is
due
to
the
medical
condition
of
the
employee.
- WH-380-F
–
Family
Member’s
Serious
Health
Condition
–
for
use
when
a
leave
request
is
due
to
the
medical
condition
of
the
employee’s
family
member.
- WH-381
–
Rights
and
Responsibilities
Notice
–
informs
the
employee
of
the
specific
expectations
and
obligations
associated
with
the
FMLA
leave
request
and
the
consequences
of
failure
to
meet
those
obligations.
- WH-382
–
Designation
Notice
–
informs
the
employee
whether
the
FMLA
leave
request
is
approved;
also
informs
the
employee
of
the
amount
of
leave
that
is
designated
and
counted
against
the
employee’s
FMLA
entitlement.
- WH-384
–
Qualifying
Exigency
–
for
use
when
the
leave
request
arises
out
of
the
foreign
deployment
of
the
employee’s
spouse,
son,
daughter,
or
parent.
- WH-385
–
Military
Caregiver
Leave
of
a
Current
Servicemember
–
for
use
when
requesting
leave
to
care
for
Continue Reading...
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Have You Updated Your Employee Handbook Recently?
|
09/17/2019
|
By: Travis Hanson
|
As
a
part
of
the
2019
HR
Training
Series,
Foulston
recently
provided
a
session
on
employee
handbook
basics
to
a
group
of
HR
professionals.
Here’s
a
recap
of
some
of
the
highlights.
Employee
handbooks
should
be
updated
yearly.
It
is
also
important
to
have
employees
sign
an
acknowledgement
of
receipt
after
each
update.
This
is
because
the
acknowledgement
the
employee
signed
when
he
or
she
first
started
likely
applied
to
a
handbook
that
looked
different
than
the
current
version.
Updating
the
handbook
should
be
a
collaborative
effort
between
HR,
management,
and
legal
counsel.
If
the
handbook
says
one
thing,
but
your
managers
are
doing
something
else,
that
is
a
problem.
Management
buy-in
also
helps
ensure
that
your
policies
are
being
consistently
and
even-handedly
enforced.
Do
you
have
these
“must
have”
policies?
- At-will
employment
disclaimer
- Anti-harassment/productive
work
environment
- Equal
employment
opportunity
(EEO)
- Family
and
Medical
Leave
Act
(if
you
have
50
or
more
employees)
- Wage
deductions
- Smoke-free
workplace
Follow
your
handbook
unless
there’s
a
compelling
reason
to
make
an
exception.
Inconsistencies
between
the
policy
and
practice
could
come
back
to
bite
you.
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|
Governor Kelly Reinstates LGBT Protections for State Workers
|
01/22/2019
|
By: Travis Hanson
|
As
she
promised
she
would
do,
newly
elected
Kansas
Governor
Laura
Kelly
restored
protections
from
on-the-job
discrimination
for
lesbian,
gay,
bisexual,
and
transgender
state
employees
via
Executive
Order
No.
19-02
on
her
first
full
day
in
office
January
15,
2019.
Former
Governor
Kathleen
Sebelius
had
issued
a
similar
executive
order
in
2007,
which
was
later
rescinded
by
former
Governor
Sam
Brownback
in
2015.
The
Order
protects
state
employees
from
discrimination,
harassment,
and
retaliation
based
on
their
sexual
orientation,
gender
identity,
and
gender
expression,
among
other
protected
classifications.
The
Order
also
expands
the
policy
to
require
state
government
contractors
to
comply
with
the
order
in
their
employment
practices.
Advocates
of
LGBT
rights
view
the
Order
as
a
major
victory
for
LGBT
state
employees
and
a
stepping
stone
towards
extending
these
protections
to
the
entire
private
sector.
Kansas’s
first
openly
lesbian
and
gay
legislators,
Representatives
Susan
Ruiz
and
Brandon
Woodward,
have
announced
that
they
planned
to
introduce
a
bill
that
would
expand
Kansas’
anti-discrimination
law
to
provide
similar
protections
for
employees
of
private
businesses.
The
likelihood
of
such
a
bill
passing
is
unclear,
but
a
growing
number
of
Kansas
employers
are
voluntarily
adding
sexual
orientation
and
gender
identity
as
protected
categories
under
their
Equal
Employment
Opportunity
&
Harassment
policies
in
anticipation
of
a
potential
future
change
in
the
law.
Stay
tuned
for
further
updates
on
this
potential
litigation
as
well
as
other
developments
in
the
2019
legislative
season.
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|
A Kansas Employers’ Guide to the New Year
|
01/04/2019
|
By: Travis Hanson
|
The
start
of
the
new
year
is
a
perfect
time
for
Kansas
employers
to
address
employment
updates
from
2018
and
prepare
for
possible
changes
coming
in
2019.
In
this
article,
we’ve
summarized
a
few
changes
and
trends
from
2018,
as
well
as
a
few
changes
we
might
see
in
2019.
EEOC
&
Title
VII
Litigation
Trends.
2018
saw
another
increase
in
harassment
and
discrimination
lawsuits
being
filed
nationwide.
In
fact,
EEOC
litigation
filings
have
doubled
since
2016.
One
big
area
of
movement
is
sexual
harassment
cases
and
charges,
which
rose
significantly
in
2018
after
more
than
five
years
of
decreasing
numbers.
We
expect
this
trend
will
continue
into
2019.
Another
trend
is
the
EEOC’s
sustained
efforts
to
push
for
inclusion
of
sexual
orientation
and
gender
identity
as
protected
classes
under
Title
VII,
which
prohibits
discrimination,
“because
of
sex.”
The
Supreme
Court
has
long
held
that
Title
VII
protects
against
discrimination
for
employees
who
don’t
meet
typical
“gender
norms,”
such
as
a
woman
who
is
not
feminine
enough,
but
it
has
not
yet
addressed
head-on
the
questions
of
sexual
orientation
or
gender
identity.
Over
the
last
few
years,
the
EEOC
has
taken
a
clear
position
that
“sexual
orientation
is
inherently
a
‘sex-based
consideration’
and
an
allegation
of
discrimination
based
on
sexual
orientation
is
necessarily
an
allegation
of
sexual
discrimination
under
Title
VII.”
Currently,
Continue Reading...
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|
Supreme Court Update: Employers Take All
|
07/06/2018
|
By: Travis Hanson
|
Employers
ended
the
October
2017
Supreme
Court
term
with
a
clean
sweep.
In
three
5-4
decisions
split
down
perceived
party
lines
and
one
unanimous
opinion,
the
Court
sided
with
employers’
interests
in
each
significant
labor
and
employment
case.
Perhaps
most
consequentially,
at
the
conclusion
of
the
term,
Justice
Kennedy
retired
from
the
bench,
affording
President
Trump
the
opportunity
to
appoint
another
conservative
justice
who
will
likely
be
a
reliable
pro-employer
vote
for
decades
to
come.
Class
Action
Waivers:
In
Epic
Systems
Corp.
v.
Lewis,
a
5-4
majority
sided
with
employers
holding
that
companies
can
use
arbitration
clauses
in
employment
contracts
to
prevent
their
employees
from
filing
class
action
lawsuits.
This
decision
resolved
the
circuit
split
that
followed
the
National
Labor
Relation
Board’s
2012
ruling
in
D.R.
Horton,
which
held
that
class
action
waivers
violated
§7
of
the
NLRA,
a
provision
that
protects
employees’
rights
to
engage
in
“concerted
activities.”
Justice
Gorsuch,
writing
for
the
majority,
simplified
the
issue
with
the
following
quote:
“Should
employees
and
employers
be
allowed
to
agree
that
any
disputes
between
them
will
be
resolved
through
one-on-one
arbitration?
Or
should
employees
always
be
permitted
to
bring
their
claims
in
class
or
collective
actions,
no
matter
what
they
agreed
with
their
employers?”
Finding
each
argument
for
the
latter
position
unpersuasive,
Justice
Gorsuch
handed
employers
a
major
victory.
Following
this
decision,
employers
can
now
include
class
action
waivers
in
arbitration
agreements
without
worrying
about
Continue Reading...
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An Employee by Any Other Name: Nail Technicians Misclassified a Independent Contractors
|
03/05/2018
|
By: Travis Hanson
|
Recently,
the
Kansas
Court
of
Appeals
affirmed
the
district
court
and
the
Kansas
Department
of
Labor’s
(KDOL)
finding
that
nail
technicians
at
a
salon
were
employees
rather
than
independent
contractors
for
unemployment-tax
contribution
purposes.
This
case
has
important
tips
for
handling
classification
issues
in
any
industry.
Review
of
the
Record
In
2014,
Leander
and
Hongmin
(Amy)
Fisher
began
doing
business
as
Amy’s
Spa
Services,
LLC
(the
Spa).
The
Spa
classified
all
of
its
nail
technicians
as
independent
contractors.
The
KDOL
audited
the
business
to
determine
whether
the
Spa
properly
classified
the
technicians
for
unemployment-tax
withholdings.
For
unemployment-tax
contributions
in
Kansas,
an
individual
is
an
employee
if
the
employer
has
the
right
to
control
the
manner
and
means
of
the
work
performed;
whether
the
employer
exercises
that
right
is
inconsequential.
The
auditor
reviewed
the
Spa’s
independent
contractor
agreement,
interviewed
three
nail
technicians
and
Leander
Fisher,
and
reviewed
some
of
the
Spa’s
financial
documents.
The
auditor’s
review
of
the
independent
contractor
agreement
stated
that
the
parties
intended
to
form
an
independent
contractor
relationship.
Under
the
agreement,
the
Spa
purported
to
require
the
technicians
to
clean
their
workstations,
supply
the
tools
necessary
to
complete
their
jobs,
and
gave
the
technicians
discretion
to
set
their
own
prices,
as
long
as
they
did
not
undermine
the
Spa’s
prices.
The
agreement
also
provided
that
the
Spa
would
receive
all
payments
that
were
later
distributed
to
the
technicians,
and
that
Continue Reading...
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Treat for Employers: Trump Administration Ends Obama-Era Equal Pay Rule
|
10/20/2017
|
By: Travis Hanson
|
President
Trump
has
stopped
an
Obama-era
rule
requiring
large
companies
to
report
how
much
they
pay
workers
by
race
and
gender.
The
goal
of
the
rule
was
to
help
in
closing
the
wage
gap
between
men
and
women,
and
between
different
racial
groups,
by
providing
additional
transparency
to
the
issue.
The
Trump
administration
claims
it
halted
the
rule
on
the
belief
that
it
would
not
work
as
planned.
The
rule
required
private
employers
with
over
100
employees,
and
federal
contractors
with
50
or
more
employees,
to
disclose
wage
and
pay
data
to
the
Equal
Employment
Opportunity
Commission.
Under
the
rule,
the
EEOC
would
have
used
the
data
in
investigating
complaints
regarding
disparities
in
pay.
The
data
would
not
have
been
made
public;
however,
the
EEOC
would
have
released
the
aggregate
data
about
pay
in
various
industries,
broken
down
by
race
and
gender.
Some
critics
of
the
rule
argued
that
it
was
not
precise
enough
to
be
useful.
Supporters
of
the
rule
disagreed,
arguing
that
employers
that
monitor
themselves
have
smaller
pay
gaps.
For
Kansas
employers
with
over
100
employees,
this
move
means
that
you
will
not
have
to
provide
this
data
to
the
EEOC
starting
in
2018,
as
the
rule
had
not
gone
into
effect
before
its
suspension.
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Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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