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Governor Kelly Reinstates LGBT Protections for State Workers
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01/22/2019
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By: Travis Hanson
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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rescinded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
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01/04/2019
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By: Travis Hanson
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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
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07/06/2018
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By: Travis Hanson
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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
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03/05/2018
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By: Travis Hanson
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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
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10/20/2017
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By: Travis Hanson
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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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Authors
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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