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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.

 
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:

  1. WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for      Continue Reading...
 
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.
 
For information on upcoming sessions in the 2019 HR Training series, visit www.foulston.com/hrtraining.
 
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. 

 
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...
 
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...
 
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...
 
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.

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
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