| Special #76 December 8, 2020 |
| | Strategic HR Leadership Series (Registration is available for these in-person workshops)
HR leaders make a significant impact on their organizations’ success. But in our rapidly changing business environment – whether you’re new to human resources or an HR veteran – it’s important to be up to date with best practices, innovative strategies and proven techniques....Read More>>
Visit our website to view the overview - Utilizing HR Metrics to Illustrate & Improve HR's
December 15, 2020 9:00 AM – 12:00 PM
- Employment Law Essentials with Constangy, Brooks, Smith & Prophete Attorneys
Date TBD 9:00 AM – 12:00 PM
Location of Workshops, unless otherwise noted, to be conducted at: Cherry Blossom Room (16th Floor) Fickling & Company Building 577 Mulberry St , Macon, GA 31201
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| HR and Employment Law News |
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| - ¶47,455 CDC issues updated quarantine guidance — FEDERAL NEWS
Dec. 7, 2020 - Constangy.com News & Analysis: Federal court rules against Administration’s two controversial H-1B rules 12.3.20 - Constangy.com Blog: EEOC settles "transgender funeral director" case BY ROBIN SHEA ON 12.4.20- Constangy.com Blog: EEOC issues proposed updates on religious bias BY ROBIN SHEA ON 11.20.20- ¶47,456 Unemployment rate edges down to 6.7% in November, BLS reports — SURVEY RESULTS Dec. 7, 2020 BY ROBIN SHEA ON 11.20.20- Constangy.com Article: DoD provides interim contract and notice provisions for EO 13950 BY CARA CROTTY ON 12.4.20- Georgia Department of Public Health COVID-19 Daily Status Report
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| ¶47,455 CDC issues updated quarantine guidance — FEDERAL NEWS, (Dec. 7, 2020)
from GEA HR Answers Now On December 2, 2020, the Centers for Disease Control and Prevention (CDC) issued new guidance on when individuals should quarantine after potential exposure to the coronavirus. The guidance, which could have significant implications for the workplace as people gather during the holiday season, refines the criteria for quarantine and defines "close contact."
Who needs to quarantine? The CDC recommends that people who have been in close contact with someone who has COVID-19 should quarantine—keeping someone who might have been exposed to COVID-19 away from others.
"Close contact." An individual has been in close contact with some who has COVID-19 if:
- she was within 6 feet of someone who has COVID-19 for a total of 15 minutes or more;
- she provided care at home to someone who is sick with COVID-19;
- she had direct physical contact with the person (hugged or kissed them);
- she shared eating or drinking utensils with someone who has COVID-19; or
- Someone with COVID-19 sneezed, coughed, or got respiratory droplets on the individual.
Changes to quarantine rules. The CDC has also changed its longstanding recommendation that an individual quarantine for 14 days after their last exposure to COVID-19. Under the current guidance, people without symptoms can end their quarantine on day 10 without testing, or on day 7 after receiving a negative test result. "Reducing the length of quarantine may make it easier for people to quarantine by reducing economic hardship if they cannot work during this time. In addition, a shorter quarantine period can lessen stress on the public health system, especially when new infections are rapidly rising," the agency points out.
The agency continues to encourage individuals to wear masks, practice social distancing, and avoid large crowds.
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| | | Constangy.com News & Analysis: Federal court rules against Administration’s two controversial H-1B rules
By Will Krasnow and Punam Rogers Boston Office
12.3.20
We reported in October about two new rules that were issued by the U.S. Department of Homeland Security and the U.S. Department of Labor that would affect H-1B specialty occupation visas. The DOL rule significantly raised required wages for H-1B visas and green cards, and the DHS rule would have fundamentally changed the definition of “specialty occupations” that determined who might be qualified for an H-1B visa. The DOL rule took effect immediately, and the DHS rule would have taken effect on December 7. The Administration claimed that this expedited process was justified because of the COVID-19 emergency and increased rates of unemployment.
Generally, the Administrative Procedure Act requires that regulations be issued only after the issuing agency provides notice and an opportunity for comment from the public, followed by a period in which the agency reviews and considers the comments received before issuing a final rule.
On Tuesday, a federal court in San Francisco ruled that the rules violated the APA and are therefore invalid. In Chamber of Commerce of the United States v. DHS, the court concluded that the DHS and the DOL “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.”
Although the court’s decision is welcome news to employers of H-1B workers, the Administration could appeal the decision to the U.S. Court of Appeals for the Ninth Circuit and also seek to stay the decision while the appeal is pending. The DHS and the DOL are likely to maintain the status quo for a short period while they decide on their next steps. But even if the Administration chooses to appeal, the Biden Administration is likely to drop the appeal after January.
The Chamber of Commerce decision is the first ruling on the H-1B visa restrictions issued in October, but other lawsuits challenging the rules are pending before federal judges in New Jersey and the District of Columbia.
For a printer-friendly copy, click here.
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| | | | Constangy.com Blog: EEOC settles "transgender funeral director" case
BY ROBIN SHEA ON 12.4.20 POSTED IN DISCRIMINATION, GENDER IDENTITY DISCRIMINATION, SEXUAL ORIENTATION
Read online>>For $250 grand.
I have written many, many, many, many times about the transgender funeral director who was terminated from her job after she told the owner that she would begin presenting as a female.
The Equal Employment Opportunity Commission sued the Detroit-area funeral home for sex discrimination under Title VII. The funeral home won summary judgment, but that decision was reversed on appeal to the U.S. Court of Appeals for the Sixth Circuit. Then the funeral home petitioned for review by the U.S. Supreme Court.
The Court agreed to review the case, and -- as we all know -- ruled 6-3 this past summer that Title VII prohibits discrimination based on gender identity. (The Court also ruled that Title VII prohibits discrimination based on sexual orientation.)
About a month before her Supreme Court win, Aimee Stephens died, but her widow carried on the fight.
This week, the EEOC and the funeral home agreed to a settlement of $250,000. According to a report in The Detroit News, $130,000 of that amount will go to Ms. Stephens' estate, and $120,000 will go to the American Civil Liberties Union, which represented Ms. Stephens.
The sexual orientation case -- Bostock v. Clayton County (Georgia) -- is still being litigated.
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| | | Constangy.com Blog: EEOC issues proposed updates on religious bias
BY ROBIN SHEA ON 11.20.20
POSTED IN DISCRIMINATION, HARASSMENT, REASONABLE ACCOMMODATION
Here are 10 quick takes.
The Equal Employment Opportunity Commission issued on Tuesday a proposed update to the Religious Discrimination section of its Compliance Manual. The current section of the Compliance Manual has not been updated since 2008.
The proposed section is available for public comment until December 17. The EEOC will take the feedback into account and then will issue a finalized version.
Quickly. Before January 20.
Much of the new section is consistent with what we already knew about religious discrimination. I won't go through all of that again, but here is some of the more interesting or controversial material in the new document.
No. 1: The EEOC says that it and other government entities are required by the U.S. Constitution to "analyze cases neutrally and without any hostility to religion or religious viewpoints," a reference to the Supreme Court's Masterpiece Cakeshop decision issued in 2018.
No. 2: Two giant exemptions. The proposed section contains a thorough discussion of the "religious organization" exemption in Title VII, which allows these organizations to "discriminate" based on religion with respect to "work connected with the carrying on by" the organization "of its activities." (Put in simpler terms, and as an example, it would not be illegal for a Jewish synagogue to refuse to hire a Catholic to lead its youth group.)
There is also a thorough discussion of "the ministerial exception," which means that the courts will not interfere in employment decisions "involving selection, supervision, and removal" of employees who play "certain key roles" "that are essential to the institution's central mission."
Here's what I wrote in 2012 about the Supreme Court's "ministerial exception" decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC:
- In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")
No. 3: It may or may not be OK to proselytize at work. The proposed section doesn't take a hard line against proselytizing, and recognizes that some employees' religious beliefs may actually require them to proselytize. But "[w]hen an employee expressly objects to particular religious expression, unwelcomeness is evident," and then continued proselytizing may cross the line and become harassment. (Unwelcomeness may also be evident from body language or other signs.)
Fun Quote: "Woe be unto to me if I don't try to convert you at the office!"
No. 4: Not all "insensitive" behavior related to religion is illegal or harassing. If the behavior or remarks are isolated and not "extremely severe," then they're probably not unlawful. The EEOC cites court decisions saying that these actions, standing alone, didn't cut it as "religious harassment":
- Sending a religious co-worker an invitation to a same-sex wedding.
- Inviting a co-worker to come to church.
- Asking a religious employee to "swear on a Bible . . . and telling her that people did not like her 'church lady act.'"
- Telling a Rastafarian employee that his "'dread things' made him look too 'radical.'"
No. 5: Employers may have to accommodate employees with traditional religious beliefs. The EEOC uses as an example an employer with "a policy that all employees in its retail stores must wear shirts conveying messages celebrating LGBTQ Pride in the month of June . . .." If an employee has a religious objection to wearing the shirt, the employer "may have an obligation to accommodate." Or, if an employer has a wellness program with classes that incorporate Eastern religious concepts (as do some yoga or meditation classes), it would have to allow employees with religious objections to opt out.
(On the other hand, an employer does not have to accommodate an employee who objects to mandatory training that emphasizes respect for others' religious beliefs or lack of belief, or non-discrimination based on sexual orientation.)
No. 6: "Magic words" are not required for a valid request for religious accommodation. And if the employee doesn't provide enough information, the employer should follow up and get more details.
Fun Quote: "Say the secret woid, and you'll get an accommodation!"
No. 7: "Interactive process" is encouraged. Under the Americans with Disabilities Act, an employer considering a disability-related accommodation request should engage in an "interactive process" with the applicant or employee making the request. The EEOC encourages employers considering religious accommodations to do the same.
No. 8: Accommodation of "conscientious objection" may be required. The proposed section uses the example of a Labor and Delivery nurse who has a religious objection to participating in abortions. Even if it might be an undue hardship to let the nurse swap duties on an ad hoc basis with other nurses (and it might not), the employer should consider options such as a lateral transfer to another department where the nurse would not be asked to assist with abortions.
No. 9: Fear of "the floodgates" is not an undue hardship. The following is a true story. Many years ago, in a very Baptist region of my state, a handful of devout Baptists at a client that operated 24/7 asked to be excused from work on Sundays. Virtually the entire workforce was Baptist, so management was terrified that if they made the accommodation and word got out, they'd never be able to get anyone to work on Sunday. The EEOC's proposed section says that this fear would not be a valid reason for denying the requested accommodation. Fortunately, in my true story, the managers didn't say no. They overcame their fears, accommodated the employees, and the "floodgates" never opened because the rest of the workforce just wasn't that devout. The EEOC's proposed guidance says that an employer can base an "undue hardship" claim on "the number of individuals who will in fact need a particular accommodation." (Emphasis added.) But "[a] mere assumption that many more people with the same religious practices . . . may seek accommodation is not evidence of undue hardship."
No. 10: Secular observance of religious holidays is not prohibited by Title VII. Just in time for the holiday season! The proposed guidance says that wreaths and Christmas trees, and similar "secular" decorations in the workplace, do not have to be taken down even if they offend some employees who don't celebrate the holiday. The employer also doesn't have to give equal time to decorations related to holidays of other faiths that occur around the same time.
Fun Quote: "I am so relieved, ho-ho-ho!"
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| | | ¶47,456 Unemployment rate edges down to 6.7% in November, BLS reports — SURVEY RESULTS
Dec. 7, 2020 From GEA HR Answers Now
Total nonfarm payroll employment rose by 245,000 in November, and the unemployment rate edged down to 6.7 percent, the U.S. Bureau of Labor Statistics reported November 4. The rate is down by 8.0 percentage points from its recent high in April but is 3.2 percentage points higher than it was in February. The number of unemployed persons, at 10.7 million, continued to trend down in November but is 4.9 million higher than in February. These survey results reflect the continued resumption of economic activity that had been curtailed due to the coronavirus (COVID-19) pandemic and efforts to contain it. However, the pace of improvement in the labor market has moderated in recent months.
Total nonfarm payroll employment rose by 245,000, following gains of larger magnitude in the prior 6 months. In November, nonfarm employment was below its February level by 9.8 million, or 6.5 percent. In November, notable job gains occurred in transportation and warehousing (+145,000), professional and business services (+60,000), health care (+46,000), leisure and hospitality (+31,000), construction (+27,000), manufacturing (+27,000), financial activities (+15,000), and wholesale trade (+10,000). Employment declined in government (-99,000) and retail trade (-35,000). Employment in other major industries, including mining, information, and other services, showed little change in November.
Among the major worker groups, the unemployment rate for adult women (6.1 percent) declined in November. The jobless rates for adult men (6.7 percent), teenagers (14.0 percent), Whites (5.9 percent), Blacks (10.3 percent), Asians (6.7 percent), and Hispanics (8.4 percent) showed little or no change.
Among the unemployed, the number of persons on temporary layoff decreased by 441,000 in November to 2.8 million. This measure is down considerably from the high of 18.1 million in April but is 2.0 million higher than its February level. The number of permanent job losers, at 3.7 million, was about unchanged in November but is 2.5 million higher than in February.
In November, the number of long-term unemployed (those jobless for 27 weeks or more) increased by 385,000 to 3.9 million, accounting for 36.9 percent of the total unemployed, while the number of persons jobless 15 to 26 weeks declined by 760,000 to 1.9 million. The number of persons jobless 5 to 14 weeks and persons jobless less than 5 weeks showed little change in November at 2.4 million and 2.5 million, respectively.
The labor force participation rate edged down to 61.5 percent in November; this is 1.9 percentage points below its February level. The employment-population ratio, at 57.3 percent, changed little over the month but is 3.8 percentage points lower than in February.
In November, the number of persons who usually work full time rose by 752,000 to 124.3 million, while the number of persons who usually work part time decreased by 779,000 to 25.4 million.
The number of persons employed part time for economic reasons was about unchanged over the month at 6.7 million but remains 2.3 million higher than the February level. These individuals, who would have preferred full-time employment, were working part time because their hours had been reduced or they were unable to find full-time jobs. This group includes persons who usually work full time and persons who usually work part time.
In November, the number of persons not in the labor force who currently want a job increased by 448,000 to 7.1 million; this measure is 2.2 million higher than in February. These individuals were not counted as unemployed because they were not actively looking for work during the last 4 weeks or were unavailable to take a job.
Among those not in the labor force who currently want a job, the number of persons marginally attached to the labor force, at 2.1 million, changed little in November. These individuals wanted and were available for work and had looked for a job sometime in the prior 12 months but had not looked for work in the 4 weeks preceding the survey. The number of discouraged workers, a subset of the marginally attached who believed that no jobs were available for them, was 657,000 in November, little changed from the previous month.
Information specific to COVID-19. In November, 21.8 percent of employed persons teleworked because of the coronavirus pandemic, up from 21.2 percent in October. These data refer to employed persons who teleworked or worked at home for pay at some point in the last 4 weeks specifically because of the pandemic.
In November, 14.8 million persons reported that they had been unable to work because their employer closed or lost business due to the pandemic--that is, they did not work at all or worked fewer hours at some point in the last 4 weeks due to the pandemic. This measure is little changed from October. Among those who reported in November that they were unable to work because of pandemic-related closures or lost business, 13.7 percent received at least some pay from their employer for the hours not worked, up from 11.7 percent in October.
About 3.9 million persons not in the labor force in November were prevented from looking for work due to the pandemic. This measure is up from 3.6 million in October. (To be counted as unemployed, by definition, individuals must either be actively looking for work or on temporary layoff.)
These supplemental data come from questions added to the household survey beginning in May to help gauge the effects of the pandemic on the labor market. The data are not seasonally adjusted. Tables with estimates from the supplemental questions for all months are available online here.
Source: U.S. Bureau of Labor Statistics.
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| | | | Dates Release! 2021 NEW Leadership Series Dates Virtual and Face to Face - A Six Part Series for Lead Personnel, Team Leaders, Supervisors and Future Front-Runners
We will start training series on January 21st, 2021. Registration will start this week on December 9th, 2020.
Who Should Attend? Lead personnel, team leaders, supervisors and future designated or possible promotion candidates and anyone in the precarious position of performing a job function while simultaneously leading others.
Schedule: First offering workshops Virtual (All workshops will be held from 9:00 am - 11:30 am and 1:00 pm - 3:30 pm) 01/27/21 Virtual Leadership I
02/17/21 Virtual Leadership II 03/10/21 Virtual Leadership III 03/31/21 Virtual Leadership IV 04/21/21 Virtual Leadership V 05/12/21 Virtual Leadership VI
Second offering workshops Face to Face
(All workshops will held from 9:30am – 4:30pm) 08/4/21 Leadership I
08/25/21 Leadership II
09/15/21 Leadership III
10/6/21 Leadership IV
10/27/21 Leadership V
11/17/21 Leadership VI
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| | Constangy.com Article: DoD provides interim contract and notice provisions for EO 13950
BY CARA CROTTY ON 12.4.20
POSTED IN AFFIRMATIVE ACTION
Defense contractors and subcontractors, take note.
Executive Order 13950 on Combating Race and Sex Stereotyping went into effect on November 21, but the Federal Acquisition Regulations have not yet been updated to include the official contract clause. (See our prior bulletin for details on Executive Order 13950.)
To comply with the Executive Order in the interim, the Department of Defense has issued a memorandum providing the language that agencies within the DoD should use to implement the Executive Order “until it is incorporated in the FAR or [the memorandum is] otherwise rescinded.” DoD agencies are also instructed to amend solicitations that were issued before November 20 to include the clause language.
The DoD memo exempts contracts from this new language if they are exempt from Executive Order 11246. In addition, the contract language provided by the DoD also sets forth the notice provision that covered contractors must provide to unions, employees, and applicants.
Defense contractors should therefore be on the lookout for new or amended contracts that contain reference to “Class Deviation 2021-O0001” or “252.222-7999,” as this is the Defense Department’s reference to this contract language.
It is unclear at this time how other federal agencies are complying with Executive Order 13950 without specific action taken to update the FAR regulations. Contractors should continue to monitor new or modified agreements for any language requiring compliance. Although President-Elect Biden will most certainly rescind Executive Order 13950, until that occurs, covered contractors must comply with the obligations.
Tags: Executive Order 13950, OFCCP
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Update from 12/07/2020 (State of Georgia)
Confirmed Cases 448,683
Confirmed Deaths 9,007 Hospitalizations 36,270 ICU Admissions 6,691
Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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