It is a dilemma that many employers have faced. You discover that your company violated federal law on minimum wage or overtime payments. You want to fix the problem, but you do not know how to do so without prompting employee demand letters, a Department of Labor audit or, perhaps worst, a class action lawsuit. The Department of Labor’s Wage and Hour Division (WHD) has set out to provide employers a way to quickly resolve these issues and avoid litigation…potentially.
This week, the Washington Post reported that a professional sports team in Dallas had released one of its star players for committing multiple violations of the league’s player conduct rules, specifically its rules prohibiting discriminatory behavior or harassment. No, the article was not reporting on another player misconduct case involving the NFL’s Dallas Cowboys; instead, it was focused on the Dallas Fuel, a team in the nascent Overwatch League, a professional esports league in which its teams, comprised of expert video gamers, participate in a seasonal competition involving the popular “Overwatch” multi-player video game. Video gamers: Welcome to the professional workplace and the employment laws and attendant policies that regulate its operation.
Any employer who has been on the receiving end of a lawsuit filed by the EEOC or a similar state agency is aware that a standard requirement of settling this type of case is entering into a “consent decree.” A consent decree is a public record (which the agency will publicize on its website) that sets forth specific remedial measures an employer agrees to take as part of settling the dispute. Consent decrees typically include ongoing requirements such as mandated postings, trainings, or the implementation of new policies. While there are often monetary terms associated with settling a lawsuit filed by an agency, it is the consent decree itself and the affirmative conduct associated with that decree that is of real value to these agencies. This makes settling a suit brought by an agency very different from settling a private lawsuit in which money is usually the main motivator.
We have previously discussed how to protect against religious discrimination claims and best practices when addressing requests for religious accommodations. A recent decision from the U.S. Court of Appeals for the Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) reminds employers that the offered religious accommodation truly has to be “reasonable,” and provides guidance for what “reasonable” may mean on a case-by-case basis.
Workplace investigations have always been a key part of the human resources function and employment law compliance. However, the need for such investigations, and the consequences of conducting them poorly, have grown exponentially in the “Me Too” era.
Obviously, more employees are aware of their rights and feel emboldened to exercise them. Additionally, complaints not only involve the traditional categories of discrimination and harassment, but now increasingly include harder-to-define areas such as “bullying” and “intimidation.” In the current environment, there is also a higher expectation that employers investigate and address complaints appropriately.