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Employment Law This Week®: SCOTUS Vacates Pay-Equity Ruling, NYC Bans Grooming Policy Restrictions, Tip Credit Rule, Workplace Gossip, AI in HR

Episode 137: Monthly Rundown

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This Employment Law This Week Monthly Rundown features a recap of the most important news from February 2019. The episode includes:

1. SCOTUS Temporarily Relieves Circuit Split on Salary History

The U.S. Supreme Court remanded an important equal pay case back to the U.S. Court of Appeals for the Ninth Circuit last week. The high court vacated the decision due to the death of the ruling’s author, Judge Stephen Reinhardt, before the decision was announced. The move temporarily relieved a circuit split on whether salary history could be used to justify a pay disparity under the Equal Pay Act.

2. NYC Bans Grooming Policy Restrictions That Have a Disparate Impact

New York City’s Commission on Human Rights has released new legal enforcement guidance protecting the rights of workers to wear their natural hair and hairstyles. David Garland, from Epstein Becker Green, has more details:

“What's important here is that even facially neutral policies, that is, policies neutral on their face, if they have a disparate impact on black employees, may violate the New York City Human Rights Law. In view of the recently issued guidance, it's important that employers review their grooming and appearance policies to ensure compliance with the guidance.”

3. DOL Officially Strikes Tip Credit Rule

Last year, the Department of Labor released an opinion letter rescinding the “80/20” tip credit rule, which prohibited employers from taking a tip credit for workers who spend more than 20 percent of their time on untipped side work. The Acting Administrator of the Wage and Hour Division has now updated the division's Field Operations Handbook to remove any mention of the rule.

4. Fourth Circuit: Workplace Gossip Can Violate Title VII

Workplace gossip can, in some cases, violate Title VII of the Civil Rights Act of 1964 (“Title VII”)—that’s according to a recent opinion from the Fourth Circuit. In Parker v. Reema Consulting Services, the defendant, who had received multiple promotions, discovered false rumors circulating that claimed she slept her way to the top. A senior manager helped to spread the rumors and shut the defendant out of related discussions. The Fourth Circuit found that the sex-based nature of the rumor implied that she “used her womanhood, rather than her merit” to obtain the promotions, and, thus, the rumors violated Title VII.

5. Artificial Intelligence in Human Resources

Artificial intelligence (“AI”) is making its way into your human resources (“HR”) department. An increasing number of HR teams are enjoying the efficiency and effectiveness of AI, as well as significant cost savings. But the use of AI technology can also create new legal risks. Nathaniel Glasser, from Epstein Becker Green, has more:

“It's important that employers don't blind themselves to the legal risks that are inherent in some of the AI processes that are available. And that means making sure that disparate treatment and disparate impact claims and the potential for those claims are limited in conducting an early review.”

6. Tip of the Week

Private HR Consultant Geralyn Capelli shares some tips on alternative dispute resolution, or “ADR” programs:

“There are a number of factors to consider when actually drafting an ADR program that is best suited for your needs. The first thing to consider is, what do you actually have in place now that is effective in resolving conflicts or at least helping conflicts not to escalate to a point where an employee files a claim or actually seeks out a third party? If you do decide you want to pursue drafting an ADR program, it would be helpful for you to take a look at what type of conflict has occurred within your organization over the last 12 months, 24 months, or 36 months. But most importantly, think about what goal you're trying to achieve when establishing an ADR program.”

Stay tuned for further developments that may affect your business.

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This Employment Law This Week® episode was also featured in "Tip Credits and Gossip Make Labor Law News," on TLNT, a resource for news, analysis and opinion on the business of HR for human resource and talent management leaders and professionals.