Labor and Employment Law Alert: Latest Changes
1/1/2005
Labor and employment laws continue to change. To keep you up to date, we are providing summaries of recent changes to:
- Policies requiring women to wear makeup
- Disclosures required in order to use consumer reports
- The scope of "employer unit" under the National Labor Relations Act
- Child labor rules on cooking, driving and other hazardous activities
Policies Requiring Women to Wear Makeup Upheld for Now
In Jesperson v. Harrah’s Operating Co., the Ninth Circuit recently ruled, in a 2-1 decision, that a policy requiring female bartenders to wear makeup was not unlawful gender discrimination under Title VII. Jesperson had been a female bartender at the sports bar in Harrah’s Casino Hotel in Reno, Nevada for more than 20 years. Her employment was terminated when she refused to wear makeup in accordance with Harrah’s newly adopted "Personal Best" program. The Personal Best program required, among other things, that women wear makeup and that men not wear makeup. Jesperson brought suit alleging that the makeup requirement for female bartenders constituted unlawful disparate treatment under Title VII.
In evaluating Jesperson’s claim, the court applied the "unequal burdens" standard adopted in Franks v. United Airlines. Sex-differentiated appearance standards are generally permissible if they do not impose unequal burdens on men and women. Jesperson argued that the makeup requirement imposes an unequal burden on women because makeup is expensive to purchase and time-consuming to apply. The court’s majority concluded that Jesperson had failed to provide any evidence of the specific costs and time spent by female bartenders in order to comply with Harrah’s makeup requirement. Because there was no evidence of an unequal burden, the court ruled that the Personal Best policy did not constitute unlawful gender discrimination under Title VII.
Jesperson also argued that the makeup requirement was a form of unlawful gender stereotyping. In Price Waterhouse v. Hopkins, the U.S. Supreme Court recognized that discriminating against a female employee for her failure to dress and behave according to gender stereotypes is unlawful. The majority in Jesperson refused to consider the stereotyping argument, commenting that Price Waterhouse has historically been applied in sexual harassment cases, not in appearance and grooming cases, and that only the full Ninth Circuit panel, not a three-judge panel, would have the authority to consider the stereotyping issue in the context of appearance and grooming standards.
The dissenting judge asserted that there was sufficient evidence that requiring females to wear makeup imposed an "unequal burden" and that the termination of Jesperson’s employment based on her refusal to wear makeup constituted a plain case of unlawful gender stereotyping under Price Waterhouse.
Employers should not treat the Jesperson decision as a green light to impose makeup requirements on female employees. It is likely that the full Ninth Circuit panel will reconsider both the "unequal burden" and the stereotyping issues later this year.
FTC Disclosures Required to Use Consumer Reports
Updated model disclosures to inform employees and applicants about the use of consumer reports under the Fair Credit Reporting Act (FCRA) are now available as final guidance from the Federal Trade Commission (FTC). The guidance, which was published on November 30, 2004 and becomes effective on January 31, 2005, reflects the changes to the FCRA made by the Fair and Accurate Credit Transactions Act of 2003 (FACT). The model disclosures include an updated summary of consumer rights under FCRA, which should be provided to employees and applicants any time an adverse employment action is taken based upon a consumer report and any time an investigative consumer report is requested by an employer. The updated FTC disclosures are available at http://www.ftc.gov/bcp/conline/pubs/credit/fcrasummary.pdf. Remember, FACT exempts from the definition of "consumer report" those reports which relate to employer or third-party investigations of employee misconduct and employee compliance with laws, regulations, rules or preexisting policies of the employer. For further discussion of the requirements for these types of investigations, click here.
Also included in the final FTC guidance is a model summary of rights, intended to help consumers remedy the effects of identity theft. This is an entirely new summary called for by FACT and should be provided whenever the general summary of rights is provided to employees or applicants who believe they are victims of identity theft. Employers can obtain a copy of the model identity-theft summary at http://www.ftc.gov/bcp/conline/pubs/credit/idtsummary.pdf.
Finally, the FTC’s guidance contains an updated model notice of responsibilities for users of consumer reports. Employers will find it a useful tool, particularly section III, which outlines the obligations of users when consumer reports are obtained for employment purposes. It is available at http://www.ftc.gov/os/2004/11/041119factaapph.pdf.
NLRB Redefines "Employer Unit": Good News for Employers
Under section 9(b) of the National Labor Relations Act, workers who are employed exclusively by a primary employer cannot be included in an "employer unit" with workers, such as temporary workers, who are jointly employed by the primary employer and another employer. See H.S. Care L.L.C., d/b/a Oakwood Care Ctr.
Oakwood overrules M. B. Sturgis, Inc., in which the National Labor Relations Board (NLRB) allowed the formation of a bargaining unit combining workers employed by the primary employer and a joint employer with workers employed solely by the primary employer. Sturgis was a stark departure from the NLRB’s earlier decisions in Greenhoot Inc. and Lee Hospital. Under Greenhoot Inc. and Lee Hospital, such a combined unit is treated instead as a "multiemployer bargaining unit," which is permissible only with the consent of all the parties.
In Oakwood, the NLRB returns to the Greenhoot Inc. and Lee Hospital standard. Employers do not risk an involuntary expansion of their employees’ bargaining unit by using temporary workers, independent contractors or others to supplement their work forces.
New Child Labor Rules on Cooking, Driving and Other Hazardous Activities
The U.S. Department of Labor (DOL) announced significant revisions to its Fair Labor Standards Act (FLSA) child labor rules, which will take effect on February 14, 2005. These changes implement two prior FLSA amendments, which set the conditions under which 16- and 17-year-old workers may load, but not operate or unload, certain scrap-paper balers and paper-box compactors; prohibit minors under age 17 from driving cars and trucks on public roadways on the job; and establish conditions under which 17-year-olds may drive on the job.
The new rules also revise the permissible cooking and cooking-related activities for 14- and 15-year-olds. For example, under the new DOL rules, 14- and 15-year-olds are permitted to cook only with electric or gas grills (no open flames) or a nonpressurized, deep fat fryer that has an automatic basket lift. Fourteen- and 15-year-olds will now be permitted to clean, maintain and repair cooking devices (other than power-driven equipment) when the temperatures do not exceed 140° Fahrenheit.
The prohibitions against certain hazardous employment for 16- and 17-year-olds were expanded to prohibit "all work on or about a roof" unless such work is performed as part of an apprenticeship or student-learner program. The DOL also updated its definitions of "explosives" and "articles containing explosive components." Finally, the DOL now requires that government-issued Certificates of Age be given to the employee when his or her employment ends, rather than be returned to the issuing agency. Link to the new regulations: http://www.dol.gov/esa/regs/fedreg/final/2004027182.htm. Link to the DOL site on child labor issues: http://www.youthrules.dol.gov/.
Note that many states, including Oregon, Washington and California, have adopted child labor laws that are more stringent than the federal requirements.
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For more information about the issues in this bulletin, please contact the Stoel Rives attorney with whom you regularly consult. For a list of all attorneys in the Labor and Employment Group, click here.
This is a periodic publication of Stoel Rives Labor and Employment Group for the benefit and information of clients and friends. This bulletin is not legal advice or a legal opinion on specific facts or circumstances. The contents are intended for information purposes only.