Congress Passes the Speak Out Act, Outlawing the Use of NDAs to Silence Victims of Sexual Harassment and Assault
On Nov. 16, 2022, by a vote of 315-109, the U.S. House of Representatives passed the Speak Out Act, a bipartisan bill that renders pre-dispute nondisclosure agreements null and void as applied to allegations of sexual harassment or assault. The bill passed the Senate via unanimous vote on Sept. 29, 2022, and now heads to President Biden, who is expected to sign the Speak Out Act into law. If you use a pre-dispute nondisclosure agreement in your workplace, we recommend reviewing it carefully to ensure compliance with the Speak Out Act. For example, a pre-dispute nondisclosure employment agreement should clearly disclaim that its restrictions do not apply to allegations of sexual harassment and assault.
Although the bill does not ban the use of nondisclosure agreements in post-dispute settlement agreements in sexual harassment and assault cases, there are tax incentives not to seek confidentiality. Specifically, the IRS does not allow a deduction for settlement payments made in sexual harassment and assault cases if the payment is subject to a nondisclosure agreement.
EEOC Deadlocked Following Commissioner Resignation
On Nov. 18, 2022, Equal Employment Opportunity Commission (EEOC) Commissioner and Republican appointee Janet Dhillon resigned. The EEOC is governed by a five-member commission, whose members are appointed by the President. Commissioner Dhillon’s term was set to expire last July, but she continued her service as an EEOC commissioner because the Senate has not yet confirmed President Biden’s nominee Kalpana Kotagal. The EEOC is now deadlocked—with two Democrats and two Republicans. That is bad news for the writers of these updates, because it is unlikely that we’ll see any EEOC developments (e.g., new guidance or regulations) until President Biden’s nominee to replace Commissioner Dhillon is confirmed by the Senate. Read more about this development here: EEOC Commissioner Resigns, Leaving Commission Deadlocked (shrm.org).
In ADA Case, Eighth Circuit Concludes that Onsite Work is not Essential Where Employee Had Hybrid Work Schedule and Good Performance Reviews
On Nov. 16, 2022, the federal Eighth Circuit Court of Appeals issued a decision that provides helpful guidance to employers managing remote work accommodation requests from employees seeking to be excused from onsite work for physical or mental health reasons. The case captioned Mobley v. St. Luke Health System Inc. was filed by Joseph Mobley against his former employer St. Luke’s hospital in Missouri. Mobley, who suffers from multiple sclerosis (MS), worked as a patient access supervisor, supervising a team of customer service employees who assisted patients via telephone with insurance questions. Mobley worked a hybrid schedule of three days onsite and two days remote. Most of the employees on Mobley’s team teleworked. However, employees with performance problems were required to work onsite. Mobley was expected to work onsite three days a week to provide in-person supervision to onsite employees. Mobley asked for a telework accommodation to allow him to work some additional time from home during MS flareups. The hospital denied this request because it deemed onsite work essential but offered an alternative leave accommodation.
The Eighth Circuit rejected the hospital’s argument that onsite work was essential. The Court explained that by allowing Mobley to work remotely two days per week, the hospital “implicitly demonstrated a belief that he could perform his essential job functions without being in the office all the time.” The Court also observed that, “while working remotely, Mobley continued to receive positive performance reviews, reflecting that he was able to effectively supervise his employees despite not being onsite.” Finally, the court observed that the employer offered only its own conclusory opinion that onsite work was essential and failed to provide evidence that Mobley could not effectively perform all essential tasks while teleworking.
Ultimately, the Court found in favor of the employer because it had not failed to accommodate Mobley (e.g., it offered an alternative leave accommodation). Still, the Court’s decision has some helpful takeaways, including:
· If you provide a hybrid schedule of telework and onsite work, you may face a steeper challenge to deny an ADA accommodation for additional telework.
· If you deny a telework accommodation request because you deem onsite work essential, you should document the specific ways that telework presents a hardship.
· If you provide a provisional telework accommodation, document that you are temporarily excusing some essential job functions, including in performance reviews.