All Entries in the "Legal" Category

RI State Senate Passes “Kristen’s Law”

Rhode Island Drivers to Go Hands-Free on June 1: New Law Prohibits Driver Use of Hand-Held Wireless Devices

Personnel Practices: Transgender Discrimination in the Workplace

Kristen M. Whittle, Esq., Partner, Barton Gilman LLP
Alexandra Rotondo, Esq., Associate, Barton Gilman LLP

Although the transgender rights movement has made substantial progress in recent years, research has shown that transgender individuals across the country remain subject to unequal footing in the workplace. In fact, according to the 2015 U.S. Trans Survey, a report by the National Center for Transgender Equality, transgender people are three times more likely than the remaining U.S. adult population to be unemployed, and nearly 30% of survey respondents who held or applied for a job during that year reported being fired, not hired, or denied a promotion because of their transgender identity.

The following provides a summary of protections for transgender and gender non-confirming individuals in Rhode Island, as well as best practice tips for employers to reduce discrimination claims based upon an employee’s gender identity.

Federal Law
There is no federal law explicitly barring employment discrimination on the basis of gender identity, and the current presidential administration has taken the position that “Title VII’s prohibition on sex discrimination . . . does not encompass discrimination based on gender identity[.]” However, numerous federal courts and the Equal Employment Opportunity Commission have determined that discrimination because an employee or job applicant is transgender or gender non-conforming, or because he or she fails to conform to gender stereotypes, constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. Notably, Title VII only covers business with 15 or more employees, but small businesses
may choose to comply with its requirements as a best practice.

Rhode Island Law
Rhode Island’s Fair Employment Practices Act (FEPA), which applies to all employers with four or more employees, expressly prohibits employment discrimination on the basis of “gender identity,” which is defined as “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether . . . different from that traditionally associated with the person’s sex at birth.” Specifically, FEPA provides that it is unlawful for an employer “to discharge an employee or discriminate against him or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment” because of an employee’s gender identity or expression. Importantly, if adverse employment action is taken because an employee is perceived to be transgender or gender non-conforming (whether the person is or not), the employee can still
invoke FEPA’s protections.

Best Practice Tips
In order to comply with applicable law and reduce discrimination claims, employers should:
 Implement a broad non-discrimination policy that prohibits discrimination and harassment on the basis of gender identity, as well as other protected classes. The policy should detail a procedure for employees to raise concerns about discrimination
in the workplace and prohibit retaliation against employees for reporting such concerns.
 Be careful of implementing policies or practices that have a “disparate impact” (or disproportionate effect) on transgender and gender non-confirming individuals, such as strict rules about which bathrooms employees can use. Such practices or policies are unlawful unless the employer can show that they are “required by business necessity.”
 Do not ask questions about an applicant’s gender, gender identity or expression either in a job application or during an interview.
 Be wary of claiming religious exemption from the duties imposed by FEPA. While this statute does not apply “to a religious corporation, association, education institution, or society with respect to the employment of individuals of its religion to perform work connected with the carrying on of its activities,” this exemption is not a carte blanche for an employer to use religious beliefs to justify discrimination.

Personnel Practices: Paid Time Off Policies

by C. Alexander Chiulli, Esq. and Kristen M. Whittle, Esq.

In creating benefits packages for their employees, many employers offer some form of paid time off in an effort to attract and retain high-quality workers. According to the Rhode Island Department of Labor and Training’s (DLT) most recent Employee Benefits Report (available at http://www. dlt.ri.gov/lmi/pdf/ebs13.pdf), seventy-six percent of Rhode Island employers provide some combination of vacation, personal, and/or sick leave to their full-time workers, and nearly a quarter of Rhode Island employers provide paid time off to part-time employees. DLT also found that the average number of vacation days made available to full-time employees is 8 days after one year, 11 days after three years, and 17 days after five years of employment. In addition to vacation time, DLT reported that full-time workers in Rhode Island receive an average of 5.7 sick days per year and 8.3 paid holidays per year. The average paid time off plans offered to part-time workers are typically slightly lower than their full-time counterparts. The following is intended as a brief summary of the key features of PTO plans, as addressed under applicable Rhode Island laws and regulations.

Paid Time Off is Not Typically Required.
Under Rhode Island law, private employers are generally not required to grant paid time off (“PTO”) to employees for illness, vacation, or personal reasons. But if an employer promises PTO in its personnel policies or employee handbook, or in an employment contract, then PTO must be provided in accordance with the policy or contract.

Employers have Flexibility.
Rhode Island law provides employers with significant flexibility in deciding how and when employees may accrue PTO. For example, an employer may provide PTO on a monthly basis or determine that PTO is accrued every set amount of hours worked. Though employers are free to devise their own accrual method, a PTO policy should be clear and deliberate, as any ambiguity will likely be construed against the employer.

PTO can be Combined into a Single Policy.
In offering PTO, employers can choose to separate out vacation, personal, and sick time, or to combine different types of paid leave into a single plan without such distinction. DLT has reported that, although combined PTO plans are increasing in popularity, the majority of Rhode Island employers still separate vacation time from sick leave. PTO does not typically encompass time away from work (paid or unpaid) for parental or family medical leave, disability, holidays, or for any other reason provided by law. However, employers may allow employees to substitute PTO for certain types of leave that would otherwise be unpaid.

But Beware of Nuances upon Separation of Employment. Although combined PTO plans may be administratively easier for human resources staff—as opposed to managing distinct vacation, personal, and sick leave policies for numerous employees—there are additional considerations for Rhode Island employers upon an employee’s separation from employment. Specifically, Rhode Island law provides that when an employee separates from employment after completing at least one year of service, the employer must pay the employee all accrued, unused vacation time on the next regular payday. The statute does not apply to sick leave or personal time. Accordingly, unless a PTO policy specifically delineates which portion of an employee’s PTO can be considered vacation time, an employer may be liable to pay an employee all accrued but unused PTO (and not just vacation time) upon separation from employment.

By carefully crafting PTO policies at the outset, employers can take care to avoid giving employees greater benefits than the employer intended to offer. When in doubt, employers should always contact a seasoned professional to assist.