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The Things Your Mother Told You Not to Talk About at the Dinner Table

While secrets, drugs, politics, sex and the bathroom are still topics of conversation banned from polite conversation at many family dinner tables, employers should not be taking the same approach to communications in the workplace. With the new federal Defend Trade Secrets Act, the Occupational Safety and Health Administration’s changes to post-accident drug testing rules, the United States Supreme Court’s recent decision emphasizing the freedom of speech protection for public employees when expressing political views and broad changes in federal protections against discrimination and harassment based on sexual orientation and gender identity, employers need to talk about all of these topics and how they affect their workforces.

A. Secrets

In regard to secrets, employers now have a new level of protection and remedies to keep their proprietary information or intellectual property such as formulas, client lists, business strategies or technologies not protected by patents, confidential. Previously, employers historically depended on the protections of state versions of the Uniform Trade Secrets Act (UTSA) in conjunction with confidentiality agreements to protect their secrets. However, this resulted in national businesses protecting their secrets by filing litigation in multiple states all with separate and differing versions of the UTSA which ultimately was an inefficient and expensive way to protect secrets. On May 11, 2016, President Obama signed the federal Defend Trade Secrets Act (DTSA), 18 Section 1831, et seq, which provides injunctive, royalty, regular and exemplary damages, attorney’s fees, and civil seizure remedies that can be secured in federal courts with jurisdiction to issue orders effective across state lines.

To take advantage of all of the remedies available under this new law, employers must incorporate a notice of the immunities available under the DSTA to whistleblowers who provide trade secrets to the government in an investigation of a violation of the law, in court under seal or to a whistleblower’s attorney. If employers fail to include such notice in their contracts, the employers will be precluded from being awarded exemplary damages and attorney’s fees in any future litigation. Thus, it is time for employers to talk about their trade secrets and how their contracts need to be altered to ensure that they can take full advantage of the provisions of the DTSA.

B. Drugs

Many employers have mandatory post-accident testing polices that require all employees involved in a workplace accident to be drug tested immediately after any accident. The Occupational Safety and Health Administration (OSHA)’s new regulations, under 29 C.F.R. Part 1904, dramatically affect a covered employer’s ability to do drug testing because the regulations prohibit employers from ordering post-accident or injury drug testing unless the employer can demonstrate that employee drug use is likely to have contributed to the incident and the situation is one in which a drug test can accurately identify impairment caused by drug use. These changes will require employers to separately analyze in each work injury situation whether an employee can be tested for potential drug use and are effective August 10, 2016.

In addition to revising their drug testing policies, OSHA will also require employers to submit records of workplace injuries electronically and public disclosure of employer data on workplace injuries to increase workplace safety. The new regulations related to electronic submissions are effective on January 1, 2017. Thus, it is time for employers to be talking about drugs in the workplace and confirming whether the new OSHA regulations apply to their business.

C. Politics

With the upcoming elections, workplaces tend to be more a buzz with political conversations. The United States Supreme Court in Hefferman v. City of Paterson, N.J., 136 S.Ct. 1412 (2016), issued a decision in April reminding public employers of the importance of allowing their employees to exercise their First Amendment Right to Free Speech. In this case, a police officer filed a Section 1983 action against the city, mayor, police chief and police administrator alleging he was demoted in retaliation for exercising his First Amendment Rights when his bosses assumed he was supporting a candidate for mayor whom the police chief opposed. Ironically, the police officer had been seen carrying a yard sign for the candidate, but he was actually picking it up for his bedridden mother and did not support the candidate himself. The Supreme Court found that the employer’s motive was what was relevant rather than the employee’s actual activity.

Beyond public employers needing to ensure that employees are allowed to exercise their freedom of speech rights, private employers also should not be taking action against employees based on their political views. Many states, including Missouri, recognize a public policy exception to the at-will employment doctrine of employment which precludes an employer from terminating an employee for refusing to violate the law or any well-established or clear mandate of public policy as expressed in the constitution, statutes, regulations or rules created by a governmental body. While Missouri has not directly applied the public policy exception to the at-will doctrine in the context of the First Amendment, such protection has been recognized by other jurisdictions and would likely be recognized in Missouri too. Thus, employers need to be talking about how political conversations will be handled in their businesses because it is not a matter if they will occur in this election year, but when.

D. Sex

While the Equal Employment Opportunity Commission (EEOC) in internal determinations had ruled that discrimination based on transgender status was sex discrimination in violation of Title VII in 2012, the EEOC had not filed litigation in court against any employer for engaging in such discrimination until this year. On June 23, 2016, Pallet Cos., doing business as IFCO Systems, entered into a consent decree with the EEOC providing that the company would hire a subject expert on sexual orientation, gender identity and transgender training to develop a training module on sexual orientation and sexual identity issues in the workplace. EEOC v. IFCO Systems, Case No. 1:16-cv-00595-RDB (U.S. Dist. Ct. MD 2016). In addition, a number of federal district courts now have recognized protection against discrimination based on sexual orientation and soon this issue will be before federal appellate courts.

Beyond recognizing the stance of the EEOC related to protection under Title VII against discrimination based on sexual orientation, employers should recognize that contrary state law on this topic is not a defense to discrimination under Title VII. 42 U.S. C. Section 2006e-7. Thus, even though Missouri’s only state court decision on the issue of protection against discrimination based on sexual orientation found that there is no protection under the plain language of the Missouri Human Rights Act, federal law still requires Missouri employers with 15 or more employees to protect against discrimination based on sexual orientation. Pittman v. Cook Paper Recycling Corp., 478 S.W.2d 479 (Mo.App. W.D. 2015). Thus, employers need to be creating policies and discussing trainings to protect against discrimination based on sexual orientation.

E. Bathrooms

Finally, employers need to be talking about the restroom in the employment context to ensure that they are prepared to lawfully address the issue of transgender workers. OSHA has issued guidance for restroom access for transgender workers setting out that such employees should be allowed to use facilities that correspond with their gender identity. OSHA recognizes that the best policies include either allowing a person who identifies as a man to use the men’s restroom, single-occupancy gender-neutral (unisex) facilities and/or multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls.

Similarly, the EEOC held in an internal appeal in 2015 that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination. Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015). The EEOC further noted that the employer could not condition the right to use a restroom corresponding to the employee’s gender identity based on proof of surgery or any other medical procedure, and the employer could not avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it). Based on the above EEOC decision and OSHA guidance, employers need to be talking about their workplace bathrooms like never before. While civility and polite conversations should still be the goal for workplace discussions, employers need to be tearing down the stereotypes about what topics are acceptable for the work environment and being proactive in discussing the topics of secrets, drugs, politics, sex and the bathroom to ensure that their businesses are in compliance with the law.

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