man construction worker tired sweating silhouetteContinuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Interference – What Would You Do?

Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Extension or Termination – What Would You Do?

surprised young woman holding white empty paper isolated on whiteContinuing our Employment Law IQ series, today we focus on Anxious Annie. Anxious Annie works as a receptionist for P U Waste Disposal. She is a decent employee, but seems to have trouble coming to work on time, and often calls in “sick” on Mondays and Fridays. When Annie is written up for absenteeism, Annie tells her supervisor she needs a leave of absence to deal with panic attacks. Annie’s supervisor reports the request to P U’s HR Director, but laughs it off and says the request “smells funny.” P U has more than 15 employees.

Which of the following statements is correct?

A.  Because Annie’s disability is not obvious, P U is entitled to receive “reasonable documentation” about the disability and its functional limitations.

B.  Because Annie’s disability is not obvious, P U can ask to see Annie’s medical records.

C.  Because Annie’s disability is not obvious, P U can ask about the nature of the disability and its functional limitations.

D.  Both A and C are correct.

Continue Reading Employment Law IQ: Absenteeism and Questionable Leave Requests

Good news doesn’t seem to come often for employers in the employment law world. However, just a few days ago, the U.S. Supreme Court issued two split (5-4) decisions favorable to management. Let’s take a brief look.

In Vance v. Ball State University, the Court found that a "supervisor," for purposes of vicarious liability under Title VII, is an employee authorized by an employer to take tangible employment actions against another worker. Justice Alito wrote that a Title VII "supervisor" must have the power to make a "significant change" in another worker’s employment status, such as through hiring, firing, failing to promote, reassigning with "significantly different responsibilities," or causing a "significant change in benefits." The majority rejected the broader definition of "supervisor" adopted by the Equal Employment Opportunity Commission. (Note: as the employment lawyers here at HF have mentioned before, it is important to consider the guidance and positions issued by the EEOC, but there are some which the courts do not follow – this is an example).

On the very same day, in Univ. of Texas SW Med. Ctr. v. Nassar, the Court ruled, in another 5-4 decision, that a plaintiff alleging unlawful retaliation under Title VII must prove retaliation was the "but for" cause of the adverse action. Here, the Court reversed a federal circuit court decision which held that a Title VII retaliation plaintiff can prevail if he/she shows retaliation was just a "motivating factor" for an employer taking adverse action. The Court held that the "mixed motive" standard only pertains to "status discrimination," meaning alleged discrimination based on race, color, gender, national origin, and religion. Writing for the majority, Justice Kennedy wrote that the "text, structure, and history of Title VII demonstrates that a plaintiff making a retaliation claim . . . must establish that his or her protected activity was a but-for cause of the alleged action."

This was a huge victory for employers. As we all know, retaliation claims have boomed in the last few years, and are often difficult to defend. The Nassar decision will make it much more difficult for plaintiffs to prevail, and will give employers a significantly improved chance of obtaining summary judgment on Title VII retaliation claims. It will be interesting to see if any members of Congress move to "legislatively overrule" this decision. Of course, any such move in that direction would likely take years.

And lastly, a bonus piece of good news. The date for the 22nd annual Henderson Franklin HR Law & Solutions seminar has been set. It will be held on Tuesday, April 1, 2014 at Sanibel Harbour Marriott Resort and Spa. Please mark that on your calendars. We at HF wish you a great summer!

Yesterday, the Equal Employment Opportunity Commission announced it received 99,412 private sector workplace discrimination charges during the 2012 fiscal year.  In its  press release , the EEOC noted that while the number of charges is down slightly from last year, it recovered $365.4 million dollars for employees, the "largest amount of monetary recovery" through its administrative process.

(Side note:  I’m not sure how that’s the "largest" recovery, if EEOC recovered $404 million in 2010, but then again I’m no math major….).

For the third year in a row, retaliation claims were the most frequently filed claim (38.1%), followed by race (33.7%), sex (30.5%), and disability (26.5%).  There was a jump in sex and disability claims over last year. 

A stat I found particularly interesting is that although the EEOC reduced the pending inventory of charges by 10% from the 2011 fiscal year, it still has over 70,000 cases in queue.  So, for those of you who feel like you’ve been waiting for-ev-er for a determination, don’t worry — you’re clearly not alone!

What does this mean for employers?  Be extra extra careful not to take any action that remotely resembles retaliation!  I know we say this every chance we get, but it’s SO important, and these statistics prove it.  Remember, even if the employee does not have a valid underlying claim, he/she can have a valid retaliation claim if take adverse action after you learn of the employee’s discrimination or harassment complaint. Don’t be a statistic!

 

Tis election season! And it is impossible to ignore the political debate that is unfolding in the media, on social networks, and in everyday conversation. Can and should employers restrict political discussion in the workplace? It depends.

Private employers enjoy wide latitude in determining whether and how to regulate employees’ expression of their political views in the workplace. Contrary to popular belief, employees in the private sector do not have a First Amendment right to discuss politics in the workplace. The Constitution applies only to governmental censorship of speech. 

Generally, an employer’s goal is to keep employees comfortable and focused on work. After all, employees are paid to do a job, not campaign. Heated political debate or solicitation in the workplace is likely to have a negative effect on morale and productivity. But, political debate in the workplace may also expose an employer to liability. When co-workers discuss politics, employer may be exposed to claims of discrimination, retaliation or hostile work environment. After all, political views are often intertwined with an individual’s beliefs on hot button topics such as sex, religion, national origin, age, and disability. Consider how a co-worker’s unwelcome comment about a candidate’s age or religion might lead to a hostile work environment claim. Or, how a supervisor’s discipline of an employee for insubordination after an intense debate over a candidate’s pro life politics could expose an employer to a claim of retaliation.

Most employer do not have a formal policy governing political speech in the workplace. However, non-solicitation policies may be applicable to some forms of political speech. And, policies governing computer usage may be utilized to restrict employees using the e-mail system or accessing the internet for political purposes.

Some freedom of expression in the workplace is a good thing. However, employers should be aware of the hazards of political speech in the workplace. Expression of political beliefs may interfere with workplace efficiency, cause workplace disruption and even lead to claims of discrimination, retaliation, and harassment.

 

For Part Two of my "EEOC Came Knocking" series (click here for Part One), I thought I’d offer some tips on how to present an effective position statement as part of your response to an EEOC charge.  A solid position statement is critical to the employer’s defense of an EEOC charge.  It is the company’s opportunity to tell the its side of the story, point out relevant case law, and hopefully convince the EEOC investigatorit didn’t discriminate against or harass the charging party.

There are many different ways you can set up a position statement — there really is no one "right" way to do it.  Sometimes an attorney will prepare the entire position statement.  Other times, HR or another executive will prepare it.  Often, it’s combination of the two.  Irrespective of how you choose to do it, this list includes things I believe are important to include in any position statement.

1.  Start with an explicit denial.  This can be just a few sentences, but I recommend starting with a strong opening statement explicitly denying the company discriminated and/or harassed (whatever the charge may be) the charging party.

2.  Don’t forget the small details.  Explain the nature of the company’s business.  Likewise, explain the charging party’s job (job duties, employment history, reporting channels, etc), and how that job fits into the company’s bigger picture.  Remember, while you know everything about the company and its business, the EEOC investigator probably has no idea.  These details can be critical to the overall story.

3.  Explain your EEO policies and procedures.  You will likely be asked to produce a copy of your policy manual in the Request for Information, but make sure you take a few sentences in the position statement to explain the policies and how they are enforced.  Explain how employees become aware of the policies and complaint procedures.  Include a copy of the charging party’s signed acknowledgement, confirming he/she has received, read, and understood the policy manual.  (Side note:  Don’t use acknowledgement forms?  Start immediately!)  If the employee did not follow reporting procedures, make sure to mention that. 

4.  Explain the employment decision.  Identify facts and circumstances that gave rise to the allegedly adverse employment action.  If the charging party was terminated for excessive absenteeism, explain not only the absences, but how the absences affected the company and why they weren’t acceptable.  If the charging party has prior disciplinary action, explain it.  Make sure you include all supporting documentation.

5.  Address comparators/similarly situated employees.  If the charging party specifies other employees who were allegedly similarly situated and treated better, discredit that contention.  The standard for "similarly situated" is quite high — show why the employees are not, in fact, similarly situated with the charging party.  Did the charging party violate a rule three times, while the comparator violated it once?  Has the comparator been successfully employed by the company for 25 years, while the charging party was only employed for one year?  If the situations are dissimilar in any way, make sure you point it out.

6.  Affirmatively show non-discrimination, if possible. For example, in a pregnancy discrimination case, if another female employee has been pregnant, given birth, and successfully returned to work under the same supervisor, reference it.  In an age discrimination case, if you can show that other employees who are the same age or older than the charging party work under the same manager without issue, that needs to go in your position statement.  Though you likely won’t be able to do this in every case, when you can, don’t miss the opportunity to include what could be a critical part of the employer’s defense.

7.  Consider other possible defenses.  You should consider whether you can use defenses such as timeliness, constructive discharge, same actor inference, offers of reinstatement, or after acquired evidence.  This is one area in particular where assistance of counsel is key — employment lawyers are trained to spot and properly apply these defenses. 

8.  Review other proceedings involving the charging party.  Has the charging party filed a claim for unemployment?  Workers’ compensation?  An unfair labor practice claim?  If so, make sure you review as many of those details as you can, and check to see if the charging party has taken inconsistent positions.  If he/she has, include this in the position statement.

9.  Decision-maker review.  Make sure the decision-makers review the charge and confirm the position statement’s completeness and accuracy.  Remember, they could be confronted with the details if the case proceeds past the administrative stage and into litigation.

10.  Position statement becomes a public record.  Keep this in mind.  Not only does it become a public record, it is discoverable, and could be used in subsequent litigation.

Bonus.  Counsel review.  This is quite possibly the most important step (of course, coming from the lawyer!).  If you already have counsel preparing the position statement, you are covered here.  If, however, you decide to prepare the position statement yourself, I recommend, at the very least, having counsel review the position statement before it goes out.  Counsel can add strong legal arguments and defenses, and can just generally confirm that the position statement is legally sound before you file it.  Remember, once you file it, you can’t get it back!

I hope these tips are helpful for those of you faced with responding to an EEOC charge.  Though the position statement is just one part of the overall response, it is, perhaps, the most critical.  Take care to ensure it is done properly, so you know you’re presenting the very best defense possible for your company.

Last week, I spoke at the Florida Public Human Resources Association’s Annual Conference at the Waldorf Astoria in Naples, Florida.  For the first of my two sessions, I was asked to present on EEOC charges which, as you all probably know, is a pretty timely topic given some of the recent record statistics (almost 100,000 charges filed in 2011 alone!).

If your company has not received an EEOC charge recently, consider yourself lucky.  Since I know so many of you have dealt with or will deal with EEOC charges, I thought I would post some tips on how to respond from last week’s presentation.  In Part One, I will review the basics of what you should do when you receive the charge.  Next week, in Part Two, I’ll offer some tips on how to prepare an effective position statement. 

Side note:  Though the focus of this post is on EEOC charges, the same basics apply to charges filed with the Florida Commission on Human Relations (FCHR).

First up:  The EEOC Came Knocking:  What Should I Do?!

1.  Do not ignore the charge.  Don’t laugh — I have seen this happen!  The charge will not go away if you ignore it.  The EEOC will move on and investigate anyway, with only the employee’s side of the story in the file. 

2.  Notify your Employment Practices Liability (EPL) carrier.  This is an extremely important step.  Do this in writing, so you have a record of the notification.  Not sure whether you have EPL coverage (Hint:  it’s that coverage with the giant deductible!)?  Call your agent.  Better safe than sorry.

3.  Contact counsel.  While you are not required to have representation at this stage in the process, having the assistance of qualified employment counsel can make a huge difference.  If cost is an issue, prepare the bulk of the response yourself, but make sure you have counsel review it before it is submitted.  There are often critical legal defenses, arguments, etc. that should be raised, and lawyers are trained to spot these items. 

4.  Determine and calendar deadlines.  You will typically have several weeks to submit your response.  If you need additional time to prepare a thorough response, ask for an extension.  The EEOC is usually pretty generous with extensions, as long as the request is reasonable.

5.  Check to see if the charge is timely.  Remember, in Florida, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act.  If the charge is filed with the FCHR, the charging party must file within 365 days.

6.  Notify affected managers/decision-makers.  Identify those managers/decision-makers who were directly involved with the allegations in the charge.  Let them know the company received a charge, and he/she will be called upon for information.  Limit this to those managers/decision-makers who are actually involved — don’t make a company-wide announcement.  See #7 and 9 for additional info on manager/decision-makers.

7.  Assemble and preserve documents.  Gather critical documents, like personnel files for the charging party and any alleged comparators, disciplinary documents, etc.  Make sure you instruct managers, decision-makers, IT personnel, or anyone else who may have relevant documents, including emails, to preserve them — the last thing you want is to have to explain missing or, worse, destroyed, evidence.

8.  Plan internal investigation.  This could take up an entire blog post in itself.  Perhaps the most important advice I can give you is to do it quickly.  The sooner you investigate, the better, especially if the charge was the first notice you have of the alleged discriminatory action.   Assistance of counsel can be critical during an investigation.

9.  Prevent retaliation.  If the charging party is still employed, make sure he/she is not retaliated against in any way.  Remember, even if the underlying claim of discrimination or harassment has no merit, if you take adverse action against the charging party because he/she has filed a charge, you can hand him/her a valid retaliation claim.  This doesn’t mean the employee now has immunity from disciplinary action or even termination, but you should take special care in these situations.  Even if the adverse action was not because of the charge, be mindful that the timing can look pretty suspect.  This is an important reason to be cautious with how many managers/decision-makers you notify about the charge.  Though it’s not an iron clad defense, if the charging party’s immediate supervisor does not know about the charge (protected activity), the employee may not be able to show a causal connection between the charge and any adverse employment action he/she suffers after filing the charge.  Keeping information limited to those who truly need-to-know is critical, particularly when the charging party is still employed.

10.  Consider mediation.  In most EEOC charges, the EEOC will offer pre-investigation mediation.  Like investigations, this could take up an entire post in itself.  Briefly, there are many pros to mediation.  It can be speedy, cost-effective, and, if settled, gives you certainty with respect to resolution of the charge.  Though not all cases are well-suited for mediation, I tend to recommend it in the majority of charges.  Legal counsel can help you evaluate whether mediation is an attractive option for your particular charge. 

There you have it — a few basic tips on what to do when you receive an EEOC charge.  Check back next week for tips on how to prepare an effective position statement. 

For years, college admissions officers were on safe ground when considering race as a factor in their admissions programs to promote class diversity. This may change now that the Supreme Court has agreed to consider Fisher v. The University of Texas at Austin. In Fisher, Plaintiff Abigail Fisher argues she was rejected by the school, not because of her grades or test scores, but because she is white.

In April 2003 the Court had seemingly resolved the issue in Grutter v. Bollinger. In that opinion, Justice Sandra Day O’Connor, writing for the majority, found that the University of Michigan Law School’s compelling interest in promoting class diversity justified a race-conscious admissions process, and not an unconstitutional race-based quota system. The decision, however, left open the possibility that such programs might be unnecessary in 25 years. While universities around the country may have relied upon this decision in implementing their own affirmative action programs, the quarter century timetable may have been accelerated when Chief Justice John Roberts wrote in an opinion striking down affirmative action programs in public high schools. In Parents Involved in Community Schools v. Seattle School District No. 1, the Chief Justice opined that "[t]he way to stop discrimination on the basis of race is stop discriminating on the basis of race." Affirmative action proponents are concerned that the Court’s more conservative make up signals an end to affirmative action and the ability to promote diversity. Critics welcome the opportunity to remove race from the admissions process.

The Court’s newest Justice, Elena Kagan, will not participate in the review due to her prior involvement in the case while serving as U.S. Solicitor General. The Court is scheduled to consider the case in October, just before the 2012 elections.

 

Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation – such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a "business necessity." Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

An "accent discrimination" claim can arise if an employer takes the adage "the customer is always right" a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
 
What Does This Mean For Employers?
 
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here.  The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action.  Always better safe than sorry!