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Most years our firm sponsors an annual weekend retreat, a holiday party, and several other social activities for the Henderson Franklin team. These events are typically loosely structured and serve to improve upon cohesion and camaraderie among a group whose individuals often operate independently. Many employers do the same, engineering team-building activities which run the gamut from planning elaborate out-of-state trips to sponsoring company sports teams or holding company picnics.  All are good gestures, and each tends to serve the intended purpose of boosting morale.

What you must consider, however, is the potential for injury at these activities, and whether the employer may be liable for such an injury. Playing sports or cutting loose on a retreat can certainly be great for morale, but it can also provide ample opportunity for injury. This is particularly true when alcohol consumption is involved, as is often the case at these social activities.

Continue Reading Planning a Workplace Social Activity? Five Considerations Regarding Liability

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Henderson Franklin’s Employment Law Practice Group will host its first HR Law Mini-Conference in Cape Coral on October 16, 2012 at the beautiful Resort at Marina Village.  Join us for a half-day seminar focused on topics that affect local employers and businesses.  Sessions include:

  • Protecting your Bottom Line and Control Workers’ Compensation Costs: War Stories from the Workers’ Compensation Crypt, presented by Cora Molloy, David Roos and Michael McCabe and moderated by John Agnew
  • What to do When the EEOC Comes Knocking, presented by Suzanne Boy
  • The Retaliation Claim Boom: Best Practices to Minimize Liability, presented by John Potanovic
  • E-Verify – Considerations Regarding Enrollment, Use & Requirements, presented by Tulio Suarez

The seminar has been approved for 3.0 General Recertification Credit Hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.  For additional details, click here to download the seminar brochure.  To register, click here, or contact our Marketing Director Gail Lamarche at 239.344.1186 or gail.lamarche@henlaw.com.

Special thanks to our in-kind sponsors Cape Coral Chamber of Commerce and Cape Coral Construction Industry Association, and to our breakfast sponsor IberiaBank.  We hope to see you there on October 16!

For Part Two of my “EEOC Came Knocking” series (click here for Part One), We thought we’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 its side of the story, point out relevant case law, and hopefully convince the EEOC investigator it 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 a combination of the two.  Irrespective of how you choose to do it, this list includes things we believe are important to include in any position statement.

1.  Start with an explicit denial.  This can be just a few sentences, but we 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 lawyers!).  If you already have counsel preparing the position statement, you are covered here.  If, however, you decide to prepare the position statement yourself, we 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!

We 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.

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As we all know, FLSA lawsuits are popping up everywhere, especially here in the Middle District of Florida, where we have one of the highest FLSA filing rates in the country.  Curbing timecard abuse is a major challenge for employers with hourly employees working in the field.  Having a solid timekeeping policy can help your company avoid the dreaded FLSA lawsuit.  Keep the following principles in mind when creating and enforcing your timekeeping policy:

 

  1. Formulate and publicize your policy. The policy should clearly define compensable time and company timekeeping rules, and it should be included in the Employee Handbook (remember to get each employee to sign an acknowledgement). It should state that accurate timekeeping is each employee’s responsibility and that violations of the policy are grounds for discipline up to and including discharge.
  2. Define break periods. The employer should set the rules concerning entitlement to and the frequency and length of breaks. Lunch periods of 30 minutes or longer may be treated as non-working time if the employee is completely relieved of duty. Break periods of 20 minutes or less must be counted as paid working time.
  3. Ensure accurate timekeeping. Employees should be required to sign in and out for all breaks regardless of whether they are compensable. Requiring the employee to make an affirmative statement as to actual time spent on break makes it easier to detect violations. Falsifying or inaccurately reporting time worked or tampering with another employee’s time records should be considered a serious workplace violation.
  4. Consistently enforce the policy. Employers should monitor compliance with their policy. Automated processes are available to help track hours worked (i.e. if field employees are using company vehicles, GPS systems may be used to detect violations). Managers should verify the timekeeping records of employees under their supervision. Take care to ensure your policy is uniformly enforced to reduce the risk of discrimination and retaliation claims.
Bottom line:  From a legal standpoint, it is better to treat situations of unauthorized and/or excessive breaks as violations of a specific company policy. Impose discipline on the offending employee, but do not dock his or her pay for unauthorized breaks, inaccurate timekeeping, or similar violations.  Improperly docking pay is a sure fire way to land your company an FLSA lawsuit.

Last week, we spoke at the Florida Public Human Resources Association’s Annual Conference at the Waldorf Astoria in Naples, Florida.  For the first of our two sessions, we were 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 we know so many of you have dealt with or will deal with EEOC charges, we thought we would post some tips on how to respond from last week’s presentation.  In Part One, we will review the basics of what you should do when you receive the charge.  Next week, in Part Two, we’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 — we 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 we 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, we 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.

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Yesterday, the EEOC issued a new Enforcement Guidance on use of arrest and conviction records in hiring decisions.  Among other things, the Guidance addresses best practices for employers who use criminal background information in hiring decisions.

The Guidance has already been covered in detail by many of our fellow bloggers.  For more information, check out Dan Schwartz’s post on the Connecticut Employment Law Blog.  Also check out Jon Hyman’s post on his Ohio Employer’s Law Blog.  If you’d like to read the Guidance itself, download it here.

We’ll leave you with Section VIII, the “Best Practices” section of the Guidance, which we think is helpful:

General

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

Developing a Policy

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.  Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.  Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

The past few days have not been pretty for the National Labor Relations Board (“NLRB”) and its controversial Notice of Employee Rights poster requirement.   Last Friday, a South Carolina federal district court found the proposed notice-posting rule invalid.  Today, the DC Circuit Court of Appeals entered an injunction temporarily barring the NLRB from enforcing the notice-posting rule.  In response to the DC Circuit’s ruling, NLRB Chairman Mark Gaston Pearce confirmed that regional NLRB offices will not enforce the rule pending resolution of these issues.  The DC Circuit will hear oral argument in September 2012.

What does this mean for you?  It means the poster requirement, which was set to go into effect April 30, is on hold yet again, and you do not need to post the notice.  This time, it’s on hold until at least the Fall of 2012.

If you would like more background on the notice-posting rule, click here to access our previous posts on the issue.  We will continue to update you as this seemingly never ending saga continues to unfold.

We are currently working on a switch to a new feed management platform Aweber, from our current platform, Feedburner.  Aweber will, among other things, allow us to get email notifications of blog posts out to you immediately, instead of the morning following the post.

This switch will eliminate your current subscription to the blog.  Over the weekend, we will manually re-subscribe all current subscribers.  You will, however, have to confirm your subscription, so please be on the look out for an email asking you to confirm.  If you have not received the email by Monday (and it’s not in your spam folder), please let us know and we will try again.

We are excited about this change.  It is one of the few we’ll be rolling out over the next couple of months in as Southwest Florida Employment Law Blog continues to grow and evolve.  Along those lines, any feedback you have is always welcome.  What are your favorite features/articles on the blog?  What would you like to see more of?  Less of?  Any particular topics you would like us to cover?  Please feel free to post your suggestions in the comments below.

As always, thank you for your continued interest in the Southwest Florida Employment Law Blog!

 

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Yesterday, Henderson Franklin’s Employment Law Practice Group hosted the 20th Anniversary of its HR Law & Solutions seminar at Sanibel Harbour Resort.  The seminar was a great success!  Over 300 attendees heard presentations on a variety of law topics, including retaliation, workers’ compensation, and immigration, and they tested their skills in a lively game of “Employment Law Jeopardy.”  We also welcomed back the hilarious Sean Carter, “Humorist at Law,” to rave reviews, and inducted four new members into the HR Law & Solutions Hall of Fame.

We capped the day with a special surprise celebration, when Norman Love of Norman Love Confections arrived to present a giant, multi-level chocolate cake.  The entire cake — even the law books and gavel — was edible!  Attendees enjoyed the delicious cake along with a champagne toast. It was the perfect ending to our anniversary celebration.

To all who attended, we would like to extend a sincere thank you from all of us.  We couldn’t ask for a better group, and we look forward to 20 more years with you all!

Here are a few photos from the event.  For the complete album, be sure to visit our Facebook page.

Hall of Fame Inductees Frank Shore, Pam Fairfax, Donnie Laubheimer, and Chief Bill Lombardo.

Employment Law Jeopardy

Side view of the amazing Norman Love Confections cake

Champagne toast for our 20th Anniversary!

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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.