2012 Labor & Employment Seminar

NOVEMBER 14, 2012

LABOR & EMPLOYMENT SEMINAR

CHAMBLISS, BAHNER & STOPHEL, P.C.1000 TALLAN BUILDINGTWO UNION SQUARE

CHATTANOOGA, TN 37412

(423) 756-3000

CBSLAWFIRM.COM

© 2012 Chambliss, Bahner & Stophel, P.C. All Rights Reserved.

CASE UPDATE: A REVIEW OF SIGNIFICANT DECISIONS FROM THE

PAST YEAR

PRESENTED BY: WILLIAM H. PICKERING

2

HOSTILE WORK ENVIRONMENT

• Primm v. Auction Broadcasting Co., LLC (U.S. District Court, Middle District of Tennessee, January 4, 2012)

• CSX Transportation, Inc. v. Smith (Supreme Court of West Virginia, June 7, 2012)

3

• Primm v. Auction Broadcasting Co.– Plaintiff hired by her father to work at auto

auction company.– Campbell replaces Plaintiff's father as General

Manager. – Over a period of a few weeks, Campbell makes

various crude remarks to Plaintiff and tells her "you better get more cars in here" even if she has to perform a sex act to do so.

4

• Primm v. Auction Broadcasting Co.– Plaintiff's father complains to upper management.– COO conducts thorough investigation resulting in written

reprimand, probation and training for Campbell.– Campbell apologizes to Plaintiff.– Plaintiff reports no further problems

5

• Primm v. Auction Broadcasting Co.Standard for a hostile work environment: harassment must be so "severe or pervasive" that it alters the conditions of the victim's employment– Court concludes standard not met in this case.– But even if it was, employer fulfilled its obligation by

conducting prompt investigation and taking decisive action.

6

HOSTILE WORK ENVIRONMENT

CSX Transportation, Inc. v. Smith (Supreme Court of West Virginia, June 7, 2012)

Question: Is an employer obligated to protect an employee from harassment away from work?

7

• CSX Transportation, Inc. v. Smith – Plaintiff, a lesbian, overhears another management-level

employee (Wesley Knick) make an obscene comment about her.

– Subsequent investigation results in Knick's demotion – Knick blames Plaintiff and threatens retaliation.

– Knick exercises seniority rights and transfers to territory under Plaintiff's supervision.

8

• CSX Transportation, Inc. v. Smith – Plaintiff is subjected to extreme harassment away from work, most likely by

Knick.

– CSX puts Plaintiff up in a hotel for a short period, offers to transfer her to another state, but fails to investigate the incidents or take any action against Knick.

– Plaintiff begins psychiatric treatment. During this time, harassment by Knick continues.

– Plaintiff accepts transfer to lower paying position in another part of the state to get away from Knick.

9

• CSX Transportation, Inc. v. Smith – CSX begins investigating Plaintiff for improper use of company

taxi system and performance and attendance issues. – CSX tells Plaintiff that the company does not accept doctor-

excused absences. – Plaintiff is terminated and files suit for sexual harassment,

hostile work environment, retaliatory discharge and negligent retention.

10

JURY VERDICT

$1,557,600 compensatory damages $500,000 punitive damages

11

• CSX Transportation, Inc. v. Smith – West Virginia Supreme Court rejects CSX's contention that

there was no hostile work environment.– "CSX's failure and refusal to accommodate Ms. Smith's

concerns forced her to resign her managerial position, transfer into a lower ranking job, accept a significant pay reduction, and relocate her residence simply to escape the hostile working environment created by Mr. Knick and perpetuated by CSX."

12

FMLA

• Jaszczyszyn v. Advantage Health Physician Network (Sixth Circuit Court of Appeals, November 7, 2012).

1313

• Jaszczyszyn v. Advantage Health Physician Network– Employee takes FMLA leave for back

problems. – Doctor's statement says employee is

completely incapacitated. – While on FMLA leave, employee attends

Polish Heritage Festival, is photographed dancing and drinking, and posts pictures on her Facebook page.

– Employee is questioned by management, provides no satisfactory explanation, and is terminated for FMLA fraud.

1414

• Court's Decision:– Employer rightfully considered FMLA fraud to be a serious issue.– Termination of Plaintiff because of her alleged dishonesty

constituted a non-retaliatory basis for her discharge. – Employer's investigation was adequate – Plaintiff's own

behavior during investigatory interview provided further support for termination decision.

1515

FMLA

• Romans v. Michigan Department of Human Services (Sixth Circuit Court of Appeals, February 16, 2012).– Bad employees sometimes win – especially if their

supervisor messes up.

1616

• Jerry Romans – truly a bad employee.

– Suspension for derogatory and sexually inappropriate comments to youths.

– Three formal counselings for failing to report scheduled overtime, failure to timely report an absence, and failure to remain alert to job duties and to work cooperatively.

– Three-day suspension for calling African-American employee a "motherf****r" over the intercom system.

– Five-day suspension for monitoring the same African-American employee on the employer's security cameras after being instructed not to.

– Three formal counselings for misuse of the employer's internal complaint system to try to get coworkers and supervisors in trouble.

1717

• Romans v. Michigan Department of Human Services– Romans is terminated and files suit for reverse discrimination

and FMLA interference.– FMLA interference claim based on supervisor's refusal to

allow Romans to leave his shift to be with his dying mother. – Employer counters by saying Romans really wasn't "needed

to care for" the mother since Romans' sister was there.

18

• Court's Decision:– Plaintiff doesn't have to be the only individual or family

member available to care for his relative. – FMLA provides leave when an employee is needed to make

arrangements for changes in a family member's care. Here, Romans and his sister were faced with the decision of whether to take their mother off of life support.

1919

FMLA

• Ballato v. Comcast Corp. (Eighth Circuit Court of Appeals, April 27, 2012).– Employee receives poor performance evaluation and goes on FMLA leave

a couple of months later. While on leave, employee sends accusatory emails to management and other employees. Attempts unsuccessfully to send "blast" email to all Comcast call center employees.

– Comcast is concerned about employee's stability and deactivates his access to Comcast's computer system and email as well as his building access card.

2020

• Ballato v. Comcast Corp.

– Friday, June 5: Employee calls in to request FMLA leave, is told he is not in the system, but makes no attempt to contact his supervisor. Employee is unable to gain access to his building and decides to go home without requesting assistance. Employee believes he has been terminated.

– Monday and Tuesday, June 8 and 9: Employee fails to call in to request FMLA leave, does not contact anyone at Comcast, and does not show up for work.

– Employee is sent letter advising him that he is considered to have voluntarily resigned. Employee does not contact Comcast to contest his termination or clarify what happened.

– Employee sues for FMLA interference and retaliation.

2121

• Court's Decision:

– Employee taking FMLA leave may still be terminated for reasons unrelated to the FMLA, including a failure to follow company policies and call-in requirements.

– Employee's confusion over his employment status and his belief that he had been terminated did not justify his failure to call in. Employee "still had the responsibility to clarify the situation, request FMLA leave, or show up for his subsequent shifts."

– Even after receiving termination letter, employee failed to contact Comcast to contest the decision or otherwise inquire why he was not provided FMLA leave.

22

AMERICANS WITH DISABILITIES ACT

• Higgins v. Maryland Department of Agriculture (U.S. District Court for the District of Maryland, February 28, 2012)

Are essential job functions always objective?

23

• Higgins v. Maryland Department of Agriculture– Plaintiff was a long-term employee whose job required him to interact with other

professionals, government officials, and members of the public.

– Plaintiff received generally good performance reviews but was known to be abrasive and abrupt.

– Plaintiff's mental condition deteriorates, resulting in bizarre behavior and a diagnosis of bipolar disorder.

– Plaintiff continues to exhibit behavior which is described as argumentative, unprofessional, offensive, loud, combative and crude.

– Following conflicts with management, Plaintiff is terminated.

24

• Higgins v. Maryland Department of Agriculture– Plaintiff files suit under the ADA and claims that, despite

his "behavioral foibles" and mental condition, he performed the requirements of his job.

– Plaintiff also alleges that the employer failed to provide a reasonable accommodation for his mental impairment.

25

• Court's Decision: – Plaintiff was not a qualified individual with a disability because he could

not perform the essential functions of his position.

– The ability to behave professionally and courteously were "essential" to Plaintiff's position.

– Plaintiff never identified an accommodation which would have enabled him to conform his behavior to an acceptable standard.

– "Employers are not required to tolerate abusive behavior by a disabled individual, even if the behavior is related to the disability."

26

AMERICANS WITH DISABILITIES ACT

• Henry v. United Bank (First Circuit Court of Appeals, July 13, 2012)

When is an employer obligated to provide additional leave as a reasonable accommodation under the ADA?

27

• Henry v. United Bank– Plaintiff begins experiencing neck pain, blurred vision and dizziness due to a spinal

cord compression.

– Plaintiff begins FMLA leave July 1. Near the end of July, physician recommends that leave be extended for three weeks. Physician later recommends that Plaintiff remain on leave until her appointment with a neurologist on September 24.

– Management concludes that Plaintiff's continued absence is a hardship and informs Plaintiff that she is expected to return to work on September 25, after her September 24 appointment with the neurologist. (FMLA leave will have ended at this point.)

28

• September 25 neurologist's statement: – Ms. Henry is under my care for a neurosurgical condition (cervical

myelopathy). Our office will be scheduling a surgical procedure for her in the next few weeks. Due to extreme pain Ms. Henry has been unable to go to work since July 1, 2008. She is to remain out of work until further notice.

• Plaintiff's employment is terminated. • Plaintiff files suit claiming that the employer failed to reasonably

accommodate her disability by granting her additional leave beyond that required by the FMLA.

29

• Court's Decision: – Limited extension of medical leave may, under some circumstances,

constitute a reasonable accommodation.

– An indefinite leave, by definition, is not a reasonable accommodation because it does not enable the employee to perform her essential job functions either presently or in the immediate future.

– "Wait and see" approach suggested by Plaintiff is rejected.

30

NATIONAL LABOR RELATIONS ACT

Confidentiality of workplace investigations

Banner Health System d/b/a Banner Estrella Medical Center (National Labor Relations Board, July 30, 2012).

31

• Banner Health System d/b/a Banner Estrella Medical Center– Employee works as sterile processing technician at a medical center.

– Employee protests makeshift sterilization methods, including use of low-temperature sterilizer and hot water from coffee machine.

– HR consultant advises employee that she will investigate and instructs employee not to discuss the matter with coworkers while investigation is underway.

32

Banner Health System d/b/a Banner Estrella Medical Center

NLRB Decision:• Blanket policy prohibiting employees from discussing ongoing

investigations violates the National Labor Relations Act. – Employer must demonstrate a legitimate business need for confidentiality.

– "Generalized concern" with protecting the integrity of an investigation is not sufficient.

33

Banner Health System d/b/a Banner Estrella Medical Center

Factors to consider:1. Do witnesses need protection? 2. Is evidence in danger of being destroyed? 3. Is testimony in danger of being fabricated? 4. Is there a need to prevent a cover up?

34

RETALIATORY DISCHARGE/WHISTLEBLOWER STATUTE

• T.C.A. §50-1-304(b): "No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities." • To whom must the whistle be blown? Must law

enforcement or an agency be notified, or is an internal complaint sufficient?

35

• Simon v. Ernest Tubb Record Shop, Inc. (U.S. District Court, Middle District of Tennessee, November 2, 2012).

– Store denies employment to female applicant based on policy that at least one male needs to be on duty at all times.

– Store's General Manager meets with store's owner and attorney, protests the policy and states that the policy "is going to cost the company a lot of money."

– General Manager is terminated and files suit for retaliatory discharge.

36

• Court's Decision:– Individuals asserting a whistleblowing claim must show more than the

fact that the employer violated the law or engaged in illegal activities.

– Report of the illegal activities must be made to some entity other than the employer.

• But see Lawson v. Adams (Tennessee Court of Appeals, October 6, 2010) – reporting to law enforcement or regulatory agency not required when claim is based on Plaintiff's refusal to participate in illegal activities.

37

RELIGIOUS DISCRIMINATION AND ACCOMMODATION

• Porter v. City of Chicago (Seventh Circuit Court of Appeals, November 8, 2012). • How far must an employer go in accommodating an

employee's religious beliefs and practices? What if the employee doesn't like the accommodation proposed?

38

• Porter v. City of Chicago– Employee worked in a City department which had to be staffed 24/7.

– Employee was originally assigned to group which had Sundays off but was switched to a different schedule when she returned from medical leave.

– Employee is active in her church and requests schedule which will permit her to be off Sunday mornings.

– Division Director suggests that employee switch from first to second shift which would allow her to attend church services.

– Employee doesn't want to work second shift and doesn't follow up on director's suggestion.

39

• Porter v. City of Chicago– Court's Decision:

• A suitable accommodation is one which eliminates the conflict between the requirements of the job and the employee's religious practices.

• The accommodation offered need not be the employee's preferred accommodation.

• Employee can't simply ignore an employer's suggestion of an accommodation but has an obligation of "bilateral cooperation."

40

TENNESSEE LEGISLATIVE UPDATE

PRESENTED BY: JUSTIN FURROW

41

TENNESSEE LEGISLATIVE UPDATE

• Legislation passed in 2012 that affects Tennessee employers

• 2013 legislative agenda/issues

42

TENNESSEE RIGHT-TO-WORK LAWTENN. CODE ANN. § 50-1-206

• Codifies Tennessee's public policy that employees have the right to work without joining a union.• Allows employers to post or disseminate notice of

employee rights under new law.• Commissioner of Labor created "model notice

language" (included in materials).• Effective April 25, 2012.

43

TENNESSEE MEAL BREAK LAWTENN. CODE ANN. § 50-2-103(h)

• Employees must receive a 30-minute meal break unless they have ample opportunity to take a break.• Employees serving food/beverages who receive tips

now may waive right to meal break.• Statute specifies language for waiver agreement, which

must be in writing and posted.• Effective May 17, 2012.

44

WORKERS' COMPENSATIONTENN. CODE ANN. § 50-6-225(a)(2)(A)

• Employee previously could file lawsuit in county in which she "resides" or in which alleged injury occurred.• Employee now must file in county:– In which alleged injury occurred; or– In which she "resided at the time of the alleged injury."• Effective May 21, 2012.

45

WORKERS' COMPENSATION PAIN MANAGEMENT (TENN. CODE ANN. § 50-6-204)

• Employee entitled to panel if treating physician refers for pain management.

• Employee may sign agreement with physician prescribing Schedule II, III, or IV controlled substances that states:

– Conditions under which prescriptions may continue; and

– Risks of failure to comply with conditions.

• Permits utilization review when employee is prescribed 1 or more Schedule II, III, or IV controlled substances for more than 90 days.

• Effective July 1, 2012.

46

UNEMPLOYMENT INSURANCE ACCOUNTABILITY ACT OF 2012

• "Misconduct" now defined to include:– "Conscious" disregard of employer's interests (not "willful

and wanton" as under previous definition).– Carelessness or negligence that shows intentional and

substantial disregard of employer's interests or of the employee's duties and obligations to employer.

47


• "Misconduct" now defined to include:– Deliberate disregard of attendance policy (and discharge in

compliance with that policy).– Knowing violation of state regulation that would result in

sanction/penalties or revocation of employer's license (for employers required to be licensed).

48


• "Misconduct" now defined to include:– Violation of employer's rule, unless employee demonstrates

that:• He did not know and could not reasonably have known of rule; or

• The rule is unlawful or not reasonably related to the job environment and performance

• Effective May 21, 2012

49


• Other changes:– Employee ineligible for benefits if incarcerated for four or more days in

any week– Defines "making a reasonable effort to secure work" as contacting at least

3 employers per week or accessing services at career center.• Effective September 1, 2012

– Allows separating employer to supply information to agency before request for information issued (to proactively address termination issues).• Effective September 1, 2012

50


• Disqualified from receiving benefits:

– For workweeks during which claimant receives wages in lieu of notice (except in WARN Act situations).

– For workweeks during which claimant receives severance payments of at least same amount as he would have received (except in WARN Act situations).

– If laid off but offered same or similar job with equivalent compensation.

– If job offer withdrawn because of refusal to submit to, or failure of, drug test.

51


• Disqualification for failure to accept suitable work—work is suitable if the gross weekly wages are:– 100% of employee's average weekly wage, if offered during

first 13 weeks of unemployment;– 75% if offered during 14th through 25th weeks;– 70% if offered during 26th through 38th weeks; and– 65% if offered after the 38th week.

52

OTHER UNEMPLOYMENT COMPENSATION ISSUES

TENN. CODE ANN. § 50-7-303(a)• Discharge for work-related misconduct if:– Employee enters into written agreement to obtain license or

certification by specific date; and – Employee willfully fails, without good cause, to obtain license

or certification by agreed-upon date.

• Effective July 1, 2012.

53


TENN. CODE ANN. § 50-7-303(a)• Employee not disqualified from benefits if:– He left work because spouse is a member of armed forces;– Spouse is subject of a military transfer; and– Employee left employment to accompany spouse.

• Benefits paid from state's general revenue fund and do not affect employer's experience rating• Effective April 1, 2012

54


TENN. CODE ANN. § 50-7-303(a)• Allows electronic submission of separation

information.• Employer may electronically initiate appeal.• Effective May 9, 2012

55

2013 LEGISLATIVE SESSION

• Guns in parking lots.• The year for workers' compensation reform?

56

WHAT'S NEW AT THE EEOC

PRESENTED BY: ROSEMARIE L. HILL

57

THE EEOC IN 2012IT WAS A BUSY LITTLE AGENCY

• Received the largest number of charges from employees in its 46-year existence.

• Lots of guidelines, general guidance, regulations, and cases. • Now what happens? Since the election is over and fiscal year

has ended?

58

THE EEOC WILL LIKELY HAVE RENEWED ENERGY AFTER THE ELECTION

• Many agencies put agendas/plans for 2013 fiscal year (September ends fiscal year) on hold pending outcome of election.

• However, it is possible many programs, guidelines, offered by the EEOC will not be funded by Congress.

59

LET'S LOOK AT SOME STATISTICS:

• In 2011 the EEOC received record number of charges (99,947) compared with:– 82,792 in 2008 – There has been a 31% increase since 2006

60

NUMBER OF CHARGES:

• 2006 75,768• 2007 82,792• 2008 95,402• 2009 93,277• 2010 99,922• 2011 99,947

61

NUMBER OF CHARGES:

• Now We Have State Breakdown Statistics:– EEOC has for first time revealed how many discrimination

charges and which type of charges have been filed in each state.

62

FIRST EVER FOR SUCH STATISTICS

• Statewide breakdown provides helpful information for employers.

• With these statistics, employer knows exactly how many of specific type charges filed in states where employer exists or everywhere it has offices/plants.

63

LET'S REVIEW SOME NATIONAL TRENDS FIRST:

• Retaliation claims were the most common type of charge filed in 2011.

• Age and disability claims constitute a large percentage of claims filed.

• Interestingly – race and sex declined slightly across the country.

64

TENNESSEE – CHARGES FILED STATEWIDE IN FY 2011

1. Race – 1,314 (39.7% of

total state charges)

2. Retaliation – 1,299 (39.3%)

3. Sex/Gender – 965 (29.2%)

4. Disability – 785 (23.7%)

5. Age – 660 (20.0%)

6. National Origin – 225 (6.8%)

7. Religion – 102 (3.1%)

8. Color – 66 (2.3%)

9. Equal Pay Act – 41 (1.2%)

10.GINA – 12 (0.4%)

65

GEORGIA – CHARGES FILED STATEWIDE IN FY 2012

1. Race – 2,417 (43.2% of total state charges)

2. Retaliation – 1,877 (33.5%)

3. Sex – 1,636 (29.2%)

4. Disability – 1,219 (21.8%)

5. Age – 1,047 (18.7%)

6. National Origin – 446 (8.0%)

7. Religion – 168 (3.0%)

8. Color – 76 (1.4%)

9. Equal Pay – 58 (1.0%)

10.GINA – 7 (0.1%)

66

EMPLOYER CAN OBTAIN THIS INFORMATION FOR EVERY STATE IN WHICH IT:

• Does business• Has an office/plant/warehouse• Has employees

67

WHAT HAS THE EEOC ITSELF FILED?

• 261 merit-based lawsuits across the U.S.– An increase of 11% over FY 2010

• Included 177 individual lawsuits and 84 "multiple victim" lawsuits

68

WHAT HAS THE EEOC ITSELF FILED?

EEOC-filed lawsuits in FY 2011– 162 Title VII claims– 80 Disability claims– 26 Age claims– 2 Equal pay claims

EEOC resolved (prior to trial) 277 lawsuits in FY 2011 = $90.9 million in monetary recovery:– $54.3 million - discrimination claims– $8.4 million - age claims– $27.1 - disability claims

69

SO WHAT'S AN EMPLOYER TO DO WITH THESE STATISTICS:

YOU CAN'T MANAGE WHAT YOU CAN'T MEASURE• Consider them as part of your larger risk-management

strategy, and:– Regularly review training policies,

– Refresh educational efforts for new hires, current employees,

– Refresh special training for supervisors, hiring managers, and

– Assure your HR staff and supervisors are up-to-date in laws/guidance.

70

WHY ARE STATISTICS SO HIGH:

• Let's blame those pesky employees:– It's the ECONOMY: The more layoffs and firings that occur,

the greater potential pool of workers who will make discrimination and other charges – true or not – that's a fact.

• BUT LET'S GO A STEP FURTHER . . .

71

WHY ARE STATISTICS SO HIGH:

Let's blame ourselves:– Many companies had gone a long time without having to layoff

or terminate.– Makes us lax – out of practice with current legal standards.– Conduct layoffs or terminations without reviewing all laws, and– WITHOUT CONSULTING LEGAL COUNSEL…

72

Say it ain't so!

WHAT ELSE HAS THE EEOC BEEN BUSY WITH THIS YEAR?

• February 22, 2012: voted in a 4-year Strategic Plan.• Outlines agency goals and achievement benchmarks

for enforcement. • Education and outreach mission.

73

THREE BASIC OBJECTIVES AND OUTCOME GOALS:

• To combat employment discrimination through education and outreach.

• To prevent employment discrimination through education and outreach.

• To deliver excellent and consistent service through a skilled and diverse workforce and effective systems.

74

IS THIS BLAH, BLAH, BLAH OR IS IT IMPORTANT?

• VERY IMPORTANT: STRATEGIC ENFORCEMENT PLAN

• EEOC named five priorities nationwide to implement its Plan.

75

EEOC STRATEGIC PRIORITIES

1. ELIMINATE SYSTEMIC BARRIERS IN RECRUITING AND HIRING:

• Will review facially neutral hiring practices that adversely impact protected groups.

– Restrictive application processes.

– Use of pre-employment screening tools (e.g., age or DOB).

– Background screenings.

76


2. PROTECT IMMIGRANT, MIGRANT AND OTHER VULNERABLE WORKERS• Focus on disparate pay, job segregation, harassment,

trafficking.• And discriminatory language policies that impact these

workers.

77


3. ADDRESSING EMERGING ISSUES:

– ADA Amendments Act issues: particularly coverage issues and proper application of ADA defenses, such as undue hardship, direct threat, and business necessity.

– LGBT (lesbian, gay, bisexual and transgender individuals) coverage under Title VII sex discrimination provisions.

– Accommodation of pregnancy when women are forced into unpaid leave but denied accommodations of other routinely similarly-situated employees.

78


4. PRESERVING ACCESS TO THE LEGAL SYSTEM

• Targeting polices and practices that prohibit exercise of rights:– Retaliatory actions.– Overly broad waivers.– Settlements that prohibit filing charges with EEOC.– Settlements that prohibit cooperating with EEOC investigations.– Failure to retain records.

79


5. COMBATING HARASSMENT

• Provide more education and outreach to employees and employers.

80

EEOC INTENDS TO GIVE PRIORITY TO WHAT IT TERMS "SYSTEMIC CASES"

• Pattern or practice, policy, and/or class action-type cases involving discrimination allegations that have a broad impact on an industry, business or geographic area

81

SO, THAT WAS FUN!

82

WHAT ELSE?

83

NEW RULE THAT PROVIDES GUIDANCE ON A DEFENSE TO AGE CLAIMS

• Applies in age "disparate impact" cases• A facially neutral policy that adversely affects older

workers

84

EMPLOYER DEFENSE TO A DISPARATEIMPACT AGE CASE

• Showing that practice was based on a reasonable factor(s) other than age (RFOA).• EEOC says its new rule is meant to conform to current

case decisions and provide guidance about application of the defense.

85

WHAT RULE SAYS:

• In determining whether a practice is based on an RFOA, consider:

– Extent factor is related to business purpose.– Extent to which employer accurately defined the factor and

applied it fairly and accurately, and whether managers were given training on how to apply the factor and avoid discrimination.

86

WHAT RULE SAYS:

• In determining whether a practice is based on an RFOA consider further:– Extent to which employer limits supervisors' discretion to assess

employees subjectively.

– Extent to which employer assessed the possible adverse impact of its practice on older workers.

– Degree of harm to individuals within the protected age group, and extent to which the employer took steps to reduce that harm.

87

WHAT RULE SAYS:

• You should read the New Rule on RFOA; it is confusing and does not clarify the RFOA standard.• It did not address the concerns of the business community. • To assert the defense, the rule requires that supervisors must

first be given guidance and training on how to avoid age bias.

88

THERE'S MORE? OH YES!

• On April 25, 2012, EEOC issued updated Criminal Record Guidance that highlights strategic and practical consideration for employers:– Does not prohibit consideration of criminal records as part of

decision-making process in hiring or keeping employees– But criminal record screening process must be "job related

and consistent with business necessity"

89

CRIMINAL RECORDS GUIDANCE

• Employers should consider 3-step process that takes into consideration:– Nature and gravity of offense(s).

– Amount of time that has passed since offense or completion of jail sentence.

– Nature of job held or applied for.

90

CRIMINAL RECORDS GUIDANCE

• EEOC further says that if employer decides to disqualify an individual from employment based on past criminal conduct:

– Inform him/her of reason.

– Provide an opportunity for explanation why shouldn't be disqualified.

– Consider whether it really should exclude person.

91

MORE, MORE, PLEASE SAYTHERE'S MORE:

• Stalking: EEOC Releases Q&A that appears to extend Title VII and ADA to protect employees or applicants who have experienced domestic or dating violence, sexual assault, or stalking outside of the workplace.

• Morbid Obesity:

– Is it now a disability under the ADA? Getting there.

– EEOC v. BAE Systems, Inc.

92

MORE, MORE, PLEASE SAYTHERE'S MORE:

• Transgender Discrimination Recognition under Title VII is Alive and Well–Macy v. BATFE

• EEOC new lawsuits: Disability, gender, race: sue first; then figure it out

93

INDIVIDUAL SUPERVISOR LIABILITY IN DISCRIMINATION AND HARASSMENT

CASES:

PRESENTED BY: TOM GREENHOLTZ

94

ACCOUNTABILITY UNDER TITLE VII, THE TENNESSEE HUMAN RIGHTS ACT, THE FMLA, AND THE FLSA

GENERAL RULE

*Employers are "directly liable" for their own acts of unlawful discrimination and harassment.

*An employer may also be "vicariously liable" for the acts of unlawful discrimination or harassment by its employees.

*In other words, under most all federal and state discrimination laws, the buck stops (ultimately) with the employer.

95

TITLE VII OF THE 1964CIVIL RIGHTS ACT

*Title VII generally prohibits employment discrimination based on race, color, religion, sex, or national origin.

*Title VII's definition of "employer" includes "any agent" of an employer. See 42 U.S.C. § 2000e-5(b).

*However, all courts addressing the issue have found that individual supervisors are not personally liable under Title VII for their own acts.

96

TENNESSEE HUMAN RIGHTS ACT ("THRA")

*Like Title VII, the THRA prohibits an employer from discriminating against a person based on race, creed, color, religion, sex, age or national origin.

*And like Title VII, the THRA defines an "employer" to include "any person acting as agent of an employer directly or indirectly."

*And like Title VII, The Tennessee Supreme Court has held that this language does not impose personal liability on a supervisor.

97

"THRA"

*But, unlike Title VII, the TRHA has a special statute: Tenn. Code Ann. § 4-21-301(2).

*Under this statute, a supervisor can be sued individually if he or she aids, abets, incites, compels or commands another person to engage in discrimination or harassment.

98

"THRA"

*In 1997, the Tennessee Supreme Court held that an individual is liable for a hostile work environment under the THRA when:

*A hostile work environment existed;

*The supervisor acted to affirmatively to aid, abet, incite, compel, or command an employer not to take remedial action to the hostile work environment; and

*The employer did not take adequate remedial action.

99

AIDING & ABETTING: WHAT?

100

*Key Question: How does a supervisor "aid" or "abet" an employer to not take remedial action?

*In Tennessee, supervisor is not liable simply by discriminatory or harassing conduct.

*Rather, the supervisor must encourage the discrimination or prevent employer from taking corrective action.

AIDING & ABETTING? NOT HERE!

*General Rule: No personal liability exists where supervisor is acting within scope of his or her own duties.

*A supervisor's failure to act or mere presence during the employer's discrimination is not enough.

*Rather, the supervisor must take action separate and apart from his or her position.

101

AIDING & ABETTING? DANGER!

*Easy Cases: Commanding Action by Others:

*Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d 696 (W.D. Tenn. 2005)

*Fite v. Comtide Nashville, LLC, 686 F. Supp. 2d 735 (M.D. Tenn. 2010)

102


*Middle Ground Case: Denials Plus Other Actions*Harris v. Dalton, E2000-02115-COA-R3CV, 2001 WL 422964

(Tenn. Ct. App. Apr. 26, 2001)*Supervisor denied sexual harassment*But, also urged employer to "get rid" of the employee*Plus, employer knew or should have known that supervisor

was engaged in sexually offensive behavior

103


*Harder Cases: Mere Denials Without Other Actions*Tennessee Supreme Court: *Allen v. McPhee, 240 S.W.3d 803, 818 (Tenn. 2007)

*Tennessee Court of Appeals: *Steele v. Superior Home Health Care of Chattanooga,

Inc., No. 03A01-9709-CH-00395, 1998 WL 783348 (Tenn. Ct. App. Nov. 10, 1998)

104

THRA CONCLUDED

*Applies to all forms of discrimination prohibited by the THRA.

*But, courts have held that the "Aiding and Abetting" statute does not apply to disability discrimination under the Tennessee Disability Act.

*Disability discrimination is a Class C Misdemeanor.

105

AIDING & ABETTING? OTHER STATES

*Some states allow direct actions against supervisors for discrimination and harassment.

Washington

106

*CALIFORNIA

*COLORADO

*CONNECTICUT

*IOWA

*MASSACHUSETTS

*MINNESOTA

*NEW JERSEY

*NEW YORK

*OREGON

*WEST VIRGINIA

*DISTRICT OF COLUMBIA


*Several states have statutes similar to Tennessee's "aiding and abetting" statute:

107


*Other states allow individual supervisor liability more easily than Tennessee:

*Courts will find "aiding and abetting" if the supervisor provides "substantial assistance or encouragement" for the discrimination.

*Liability often does not require an intent to discriminate.

*The actual harassment itself can constitute aiding or abetting.

108

FLSA & FMLA

*An "employer" includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."

*Thus, if the supervisor has authority to grant leave, discharge employees, or determine employee salaries, individual managers or owners may be liable.

*Could include HR Managers!

109

WHY DOES THIS MATTER TO EMPLOYERS?

*Litigation costs can increase tremendously with these issues present.

*Multiple lawyers, multiple claims.

*More avenues for discovery.

*May result in greater pressure to settle disputed case.

*Plaintiff's lawyers may purposefully sue managers to create conflicts in the company's defenses.

*Possible corporate indemnification issues.

110

SUPERVISOR ISSUES? WHAT TO DO.

*First: Keep supervisor out of any decision making process regarding the complaint of discrimination or harassment.

*Second: Do not take supervisor's denial at face value. Conduct thorough investigation and make independent determination.

*Third: Take all reasonable steps to correct issue, if one exists.

*Fourth: Know when to get help.

111

THE LATEST FROM THE NLRB ON SOCIAL MEDIA AND OTHER FUN STUFF

PRESENTED BY: DAN GILMORE

112

WHO ARE THE CURRENT MEMBERS OF THE NLRB?

• Chairman Mark Gaston Pearce (D)Sworn in as a Board Member on April 07, 2010. Named by President Obama on August 27, 2011. Term ending on August 27, 2013.

• Brian Hayes (R)Sworn in as a Board Member on June 29, 2010. Term ending on December 16, 2012.

• Sharon Block (D)Sworn in as a Board Member on January 9, 2012. Term ending on December 16, 2014.

• Richard F. Griffin, Jr., (D)Sworn in as a Board Member on January 9, 2012. Term ending on August 27, 2016.

113

THE AGC'S THREE REPORTS ONSOCIAL MEDIA

August 18, 2011 - Detailed the outcome of investigations by NLRB's Division of Advice into 14 cases involving the use of social media and employers' social and general media policies.

January 25, 2012 - Covered an additional 14 cases, half of which involved questions about employer social media policies. The remaining cases involved discharges of employees after they posted comments on Facebook.

May 30, 2012 - Covered an additional seven cases and focused exclusively on policies governing the use of social media by employees.

114

These reports merely offered advice to the Regional Directors and guidance to practitioners and human resource professionals. They are not binding on the Board or employers.

THE NLRB'S FIRST DECISION ONSOCIAL MEDIA

• Issued September 7, 2012

• Addressed the legality of rules in "Costco's Employee Agreement."

General Rule: An employer violates Section 8(a)(1) of the NLRA when it maintains a work rule that reasonably tends to chill employees in their exercise of Section 7 rights.

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities …"

115

SOCIAL MEDIA – PRIVACY POLICY

• Prohibits "all Costco employees from discussing private matters of members and other employees ... including topics such as…sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers' compensation injuries, personal health information, etc."

• The NLRB concluded that since all of these "private" matters are clearly terms and conditions of employment of Costco's employees, the explicit prohibition of employees discussing these matters with anyone, which would include other employees or union representatives, is overbroad and unlawful under Section 8(a)(1).

116

SOCIAL MEDIA – PRIVACY POLICY

• A portion prohibits the disclosure of certain "confidential" employee information (including names, addresses, phone numbers and e-mail addresses) "to any third party for any reason, unless (1) we have the person's prior consent or (2) a special exception is allowed that has been approved by the legal department."

• The NLRB held that this rule is overbroad since it does not exclude information obtained in the normal course of work or from other employees and would reasonably be perceived by employees as inhibiting Section 7 conduct.

117

SOCIAL MEDIA – ELECTRONIC COMMUNICATIONS &TECHNOLOGY POLICY

• A portion requires "All employees are responsible for communicating with appropriate business decorum whether by means of e-mail, the Internet, hard-copy, in conversation, or using other technology or electronic means."

• The Board held the rule lawful since the rule on its face does not refer to Section 7 activities, was clearly intended to promote "a civil and decent workplace" and reasonable employees would not infer that the rule restricts Section 7 activity. It's not enough that employees could interpret the rule as inhibiting Section 7 conduct.

118

SOCIAL MEDIA – ELECTRONIC COMMUNICATIONS & TECHNOLOGY POLICY

• A portion requires that "Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment."

• The Board held that this rule is lawful since the rule on its face does not refer to Section 7 activities, was clearly intended to promote "a civil and decent workplace" and reasonable employees would not infer that the rule restricts Section 7 activity. It's not enough that employees could interpret the rule as inhibiting Section 7 conduct.

119

SOCIAL MEDIA – ELECTRONIC COMMUNICATIONS & TECHNOLOGY POLICY

• A portion reads "Sensitive information such as … payroll … may not be shared , transmitted or stored for personal or public use without prior management approval. Additionally, unauthorized removal of confidential material from Company premises is prohibited."

• The Board concluded that both sections of this rule violate Section 8(a)(1) since a reasonable employee would construe the rule as inhibiting their exercise of Section 7 activity, such as sharing (or discussing) payroll information with other employees or with outsiders, such as union representatives.

120

THE NLRB'S FIRST DECISION INVOLVING A DISCHARGE FOR USE OF SOCIAL MEDIA

• Announced October 1, 2012

• A salesman for a BMW dealership posted photos on his Facebook page of a vehicle that an underage driver accidentally drove over a wall and into a pond following a test drive at an adjacent Land Rover dealership.

• On the same day, the salesman also posted critical comments and photos with fellow salespeople about the quality of food and drinks served at a customer marketing event at the BMW dealership.

• One week later, BMW terminated the salesman's employment.

121

DISCHARGE FOR USE OF SOCIAL MEDIA

• In his first report on social media cases before the NLRB, the AGC concluded that the salesman had been unlawfully discharged.

• The AGC concluded that the salesman's Facebook comments about the dealership's food and beverage choices were protected concerted activity under the NLRA because they were communications with other employees about a topic that could impact their commission-based compensation system.

• The AGC also determined that the dealership discharged the employee solely because of these Facebook comments. The AGC therefore concluded that the dealership violated the NLRA by discharging the salesman for engaging in protected concerted activity via his Facebook comments.

122

DISCHARGE FOR USE OF SOCIAL MEDIA

• The Administrative Law Judge (ALJ) who heard the case disagreed.

• The ALJ found that the salesman was discharged solely because he posted photos on Facebook of the test drive accident.

• Since the test drive photo did not involve a discussion with other employees about the salesman's terms and conditions of employment, it was not protected concerted activity. As a result, his conduct was not protected under the NLRA, and the ALJ concluded that he had not been illegally discharged.

123

DISCHARGE FOR USE OF SOCIAL MEDIA• The NLRB agreed with the ALJ that the employer based its termination decision solely on the

accident photos.

• Consequently, it was not necessary to determine whether the posting regarding the marketing event amounted to protected concerted activity.

• However, the NLRB also evaluated the employer's "Courtesy" rule from its employee handbook, which prohibits disrespectful conduct or use of profanity or "any other language which injures the image or reputation of the Dealership" when interacting with customers, vendors, suppliers and fellow employees.

• The NLRB concluded that this policy was unlawful since employees would reasonably believe that it prohibits negative or critical comments that are protected by the NLRA.

124

WHAT'S THE LESSON FOR EMPLOYERS?

• Because the outcome of many cases hinges on the employer's motivation for its decision, employers should continue to fully and accurately document the actual bases for any disciplinary decisions, particularly if the result is termination.

125

WHAT'S NEXT FROM THE NLRB

• More cases pending regarding the legality of company policies and discharges based upon the use of social media.

• Chairman Pearce said last month that the NLRB may decide whether clicking the "Like" button on Facebook is concerted protected activity under the NLRA.

126

STATES ARE CHIMING IN

States Have Begun to Limit Employers' Right to Social Media Activity of Applicants and Employees

• Maryland's User Name and Password Privacy Protection and Exclusions Act

• Illinois' Right to Privacy in the Workplace Act

• California's AB 1844 Regarding Employer Use of Social Media

The Password Protection Act and Social Networking Online Protection Act have been introduced in Congress but have not moved.

127

PARTING THOUGHTS: OWNERSHIP OF LINKEDIN ACCOUNTS

• Is an employee's LinkedIn profile a personal or work asset?

• How to best clarify from the outset? Maintain access?

• Do established "Connections" constitute personal or company assets?

• Who has the rights to the potential business opportunities?

128

TO KEEP OR NOT TO KEEP: DOCUMENT RETENTION ISSUES IN 2012

PRESENTED BY: JUSTIN L. FURROW

129

WHAT RECORDS ARE WE REQUIRED TO KEEP?

• Various laws require you to retain "employment records"– Payroll records– Applications– Leave requests– Termination documents

130

WHAT LAWS GOVERN RECORDKEEPING?

• Federal laws• State laws• Administrative regulations• City/County ordinances• Executive orders

131

EXAMPLES OF FEDERAL AND STATE RECORDKEEPING REQUIREMENTS

• Title VII - one year from making record or taking action.• FLSA - at least three years.• IRCA - three years from date of hire or one year from date of

discharge, whichever is longer.• THRA - six months from date made or date of discharge,

whichever is longer.

132

WHERE DO WE KEEP ALL OFTHIS STUFF?

• In the personnel file?– Do we have to give employees a copy?

• What about medical information?– ADA and GINA records must be kept in a separate,

confidential file.

133

EMAILS?

• Federal laws do not explicitly include emails– BUT—they also don't exclude them.

• Emails must be retained if they fall within the statutorily defined categories.• What about web searches?

134

EMAILSARE WE GENERALLY REQUIRED TO KEEP THEM?

• No federal requirement to keep all emails.• Discovery of electronically stored information

generally drives email retention policies.• Should be retained for some limited period.

135

DISCOVERY OF ELECTRONICALLY STORED INFORMATION

• Amendments to federal and state procedural rules.• Litigants now can obtain "reasonably accessible"

electronically stored information.• Can dramatically expand document production in

litigation.

136

WHEN ARE OUR DISCOVERY OBLIGATIONS TRIGGERED?• "Reasonably anticipates litigation"– Unemployment claims?– EEOC Charge?– Demand letter from plaintiff's counsel?

137

LITIGATION HOLD PROCEDURES

• Don't necessarily wait for the "letter" from your lawyers.• Identify "key players" to be included in litigation hold. • Suspend certain deletion procedures.• Consider hard drive imaging, where cost effective and

reasonable.

138

WHAT HAPPENS IF WE "ACCIDENTALLY" DESTROY INFORMATION?

• Potential spoliation claims against company–Monetary sanctions– Adverse inference jury instruction

• Potential sanctions against individuals, too• Not just applicable to intentional actions

139

QUESTIONS?

140

This presentation is provided with the understanding that the presenters are not rendering legal advice or services. Laws are constantly changing, and each federal law, state law, and regulation should be checked by legal counsel for the most current version. We make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the information contained in this presentation. Do not act upon this information without seeking the advice of an attorney.

This outline is intended to be informational. It does not provide legal advice. Neither your attendance nor the presenters answering a specific audience member question creates an attorney-client relationship.

DISCLAIMER

141

Documents

2012 Labor & Employment Seminar