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    Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more!

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Want to use a Last Chance Agreement? Careful, it could be used against you.

Posted on February 5, 2013 by smithamundsen

Contributed by Michael Wong

While Last Chance Agreements (LCAs) have grown in popularity as a way to protect an employer’s decision to terminate an employee, the Central District of Illinois’s decision in EEOC v. Cognis has created a concern for employers that use LCAs.

In EEOC v. Cognis, the court issued a bold statement by granting the EEOC summary judgment and finding an employer, Cognis, had violated Title VII by terminating an employee after he revoked his promise to abide by an LCA. 

In the case, the employee was offered an LCA after his poor performance resulted in verbal warnings, counseling and a suspension. The LCA stated that “in lieu of termination,” the employee agreed to accept the terms of the LCA, including a release and waiver of any claims under state and federal employment law in relation to his right to employment with Cognis or his status under the LCA.  The employee understood that if he did not agree with all of the LCA terms, including the release and waiver, he would be immediately terminated.

After signing the LCA, the employee questioned whether he had waived his civil rights, including his ability to file an EEOC charge of discrimination.  Cognis’ response was simply that it would not alter the LCA.  Cognis did not explain if, or how, the LCA impacted the employee’s civil rights or ability to file a charge of discrimination. After learning that the LCA would not be modified, the employee revoked the LCA indicating that he refused to give up his civil rights.  Cognis then terminated the employee because he was unwilling to remain bound by the terms of the LCA.

In granting summary judgment against the employer, the court held that the employee’s revocation of the LCA was a protected activity and the employer’s decision to terminate his employment after the revocation (even though the employer was simply reverting to its prior decision to terminate the employee) constituted an adverse employment action, because it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” While the court refused to apply the same rational to the EEOC’s class claims, it specifically stated that it “believes that a jury could reasonably conclude that Cognis feared protected activity from poorly performing employees if they were terminated, and therefore offered LCAs which required the poorly performing employees to give up their civil rights as their sole alternative to termination.” 

Employers should carefully review their last chance agreements to determine whether they could fall into the same pitfall as Cognis. Revising the language of a last chance agreement to clarify an employee’s rights may provide some protection from the Central District’s decision. Regardless, employers should now be more careful when terminating an employee who refuses to sign or wants to revoke his or her promise to abide by a last chance agreement.

Filed under: Employment Policies | Tagged: , , , , , , | Comments Off

Guidance Issued for Use of FMLA to Care for an Adult Child

Posted on January 30, 2013 by smithamundsen

Contributed by Jon Hoag

This month, the U.S. Department of Labor (USDOL) issued an Administrator’s Interpretation and Fact Sheet to clarify when an employee may take FMLA leave to care for an adult child.  In order for a parent to take FMLA leave to care for a child age 18 or older, the parent must establish that:  (1) the child has a disability as defined by the Americans with Disabilities Act; and (2) the child must be incapable of self-care.  The USDOL issued guidance to clarify the age requirement, the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as related to the definition of a disability, and the guidance explains the FMLA leave available to parents whose son or daughter becomes disabled during military service.

The Age of Child at Onset of the Disability is Irrelevant

The guidance clarifies that the onset of a disability may occur at any age for purposes of the definition of a “son or daughter” under the FMLA.  There is no requirement for the disability to have occurred or been diagnosed prior to the age of 18.

ADAAA’ s Broader Definition of Disability Applies

The USDOL confirmed that the ADAAA broadened the scope of coverage and expanded the ADA’s definition of “disability.”  This expanded definition of “disability” is the one that applies to determine if an adult child has a “disability” for purposes of the FMLA.  The USDOL’s conclusion states very simply that the ADAAA’s expanded definition of the term “disability” will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities and that are incapable of self-care.  The guidance also notes that the child’s condition must also be a “serious health condition” under the FMLA, which will almost always be the case if the condition is a disability under the ADAAA.

Given that the ADAAA’s definition of disability is broad in scope and will be met in most cases, employers should review FMLA requests to care for an adult child with special attention given to the requirement that the parent be needed to care for the child because the child is incapable of self-care.  For FMLA leave purposes, an adult child will be considered “incapable of self-care” if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).  Examples of ADLs and IADLs are:

ADLs

  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating

IADLs

  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

FMLA Leave when Adult Child is Disabled During Military Service

The guidance also clarified that a parent of an adult child disabled during military service may be entitled to take more than the 26 workweeks within a 12-month period currently provided in the FMLA as military caregiver leave.  If the disability lasts longer than the single 12-month period, the parent may qualify for additional FMLA leave in subsequent FMLA periods to care for an adult child with a disability that is incapable of self-care.

Conclusion

As the USDOL guidance makes clear, the changes to the ADA definition of “disability” will undoubtedly allow more parents to take protected FMLA leave.  In addition to the increase in volume of FMLA leave requests, the other issue we expect to trouble employers is whether an impairment of short-term duration is a disability.  We will continue to monitor and report on these types of ADAAA cases because the EEOC’s regulations do not make it clear when impairments of short-term duration qualify as a disability.

Filed under: Americans with Disabilities Act, FMLA, News & Tips | Tagged: , , , , , , , | Comments Off

Beware of the EEOC’s Continued Efforts to Bring Class Actions Against Employers

Posted on January 18, 2013 by smithamundsen

Contributed by Sara Zorich

January 11, 2013 was a victory day for the Equal Employment Opportunity Commission (EEOC) in the matter of EEOC v. UPS, 2013 U.S. Dist. LEXIS 4462 (N.D. Ill. Jan. 11, 2013) and a day on which employers should take note that courts have made it less burdensome in the Northern District for the EEOC to bring class action lawsuits against employers.

In 2009, the EEOC filed a complaint on behalf of Trudi Momsen (Momsen) and other unidentified class members alleging that United Postal Service (UPS) violated the Americans with Disabilities Act (ADA) by permitting Momsen and the other class members only twelve-month leaves of absence and failing to provide them with reasonable accommodations for their disabilities.  The court dismissed the complaint on the basis that the EEOC had failed to plead that Momsen and others were qualified individuals under the ADA.  The EEOC then filed an amended complaint pleading additional facts about Momsen, added an additional individual and plead more specific facts stating that the unidentified class members were qualified individuals able to perform the essential functions of their job and that UPS failed to reasonably accommodate these unidentified individuals.  The EEOC did not plead any specific facts with regard to any of the unidentified individuals.  The court once again dismissed the EEOC’s complaint on the basis that it failed to plead any specific facts regarding the unidentified individuals.  The EEOC then sought leave to file a second amended complaint that added the claim that the unidentified individuals were part of a common scheme to terminate individuals with disabilities through an alleged inflexible process and lack of individual analysis, which the Court denied.

In response to the court’s denial, the EEOC then filed a motion requesting the district court to certify the matter for appeal to address whether the EEOC must plead individual facts regarding class members.  In its response to the EEOC’s motion, the court reviewed its prior rulings, reviewed the case law and reversed its prior dismissals of the EEOC complaints.  In a change of stance, the court held that the EEOC’s first amended complaint met the sufficient pleading standard since it identified “the statutes that UPS allegedly violated; the time frame in which the alleged violations occurred; the names of two presently identified victims; a general description of the class of aggrieved persons; the specific claims alleged and their elements as to the charging party and the class of aggrieved persons; the types of conduct to which the named claimants and the unidentified class were subjected; and the remedies being sought.”  Thus, the court changed its previous view and now found that the EEOC did not have to plead any specific facts about unidentified class members in order to survive a motion to dismiss.

Take away: Employers should be cognizant that the EEOC is aggressively pursuing class actions against employers.  Furthermore, based on the ruling in this matter, the EEOC may file a class action without having to plead any specific evidence regarding unidentified class members.  This does not mean that the EEOC will be victorious on the merits of the case, but rather that this minimal pleading will allow them to survive a motion to dismiss.

Filed under: Americans with Disabilities Act, EEOC | Tagged: , , , , , | Comments Off

EEOC Approves Its Highly Anticipated Strategic Enforcement Plan – Adds Equal Pay to List of Nationwide Priorities

Posted on January 10, 2013 by smithamundsen

Contributed by Samantha Esmond

On September 10, 2012, we blogged about the EEOC’s proposed Strategic Enforcement Plan (SEP), which had been released for public comment.

On December 18, 2012, the EEOC announced that it officially approved its highly anticipated SEP for 2013-2016 with bipartisan support. The EEOC’s press release can be accessed at: http://www.eeoc.gov/eeoc/newsroom/release/12-18-12a.cfm

According to the EEOC, the purpose of the SEP is “to focus and coordinate the EEOC’s programs to have sustainable impact in reducing and deterring discriminatory practices in the workplace.” Notably, the final version of the SEP has added “equal pay enforcement” to its list of national priorities.

The approved SEP identifies and highlights the following areas as national priorities:

  1. Eliminating barriers in recruitment and hiring;
  2. Protecting immigrant, migrant, and other vulnerable workers;
  3. Addressing emerging and developing employment discrimination issues (such as certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat, accommodating pregnancy-related limitations under the ADAAA and the Pregnancy Discrimination Act, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions);
  4. Enforcing equal pay laws;
  5. Preserving access to the legal system; and
  6. Preventing harassment through systematic enforcement and outreach.

In addition to the above nationwide priorities, the SEP directs the 15 EEOC district offices to develop their own District Complement Plans by March 29, 2013, identifying, among other things, their own local enforcement priorities and describing how the district office will implement the SEP nationwide priorities.

It is also anticipated that the EEOC will take a more aggressive approach and give priority to systematic cases – those pattern or practice, policy, and/or class cases – where the alleged discrimination has a broad impact on a particular industry, occupation, business, or geographic area. While systematic cases generally involve a class of individuals, they may also originate from a single charging party alleging that an employment policy is discriminatory.

The approval of the SEP provides employers with insight into the types of issues the EEOC will likely target in the coming years. With the intensified investigative and enforcement efforts of the EEOC, employers will continue to face many challenges when responding to and defending against charges of discrimination.

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EEOC Systemic Discrimination Initiatives: View From the Battlefields

Posted on July 11, 2012 by smithamundsen

Contributed by Jill Cheskes

Since at least 2005, the EEOC has publicly committed itself to focusing on and rooting out systemic discrimination across the U.S.  On February 2, 2012, the EEOC approved its strategic plan for the fiscal years 2012-2016 indicating that it will dedicate a significant amount of resources to remedying systemic discrimination.  Although this already had been a focus of the EEOC, in light of the fact that charges of discrimination with the EEOC are at an all-time high and the EEOC’s budget was cut, the agency has had to “think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination.”  The EEOC has decided that the best way to do this is to focus on “big cases.” 

Unfortunately for employers, what this means is that every charge filed with the EEOC now has the potential and ability to result in scrutiny of company-wide practices.  The EEOC’s initiatives are patently apparent when objectively looking at how the EEOC investigators are conducting investigations into a standard single complainant charge.

The EEOC is frequently sending out broad requests for information for a class of employees for employment practices that might not even be implicated in the individual charge.  For example, a charge of race discrimination alleging discrimination in discipline and termination has been effectively held to allow the EEOC to investigate hiring practices.

With more and broader requests for information being submitted, employers are pushing back on these requests on a more frequent basis.  In turn, this is resulting in the EEOC issuing subpoenas, something which is well within their authority to do.  This has, in turn, resulted in civil actions to enforce the subpoenas when employers continue to balk at these requests. 

An additional practical effect of the EEOC’s strategic plan is more “cause” findings being entered on a class-wide basis even if the underlying charge is on behalf of an individual.  The cause findings result in conciliation efforts between the EEOC and the employer, which have largely become an exercise in futility for employers who are finding it difficult to get information on the alleged class members in order to effectively conciliate cases.  Frustrations aside, employers need to conscientiously attempt to conciliate and document every step of the process in order to have any ability to fight a large and, perhaps, unexpected, class after litigation is filed.

Additionally, employers are seeing more and more Commissioner Charges being filed, which can be extremely broad thereby allowing for even broader investigation attempts.  Finally, the effect of this strategic plan has resulted in more class action or systemic-based lawsuits.

Dealing with the EEOC can be a landmine and litigation is erupting all over on all of these issues.  While the case law is still developing, employers should understand all these nuances when defending cases before the EEOC.

Filed under: Discrimination/Retaliation | Tagged: , , , | Comments Off

Ten Steps to Comply with the ADA’s Interactive Process

Posted on May 29, 2012 by smithamundsen

Contributed by Allison Chaplick

When I was learning a foreign language, such as French, Spanish or Italian, a good rule of thumb teachers engrained in my brain was that to really get a grasp on a new word or phrase, you have to repeat or use that word or phrase ten times.  It seems like a lot to ask, but really, it holds true. This rule nicely translates in the language that at times can seem like Greek to us: the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and its interactive process.   

Now that the ADAAA’s definition of “disability” had been expanded to what seems to be the maximum extent possible, thus covering more individuals with disabilities than ever before, employers will now have to engage in the interactive process more than ever before.  Here are ten steps for understanding and properly using the interactive process:

  1. The interactive process is idealistically a means for determining what reasonable accommodations are available to allow a disabled employee (or applicant) to perform essential job functions.
  1. The interactive process requires an employer to be proactive and work with the employee so that both identify the employee’s limitations and accommodations which might enable the employee to continue working.
  1. The employer should initiate the interactive process by analyzing the employee’s job functions to establish the essential and non-essential job tasks and identify barriers to job performance by consulting with the employee to learn about the exact limitations and what types of accommodations would be most effective.
  1. Ways to engage in the interactive process include meeting with the employee, exchanging letters, holding telephone conversations, requesting information about the employee’s limitations, considering the employee’s requests and discussing reasonable and effective alternatives if the request is an undue burden.
  1. During the interactive process, the employer should also give the employee an opportunity to discuss his/her abilities, restrictions and ideas for an accommodation, and should also meet with the employee’s supervisor to discuss the reasonable accommodation.
  1. The employer’s response during the interactive process to a request for a reasonable accommodation should be “expeditious,” but need not be immediate.
  1. An employer who takes an active good faith role in the interactive process will not be liable if the employee refuses to participate in the interactive process or withholds essential information during the interactive process. 
  1. At the conclusion of the interactive process, unless an undue hardship is found, the reasonable accommodation provided should be effective to allow the employee to perform the essential functions of his/her job.
  1. An employer sufficiently engages in the interactive process where it grants an effective accommodation, but not necessarily the accommodation requested by the employee. 
  1. An employer is not engaging in the interactive process where the employer denies an employee’s request without providing a meaningful dialogue or explanation of its decision.

The U.S. Equal Employment Opportunity Commission has published a very informative guideline, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  to help employers understand their responsibilities and rights when a qualified employee (or applicant) with a disability requests a reasonable accommodation.

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EEOC Decides Title VII Prohibits Gender Identity Discrimination

Posted on May 18, 2012 by smithamundsen

Contributed by Jon Hoag

The United States Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against transgender individuals is sex discrimination under Title VII. This is the first time for the EEOC to hold that Title VII covers discrimination based on gender identity and the decision could have a sweeping impact. EEOC decisions are not controlling on the courts, but the federal courts often give deference to EEOC interpretations and decisions.

The case only involved the procedural issue of whether Title VII extended to the complainant’s allegations of gender identity. The EEOC decided in the affirmative and remanded the matter to the federal agency to determine if the employer discriminated based on the complainant’s gender identity. According to the complainant, she was denied a position with the ATF because she disclosed that she was in the process of transitioning from a male to a female. The complainant states that shortly after this disclosure, she was told that the position could not be filled because of budget cuts. The complainant was concerned about the timing and inquired further about the position only to find that the position had not been eliminated and was actually filled by another candidate. 

The complainant filed a charge of discrimination based on sex and gender identity. In reaching its decision that gender identity is covered by Title VII, the EEOC relied on federal decisions that have addressed Title VII in the context of gender stereotypes and identity. While some federal courts have found Title VII applies to gender identity discrimination, it is anticipated that the EEOC decision will prompt direct and consistent application of Title VII to gender identity discrimination claims. Employers…you know what to do…stay tuned and stand ready to adjust your policies and procedures accordingly.

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Wellness Incentive Programs: Navigating the Road Paved With Good Intentions

Posted on April 11, 2012 by smithamundsen

Contributed by Beverly Alfon

The recent focus on the U.S. Supreme Court’s analysis of the constitutionality of the Patient Protection and Affordable Act (ACA) has again amplified the health care debate – including, the growing trend of employer wellness incentive programs.  If the ACA is upheld, in 2014, the current 20% limit on financial incentives tied to patient health standards will increase to 30% (with the potential that the limit could be increased at the government’s discretion).  In light of sky-rocketing health care costs, and glaring statistics, employers are paying attention.  See, Society for Human Resource Management, “Wellness Initiatives Can Ease the Pain of Rising Benefit Costs,” 4/4/2012. 

A wellness program to promote better health for employees while reducing business costs seems like a no-brainer.  However, despite the increasing popularity of these programs, be aware – a poorly designed program could invite litigation and liability under federal, state and/or local laws.  For example: 

  • Under the ADA (Americans with Disabilities Act), an employer generally cannot ask for medical information from current employees unless the request is “job-related and consistent with business necessity.”  There is an exception to the rule for medical information collected through a voluntary wellness program.  However, the EEOC has issued an opinion letter indicating that while some health risk assessment questions regarding eating habits may be acceptable, questions related to how much alcohol the employee drinks would violate the ADA because they are directed at a specific disability.  
  • Under GINA (Genetic Information Nondiscrimination Act), employers are generally prohibited from “using, acquiring, requiring or disclosing genetic information.”  It prohibits discrimination against individuals based on their “genetic information” — which is defined broadly enough to include family medical history that may be included in a health risk assessment.  GINA has some exceptions for voluntary wellness programs, but there are specific rules on how that information can be obtained from the employee.  Notably, the EEOC has taken the position that a program is not “voluntary” when it penalizes an employee who does not complete a health risk assessment by making him ineligible to receive program incentives.

BOTTOM LINE:  A well-designed wellness incentive program has the potential to significantly benefit employers and their employees.  However, these programs have not been tried and tested under the discrimination laws and regulations.  New legislation will continue to be introduced and new lawsuits will be filed to challenge the legality of these programs.  As the statistics reflect, the number of individuals who are most likely to be negatively affected by wellness programs tied to health factors is significant and growing.  Accordingly, the safest course seems to be to opt for a program that rewards participation, not performance.  

The potential claims and penalties associated with violations of the various discrimination laws could be significant, especially in light of recent amendments that include penalties and taxes.  Whether you are considering a wellness program or already have one in place, be sure to have counsel review it for compliance with all related laws.  Really, do you need more incentive? 

Filed under: Americans with Disabilities Act, Employee Benefits, News & Tips | Tagged: , , , , , , , | Comments Off

Cerebral Accommodation: ADA Claims for Mental, Psychological, Psychiatric and Intellectual Deficit Disabilities – A few thoughts – Part 1

Posted on February 27, 2012 by smithamundsen

Contributed by Terry Fox

Recognized disabilities protected under the ADA have expanded, following the Congressional Amendments to the ADA of 2008 (eff. Jan. 1, 2009).  These expanded protections now include more disabilities “of the mind,” in addition to more concrete physical infirmities. “Disability” now includes limitations on major life activities of cognitive and mental processes.   Essentially, the EEOC has extended “disability” to the life activity of “thinking,” as evidenced by its revised compliance manual and regulations.

This expansion presents considerable concern for the employer. Confirming and understanding a mental or cognitive disability can be a difficult process to navigate, and accommodating such a disability can require some level of sophistication and, in some cases, a little creativity. It is clear that where there is a professional diagnosis of a mental condition, particularly where the DSM-IV diagnostic codes are utilized, the employer can generally accept the professional diagnosis as substantiation of a disability.  Of more concern is a situation where the family or nurse practitioner provides a diagnosis of Attention Deficit Disorder or a similar problem or a notice of disability, for example in Carlson v Carroll University (involving student under Title II of ADA). If the diagnosis is unclear or non-existent, the employer may refer the employee to a qualified medical professional for review and assessment.  However, the medical review-assessment must be job-related and consistent with business necessity.  All records concerning the employee’s condition must be stored in a separate, confidential file.    

The starting point for any employer is to focus on the claimed disability.  An ADA disability requires either a physical and/or mental impairment, coupled with a substantial limitation of one or more major life activities caused by said impairment. For example, fear, which is a cognitive or thinking process, itself does not implicate a “disability.”  Late night employees at a Florida Sonic Drive-In were present for one or more armed robberies, including an instance where a gun was put to the head of an employee and she was told she’d be killed. All employees articulated fear of working that shift and asked for a change to daytime work.  Those employees were terminated and they sued under the ADA, claiming both to be disabled and for being treated as disabled by their employer.  Wallner v. MHV Sonics, Inc.  Fear of future robbery was found to be transitory and minor, and the employer was not liable under the “regarded as disabled” prong where the condition was transitory and minor.  Similarly, fear of cancer and fear of snakes, without more, do not qualify as “disabilities.”  Fear of large social settings is not a disability because it is not atypical of the general populace.  Bialko v. Quaker Oats Co. 

In the next installment, we’ll address specific issues regarding accommodation. . . .

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Final Review Of ADEA Regulations May Change An Employer’s Affirmative Defenses and Burden of Proof In Disparate Impact Cases

Posted on February 6, 2012 by smithamundsen

Contributed by Allison Chaplick

The Equal Employment Opportunity Commission just issued its January 2012 Status Report on Retrospective Regulatory Review. One of the items targeted for final review by the Office of Management and Budget (OMB) is the EEOC’s draft final rule to amend certain ADEA regulations.

The relevant regulations currently interpret the ADEA as prohibiting an employment practice that has a disparate impact on employees in the protected age group unless the practice is justified by a business necessity.  However, the EEOC proposes to revise paragraph 1625.7(d) to state that an employment practice that has a disparate impact on individuals within the protected age group is discriminatory unless the practice is justified by a “reasonable factor other than age” (RFOA).  Revisions to paragraph 1625.7(e) may also include that the employer has the burden of showing that a reasonable factor other than age exists factually.  The OMB anticipates completing its review of this draft final rule by March of 2012.

So, why is the EEOC doing this?  The answer is simple: to comply with the U.S. Supreme Court’s ruling in Smith v. City of Jackson, 544 U.S. 228 (2005) and to conform to Meacham v. Knoll Atomic Laboratory, 128 S.Ct. 2395 (2008).  Smith arose out of the city of Jackson’s decision to grant raises to police officers and dispatchers who had less than five years of tenure in an effort to make these positions’ starting salaries comparable with the regional average.  Accordingly, those police officers with less than five years of seniority received proportionately greater raises than those police officers with more seniority, many of whom were over the age of 40. 

The Smith court agreed with the EEOC’s regulations that disparate impact claims were cognizable under the ADEA, but held that the proper defense for such a claim was not “business necessity” but RFOA.  The Smith court remained silent as to whether the employee or employer had the burden of proof on the RFOA defense, but took up this issue in Meacham. 

In Meacham, the employer was forced to make a reduction in force. To determine which employees should be laid off, the company instructed its managers to score their subordinates on “performance,” “flexibility,” and “critical skills” along with points for years of service.  Following this review, thirty of the thirty-one employees laid off were over the age of 40.  The Meacham court held that an employer defending a disparate impact claim under the ADEA bears the burden of production and persuasion for the RFOA affirmative defense.

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