Tag Archives: EEOC

EEOC Consent Decree a Reminder That Attendance Policies Must Have an ADA Escape Valve

Contributed by Suzanne Newcomb, August 13, 2018

72219825 - book with title the americans with disabilities act (ada).In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

Where did the employer go wrong? According to the announcement, the employer violated the ADA in two ways: by awarding attendance points regardless of the reason for the absence and by terminating employees who were not able to return to work after 180 days of leave.

So called “no fault” attendance policies are common and have many advantages. They are transparent and easy to administer, they remove discretion from frontline supervisors (and with it potential favoritism and bias), they treat employees as adults by allowing them to manage their own time, and they remove much of the burden of policing the reason for each absence. But problems arise when employers – no longer called upon to scrutinize the reason for each absence – miss ADA and FMLA triggers. Remember, employees are not required to say “disability,” “ADA,” or “reasonable accommodation” to trigger the ADA-mandated “interactive process.” There are no “magic words.” The same is true of the FMLA. Anything that alerts or should have alerted the employer that an employee has a disability and may need reasonable accommodation (or that absences may qualify for FMLA protection) triggers statutory obligations. And to further complicate matters, anything a supervisory employee knows can be imputed to the employer.

Even policies designed to help employees, like the policy for providing up to 180 days of medical leave which far exceeds the 12 weeks the FMLA affords, must be applied with the ADA in mind. A blanket policy that any employee who is not able to return after 180 will be terminated does not allow for the individualized assessment mandated by the ADA. Bottom line, all policies, attendance policies as well as work rules, performance metrics, etc. must be analyzed with the ADA in mind. Always include an ADA escape valve.

Best Practices:

  1. Regularly review your ADA and FMLA policies to make sure they are clear, concise and easily understood;
  2. Clearly direct employees to contact HR if they believe they need leave or reasonable accommodation for a disability;
  3. Clarify that your attendance and leave policies (and others as appropriate) are applied within the framework of the ADA and FMLA and again invite employees who believe they may need leave or an accommodation to discuss the issue with HR;
  4. Include FMLA and ADA issues in regular supervisor training and require supervisors to elevate potential issues to HR; and
  5. Finally, there is no escaping the fact that ADA and FMLA issues are difficult. Partnering with trusted, experienced employment counsel as you navigate these complicated issues can often allow you to avoid the expense and hassle of defending legal claims later.

 

EEOC Actively Enforces Equal Pay Violations

Contributed by Jonathon Hoag, November 28, 2017

The EEOC’s Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021 identified “Equal Pay” as a priority area that demands focused attention. The EEOC’s recent press releases show it is actively fulfilling this strategic mission.

gender equality

Gender equality scale

In the third scenario, the EEOC obtained a judgment against a pizza restaurant for violating the Equal Pay Act. Two high school friends-one male and one female-applied to be “pizza artists” and both were hired. However, the female applicant received $0.25 less an hour in starting pay. When she realized this discrepancy, she contacted the restaurant to complain. In response, the restaurant withdrew the offers of employment to both individuals. The EEOC’s attorney referenced the vast amount of recent news related to sexual harassment and stated unequal pay is simply another form of sex discrimination in the workplace. Further, the EEOC stressed that it will continue to thoroughly investigate and enforce equal pay requirements.

Bottom Line

The overwhelming media coverage of sexual harassment and unequal treatment in the workplace reinforces that employers must make equal treatment a top priority. Periodic review of policies and practices, with attention to pay policies, remains critical to limit employer exposure to lawsuits alleging unequal pay or treatment.

Spoliation and the Dangers of Failing to Preserve Evidence

Contributed by Carlos Arévalo, September 12, 2017

In a case pending in the U.S. District Court for the Southern District of Florida, Equal Employment Opportunity Commission v. GMRI Inc., the EEOC recently argued that a restaurant chain acted in bad faith, and should be sanctioned for “spoliation” of evidence because, the EEOC claimed, it intentionally destroyed hiring data. It argued the destruction of evidence “prejudice[d] EEOC by opening the door for GMRI to attack EEOC’s statistical and anecdotal evidence, and to rely upon otherwise impermissible [defendant] favorable proxy data.”

investigate documents

Investigate and analyze magnifying glass and stack of documents

Among the allegedly destroyed evidence are emails the EEOC claimed would have established the fact that the managers for the defendant were instructed to hire “young.” In addition, the defendants are said to have intentionally shredded paper applications and interview booklets used for new restaurant openings that would have supported the EEOC’s allegations that the company had a pattern or practice of failing to hire applications over the age of 40. In response, GMRI argued that the EEOC is looking at sanctions because it has failed to find any evidence of age discrimination.

In a different case that has been pending in Colorado since 2010, the EEOC secured sanctions against an employer for its failure to produce records it claimed had been destroyed. In Equal Employment Opportunity Commission v. JBS USA LLC, the EEOC claimed that a meat-processing company failed to reasonably accommodate Muslim workers’ requests for prayer breaks. JBS asserted an undue burden affirmative defense throughout the case, arguing production line slowdowns and downtime would have been caused by allowing prayer breaks to Muslim employees. The EEOC sought discovery from JBS about its undue burden affirmative defense, specifically, all reports or data showing all dates and times the fabrication lines on any and all shifts were stopped, as well as the speed of the lines.

After years of maintaining these records were destroyed, JBS produced a number of reports it found in a warehouse; however, more records presumably stored in boxes at the warehouse could not be located. The Court sanctioned JBS for the loss or destruction of documents directly relevant to JBS’s allegations of undue hardship. The critical problem for JBS, as the Court noted, was the fact that JBS management knew “within a year” after downtime records were created that they were relevant to the EEOC investigation, yet still failed to set them aside for use in the litigation.

What is the lesson to be learned? 

EEOC v. GMRI Inc., teaches that the EEOC may claim spoliation and pursue sanctions against a defendant, even (or perhaps particularly) where the evidence does not readily support the EEOC’s allegations of discrimination. EEOC v. JBS USA, LLC provides an important lesson for businesses regarding the preservation of documents in ongoing litigation. As noted above, the critical problem for JBS was that JBS management knew downtime records were relevant yet still failed to preserve them.

Both cases illustrate the importance of immediately implementing Litigation Holds. Employers must, as a matter of course, establish appropriate procedures and work with staff, IT professionals, and legal counsel to ensure all relevant evidence is preserved.  Failure to preserve evidence may deprive defendant of an otherwise viable defense.

Have You Checked Your State and Federal Law Posters Lately? If Not, You Should!

Contributed by Mike Wong, June 8, 2016

Under Federal, State and local laws, employers are required to post information regarding laws that protect workers in the workplace, including but not limited to wage laws, discrimination laws, workers’ compensation laws, unemployment law, protected leave laws and safety issues.  In Illinois these include the following:

  • IL Dept. of Labor State of Illinois Your rights Under Illinois Employment Laws
  • IL Workers’ Compensation Notice
  • IL Unemployment Insurance Benefits Notice
  • IL Emergency Care for Choking
  • IL Smoke Free Illinois Act
  • FLSA / Minimum Wage compliance poster
  • Equal Employment Opportunity (EEO) poster and Supplement for Pay Transparency Non-Discrimination Provision poster (for federal contractors)
  • Occupational Safety and Health Act (OSHA) poster
  • Family Medical Leave Act (FMLA) poster
  • Employee Polygraph Protection Act (EPPA) notice
  • Uniformed Services Employment and Reemployment Rights Act (USERRA) poster

An example of a local law poster, would be the poster required for the Chicago Minimum Wage.

Know the RulesWhile it is easy to post these and forget about them, it is important to review the posters as they are updated periodically. This means that you must regularly (or at least annually) check the posters to make sure that they are up to date and that all of the required posters are posted. For example, any poster addressing wages (including the state, federal and local minimum wages) should be updated any time the minimum wage is increased or changed.

This is especially important as employers can be fined for not having the correct posters up.  Indeed, the EEOC has recently again increased the fine for failing to post its posters.  Initially the fine was $100 per violation, which was increased to $110 in 1997 and then $210 in 2014.

On May 25, 2016, the EEOC announced that effective June 2, 2016, the fine for failing to have the required posters will increase from $210 to $525 for each separate offense.  This means that you could be fined up to $525 for each instance or location that you do not have the correct poster up.

Fines for failing to post the proper posters can come from investigations of charges of discrimination. However, that is not the only way that these types of violations are brought to the attention of the EEOC. In fact, the EEOC has reported that usually employers are fined after a worker reports or brings the violation to the EEOC’s attention.

Information and copies of the required posters can often be found on the state and federal administrative agency websites. Additionally, there are many vendors that offer comprehensive posters. However, if you go with a vendor’s poster, it is always important to double check the information on the poster to ensure that it covers all applicable state and federal laws, as you are the one who will be held responsible if it does not.

If you have questions, experienced labor and employment counsel can always help confirm that you have all of the required and current posters that you need to post.

Employee Background Checks: Ripe for Class Action Lawsuits

Contributed by Jonathan Hoag, May 6, 2016

Hiring a new employeeEmployers conduct employee background checks to reduce risk and improve hiring decisions. Ironically, any missteps during the background check process can open employers to significant legal exposure that easily outweighs any benefit obtained from using background checks in the hiring process. The Equal Employment Opportunity Commission’s (EEOC) has been clear that use of background checks in the hiring process might lead to discrimination claims. However, our experience shows that employers face a far greater threat to legal exposure when conducting employee background checks through a separate law – the Fair Credit Reporting Act (FCRA). Large employers have been the target of FCRA class action litigation and we have seen first-hand that this trend is continuing with increased attention on smaller-sized employers. Our advice to all employers conducting background checks is to immediately have your documents and procedures reviewed by experienced employment counsel. The claims under the FCRA are highly technical and the forms/procedures put in place by third-party background check companies have been found to be in violation of the FCRA.

To highlight the sense of urgency, employers should be aware that these highly technical claims about background check forms being in violation of the FCRA have led to massive class wide settlements based on statutory damages regardless of whether anyone has been injured or not. For example, the following have been reported as recent FCRA class action settlements: Publix Super Markets, Inc. settled for $6.8 million; Swift Transportation settled for $4.4 million; Dollar General settled for $4.08 million; K-Mart settled for $3 million; Dominos settled for $2.5 million…and the list continues. Suffice it to say, compliance with this law deserves immediate attention.

The FCRA applies to employers who use a third-party to conduct background checks. The FCRA has technical requirements regarding the type and content of notice and authorization employers must provide before conducting third-party background checks. In addition, if an employer takes an “adverse action” based on information from the background checks, there are procedural requirements of the FCRA that must be followed.

We are aware of individuals and Plaintiff’s attorneys actively reviewing employer background check forms to identify “flawed” forms. The FCRA requires that a “clear and conspicuous” disclosure be provided to applicants/employees in a stand-alone document. Seemingly minor “flaws” can prompt a demand to settle with the threat of filing a class action lawsuit.  Unfortunately, the majority of courts reviewing FCRA lawsuits agree that allegations of seemingly minor flaws may be enough to avoid dismissal of the lawsuit.

There is a simple proactive solution. Employers should conduct an immediate audit and review of background check procedures, including all documents used in the process, to ensure the highly technical requirements of the FCRA are met. Implementing and using compliant background check forms and procedures will greatly reduce the likelihood of having to defend an expensive and costly FCRA class action lawsuit.

Employers May Soon Be Required To Report Pay Information in Their EEO-1 Reports

Contributed by Debra Mastrian

Employers, including federal contractors, who are required to file annual Employer Information Reports (also known as EEO-1 reports) with the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), may soon have additional reporting requirements. Currently, employers with more than 100 employees and certain federal contractors with 50-99 employees, have to report the number of full-time and part-time employees by sex, race, ethnicity and job category on their EEO-1 reports.

CashThe EEOC recently announced a revision to the EEO-1 report to add aggregate pay data on pay ranges and total hours worked for employers, including federal contractors, with 100 or more employees. Federal contractors with 50-99 employees would not report the aggregate pay data but would continue to report the other required information. The announcement was made on January 29, 2016 at the White House Equal Pay Event commemorating the anniversary of the Lilly Ledbetter Fair Pay Act. The Chair of that event noted that the EEOC has made equal pay a national priority.

The proposed revision was made after commissioning independent studies and gathering input from various sources. The EEOC and the OFCCP will use the information to detect pay discrimination and trends in occupations and industries. The federal agencies also believe the information will help employers assess their own pay practices.

The pay data would be based on employees’ W-2 earnings. For each of the defined EEO-1 job categories (Executive/Senior Level Officials and Managers, First/Mid-Level Officials and Managers, Professionals, Technicians, Service Workers, etc.), employers would have to include the number of employees by sex, race and ethnicity that fall in certain defined pay bands. In determining which pay band is appropriate, employers would use employees’ total W-2 earnings for a 12-month period looking backward from a pay period between July 1st and September 30th. The total number of hours worked by the employees in each pay band would also be reported.

The EEOC and OFCCP plan to develop statistical software to analyze the reported data. It is not yet clear what will be considered as a discriminatory pay practice. Perhaps most concerning to employers is that non-discriminatory factors (such as differences in experience or education) will not be reflected in any statistical analysis because, under the current proposed rule, there is no provision for collecting that information.

The proposed revision, which is available on the Federal Register website, was published on February 1 and is open for public comment through April 1. The EEOC will consider any public comments and hold a public hearing before publishing the final rule.  The final rule would take effect for the September 2017 EEO-1 reports.

7th Circuit Affirms Employer Victory: Discharge Proper for Employee Who Could Not Perform Essential Job Function

Contributed by Jonathon Hoag

The ADA Amendments Act of 2008 (ADAAA) brought broad speculation that a large percentage of employees would qualify as “disabled”  as defined under the amended ADA and employers would have to focus attention on engaging in the interactive process to identify a reasonable accommodation. While it is true that the ADAAA has increased the Injured personimportance of engaging in the interactive process to review possible accommodations, it is still equally important to consider whether the employee is a “qualified individual with a disability” under the ADAAA.  The 7th Circuit’s recently upheld dismissal of a disability claim because the employee could not perform the essential functions of the job and, thus, was not a “qualified individual with a disability.”

The employee started work at an automotive retailer in 2005 and was promoted to Parts Sales Manager (PSM) in 2007. Following her promotion, the employee suffered a work-related injury and in 2009, was permanently restricted from lifting with her right arm anything that weighed over 15 pounds. Her employer terminated her when they were unable to reasonably accommodate her lifting restriction, asserting that lifting was essential to the job.

The EEOC filed suit against the employer alleging it failed to accommodate the employee’s lifting restrictions. As part of its claim, the EEOC was required to prove that they employee was a qualified individual with a disability. Under the ADAAA, this means the EEOC had to prove she could perform the essential functions of the job with or without reasonable accommodation.

The employer was able to submit substantial evidence to show that lifting objects over 15 pounds was a regular and essential part of the PSM job. Importantly, the employer was able to prove it did not have a practice of reassigning the lifting requirement of the job. If there is evidence that the employee reassigns a task to other employees, the court views this as a strong showing that the task is marginal (and not essential) to the job. The 7th Circuit pointed to numerous cases finding that it is not a reasonable accommodation to require another employee to do the lifting. As a result, the employee was not a qualified individual with a disability under the ADAAA.

The employer prevailed because it had substantial evidence to show lifting was an essential job function and there was no way to reasonably accommodate the employee’s restrictions. The ADAAA certainly places more emphasis on the employer’s obligation to review reasonable accommodations and engage in the interactive process. However, the 7th Circuit’s ruling is a reminder for employers to work with counsel to simultaneously analyze whether the employee is a “qualified individual with a disability.” This threshold issue remains an important component of limiting legal exposure to disability-related employment claims.