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Supervisors say the ‘darndest’ things

April 20th, 2016  |  Joy Waltemath  |  Add a Comment

By Joy P. Waltemath, J.D.

I’m old enough to remember that it was Art Linkletter who popularized the “kids say the darndest things” concept in his radio and TV shows (and in a 1957 book by that name). Workplace situations seem to elicit some of the “darndest” responses from supervisors, remarks that at the very least got their employers into litigation and often resulted in liability. Here are some of 2016’s freshest examples of foot-in-mouth supervisors:

Confidentiality

Supervisor shares firefighter’s PTSD diagnosis. Aa firefighter, still active in the Selected Marine Corps Reserve after having served eight years, disclosed his PTSD during a supervisor-initiated fitness-for-duty evaluation (clearly a medical exam covered by ADA confidentiality requirements). Two days later, his supervisor held a meeting to discuss the employee “having PTSD and [to] get the opinion of other firefighters.” Temporal proximity between the exam and the meeting, coupled with the alleged purpose of the meeting, made it plausible that the supervisor wrongly disclosed information obtained through the authorized medical inquiry (Perez v. Denver Fire Department City and County of Denver, D. Colo.).

Age bias

“Too old to cry.” Repeated comments by an employee’s former supervisor that she was “too slow” and “too old to cry” suggested that her firing was motivated by age bias. Although the employee received only one informal disciplinary notice during her first 20 years on the job, during her last two years she received 26 informal employee discussions, two verbal warnings, two written warnings, and three 90-day action plans, a dramatic increase in disciplinary actions that she claimed was the result of age bias by her latest supervisor. She also alleged her supervisor said she was “too old to act like [she] was acting.” which, combined with evidence that at least one other younger employee who made substantially similar errors was not disciplined, supported an inference of age bias (Sampson v. Sisters of Mercy of Willard, Ohio, N.D. Ohio).

National origin bias

You’re “a turkey from Turkey?” A teacher in a gifted and talented elementary education program claimed her new principal encouraged a culture of racial and ethnic insensitivity. While the staff was discussing an American movie, the principal told her, “You wouldn’t know about this. You are not from here.” After an after-school Christmas concert in which the teacher’s child participated, the principal asked, “What are you doing here?” Another staff member called her “a turkey from Turkey.” The principal and her staff also made insensitive remarks about other nationalities, referring to a Vietnamese family as the “little people,” joking about an Asian family’s surname, and making announcements over the intercom in feigned foreign accents and laughing. When the teacher complained, the principal issued her three disciplinary letters. A jury could reasonably conclude she was subjected to sufficiently severe or pervasive conduct due to her nationality based on these comments (Unal v. Los Alamos Public Schools, 10th Cir.).

Supervisors can’t even get his nationality right. The only non-white employee on his team, a nuclear plant’s Asian security supervisor was regularly subjected to slurs based on his race and national origin by both coworkers and supervisors. He was called “porch monkey,” “towel head,” “Taliban,” “Mexican,” “Jap,” “chink,” and “Hajji.” His supervisor’s boss referred to him as “Mexican” or “Puerto Rican” even though he had told him that he was Asian. He asked that boss to tell other managers to use his name rather than racial references and reported specific racial slurs used against him, but the boss changed the subject. Evidence that he was treated dissimilarly and subjected to racial slurs was enough to refute his employer’s contention that it legitimately fired him for taking too long to report that a subordinate may have nodded off on the job (Schumann v. G4S Secure Solutions (USA) Inc. dba G4S Regulated Security Solutions, D. Minn.).

Race bias

“It’s disgusting that you two are together.” Remarks by supervisors that the interracial relationship of two correctional officers was “disgusting” and “sickening,” as well as allegations that certain workplace policies were only enforced against the couple after they started dating but were not enforced against other COs, were enough to support disparate treatment and hostile work environment claims. In addition to numerous examples of disparate discipline, a lieutenant told the female CO “you know if your white ass gets pregnant by him he’s just going to leave you and have nothing to do with the kid. That’s what black men do . . . . Why are you with him? It’s disgusting that you two are together.” A captain told the female CO it “sickened” her to see the two together and later said she would not tolerate the relationship, and that she treated the employee that way because she was trying to show “how the real world works when dealing with a black man.” After the two filed administrative charges with the EEOC, the male CO was issued more discipline and the female CO was terminated (Autrey v. State of Maryland, D. Md.).

“An African-American should not have been hired to work in sales.” A CFMOTO Powersport regional sales manager who was hired after a phone interview with its CEO, but who claimed management decided to fire him once they learned he was black, advanced his claims of race bias. He lived in Kentucky and was soon sent for training in Minnesota, where the company’s executives worked and where the CFO and operations manager learned for the first time that he was black. Comments that “an African-American should not have been hired to work in sales” and that “a black person cannot sell power sports in the South” were direct evidence of bias. A white sales rep allegedly complained to the CEO that the employee should not have been hired because “black people did not buy mopeds and ATVs” and that “black people do not ride ATV’s [and] do not come to shows.” He was ultimately terminated by the CEO. The court rejected the contention that the comments by the CFO and sales rep were stray remarks by non-decisionmakers (Wilson v. CFMOTO Powersports, Inc., D. Minn.).

“N-word” and “b-word.” Despite an employee’s poor performance, her supervisors’ racially demeaning, derogatory, and offensive remarks supported her discrimination claim. Remarks by two Caucasian supervisors calling her “an old ni**er b*tch,” a “stupid b*tch,” and an “old black b*tch” resulted in a city being denied summary judgment on her race discrimination and retaliation claims, even though the employee had been disciplined 25 times in 18 years for poor performance. Also, when the employee asked why she was the only one getting suspended, one of the foul-mouthed supervisors allegedly responded “As long as you keep filing charges, I’ll keep suspending you” (Cage v. City of Chicago, N.D. Ill.).

Religious bias

“Your religion is less than my religion.” A Catholic farmworker survived summary judgment on his claim that his Mormon foreman harassed him based on religion by making almost daily statements such as “I’m a better person than you guys because your religion is less than my religion,” “Your religion is nothing, less than my religion,” or “I’m a better person than you guys because your religion is less than my religion,” or “You are less than me. I have a better job than you guys. I’m a Mormon and you guys are less than me,” or “My religion is on top. We are better than anyone else.” Although his employer suggested this alleged harassment was not severe or pervasive, the foreman was a type of supervisor, reasonable people might find this offensive, and most importantly, the farmworker estimated that there were roughly 60 such statements (four comments a day for 15 days), which the court found “more than sporadic, it is a pattern of routine conduct” (Robles v. Agreserves, Inc., E.D. Cal.).

Sex bias

It is no longer news that the EEOC filed its first two sexual orientation discrimination lawsuits in March 2016. And it’s no secret that the agency has been working for several years toward clearly establishing that sexual orientation discrimination offends Title VII. Although no judicial decisions have been reached on these EEOC “test cases,” it’s illustrative for employers to take a look at the alleged supervisor comments that the agency found particularly egregious.

“F***ing queer can’t do your job.” According to the EEOC complaint, a gay male telemarketer for a clinic was repeatedly referred to by his manager as “fag,” “faggot,” “f***ing faggot,” “queer,” and told “f***ing queer can’t do your job.” The manager allegedly made these highly offensive comments to the employee at least three to four times a week. When the telemarketer complained, the clinic director allegedly said that the manager was “just doing his job,” and refused to take any action to stop the harassment (EEOC v. Scott Medical Center, is case No. 2:16-cv-00225-CB).

“I want to turn you back into a woman.” In the second lawsuit, a lesbian forklift operator allegedly was harassed by her supervisor, who made repeated comments such as “I want to turn you back into a woman”; “I want you to like men again”; “You would look good in a dress”; “Are you a girl or a man;” and “You don’t have any breasts.” Although the employee purportedly complained to the general manager and called the employee hotline, the company first tried to force the employee to resign and fired her just a few days later, allegedly in retaliation for making the complaints (EEOC v. Pallet Companies dba IFCO Systems, case No. 1:16-cv-00595-RDB).

The ones they got away with …

Not every patently offensive, rude, or simply mean comment is actionable, of course. Still, the remarks made by supervisors reflected below got their employers dragged into court and came very close to crossing the line. After all, you don’t want a federal appeals court calling your company management’s behavior “inexcusable and offensive.”

“Inexcusable, offensive” comments … but not actionable. According to three female pharmaceutical sales reps who worked at Eli Lilly, their direct supervisor engaged in conduct described by the district court below as “inexcusable and offensive:” He said he majored in home economics to be around women, remarked on the appearance of female reps and referred to them as “Barbie dolls,” mocked the accent of a Hispanic employee in front of all district employees, said that “black people do not speak fast” during a role-playing exercise, said “let’s let the pretty girls go first” during a group activity, made offensive comments about an employee breastfeeding her child, and criticized an employee for asking for time off to care for her sick child. However, the court found that the incidents “did not unreasonably interfere” with the employees’ ability to do their jobs and so were not sufficiently severe or pervasive to create a hostile work environment (Tourtellotte v. Eli Lilly and Co., 3d Cir.).

“Monkey,” “take your black behind and go clean tables.” Despite allegedly being called “monkey” by one manager and told by another manager to take his “black behind and go clean tables,” a federal district court in Georgia dismissed a restaurant busser’s Title VII hostile work environment claim on summary judgment. The alleged harassing conduct was “simply too infrequent” and not sufficiently severe to be actionable, since there were only four comments over approximately 11 months. The court considered the remarks merely “unpleasant,” and not physically threatening or “particularly humiliating”—not enough to be found objectively severe (Lang v. Bloomin’ Brands, Inc., S.D. Ga.).

Lesson for managers. It never hurts to remind supervisors that treating employees, even (especially?) poor-performing or difficult employees, with dignity and respect is a time-honored approach to good employee relations. In addition, racist and sexist language simply has no place in the workplace, whether or not it is actionable under federal or state discrimination laws. Finally, consider supervisor training: It is entirely possible that front line supervisors have either never been trained, or have not been trained recently, in what kind of language to avoid.

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OSHA can do more to deter violence against health care workers, GAO says

April 15th, 2016  |  Pamela Wolf  |  Add a Comment

A new GAO report addresses OSHA’s efforts to stem workplace violence in the health care industry and makes a triad of recommendations to help the agency operate more effectively. However, there remains a legitimate question as to whether OSHA, even if it implements the GAO’s recommendations, has the tools it needs to effectively deter employers that are not required by law to implement workplace violence prevention programs.

Violence against health care workers. Workers in health care facilities experience substantially higher estimated rates of nonfatal injury caused by workplace violence compared to workers overall, according to federal data reviewed by the GAO. The full extent of the problem, however, and its associated costs are unknown, the GAO report notes. In 2013 (the most recent year that data were available), private-sector health care workers in inpatient facilities experienced workplace-violence-related injuries that required time off from work at an estimated rate of at least five times higher than the rate for private-sector workers overall, according to Department of Labor data. The number of nonfatal workplace violence cases in health care facilities ranged from about 22,250 to 80,710 cases for 2011 (the most recent year that data were available from all three federal datasets that the GAO reviewed).

According to the GAO’s report, WORKPLACE SAFETY AND HEALTH: Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence, the most common types of reported assaults were hitting, kicking, and beating. But health care workers may not always report such incidents, and there is limited research on the issue, so the full scope of the problem is unknown. And, the report does not address worker fatalities due to workplace violence.

OSHA efforts. OSHA provides resources to employers in health care settings, including a dedicated webpage for preventing workplace violence in health care. The agency also provides a link to the National Institute for Occupational Safety and Health’s workplace violence prevention training course for nurses, among other resources. But as the GAO’s report pointed out, OSHA does not require employers to implement workplace violence prevention programs. It provides only voluntary guidelines and may cite employers for failing to provide a workplace free from recognized serious hazards under the general duty clause.

Fatalities from violence. Although not addressed in the GAO’s report, workplace violence sometimes results in worker fatalities. An Occupational Safety and Health Review Commission administrative law judge last July affirmed that Integra Health Management failed to protect a 24 year-old Florida health care worker from workplace violence when she was murdered in 2012. The social service coordinator’s client, who had severe mental illness and a violent criminal history, fatally stabbed her outside his home in December 2012. The heath care worker had been on the job for about three months. She previously had met with the client and recorded in her case notes that she was uncomfortable being alone with him.

OSHA investigators found Integra Health Management knew the assailant had exhibited several high-risk behaviors, including a history of violence, criminal behavior, schizophrenia, and paranoia. But the company nonetheless took no steps to protect its employee. The agency also discovered multiple incidents where Integra employees were victims of aggression and verbal and physical threats from clients. The health and safety agency concluded that the company did not conduct a hazard assessment of the service coordinator position or develop a written program to prevent workplace violence hazards.

Are penalties effective? The penalties imposed by the citations issued in the Florida health care worker’s fatality seem to beg the question whether the tools available to OSHA provide an effective deterrent to employers that do little or nothing to prevent workplace violence. Investigators in that case issued two serious citations with full penalties to Integra in March 2013 for failing to protect employees from violence in the workplace and not reporting the social service coordinator’s death to OSHA. The company contested the citations that went before the commission for review. The ALJ found that Integra’s approach to safety was inadequate and the company should have taken precautions to prevent injury by hiring and training its employees appropriately. The citations, however, imposed penalties of just $10,500.

Earlier this year, in March, Labor Secretary Thomas Perez was asked at a House hearing to address the adequacy of criminal penalties in the worker-safety context. In response, he cited an OSHA case in which a worker was literally dissolved to death at work and the substance then discharged into water. While the OSHA fine was only $50,000, the EPA fine for killing fish was in the millions of dollars—fish had more protection than people.

Inflation-based increases. Notably, under the Bipartisan Budget Act of 2015 (BBA), signed into law by President Obama on November 2, 2015, the heads of all federal agencies will be required to annually adjust their civil penalties based on the Consumer Price Index. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, incorporated into the BBA at Section 701, also contains a catch-up provision, which could adjust penalties by up to 150 percent by mid-2016. There is a procedure for lesser adjustments where an increase would have negative impact or the social costs of the increase would outweigh the benefits.

Assistant Secretary of Labor for OSHA, Dr. David Michaels, had advocated for stiffer penalties for some time. He had told a congressional committee: “Simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.” It remains to be seen, however, whether increased penalties alone will have an appreciable impact on the problem of workplace violence in the health care industry absent any requirement that employers must implement prevention measures.

Areas for improvement. Turning back to GAO, its report gave a nod to OSHA’s increased education and enforcement efforts to help employers address workplace violence in health care facilities. However, it also identified three areas for improvement in accordance with federal internal control standards.

More information on general duty clause citations. First, the GAO suggests that OSHA should give inspectors additional information on developing citations. Although the agency has not issued a standard requiring employers to implement workplace violence prevention programs, it has issued voluntary guidelines and may cite employers for hazards identified during inspections—including violence in health care facilities—under the general duty clause of the OSHA Act. The report notes that OSHA increased its yearly workplace violence inspections of health care employers from 11 in 2010 to 86 in 2014. The agency issued general duty clause citations in about 5 percent of workplace violence inspections of health care employers. Regional staff, however, said that developing support to address the criteria for these citations is challenging. Moreover, staff from five of OSHA’s 10 regions said additional information, such as specific examples of issues that have been cited, is needed.

Follow up when hazard alert letters are issued. Second, the GAO noted that when the criteria for a citation are not met, inspectors may issue warnings, known as hazard alert letters. But employers are not required to take any corrective action in response to these warnings, and OSHA does not require inspectors to follow up to see if employers have taken corrective actions. Therefore, OSHA has no idea whether identified hazards have been addressed and the same hazards may persist.

Assess results of agency actions. Finally, the GAO suggested that OSHA should assess the results of its efforts to determine whether additional action, such as development of a standard, is necessary. The agency has not fully assessed the results of its efforts to address workplace violence in health care facilities, according to the report. Absent such an assessment, OSHA will not be in a position to know whether its efforts are effective or if additional action may be needed to address this hazard.

Recommendations. Specifically, the GAO’s report recommends that OSHA:

  • provide additional information to assist inspectors in developing citations;
  • develop a policy for following up on hazard alert letters concerning workplace violence hazards in health care facilities; and
  • assess its current efforts.

OSHA agreed with these recommendations and said that it would take action to address them.

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Workplace grudges: tales of retaliation

April 12th, 2016  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Would you be dissuaded from reporting discrimination if you knew that after your complaint you would get harassed, moved to a “shack,” denied air-conditioning in the summer, or accused of wrongdoing yourself? Many courts think so, and often send these types of retaliation cases to the jury. However, the retaliatory act has to be one that would dissuade a reasonable worker from reporting discrimination because, as the Seventh Circuit recently explained, Title VII “does not protect against petty slights, minor annoyances, and bad manners.” Even so, supervisors and others who have the power to impact an employee’s working conditions can be creative in expressing retaliatory animus.

The 13-year grudge. In one case, a former executive VP who chose voluntary retirement over being fired in the wake of a sexual harassment suit, returned to the company 13 years later and immediately started retaliating against a subordinate VP who had been interviewed in the prior suit. He took the subordinate’s secretary as his own; presented a video depicting the subordinate from the torso down but with his head cut off; and demoted him two levels (despite his long tenure and stellar performance). The executive VP also said things making it clear he harbored a grudge over the circumstances of his prior “early retirement.” Despite the 13-year gap, a federal court found enough evidence of a causal link to go to trial (Pace v. Alfa Mutual Insurance Co.).

First chance to retaliate. As happened in Pace, employers often argue that long periods of time between the protected activity and the retaliatory response make it impossible for an employee to show a causal link between the two. However, the temporal gap means little if this was the first chance a decisionmaker had to retaliate against the employee who engaged in protected activity, particularly if there is other evidence indicating that the decisionmaker is carrying a grudge.

As explained by a federal court in North Carolina, the “mere passage of time” does not preclude a retaliation claim where an employer takes the first opportunity it has to retaliate. In the North Carolina case, seven months after a home healthcare worker filed an EEOC charge, her former employer called her new employer and several of her clients to accuse the employee of stealing and of Medicaid fraud (Johnson v. Lemonds).

Newly enforced policy. Courts also find significant any change in how an employer enforces a policy following a protected activity. For example, an employee had never been asked for a doctor’s note for each absence and had received positive performance reviews, but after she filed an EEOC charge, she was told to provide a note for each absence, had her attempt to provide such a note rejected, and was fired two days after signing a settlement of her EEOC complaint. A federal court in Indiana found this to be a convincing mosaic of evidence supporting her retaliation claim, which will go to trial (Rodriguez v. Duneland School Corp.).

Likewise, a federal court in Michigan found that an employer’s having skipped a disciplinary step before terminating an employee who had recently returned from FMLA leave raised triable issues on her FMLA retaliation claim (Perry v. Covenant Medical Center, Inc.).

Put in a “shack.” Demotions and terminations are typical adverse actions that support lawsuits, but there are also cases involving less common actions. For example, a federal court in Tennessee sent a retaliation claim to trial based on evidence that, after an employee complained of an inadequate harassment investigation, he was transferred to an unheated building with no restroom facilities, no mats or carpet on which to stand, and with only a pair of unpadded folding chairs (Pittington v. Great Smoky Mountain Lumberjack Feud, LLC).

Similarly, transfers to unfavorable locations or shifts can be adverse actions. For example, a federal court in Florida found that a male correctional officer’s transfer to an unfavorable night shift was enough, by itself, to support his claim that this was retaliation for his sexual harassment complaint (Peterson v. Corrections Corp. of America). In another case, a federal court in New York found a railroad station employee’s claim supported by evidence that, after he took leave for a heart condition, he was disciplined and placed in an extremely hot booth with an inoperable air conditioning unit that the employer declined to fix (McAllister v. Metro Transit Authority).

Denied the means to do the job. Likewise, denying the equipment or other tools necessary to do a job can be actionable. In one case, a car dealership employee who reported sexual harassment was subsequently denied access to websites that she needed to access in order to perform her duties and a federal court in Michigan found triable questions on whether this adversely affected her ability to perform the essential functions her job (Worthington v. Brighton Ford, Inc.).

“Relentless campaign” to destroy career. The creation of a hostile work environment also can be considered an adverse action supporting a retaliation claim. For example, a federal court in D.C. sent a HUD attorney’s retaliatory hostile work environment claim to trial based on a series of actions taken by a female supervisor who the employee had complained favored younger male attorneys. The supervisor allegedly accused the employee of bringing cupcakes embedded with nails to the office (she was investigated though she had been on leave at the time); accused her of hacking the supervisor’s computer; revoked her telecommuting privileges; made hostile remarks; put her on a performance improvement plan; and suspended her (Roman v. Castro).

Escalation of hostility. In another case, a federal case in New York, after an employee lodged discrimination complaints, her supervisor allegedly yelled at her, docked her pay for being only a few minutes late, tapped her phone to monitor her conversations, moved her office furniture so she was facing the wall, and threatened disciplinary action if her phone etiquette was “not to his liking.” The court found that the supervisor’s conduct could well dissuade a reasonable worker from making or supporting a charge of discrimination (Ingrassia v. Health & Hospital Corp.).

It doesn’t have to be an ultimate employment action. As these cases suggest, adverse actions take many forms in retaliation suits, including: trumped-up investigations, harassment, threats, the denial of necessary tools or equipment, and more. It is perhaps understandable then, that retaliation charges filed with the EEOC have doubled since 1998 and in FY2015 represented the most frequently filed charge—39,757 charges made up 45 percent of private sector charges. Recently, the agency announced that, in light of the significant number of court rulings on retaliation claims since 1998, it is seeking input on a proposed enforcement guidance that would replace the prior version. In the meantime, additional information on retaliation claims and what actions support such claims can be found in the EEOC’s compliance manual.

As might be expected given the above examples, the agency notes that adverse actions need not qualify as “ultimate employment actions” (like termination) or materially affect the terms or conditions of employment to constitute retaliation. Employers should advise supervisors of this important distinction when it comes to retaliation claims (as opposed to discrimination claims).

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First lawsuit filed against DOL’s new “persuader” rule

April 7th, 2016  |  David Stephanides  |  Add a Comment

The Arkansas Chapter of the Associated Builders and Contractors, Inc. and a coalition of other groups including the National Association of Manufacturers, have launched what is reportedly the first lawsuit challenging the Department of Labor’s controversial final “persuader rule.” The final rule narrows the “advice” exemption from reporting requirements under Labor-Management Reporting and Disclosure Act Section 203 when an employer uses an outside consultant to push back against a union organizing campaign. According to the complaint, the final rule upends 50 years of settled law on the meaning of “advice” and is contrary to “the plain language and stated intent of Congress to broadly exempt such advice from the reporting requirements of the LMRDA.” Among other challenges, the plaintiffs assert that the final rule violates the First and Fifth Amendment rights of their memberships.

The final rule, which is effective April 25 and applies to arrangements, agreements, and payments made on or after July 1, 2016, mandates certain disclosures related to third-party consultants (including attorneys) used by employers in crafting and delivering anti-union messages to workers. The DOL’s revised Form LM-10 (employer report) and Form LM-20 (agreement and activities report), with some exceptions, must be filed when an employer and a labor relations consultant make an arrangement or an agreement that the consultant will undertake efforts to persuade the employer’s workers to reject an organizing campaign or collective bargaining effort by a union.

Expanded reporting requirement. The Labor Department’s final rule revisions now require reporting of consultant activities involving both direct contact with employees with an object to persuade them, as well as the following categories of indirect consultant activity undertaken with an object to persuade employees:

  • Planning, directing, or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees.
  • Providing material or communications for dissemination to employees.
  • Conducting a union avoidance seminar for supervisors or other employer representatives.
  • Developing or implementing personnel policies, practices, or actions for the employer.

Exempt “advice” activities which do not trigger the reporting requirement are now limited to what the DOL called “those activities that meet the plain meaning of the term”: an oral or written recommendation regarding a decision or course of conduct.

Challenges to the final rule. The plaintiffs raise First and Fifth Amendment challenges under the U.S. Constitution, alleging that the final rule violates their members’ free speech and free association rights, and that it is void for vagueness under due process requirements. The final rule also infringes on the confidentiality of attorney-client communications and impermissibly invades the attorney-client relationship, which, according to the complaint, is “supposed to be protected” under LMRDA Sections 203(c) and 204. In addition, the Labor Department failed to “properly acknowledge the significant regulatory burdens associated with the challenged Rule and has violated the laws dealing with such burdens,” the plaintiffs contend.

The plaintiffs are asking the court for a preliminary injunction, declaratory relief invalidating the final rule, an order vacating the final rule and enjoining its implementation, and attorneys’ fees and costs.

Muting employer voices in union campaigns? Employers quickly criticized the final rule, which many see as tipping the balance toward unions. “DOL’s persuader rule is a clear attempt to chill employers’ First Amendment rights by placing onerous restrictions on their ability to receive advice and discuss the potential pros and cons of unionization with their employees,” ABC President and CEO Michael Bellaman said in a statement announcing the suit. “The rule will have a particularly disparate impact on small businesses that do not employ in-house legal counsel, and carries serious repercussions including possible jail time.” According to Bellaman, the DOL’s final rule “replaces clear-cut legal definitions with an indecipherable guessing game for both employers and advisors.” He says the final rule is aimed at silencing the voice of employers “by working hand-in-glove with the NLRB’s flawed ‘ambush election rule’ in a thinly veiled attempt by the administration to achieve the goals of its failed ‘card check’ proposal.” Associated ABC will be represented by its general counsel, Littler Mendelson P.C., and Cross, Gunter, Witherspoon & Galchus, P.C. in the case.

The lawsuit, Associated Builders and Contractors of Arkansas v. Perez, was filed in the Eastern District of Arkansas, the case is No. 4:16-cv-00169-KGB.

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Will SCOTUS decision in Tyson Foods case embolden federal agencies seeking relief for employees in systemic employment discrimination cases?

March 24th, 2016  |  Cynthia L. Hackerott  |  Add a Comment

Those following employment law developments well know that the EEOC and OFCCP are both aggressively pursuing systemic discrimination cases and, whenever possible, are not limiting their focus to a particular employer establishment or geographic region, but rather are investigating employers for violations on a companywide basis. Following U.S. Supreme Court’s 2011 decision in Wal-Mart Stores, Inc v. Dukes (94 EPD ¶44,193) the use of “formula relief” — i.e. relief based on representative statistical evidence— in assessing and awarding damages for large groups of aggrieved workers appeared to have suffered a severe blow. However, the U.S. Supreme Court’s ruling earlier this week in Tyson Foods, Inc. v. Bouaphake, a wage-hour case, provides some leeway for formula relief in certain circumstances.

As my colleague Ron Miller explained in his blog post on the Tyson Foods case, a divided Court ruled that a federal district court did not err in certifying (and maintaining) a class of Tyson employees who alleged that the employer failed to compensate them for time spent donning and doffing personal protective equipment. Because Tyson failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert to determine the average time engaged in donning and doffing activities. The representative sample may have been the only feasible way to establish employer liability, the Court observed, in concluding that such evidence cannot be deemed improper merely because the claim is brought on behalf of a class. In contrast to Dukes, where the employees were not similarly situated, the employees in Tyson Foods, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced the expert witness’ study in a series of individual suits. Of note, the Court also pointed out that the case presented no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.

No doubt, the EEOC and the OFCCP will take full advantage of Tyson Foods ruling. Indeed, in a directive (No 310) issued in July 2013, entitled, “Calculating Back Pay as a Part of Make-Whole Relief for Victims of Employment Discrimination,” the OFCCP specifically details the use of the “formula relief” model in calculating back pay in systemic discrimination cases. The Directive reflects the agency’s broad interpretation of the circumstances in which formula relief may be used. According to the OFCCP, formula relief is a way of approximating losses in circumstances in which it is unrealistic to attempt to compute individual losses with accuracy, such as:

  • When calculating individual back pay relief for numerous aggrieved individuals is difficult because complete information or documentation (i.e., timecards, payroll records, tax returns) is unavailable or missing;
  • When using the individual relief model to calculate back pay for each class member will likely cause significant delay or create an undue burden on individual class members to provide documentation to support their compensation and/or interim earnings ;
  • When the number of class members exceeds the number of employment opportunities that are available;
  • When the reconstruction of the employment decision is speculative (e.g., in the instance when there are no lines of progression), which makes it difficult for the CO to determine at what specific stage in the employment process the adverse action actually occurred, or any other situation in which (especially for jobs with few minimum qualifications) it would be impossible to determine which class members would have been hired absent discrimination; and/or
  • When the losses can be calculated on a class-wide basis from available data, as may be the case with compensation issues.

One question for future litigation is how broadly courts will construe which employees are “similarly situated” for the purpose of calculating formula relief. It’s a safe bet that the civil rights enforcement agencies will push for the broadest possible definition of the term “similarly situated.” How far the courts will allow them to go in this pursuit remains to be seen.

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