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Did drawing the line in associational retaliation cases just get a little bit harder?

February 18th, 2014  |  Kathy Kapusta  |  Add a Comment

When the U.S. Supreme Court, in Thompson v N. Am. Stainless, LP, upheld a third-party retaliation claim filed by an employee who was fired three weeks after his fiancée filed a formal complaint of harassment against their employer, it found it “obvious” that a “reasonable worker might be dissuaded from engaging in protected activity” if she knew that her fiancé would be fired. The Court acknowledged, however, potential line-drawing difficulties in less clear cases.

Somewhere between close friend and casual acquaintance. A recent decision from the federal district court in New Hampshire may have just made that line even more difficult to draw. In that case, the EEOC successfully advanced a retaliation claim on behalf of an employee who was allegedly fired after her “very close friend” and former coworker threatened to file a sexual harassment claim against their employer. Observing that the relationship between the two women “exists somewhere in the fact specific gray area between close friend and casual acquaintance,” the court found that the agency’s claim was sufficient to survive a motion for judgment on the pleadings.

Both women worked for an oil company. The coworker was allegedly sexually harassed by the owner who frequently commented on her breasts, told her he wanted to play with them, liked to watch her laugh so he could watch them bounce up and down, and offered to show her his “night crawler.” At some point, his comments progressed to inappropriate touching and culminated in an incident in which he trapped her behind her desk and fondled her. She resigned the next day.

EEOC steps in. The coworker subsequently informed the company, through her attorney, that she was planning to file a discrimination charge against it. Less than a month later, the employee was fired, purportedly because “it was not working out.” The EEOC then sued the company on behalf of the two women, alleging that the owner sexually harassed them and fired the employee in retaliation for her coworker’s complaint about the harassment.

Unsettled jurisprudence. The company argued that the EEOC sought to extend an unsettled jurisprudence beyond reason. Specifically, the employee did not claim to have engaged in protected activity; rather she contended that she was fired in retaliation for her friend’s protected conduct.

Is close friendship enough? The employer further argued that based on Thompson, the two women were not close family members and were not sufficiently close such that termination, or threatened termination, would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The court, however, rejected this as premature. Here, the complaint alleged that the two women were close friends. Not only did they work together at a prior company, the coworker was influential in procuring the employee’s job with the oil company. Moreover, the employee displayed birthday and mother’s day cards from the coworker on her desk alongside pictures of the coworker’s young daughter and the two women together.

The complaint also alleged that the owner knew of this close friendship as was demonstrated by his comment to the employee proposing a “play date” between himself, the employee, the coworker, and the coworker’s daughter. In addition, when he wanted to contact the coworker after she quit, he asked the employee for her personal email address. While the court could not say that such a friendship definitely supported a successful claim, it also could not say as a matter of law that it did not. As a result, it denied the employer’s motion for judgment on the pleadings.

Cautionary note. The court cautioned, however, that it might revisit the issue upon a proper motion after discovery. In light of the fact that the employer in Thompson warned that expanding third-party reprisal suits would place an employer at risk any time it fires any employee who happens to have a connection with a coworker who files an EEOC charge, it may be worth keeping an eye on any future developments in this case.

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Secretary Perez says Labor Department “contemplat[ing]” possible LGBT executive order; WH says it’s still “hypothetical”

February 14th, 2014  |  Cynthia L. Hackerott  |  Add a Comment

A possible executive order (E.O.) banning discrimination against LGBT employees by federal contractors is “an issue that [the Labor Department] continue[s] to contemplate and work on,” said Secretary of Labor Thomas E. Perez at a White House press briefing on February 12, 2014. However, Perez declined to comment on whether the Labor Department would be responsible for implementing such an order. Perez joined White House Press Secretary Jay Carney at the briefing to discuss President Obama’s signing later that day of an executive order to raise the minimum wage for federal contractors to $10.10 an hour.

Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity. In 2012, LGBT news publications began to report that the Obama Administration was considering expanding E.O. 11246 – which prohibits federal contractors from discriminating on the basis of race, color, sex, religion, and national origin – to include sexual orientation and gender identity. According to these reports, the President has also considered, as an alternative to expanding E.O. 11246, issuing a separate, new executive order to address sexual orientation and gender identity. However, White House Press Secretary Jay Carney has maintained since April 2012 (when the Obama Administration publicly addressed the issue for the first time) that no such order is forthcoming and has continued to reiterate his earlier statements that the President prefers legislative, rather than executive, action on this front. Carney’s comments during the February 12, 2014 briefing did not stray from his previous course, indicating that an LGBT Executive Order is still “hypothetical” at this point.

On November 7, 2013, the Employment Non-Discrimination Act of 2013 (ENDA)  — a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity — cleared the Senate with a bipartisan 64-32 vote. Yet, soon after, House Speaker John Boehner indicated that he would not bring the bill up for a vote in the Republican-controlled House of Representatives.

During the February 12, 2014 briefing, a Washington Blade reporter asked:

“Speaking of executive orders, there’s been a lot of discussion recently about a potential executive order that would bar federal contractors from discriminating on the basis of sexual orientation and gender identity. If the President were to sign such an executive order, could the Labor Department implement it?”

To which Secretary Perez responded:

“Well, I can’t get into what-ifs. I’m certainly aware of the executive order that was proposed that you’re talking about. And the President takes a backseat to no one in his commitment for equal access to opportunity for people regardless of race, religion, sexual orientation or gender identity. And it’s an issue that we continue to contemplate and work on.”

The OFCCP, an agency within the Labor Department, enforces E.O. 11246, as well as Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). In addition to its non-discrimination provisions, E.O. 11246 requires covered federal contractors to implement affirmative action programs on the basis of race, color, religion, sex, and national origin. Section 503 and VEVRRA require similar affirmative action programs with respect to disability and status as a protected veteran. It is not clear whether any potential expansion of E.O. 11246 would only require non-discrimination or whether it would also require implementation of affirmative action programs on the basis of sexual orientation and gender identity.

In 2012, the EEOC issued its much publicized decision in Macy v Holder. There, the EEOC — following earlier court precedents which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account — ruled that transgender workers are protected under Title VII. Thus, the EEOC adopted the position that the sex stereotyping theory encompasses claims of discrimination based on transgender status.

At the February 12, 2014 briefing, the Washington Blade reporter followed up his initial question by asking:

“On a related note, there’s also been talk about implementing existing order — Executive Order 11246, which prohibits discrimination on the basis of gender, and apply that to transgender workers to prohibit discrimination against them in the wake of Macy v. Holder. Will the Labor Department take that step?”

Perez responded: “That issue is under review in the aftermath of the Macy decision. And I’ve asked my staff to expedite that review so that we can bring that issue to conclusion at the Department of Labor.”

When the reporter inquired as to when the review would come to an end, Perez replied “I’m hoping it will come to an end as soon as possible.”

Later in the briefing, a Reuters correspondent asked Carney whether “the administration is contemplating executive action on LGBT workplace non-discrimination.” To which Carney, yet again, indicated that no such order is forthcoming and continued to reiterate his earlier statements that President Obama prefers legislative, rather than executive, action on this issue.

“What our position is and has been is that we strongly support the Employment Non-Discrimination Act,” Carney said. “We note the progress made in the Senate, the fact that there’s been movement in the Senate on this, and I think against some of the conventional wisdom we’ve seen movement on this.”

“[W]e’re going to keep pressing Congress to catch up with the country on these issues,” he added.  “But I just don’t have any update on the discussion around other hypothetical EOs, and I think that’s what Secretary Perez was indicating.”

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Union leaders shout displeasure over Affordable Care Act

February 13th, 2014  |  David Stephanides  |  Add a Comment

In a story that has somewhat fallen off the radar, union leaders have once again made it known that they are not pleased with the Affordable Care’s Act treatment of multi-employer health plans. The reality, they stress, is that if federal subsidies are available only for plans purchased through state exchanges, employers contributing to multiemployer plans will face tremendous economic pressure to stop contributing to these plans. Many employers will feel the need to drop coverage and access the subsidies to remain competitive.

Updating the contentious issue, the Washington Post reported Jan. 31 that Obama Administration officials said “if the unions got their way, people enrolled in their plans would be indirectly getting two tax benefits while most Americans get only one.” 

“The unions here are asking to double dip,” said Robert Laszewski, a health policy consultant in Washington quoted in the Post article. “It is an unfair request. The Obama plan is very simple: If your employer pays for your health plan, you are not eligible for a government subsidy. What the unions are asking for is government and employers to fund their benefits.”

While union officials acknowledge that their plans are unique, they stress that the ACA didn’t take that into account. As a result, commercial insurers can cover anyone through the individual or group markets, while the multi-employer plans can’t. This creates unstoppable incentives for employers to reduce weekly hours for workers currently on these plans and push them onto the exchanges where many will pay higher costs for poorer insurance with a more limited network of providers.

“We thought that if we made the case to the agencies dealing with regulations to correct problems that hurt [our plans], really destroy, self-funded nonprofit health plans, it would be resolved,” said Donald Taylor, President of Unite Here, in the Post article. “That clearly was naive or stupid.”

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Mistakes by HR reps can be particularly costly for employers

February 11th, 2014  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Employers rely on human resources professionals to administer workplace policies and ensure the company’s compliance with applicable laws, but who makes sure that HR reps themselves comply? A Master’s degree and HR certifications will only go so far, and wise employers (and in-house counsel) will see to it that their HR reps fully appreciate the potential impact of their day-to-day interactions if an employer is later accused of improprieties. In many cases, avoiding a costly trial could be a simple matter of an HR professional carefully thinking through the consequences of an action before taking it. Below are some real-life examples of such missed opportunities and suggestions for improvement.

Hazarding a guess can be a hazard. When asked why a company decided a long-time employee could no longer perform her cleaning duties, an HR specialist said: “I don’t know why. I think she’s probably older now.” A court found this to be direct evidence of the employer’s age bias (Dupont v Allina Health System). Suggestions:

  • Plan ahead. Try to anticipate what might be asked before a meeting and think about the answers you might give. Imagine what your answers would sound like to a jury.
  • Don’t guess. If someone asks why a company is taking an action and you do not know, it is okay – even preferable – to simply say you will look into it.

Don’t stray from an interview plan. A nurse who did not complete her application process claimed that an HR rep spent much of a job interview discussing her pregnancy and deterred her from completing the process by saying she would not be hired while she was pregnant. This was enough to avoid summary judgment (Di Gioia v Independence Plus, Inc). Suggestions:

  • Prepare questions in advance. Tailor questions to job requirements and do not stray into areas prohibited by discrimination and other laws. For example, you can ask if an applicant can meet scheduling requirements, but avoid asking how much sick leave was taken at prior jobs or whether religious observances preclude weekend hours.
  • Avoid making promises. In some cases, comments made by HR reps in interviews about the prospect for long-term employment have been held by courts to give rise to implied contracts altering the at-will employment relationship.

Emails can come back to haunt you. On the same day a restaurant server was terminated, a senior benefits specialist sent an email to a third-party provider asking how to exhaust the server’s short-term disability leave, stating “we are wanting to exhaust her STD so that we can terminate her according to the terms of our policy. Help!” Based on that and the allegation that another HR rep told the server she had returned to work prematurely, a court found evidence of retaliation against the employee for exercising her STD rights (Spahic v Gaylord Entertainment Co). Suggestions:

  • Before hitting “send,” recognize that the intended recipient may not be the only one who ends up reading your email, and reread it to see how it might appear to a third party. Recognize that while memories of the context fade, emails can last forever and could be interpreted differently once the context is lost. Also note that personal email accounts may also be subject to disclosure in discovery.

Doing half the job is like not doing it at all. Although a sales rep complained to HR about a supervisor’s sexual harassment, and workers interviewed by HR confirmed his remarks on her breasts, the employer found the allegations unsubstantiated. A court found its investigation lacking because it did not interview all witnesses and further found it conclusions questionable (Miles v Wyndham Vacation Ownership). Similarly, an HR rep in another case concluded a male worker likely engaged in misconduct against a female coworker who reported severe sexual harassment but the remedy — a two-day suspension — may not have been adequate, a court observed, particularly since they continued to work together (Ortega v The Neil Jones Food Co).

  • Fully investigate complaints. Be responsive to employees who complain of discrimination, retaliation, or other misconduct and take them seriously. Adequately investigate allegations and draw objectively reasonable conclusions.
  • Properly enforce policies. Having a policy prohibiting sexual harassment and telling employees how to report it (as these employers did) will not help in court if the policy is not enforced properly. Draw reasonable conclusions from the investigation and impose an appropriate level of discipline for misconduct.

Suggestions for improving HR performance

There are many other examples of when an HR representative’s action or failure to act increased an employer’s exposure to liability, including: pressuring employees to sign agreements or questionable waivers (such as a statement that sex was consensual); failing to translate important information for non-English speakers; providing negative references; failing to maintain documents while litigation is ongoing; making statements to an applicant that imply he or she has a job before they actually do (possibly leading an applicant to turn down other jobs); and failing to enlist an independent investigator when a personal friend is accused of wrongdoing.

The list could go on, but the point remains the same: even the best HR departments will likely have room for improvement, and there is a lot of value in taking measures to ensure that HR is doing what it needs to do. These could include:

  • Auditing for compliance in key areas like, including: salary administration; recruiting and hiring; orientation; terminations; training; employee relations; and files/record maintenance.
  • Requiring HR reps to attend seminars or otherwise reinforce their knowledge of applicable regulations, key issues, and emerging legal trends.
  • Knowing the rules is not the same as understanding what compliance looks and feels like. Much like lawyers might observe other litigators in action or practice arguments before associates or mock juries to gauge reactions, HR reps should be required to take steps to get a real-world feel for the consequences of their actions. For example:
    • Practice, practice, practice. Have HR reps practice routine functions where stray remarks or small missteps could lead to big liability. Among other activities, have them interview an obviously pregnant applicant for a job requiring physical labor; give them faux personnel files with poor work histories and have them practice giving references to other employers that push for too much information; and have them practice their response to sexual harassment or discrimination complaints.
    • Seek feedback. Ask employees to provide anonymous feedback (e.g., through a questionnaire) about how they think the HR department is doing.

Taking these and similar measures will not only reduce an employer’s risk of liability but will also likely instill in employees a sense of confidence in management and improve the company’s reputation in the community and among shareholders.

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Breastfeeding mother jumps over first hurdle on FLSA retaliation claim

February 8th, 2014  |  Sheryl Allenson  |  Add a Comment

Although new mothers seeking to pump breast milk at work have had protection under federal law for several years, employers generally were not held to the letter of the law. That is, not until recently. In May 2013, an appeals court overturned a ruling against an employee who claimed she was terminated for asking to pump milk at work. The appeals court rejected the lower court’s decision that ‘[l]actation is not pregnancy, childbirth or a related medical condition.” An adverse employment action motivated because an employee was lactating or expressing breast milk is clearly based on factors “that male employees need not — indeed, could not — suffer,” wrote the appeals court, finding the employee could have stated an actionable sex discrimination claim.

Recently, the ACLU has entered the arena, representing a Pennsylvania glass maker in her civil complaint. According to the complaint and an EEOC charge, the employee continuously asked her employer for a suitable place to express milk, but instead, the employer provided her only with space that was either unsanitary or not sufficiently private. Just days ago, the employee learned that her complaint could advance after it survived the employer’s motion to dismiss the action.

Single mother knows the law. In this case, the employee knew the law. She knew that the 2010 Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to add a provision known as the “Reasonable Break Time for Nursing Mothers.” That provision requires employers to provide non-exempt employees a reasonable break to pump milk for a nursing child for one year after birth and a place, other than a bathroom, that is shielded from view and is free from intrusion from coworkers and others.

Although the employee tried to educate her employer about the law, her efforts apparently failed. First she was directed to a bathroom, then, when she pointed out that that did not comport with the law, she was provided other unsanitary or insufficiently private spaces. Finally, she agreed to use a filthy locker room, because “at least it had a lock on the door – and they said they’d clean it up,” Although her employer had promised to clean up the space, it had dirt and dead bugs on the floor, and there was no air conditioning — problematic because temperatures in the factory could exceed 100 degrees. The company did not take any action to improve the space until after she took legal action.

Harassment starts. Meanwhile, the employee’s coworkers harassed her while she was pumping milk. Among other things, male coworkers pounded on the door and yelled, and one brought her a bucket, comparing her to a cow being milked. On two occasions, coworkers greased the handle of the door where she would pump milk and placed metal shards there. According to the employee, a supervisor told her that the coworkers’ conduct did not rise to the level of harassment because individuals, and not the company, engaged in the conduct.  No action was taken against any of the perpetrators.

Instead of accommodating the employee’s request for a suitable place to pump breast milk, the employer turned to retaliation, she claimed. Although when she returned to work after her pregnancy she initially worked a day shift, after she complained, the employee was placed on a rotating shift, where she was required to work an overnight shift every third week. Pleading that the shift changes were medically detrimental to her ability to pump milk, the employee provided medical notes to her employer to support her request for a reversal of its decision—however, the employer remained steadfast.

Negative impact on mother and child. According to the employee, this shift change caused a reduction in her ability to produce breast milk. Since she was reassigned to the rotating shift, her milk supply decreased by 50 percent. Although she pumped as frequently as before, she produced far less milk each shift. This was a direct result, she said, of her inconsistent work hours, interrupted sleep schedule, stress, and the discomfort she experienced while trying to express milk in the unsuitable and unsanitary facilities provided by the employer.

She also claimed that once her shift was changed, she was assigned to tasks typically given only to employees with very low seniority, far below her own seniority level. She alleged that she was treated differently than other male coworkers who had requested the same accommodations – a day shift – for other medical reasons. She was also denied overtime, which she claimed was in further retaliation for her request for accommodations so she could pump breast milk.

Legal options. Although the employee brought a retaliation claim under the FLSA, this case, coupled with the federal appeals court decision mentioned earlier, further bolsters the growing wave of support for the position that stifling a woman’s right to breastfeed amounts to sex discrimination. Employers beware—employees now have several legal paths to choose to ensure that, if they need to, they can pump breast milk at work.

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