Earlier this week, the federal government announced the publication of a new guidance intended to help employers ensure their I-9 practices don’t result in discrimination against their employees. The publication, “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits,” was issued by the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE).
Under the Immigration and Nationality Act (INA), employers are required to verify the work-authorization of their employees using the Form I-9 and are prohibited from knowingly hiring unauthorized workers. Employers seeking to ensure their Form I-9 practices comply with federal law are increasingly conducting internal audits of their Forms I-9. To ensure that these audits are conducted properly and do not discriminate against employees, ICE and the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) collaborated to issue formal guidance on the topic.
Among other things, the guidance provides employers with information about the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate. The joint guidance is available on the DHS’s website and on OSC’s website.
The agencies developed the joint guidance with significant input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country. The guidance is part of the six-month action plan of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.
High Court takes a second look at UT Austin’s consideration of race in a portion of its admissions decisions
For a second time, the U.S. Supreme Court heard oral arguments on whether its decisions that interpret the Equal Protection Clause of the Fourteenth Amendment permit the University of Texas at Austin’s (UT Austin) consideration of race in a portion of its admissions decisions. The arguments were highly charged, eliciting some provocative statements by Justice Antonin Scalia and queries from Chief Justice John Roberts about when race should cease to be a consideration in university admissions. Although the case focuses on university admissions, the constitutional analysis could also be applicable to race-conscious decisions in state employment and the awarding of government contracts. (Fisher v University of Texas at Austin, Dkt No 14-981, cert granted June 29, 2015).
This time around, the Court is reviewing a 2014 decision in which the Fifth Circuit, following the High Court’s instructions to apply a more exacting standard on remand, determined that the UT Austin’s consideration of race in a portion of its admissions decisions withstands strict scrutiny. In a 2013 ruling, the High Court found that lower courts had erred in giving deference to the university’s assertion that its consideration of race in the admissions process satisfied the narrow tailoring prong of strict scrutiny (97 EPD ¶44,850) . On remand, a Fifth Circuit panel ruled, 2-1, that UT Austin presented sufficient evidence to prove that its admissions program is narrowly tailored to achieve the compelling state interest of the educational benefits of diversity (98 EPD ¶45,109). In November 2014, the Fifth Circuit denied Fisher’s request for an en banc rehearing. The Supreme Court has granted to cert again to determine whether the Fifth Circuit majority correctly followed the High Court’s instructions in reaching its conclusion.
Relevant precedent. Throughout the oral arguments session on December 9, which was extended by over a half-hour beyond the initially scheduled one hour limit, the Justices repeatedly referenced the relevant precedent. Under the standard set forth by the US Supreme Court in Adarand Constructors Inc v Pena (65 EPD ¶43,366 (1995)), to survive constitutional review, a government entity’s consideration of race has to meet strict scrutiny standards; thus, it must: (1) serve a compelling state interest; and (2) be narrowly tailored to achieve that interest.
Prior to its 2013 decision in the present case, the last time the High Court addressed the issue of affirmative action in higher education admissions was in June 2003 when it upheld, by a 5-4 vote, the University of Michigan’s consideration of race as one of many “plus factors” in its law school admissions policy that considered the overall individual contribution of each candidate (Grutter v Bollinger, 84 EPD ¶41,415). In contrast, on that same day in a 6-3 decision, the Court held that the university’s undergraduate admissions policy, which automatically awarded points to applicants from certain racial minority groups, violated the Equal Protection Clause (Gratz v Bollinger, 84 EPD ¶41,416). Previously in Regents of Univ of Cal v Bakke (17 EPD ¶8402 (1978)), Justice Powell wrote in his solo opinion that the attainment of a “diverse student body” is a compelling state interest for an institution of higher education. The Court endorsed this position in Grutter, and found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but found in Gratz that the undergraduate policy was not.
Texas policy. In 1997, the Texas legislature enacted the Top Ten Percent Law which is designed to increase diversity without taking race into account. The law, which is still in effect, mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In 2004, with the Grutter ruling in mind, Texas added the consideration of race among many factors, including achievements and experiences, to fill remaining slots at public universities. In the present ruling, the Fifth Circuit refers to this aspect of the admissions process as “the holistic review program.” Along with the consideration of race and these other factors, which are used to assign each applicant a Personal Achievement Index (PAI) score, the holistic program also takes into account an applicant’s Academic Index (AI) score, which is calculated based on the applicant’s standardized test scores, class rank, and high school coursework.
Abigail Fisher, a white Texas resident, sued the university after being denied a spot in 2008. Because she did not graduate in the top ten percent of her high school class, she did not qualify for automatic admission under the Top Ten Percent Plan, which that year took 81 percent of the seats available for Texas residents. Rather, she was considered under the holistic review program, and consequently, was one of 17,131 applicants for the remaining 1,216 seats for Texas residents.
Standing. In challenging Fisher’s standing on remand before the Fifth Circuit, the university pointed out that Fisher graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot. UT Austin also argued that there was no causal relationship between any use of race in the decision to deny her admission and the $100 application fee – a non-refundable expense faced by all applicants – thus, putting into doubt whether Fisher in fact suffered any monetary injury.
Justice Ruth Bader Ginsburg raised the standing issue, asking Fisher’s lawyer, Bert Rein, what relief the plaintiff sought, “I take it not injunctive, because Ms. Fisher has graduated,” she observed.
Rein maintained that a refund of the application fee was in fact one of element of the damages sought. Ginsburg then questioned whether, were the application fee to be refunded, there would still be any remaining damages sought by Fisher.
Fisher “has suffered the consequences of nonadmission,[sic]” Rein asserted, “which include she went to an alternative university; she had to travel as opposed to being in her home State. There is certainly good information that within the State of Texas, a degree from the University of Texas has consequences and earnings down the road, and that’s measurable. And she doesn’t have that benefit.”
Use of race as a factor. As to the merits, Rein argued that UT’s holistic review plan was not like the plan approved in Grutter. “If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create,” Rein asserted.
“My God, that sounds like it’s using race more rather than less than this plan does,” remarked Justice Sonia Sotomayor.
Rein maintained that was not the case “[b]ecause [UT’s holistic review plan is] not used to build a class [of students]. It’s just used to create a racial plus and to increase the number of minority admissions.”
“But in Grutter —in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor,” Justice Ginsburg observed. “And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan.”
She added that the 10 percent plan itself was driven by race as well. “It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education,” she said.
Rein countered that the 10 percent plan also creates geographic and socioeconomic diversity. “It’s not based on race,” he said.
“It is created because of race,” Ginsburg responded.
Justice Anthony Kennedy chimed in an assist to Rein, stating that the purpose of the 10 percent plan was “to define a neutral framework within which to satisfy the States and the universities’ objectives.”
Shortly thereafter, Justice Samuel Alito stated his view that the issue in this case is not whether the university can have holistic review, but rather, “whether they can have [race] as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic.”
Throughout the course of oral argument Alito queried whether there was a way to determine which of the students admitted under the holistic plan would not have been admitted if race were not part of the determination.
Scalia notes arguments doubting benefits for African Americans. In a series of provocative statements, Justice Scalia referenced arguments questioning the utility of affirmative action. “There are—there are those who contend that it does not benefit African Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less—a slower track school where they do well,” Scalia commented to Gregory G. Garre, UT’s lawyer. “[O]ne of the briefs pointed out that —that most of the —most of the black scientists in this country don’t come from schools like the University of Texas.”
“They come from lesser schools where they do not feel that they’re that they’re being pushed ahead in— in classes that are too— too fast for them,” he continued, adding that it may not necessarily be a good thing for the university to “admit as many blacks as possible.”
Garre responded that the court has already heard and rejected such arguments in the Grutter decision. Moreover, “[i]f you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better,” he said.
“And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America,” Garre added.
Time limit? Chief Justice Roberts referred to a portion of the majority opinion in Grutter, where Justice O’Connor wrote that race-conscious admissions policies must be limited in time. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” wrote Justice O’Connor.
“[A]re we going to hit the deadline?” Chief Justice Roberts asked Garre.
“Your Honor, I’m not here to give you a date,” Garre replied, “but what I would say is this: There are systematic problems that these problems—that these policies are attempting to address, including the test score gap between— between African-Americans and Hispanics. And— and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among African-Americans.”
Roberts continued to press Garre, asking “when do you think your program will be done?”
“[A]s soon as we—we can achieve the same sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account,” Garre responded, adding that assessing the utility of race neutral alternatives “is the way to police this.”
Justice Elena Kagan recused herself in this matter due to her involvement with the case when she was the U.S. Solicitor General.
As details emerge about the San Bernardino shooting December 2, 2015, including media reports that one of the suspected shooters worked as a health inspector for the San Bernardino County Department of Public Health, which was hosting the holiday party where the carnage occurred, employment lawyers and others react in horror.
Does “active shooter planning” now rise to the top of every holiday party top-10 employment issues list, coming alphabetically just before “alcohol consumption?”
Information about the San Bernardino shooters’ motives is thin thus far, notwithstanding the enormous efforts of law enforcement to contain the violence, track the shooters, and secure the site. Given the unusual profile of the husband-and-wife shooters and their significant cache of weapons, we are all still asking: Is it terrorism? Domestic terrorism? A disgruntled worker? All—or none—of the above?
No matter the cause, the effect was workplace violence. Whatever is ultimately uncovered—if and when it is—this horrible incident did in fact play out in the workplace, and one of the individuals identified as being an active shooter worked for the county health department that was holding the party.
So what’s an employer to do?
Policy. Years ago, employers were encouraged to draft “zero tolerance” for violence policies as part of the workplace violence avoidance strategy. As implemented in schools, there is some research suggesting zero tolerance policies are ineffective in making schools more orderly or more safe. Yet it is incumbent on employers nonetheless to have a workplace violence policy—and an emergency action plan.
Still, how effective is any “policy” in the face of such apparent anger?
Warning signs. Similarly, employers were urged to train management to recognize the warning signs of an individual likely to commit workplace violence: controlling, paranoid, unable to get along with others, angry, vindictive, obsessed with power, litigious, having a victim mentality, lacking social skills.
It appears to be unknown to the public whether the shooter here manifested any of these warning signs. Nor did he appear to be on the radar of the FBI, for that matter.
Emotional health training. Commenting today on LinkedIn, Cindy Federico of Fisher & Phillips sums up employers’ feeling of impotence when she talks about addressing the root cause of this violence. She writes “anger is always a common thread when it comes to coworker violence. Employers are baffled at what to do next to prevent violence at workplaces. We’ve installed security cameras and extra locks; we’ve hired guards; we’ve established emergency protocols and procedures. None of these efforts attacks the root cause of the angry employee or customer.” She recommends, as a start, mandatory training on emotional health in the workplace.
Active shooter response. John Hyman, in his Ohio Employer’s Blog, and Michael Haberman, writing for the SHRM blog, take a different approach: Both provide practical pointers in how to deal with active shooter situations. Their tips suggest adding “active shooter” planning to the workplace Emergency Action Plan, even practicing how to respond, much like we practice fire or weather emergency drills.
None of these approaches alone, however, is enough. Each will fail in some respect. But what we can’t do, regardless of our politics or our perspectives, is to reject categorically any approach without a good-faith effort to understand its strengths and limitations. Demagoguery such as that evidenced after the San Bernardino shootings—pitting sincere calls for action against sincere calls for prayer, as if the two were somehow mutually exclusive—is simply unacceptable.
Own it. These are our workplaces. These are our people. Pay attention—real attention—to this very real threat, and pay attention—real attention—to each other. Make the workplace more secure. Make the workplace more human. You. Do it now. We’ve already run out of time.
Under the Bipartisan Budget Act of 2015 (BBA), signed into law by President Obama on November 2, 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.
Initial inflation adjustment. The Act provides that not later than July 1, 2016, and not later than January 15 of every subsequent year, every agency head must adjust civil penalties through interim final rulemaking. Interim final rules are to reflect a cost-of-living adjustment taking into account the percentage for each penalty by which the Consumer Price Index for the month of October 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of the penalty was established or adjusted under a provision of law other than under the Act. However, the amount of the increase may not exceed 150 percent of the amount of a penalty in effect on November 2, 2015. Adjustments must take effect not later than August 1, 2016.
Exception. Adjustments by less than this otherwise-required amount may be made only if an agency head, after publishing a notice of proposed rulemaking and providing an opportunity for comment, determines in a final rule that increasing the penalty will have a negative economic impact, or the social costs of increasing the penalty outweigh the benefits. The Director of the Office of Management and Budget must concur with the agency under this exception.
Agency heads, such as the Assistant Secretary of Labor for OSHA, Dr. David Michaels, have advocated for stiffer penalties for some time. Dr. Michaels stated last month before the Committee on Education and the Workforce, Subcommittee on Workforce Protections: “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.”
Facebook posts by employees and supervisors often take center stage in employment litigation. In recent cases, posts have been the subject of disputes over what constitutes protected NLRA activity, what is actionable as harassment, what is fair game in discovery, what constitutes protected speech under the First Amendment, and more. Consider the following.
NLRA-protected activity. The Second Circuit affirmed the NLRB’s conclusion that a restaurant violated the NLRA by firing nonunion employees who were caught venting on Facebook about having to pay extra taxes due to their employer’s alleged tax withholding mistakes. The comments did not lose protection just because they included obscenities that could be seen by customers (such as calling a manager an “asshole”). Such a ruling would result in the chilling of virtually all employee speech online, the appeals court noted, also affirming that the employer’s overbroad Internet/blogging policy barring “inappropriate discussions” violated the NLRA (Three D, LLC dba Triple Play Sports Bar and Grille v. NLRB).
In another dispute, an NLRB law judge found unlawful a convention center’s discharge of a banquet server for posting on Facebook cell phone pictures of employees on break and for the allegedly derogatory comments the pictures engendered. The ALJ found her conduct protected, although not concerted, and ordered her reinstatement with back pay. Although the employer argued the employee was fired for violating the company’s cell phone use policy as well, “the fact that one reason for a disciplinary action is lawful in no way diminishes the fact that the other reason was unlawful,” the ALJ said, noting the absence of evidence that the cell phone violation was the sole reason for her termination. The ALJ also found several work rules overbroad, including those on disloyalty, confidentiality, and discourteous conduct (Tinley Park Hotel and Convention Center, LLC).
Discriminatory enforcement of social media policies. A white male reporter fired for violating a Louisiana TV station’s social media policy after posting a comment on his Facebook page, in which he referred to a viewer by name, called him a moron, and stated that he was “damn tired of stupid people,” raised fact issues as to whether he was treated less favorably than two female reporters who also mocked viewers on Facebook and whether his comments actually violated the policy. His discrimination claims will go to trial (Redford v. KTBS, LLC).
In two female employees’ sex discrimination suit, a federal court in Florida refused to exclude from trial evidence that while the women were disciplined for Facebook comments about a former coworker, male employees were treated more leniently for worse conduct, including being arrested and using racial slurs at work. This, said the court, could demonstrate discriminatory animus against women (Bush v. Gulf Coast Electric Cooperative, Inc.).
Protected activity in retaliation claims. An older employee who had just received an outstanding performance review but was fired two days after posting complaints on Facebook that her workers’ comp claim was mishandled and that she felt she was being discriminated against because of her age, survived summary judgment on her age discrimination and retaliation claims. In particular, the court pointed to testimony by the decisionmaker that the employee’s Facebook posts played a role in the termination decision; she testified that the post created a “general feeling of hostility” (Brown v. Oakland County).
Actionable online harassment. An EMT who, while on leave as a result of a work-related injury, received a series of Facebook messages from an office computer that referenced her participation in a sexual harassment investigation, called her a “whore,” noted her mother’s frail health, and insulted her children, was not precluded from relying on the messages to support her gender- and retaliation-based hostile work environment claims, even though they occurred outside the workplace. A reasonable jury, said the court, could consider them in determining the cumulative effect of the incidents she purportedly endured after complaining about harassment (Maldonado-Catala v. Municipality of Naranjito).
The basis for defamation claims. A Swedish citizen on a J1 visa employed for less than seven months was awarded $18 million in damages based on her defamation and sexual harassment quid pro quo claims, which arose in part from the actions of a CEO who became angry after she rejected him and he found another man sleeping on her couch. After he threw her out of the apartment and terminated her, he began to post Facebook messages and photographs in which he “tagged” her, as well as her family and friends. Many of the pictures showed her face together with stock images of explicit pornography and drug use (Bouveng v. NYG Capital LLC dba New York Global Group).
Free speech by public employees. In some cases a public employee’s Facebook posts have been considered speech protected by the First Amendment, but that is not always the outcome. For example, a fire chief’s termination did not violate his First Amendment rights because he was not speaking on a matter of public concern when he warned his firefighter employees by email and Facebook posting that “we could potentially be out of a job” because the town was facing an insurance coverage crisis, held a federal district court in Ohio, dismissing his claim on summary judgment. He was speaking on a personal issue (Holbrook v. Dumas).
In another case, a court dismissed a myriad of constitutional and statutory claims brought by a national guardsman who was disciplined after he emailed an objection to a same-sex wedding at the military academy’s chapel and posted a disparaging rant about his commanding officer on his Facebook page. The court determined, among other things, that his speech was unprotected and that his Religious Freedom Restoration Act claim failed because he asserted only that his religious belief—rather than a religious action or practice—that same-sex marriage was a sin was substantially burdened. His religious belief did not become a protected religious exercise simply because he expressed it through speech (Wilson v. James).
The Third Circuit recently dealt with a case where students circulated on Facebook a teacher’s blog, which expressed hostility and disgust toward students. Even assuming the blog posts touched on matters of public concern, her “scornful” tone regarding her students, filled with “personal invective,” caused such a significant disruption that her employer’s interests outweighed the public interest in her speech and her termination did not run afoul of the First Amendment (Munroe v. Central Bucks School District).
Fair game in discovery. Facebook posts by employees, their supervisors, and other players in an employment law dispute are often found discoverable. In an ADA case by an employee who claimed her employer failed to accommodate her narcolepsy, a court held that she was entitled to have her attorney review the social media accounts and activities of her former supervisor as well as the HR official instrumental in the decision to terminate her. The court rejected the employer’s motion for a protective order in response to interrogatories—a request that mirrored the employer’s requests for her social media information. Her request for a protective order was denied because she had claimed emotional distress and her emotional state (expressed on Facebook) was relevant, as were the times she was obviously awake and online (Appler v. Mead Johnson and Co., LLC).
In another case in which a nurse claimed she was fired in violation of the ADEA, the employer’s motion to compel was granted with respect to the nurse’s social media posts concerning her lawsuit. The nurse’s protestations that she lacked computer sophistication and had experienced technical difficulties were not persuasive (O’Malley v. Naphcare, Inc.).
Other issues. Cases from earlier in the year involving Facebook and other social media can be found in an earlier blog by Employment Law Daily, Social media and employment law—are courts catching up? Those cases included additional issues of note, such as whether a class action notice can be sent out through Facebook and whether the identity of members in certain LinkedIn groups can be considered a trade secret. As the article suggests, this is a rapidly developing area of law and employers are well advised to obtain expert legal advice before adopting and enforcing social media policies.