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Top labor and employment developments in November 2017

December 9th, 2017  |  Published in Blog

By Lorene D. Park, J.D.

In case you missed Employment Law Daily’s in-depth coverage, here’s a brief recap of some of the key developments in the L&E community for November.

Sexual harassment takes center stage in media and in court

November saw a surge in press coverage of sexual harassment in the workplace, as the creator of the #MeToo campaign led a march in Los Angeles and prominent figures in the entertainment, technology, government, and the news media came under fire for sexual misconduct. Coworkers, fans, and others who heard the allegations for the first time expressed shock while also expressing support for victims of harassment who came forward. And in Washington D.C., lawmakers finally addressed what appears to be a long history of sexual harassment in Congress. The “Senate Anti-Harassment Training Resolution of 2017″ (S. Res. 330), which mandates sexual harassment training for U.S. senators, senate staff, and interns, passed on November 9 with unanimous consent. After that bipartisan effort, the House followed suit, passing a resolution (H. Res. 630) by voice vote on November 29, requiring all members and staff to complete mandatory anti-harassment and anti-discrimination training during each session of Congress.

Meanwhile, federal courts are addressing a full docket of sexual harassment cases, with November decisions addressing same-sex harassment, fabricated evidence, and more:

• In a sexual harassment suit by a Connecticut employee who claimed two coworkers viewed her changing clothes on a security camera and showed it to others, a federal court refused the employer’s bid for full access to her social media accounts, finding such a fishing expedition would constitute a “wholesale invasion” of her privacy. However, the employer was entitled to communications, including those through her social media accounts, that were relevant to her harassment and emotional distress claims (Marsteller v. Butterfield & Stamford, LLC).

• A youth aide at a residential facility in New York raised triable issues on her hostile work environment claim based on testimony that, during the 16 shifts she worked with a male administrator, he told her intimate details of his life, said she reminded him of a stripper because she “had the goods,” and otherwise behaved inappropriately. After she complained, he added to her workload and, when she asked how to do bed checks, he yelled and called her insubordinate (Kenney v. State of New York, Office of Children and Family Services).

• Dealing the harshest possible sanction to an employee who fabricated text messages and submitted them in the two-year litigation of her Title VII suit to bolster sexual harassment claims, a federal court in Oregon dismissed her suit with prejudice. The employer’s forensic computer expert examined a phone she produced and discovered many of the texts were in her “unsent” folder of drafts and were time-stamped a year after the alleged harassment, and she had “interspersed” bits of actual messages from the alleged harasser (Lee v. Trees, Inc.).

• A federal court in Nebraska concluded that allegations by a male railroad employee that a male coworker asked if he could “piss on demand,” touched his leg two days later, followed him into a restroom where he looked at him before leaving, and then stalked him as he walked to a parking garage were not enough to support a Title VII sexual harassment claim. The employer was awarded summary judgment (Mullanix v. Union Pacific Railroad Co.).

• The Fourth Circuit held that a teacher who was suspended, investigated, and issued a notice of termination (he was instead transferred) after a student complained of a sex-related remark and an investigator uncovered other inappropriate conduct could not establish a causal link between his discipline and his prior political activities, so his First Amendment retaliation claim failed (Penley v. McDowell County Board of Education).

Battles in litigation over Trump’s immigration, transgender policies

Though President Trump has faced a stream of criticism for a laundry list of missteps, in November federal courts mainly addressed procedural matters in lawsuits challenging the administration’s ban on transgender individuals in the military, the so-called travel ban, and the rescission of the Deferred Action for Childhood Arrivals (DACA) program.

Military ban. The Trump Administration lost another round in its battle in Doe 1 v. Trump to maintain a ban on transgender individuals serving in the U.S. military, when a federal court in the District of Columbia refused to stay its October 30 order preliminarily enjoining the controversial ban due to the likelihood that the plaintiffs would prevail on the merits of their Fifth Amendment equal protection challenge. The Administration presumably sought the stay while the government appeals the preliminary injunction.

On November 21, a federal court in Minnesota also preliminarily enjoined the ban in Stone v. Trump, granting a motion filed by the ACLU of Maryland and six transgender members of the armed forces who claimed the ban unconstitutionally singled out transgender individuals for discriminatory treatment based on uninformed speculation, stereotypes, moral disapproval, and a bare desire to harm this already vulnerable group.

And in Karnoski v. Trump, the State of Washington was granted its motion to intervene and join the plaintiffs in challenging the transgender ban in federal court there.

Travel ban. On November 28, a coalition of 16 State Attorneys General filed an amicus brief in the Supreme Court to oppose President Trump’s third “travel ban” and his administration’s application for the stay of a preliminary injunction halting enforcement of that ban. Filed in Trump v. Hawaii, the amicus brief urges the Justices to reject the Justice Department’s emergency stay application, which seeks a complete stay of the Hawaii district court’s preliminary injunction against the third travel ban.

The Administration’s November application followed the Ninth Circuit’s decision refusing to stay that portion of the district court’s injunction preventing the Administration’s implementation of the third ban against individuals from predominantly Muslim countries who have a bona fide relationship with a person or entity in the United States. The district court ruled that the third ban, like its predecessors, “plainly discriminates based on nationality” in violation of the Immigration and Naturalization Act. Version three suspended and limited indefinitely the entry into the U.S. of foreign nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

DACA policy. The President also faces challenges to his rescission of the deferred action program for undocumented immigrants who entered the U.S. as children. On November 3, Microsoft Corp. and the Trustees of Princeton University filed suit in the District of Columbia, claiming Trump’s decision to strip some 800,000 “Dreamers” of their protected status hurts employers and universities too, and that breaking assurances that DACA applicants’ information would not be shared with ICE violated the Administrative Procedure Act and Fifth Amendment. “Microsoft has invested significant resources in Dreamers, who serve in critical roles at the company,” according to the complaint. Microsoft and subsidiary LinkedIn employ at least 45 DACA recipients as software engineers, financial analysts, and in other positions.

On November 9, a federal court in New York pared down two lawsuits in New York (Vidal v. Duke and State of New York v. Trump) challenging the administration’s rescission of the DACA program, the failure to give adequate notice to DACA recipients of new deadlines, and the policy change on the use of DACA application information for immigration enforcement. The court granted in part the defendants’ motion to dismiss for lack of subject matter jurisdiction. The state plaintiffs lacked Article III standing on due process and equitable estoppel arguments concerning the information policy. None of the plaintiffs had standing to assert claims of inadequate notice.

Other Trump Administration news

Pay transparency. In addition to these challenges, the National Women’s Law Center (NWLC) and Labor Council for Latin American Advancement filed suit over the administration’s rollback of the revised EEO-1 report, which would have required companies with 100 or more employees to report how much they pay workers by race, gender, and ethnicity. According to the plaintiffs, this information is critical to rooting out discrimination and closing the wage gap.

Contraceptive coverage exemptions. The NWLC also filed a complaint in a federal court in Indiana, along with Americans United for Separation of Church and State, challenging the administration’s interim final rules that allow employers and universities to cite religious or moral objections in order to be exempt from providing contraceptive coverage.

Fiduciary rule delayed again. Also, the DOL extended, this time until July 1, 2019, the special Transition Period for the Fiduciary Rule’s Best Interest Contract Exemption and the Principal Transactions Exemption, and the applicability of certain amendments to Prohibited Transaction Exemption 84-24. The DOL said the extension gives it time to consider public comments. During the extended period, fiduciary advisers have a duty to give advice that adheres to “impartial conduct standards” under which advisers must adhere to a best interest standard when making investment recommendations, charge no more than reasonable compensation, and refrain from making misleading statements. The DOL also extended to July 1, 2019, a temporary non-enforcement policy and will not pursue claims against fiduciaries who work in good faith to comply.

Meanwhile, in federal appellate courts . . .

While there were no groundbreaking labor and employment decisions handed down by the High Court in November (just a decision explaining that Fed. R. App. P. 4(a)(5)(C)’s 30-day deadline for filing a notice of appeal is not jurisdictional and may be waived), there were a number of interesting decisions handed down in the circuit courts:

1st Cir.: No conflict of interest with insurer-provided attorney. Finding no conflict of interest to stop an insurer-selected attorney from defending an employer in an age discrimination suit, even though the employer’s own attorney would prosecute a counterclaim for embezzlement, the First Circuit concluded that both the insurer and the employer had an interest in a strong counterclaim. Moreover, there was no evidence the employer’s wishes in litigation strategy were being ignored, and there was nothing unworkable about having two attorneys representing the employer in the underlying litigation (Mount Vernon Fire Insurance Co. v. VisionAid, Inc.).

2d Cir.: No compensation for student intern. Though a social work student complained about the quality of her internship (“grunt work” such as filing and fetching food) and did not receive course credit or a tuition refund, the Second Circuit found that the Glatt v. Fox Searchlight factors weighed in favor of finding she was an intern, not entitled to compensation for a year-long internship. So long as the relationship had “the qualities of a bona fide internship providing educational or vocational benefits in a real world setting, the intern can be the primary beneficiary” even if her activities “provide direct benefit to the employer” (Sandler v. Benden).

4th Cir.: Disciplining union driver violated NLRA. The NLRB did not err in finding that an employer violated the NLRA by disciplining a senior delivery driver with a history of protected union activity shortly before his grievance hearings. In an unpublished decision, the Fourth Circuit refused to “second-guess” whether company officials or the driver and his union reps were more truthful. It also found that the driver did not forfeit the NLRA’s protections by using profanity in asserting his collectively bargained right (S. Freedman & Sons, Inc. v. NLRB).

4th Cir.: Managers using small cars to fill in for drivers get overtime. Though professional motor carriers are generally exempt from the FLSA’s overtime pay requirement, Congress in 2008 waived the Motor Carrier Act exemption for motor carrier employees whose work affects the safety of vehicles weighing 10,000 pounds or less. Because the plaintiffs regularly filled in for delivery drivers using their own small vehicles, they were protected by the 2008 waiver and were therefore entitled to overtime wages (Schilling v. Schmidt Baking Co., Inc.).

5th Cir.: Pre-shift wait time excluded from pay under Portal-to-Portal Act. The Portal-to-Portal Act precluded the pre-shift wait time of three employees working on an oil refinery expansion project from being compensable under the FLSA. The Fifth Circuit observed that the waiting itself was neither tied to nor necessary to the erection and dismantling of scaffolding—the work the employees performed—so the wait was not intrinsic to their principal activities and was not compensable (Bridges v. Empire Scaffold, LLC).

6th Cir.: Staffing agency’s in-house employees get OT for sales, not account management. For the first time addressing the FLSA’s administrative exemption in the staffing company employee context, a divided Sixth Circuit held that in-house staffing company employees fell within the exemption while they were in account manager positions involving the exercise of discretion and independent judgment (e.g., while matchmaking temps with clients). The court found triable issues, though, on whether the administrative exemption applied to the time they spent working as staff consultants, who have less discretion than managers. For example, consultants follow rigid guidelines but account managers independently write job descriptions based on client needs (Perry v. Randstad General Partners (US) LLC).

6th Cir.: Claims to lifetime retiree health benefits ended with expiration of CBA. Retirees of Honeywell who claimed their collective bargaining agreement included a promise to pay lifetime health insurance failed to sway the Sixth Circuit, which found that a general clause limiting the duration of the agreement applied to the employer’s promise to provide healthcare. Specifically, the language of the CBA unambiguously promised healthcare benefits until October 31, 2011—the date the CBA expired (Watkins v. Honeywell International Inc.).

7th Cir.: No en banc rehearing of EEOC claim AutoZone segregated workforce. The EEOC was denied an en banc rehearing of a decision holding that AutoZone did not violate Title VII when it transferred an African-American employee out of its “Hispanic” store because, allegedly, it was segregating by race. The appeals court panel had found that, because the transfer was “purely lateral,” with no reduction in pay or responsibilities, it was not an adverse action. The EEOC had urged that under 42 U.S.C 2000e-2(a)(2), an infrequently litigated provision, an employee is not required to prove his opportunities or status were adversely affected—it was enough that the employer segregated workers by race in a manner that would “tend to deprive any individual of employment opportunities.” The majority of active Seventh Circuit judges declined to reconsider the earlier holding. Three judges dissented from the denial of rehearing—contending the holding ran counter Supreme Court authority (EEOC v. AutoZone, Inc.).

9th Cir.: Minimum wage compliance based on workweek as a whole, not individual hour. On an issue of first impression in the Ninth Circuit, the court joined its sister circuits and held that the relevant unit for determining minimum wage compliance under the FLSA is the workweek as a whole, not the individual hour within the workweek. In this instance, Xerox properly used subsidy pay to ensure that its call center employees always received the appropriate minimum wage for the workweek (Douglas v. Xerox Business Services, LLC).

9th Cir.: Glassdoor must produce info on those who posted reviews of employer. The Ninth Circuit has affirmed the denial of Glassdoor, Inc.’s motion to quash a grand jury subpoena requiring it to disclose identifying information about eight users who posted on its website their anonymous reviews of their employer. Rejecting Glassdoor’s First Amendment challenge, the court found the company failed to allege, must less prove, that the government’s investigation of the employer for fraud was conducted in bad faith (United States v. GlassDoor, Inc.).

9th Cir.: FedEx pilot called to active duty improperly denied signing bonus. An Air Force reservist called to active duty days before he was to begin training as a wide-body pilot at FedEx was improperly denied the $17,700 signing bonus he would have earned had he not served. The Ninth Circuit held that FedEx was not allowed to use his failure to qualify as a wide-body pilot to justify paying him a lower bonus if that failure was due to his military service. Since his bonus was based on his job position, and FedEx had to reemploy him in the “job position that he would have attained with reasonable certainty” had he not been deployed, his service was a “substantial factor” in the failure to pay the higher signing bonus (Huhmann v. Federal Express Corp.).

And finally . . . some big settlements

Not content to risk an even more expensive outcome, employers facing high-stakes litigation often choose to settle, even if it means a big payout. November saw the following settlements:

• A federal court in North Carolina preliminarily approved a $45M deal to end long-running equal pay class action claiming Family Dollar Stores paid women store managers less than their male counterparts in violation of the Equal Pay Act and Title VII.

• First Bankers Trust Services agreed to pay $15.75M to resolve what the DOL claimed were ERISA violations of fiduciary duties with respect to three employee stock ownership plans.

• American Airlines and Envoy Air agreed to pay $9.8 million in stock, worth over $14 million if cashed in today, to settle a nationwide disability discrimination class action claiming they violated the ADA by denying reasonable accommodations and requiring employees to have no restrictions before they could return to work after medical leave, according to the EEOC.

• A federal court in Pennsylvania approved a $1.6M settlement to over 200 distributors who delivered Snyder of Hanover and Lance brands of snack products to stores in Tennessee and surrounding states. They claimed they were misclassified as independent contractors and denied overtime pay in violation of the FLSA and state law.

GAO report issues recommendations for improved OFCCP, EEOC enforcement in technology sector

November 30th, 2017  |  Published in Blog

Both the EEOC and the OFCCP have taken steps to enforce equal employment and affirmative action requirements in the technology sector, but weaknesses in their enforcement processes hamper the effectiveness of their efforts, a newly released report by the U.S. Government Accountability Office (GAO) concludes. Based on its findings, the GAO issued six recommendations, including that the EEOC develop a timeline to improve industry data collection and that the OFCCP take steps toward requiring more specific minority placement goals by contractors and assess key aspects of its audit selection approach. In response, the EEOC neither agreed nor disagreed with the GAO’s recommendation, and the OFCCP stated the need for regulatory change to alter placement goal requirements.

The 76-page report, dated November 16, 2017, but not publicly released until November 30, examines (1) trends in the gender, racial, and ethnic composition of the technology sector workforce; and (2) EEOC and OFCCP oversight of technology companies’ compliance with equal employment and affirmative action requirements. For the report, the GAO analyzed: (1) workforce data from the American Community Survey for 2005-2015; (2) EEO-1 Report forms for 2007-2015, the latest data available during the analysis period; and (3) OFCCP data on compliance evaluations for fiscal years 2011-2016. It also interviewed agency officials, researchers, and workforce, industry, and company representatives.

The GAO also posted a link to an accompanying podcast.

Tech sector trends. Jobs in the high paying technology sector are projected to grow in coming years, yet, female, Black, and Hispanic workers, comprised a smaller proportion of technology workers compared to their representation in the general workforce from 2005 through 2015, and have also been less represented among technology workers inside the technology sector than outside it. The report found that the estimated percentage of minority technology workers increased from 2005 to 2015, but the GAO found that no growth occurred for female and Black workers, whereas Asian and Hispanic workers made statistically significant increases. Further, female, Black, and Hispanic workers remain a smaller proportion of the technology workforce—mathematics, computing, and engineering occupations—compared to their representation in the general workforce. These groups have also been less represented among technology workers inside the technology sector than outside it. In contrast, Asian workers were more represented in these occupations than in the general workforce. Stakeholders and researchers that the GAO interviewed identified several factors that may have contributed to the lower representation of certain groups, such as fewer women and minorities graduating with technical degrees and company hiring and retention practices.

EEOC not sufficiently tracking complaints by industry. Although the EEOC has identified barriers to recruitment and hiring in the technology sector as a strategic priority, when the agency conducts investigations, it does not systematically record the type of industry, therefore limiting sector-related analyses to help focus its efforts. The EEOC’s database of charges and enforcement actions—the Integrated Mission System (IMS)—has a data field for the North American Industry Classification System (NAICS) industry code, the standard used by federal statistical agencies in classifying business establishments, but the GAO found that this data field is completed for only about half the entries in the system. The GAO noted that the EEOC has plans to determine how to add missing industry codes but has not set a timeframe to do this.

In terms of systemic cases, according to the EEOC, as of June 2017, the commission had 255 systemic cases pending since fiscal year 2011 involving technology companies (13 of these were initiated as commissioner charges and 8 were directed investigations involving age discrimination or pay parity issues).

EEOC charges may not accurately reflect rate of workers who perceive discrimination. Several EEOC officials interviewed by the GAO noted that technology workers may be initiating few complaints at the federal level due to factors such as fear of retaliation from employers or the availability of other employment or legal options. They also said that technology workers may generally have greater wealth and can afford to hire private attorneys to sue in state court rather than go through the EEOC. Moreover, they said that some states, including California, have stronger employment discrimination laws that allow for better remedies than federal laws, which could lead employees to file charges at the state level rather than with the EEOC.

In addition, the EEOC has acknowledged in a 2016 report that binding arbitration policies, which require individuals to submit their claims to private arbiters rather than courts, can also deter workers from bringing discrimination claims to the agency, leaving significant violations in entire segments of the workforce unreported. That report stated that an increasing number of arbitration policies have added bans on class actions that prevent individuals from joining together to challenge practices in any forum. The report concluded that the use of arbitration policies hinders the EEOC’s ability to detect and remedy potential systemic violations. Researchers report that the use of such clauses has grown and data on federal civil filings for civil rights employment cases reflect a marked reduction in the number of such filings.

Steps in addition to charge investigations. Aside from pursuing charges, the EEOC has taken some steps to address diversity in the technology sector including research and outreach efforts. In May 2016, citing the technology sector as a source for an increasing number of U.S. jobs, the EEOC released a report analyzing EEO-1 data on diversity in the technology sector in tandem with a commission meeting raising awareness on the topic.56 In addition, EEOC’s fiscal year 2017- 2021 Strategic Enforcement Plan identified barriers to hiring and recruiting in the technology sector as a strategic priority. The EEOC has also been involved in outreach efforts with the technology sector. For example, the EEOC Pacific Region described more than 15 in-person or webinar events since 2014 in collaboration with OFCCP and local organizations focused on diversity in the technology sector. The topics of these events included equity in pay and the activities of these two agencies in enforcing nondiscrimination laws. Finally, in fall 2016, the EEOC initiated an internal working group to identify practices to help improve gender and racial diversity in technology, but as of June 2017 had no progress to report.

OFCCP placement goals lack specificity. The OFCCP’s regulations may hinder its ability to enforce contractors’ compliance because these regulations direct contractors to set placement goals for all minorities as a group rather than for specific racial/ethnic groups, the GAO found. By not requiring contractors to disaggregate demographic data for the purpose of establishing placement goals, the OFCCP has limited assurance that these contractors are setting goals that will address potential underrepresentation in certain minority groups, the GAO concluded.

Audits. While evaluation of technology contractors occurs in the course of the OFCCP’s routine activities, it does not currently use type of industry as a selection factor, according to agency officials. Although the OFCCP plans to incorporate information on disparities by industry into its process for selecting establishments for compliance evaluations, it has not fully assessed its planned methods. Without such assessment, the agency may use a process that does not effectively identify the industries at greatest risk of potential noncompliance.

In addition, the OFCCP faces delays in its compliance review process, but it has not analyzed its closed evaluations to understand the causes of these delays and whether its processes need to be modified to reduce them.

Violation statistics. The GAO found that few (less than 1 percent) of the OFCCP’s 2,911 closed technology contractor evaluations from fiscal years 2011 through 2016 resulted in discrimination violations, though 13 percent resulted in other violations, such as recordkeeping violations and failure to establish an affirmative action program (AAP). Technology contractor evaluations that had discrimination violations resulted in back pay, salary adjustments, or other benefits totaling more than $4.5 million for 15,316 individuals (averaging about $300 per award) for fiscal years 2011 through 2016. The vast majority of discrimination violations were on the basis of gender or race/ethnicity rather than disability or veteran status.

Other steps. In terms of other steps to conduct oversight of the technology sector, OFCCP officials in the Pacific Region told the GAO that they are hiring compliance officers with legal training to be better able to address needs for reviews in the technology sector, such as responding to lawyers representing technology contractors. Officials in both the Pacific and Northeast regions work closely with statisticians and labor economists on their cases, an effort officials said has increased over the past few years. Moreover, the OFCCP has requested funding in its fiscal year 2018 congressional budget justification to establish centers in San Francisco and New York that would develop expertise to handle large, complex compliance evaluations in specific industries, including information technology.

FAAP participation. Furthermore, key aspects of the OFCCP’s approach to compliance reviews of contractors’ affirmative action efforts have not changed in over 50 years, even though changes have occurred in how workplaces are structured. The OFCCP has developed an alternative affirmative action program for multi-establishment contractors— its Functional Affirmative Action Program (FAAP)—but few contractors participate in this program. Because the agency has not evaluated the program, it does not have information to determine why there has not been greater uptake and whether it provides a more effective alternative to an establishment-based AAP.

Recommendations. The GAO’s first recommendation was that the EEOC Chair should develop a timeline to complete the planned effort to clean IMS data for a one-year period and add missing industry code data. The other five recommendations were that the OFCCP should:

(1) analyze internal process data from closed evaluations to better understand the cause of delays that occur during compliance evaluations and make changes accordingly.

(2) take steps toward requiring contractors to disaggregate demographic data for the purpose of setting placement goals in the AAP rather than setting a single goal for all minorities, incorporating any appropriate accommodation for company size. For example, OFCCP could provide guidance to contractors to include more specific goals in their AAP or assess the feasibility of amending their regulations to require them to do so.

(3) assess the quality of the methods it uses to incorporate consideration of disparities by industry into its process for selecting contractor establishments for compliance evaluation. It should use the results of this assessment in finalizing its procedures for identifying contractor establishments at greatest risk of noncompliance.

(4) evaluate the current approach used for identifying entities for compliance review and determine whether modifications are needed to reflect current workplace structures and locations or to ensure that subcontractors are included; and

(5) evaluate the agency’s Functional Affirmative Action Program to assess its usefulness as an effective alternative to an establishment-based program, and determine what improvements, if any, could be made to better encourage contractor participation.

Employer’s attempt to contractually shorten limitations period on FMLA claim fails

November 28th, 2017  |  Published in Blog

A contractual provision in an on-line job application which purported to provide for a six-month limitations period for any employment-related claims was unenforceable with respect to an employee’s FMLA claims, ruled a federal district court in Utah in Zisumbo v. Convergys Corp. Finding that the FMLA provides a right employees would not otherwise enjoy, the court concluded that a contractual provision purporting to limit the FMLA’s two-year limitations period impeded that right and therefore violated public policy.

Contractual limitations period. In 2012, the employee submitted an on-line application for employment. The application stated that the employee agreed that any employment-related claims must be brought no more than six months after the action arose, and waived any statute of limitations that was longer than six months. Ultimately, the employee was hired, but was fired just over a year later on June 28, 2013. During her employment, she had taken some medical leave before being fired. She subsequently received notice from the employer that her health insurance policy through the company had been retroactively cancelled months before her termination, leaving her responsible for various unpaid medical bills.

Subsequently, a collections agency sued the employee to collect on unpaid medical bills. Those claims were settled and the employee brought a third-party complaint asserting FMLA and ERISA claims against the employer.

The employee’s complaint was filed on June 25, 2014, just under a year after her termination. Thus, her claims were timely under the statutory limitations period for the FMLA (two years) and ERISA (six years), but untimely under the restricted six-month contractual limitations period. The question then was whether her employment application validly altered the statutory limitations period for any claims under the FMLA and ERISA. The parties filed cross-motions for summary judgment.

FMLA claims. With regard to her FMLA claim, the employee argued that the application’s provision purporting to limit the two-year FMLA statutory limitations period to six-months was unenforceable because it violated public policy. While the general rule is that parties may contract to limit the statutorily-prescribed time to bring a lawsuit, their ability to do so is limited in two ways: (1) there must be no “controlling statute to the contrary,” and (2) the shorter limitations period must otherwise be reasonable.

District courts that have addressed the issue of whether parties may contractually limit the FMLA’s two-year limitations period have split on the issue. At the heart of the split is whether limitations periods are more properly considered a right employees or a procedural protection afforded employers. The FMLA itself prohibits an employer from interfering with or restraining an employee’s rights under the FMLA (but says nothing of expanding procedural protections for employers.)

The majority view is that a contract shortening the statutory two-year limitations period impedes that right and therefore violates public policy. However, a minority of district courts have concluded that statutes of limitations are not “rights” given to employees but instead “more correctly exist for the protection of defendants,” so contractually restricting them does not implicate statutory and regulatory provisions prohibiting interference with or waiver of FMLA rights.

In Zisumbo, the district court observed that while the Tenth Circuit had not weighed in on the matter, it nevertheless concluded that the majority interpretation was the better argument—that is, that contractual provisions restricting the statutory FMLA limitations period violated public policy and was therefore unenforceable.

The court noted that the FMLA expressly prohibits an employer from interfering with or restraining an employee’s rights under the FMLA, including the right to bring a federal suit within two years of any violation. Here, the six-month limitations period in the employment application interfered with those rights, and consequently ran afoul of the proscription on interfering with rights under the FMLA. Accordingly, the application’s shortened limitations period was contrary to public policy, and not enforceable.

ERISA claims. With regard to the employee’s ERISA claim, the district court noted that ERISA has no analogous provision precluding an employer from contractually restricting the statutory limitations period. In fact, both the Supreme Court and the Tenth Circuit have recognized that parties may contractually limit the time to bring ERISA claims. Therefore, the court concluded that the contractual six-month limitations period did not violate public policy as applied to the employee’s ERISA claim.

Class Action Trends Report deep-dives into minimum wage claims

November 16th, 2017  |  Published in Blog

“Rare indeed is the employer that is unaware most employees must be paid at least an hourly wage that does not fall below a minimum rate set by law. Equally rare is the employer that, cognizant of this mandate, deliberately flouts it. More commonly, employers faced with the complexities of the state and federal laws governing wage payment commit inadvertent technical violations of the statute,” the attorneys of Jackson Lewis write in the Fall 2017 edition of the Jackson Lewis Class Action Trends Report.

In the second in a series of Trends reports focused on wage-and-hour class claims, attorneys in the firm’s Class Action and Complex Litigation Practice Group discuss those complexities, and offer guidance for avoiding common minimum wage “traps.”

As practice group Co-Leaders Will Anthony and Stephanie Adler-Paindiris note: “Knowledge and proactive compliance can spring these traps before your business becomes embroiled in a lawsuit or Department of Labor action.”

Check out our latest collaboration with  Jackson Lewis.

Florida city attorney Craig E. Leen slated for senior DOL post—OFCCP Director?

November 14th, 2017  |  Published in Blog

Various news sources are reporting that Coral Gables, Florida, city attorney Craig E. Leen will be the next OFCCP Director. The primary source of these reports appears to be a November 9, 2017, article in the Miami Herald, which reported that Leen was leaving his post as Coral Gables City Attorney “to take a senior position at the Labor Department under President Donald Trump.” In the article, Leen described his post as one “overseeing compliance rules for government contractors.”

Prior to taking over at the DOL, Secretary of Labor Acosta was the Dean of the Florida International University College of Law. According to Leen’s bio page on the City of Coral Cables website, Leen has taught as an adjunct professor at the Florida International University College of Law, where he has taught Local Government, Evidence, and Legal Skills and Values III. The Miami Herald article states that Leen said Acosta contacted him over the summer and requested he join him in Washington.

Mr. Leen received his Juris Doctor degree from Columbia Law School in 2000 and his Bachelor of Arts degree, cum laude, from Georgetown University in 1997, where he double majored in Government and Economics, and completed the Honors Program for the Department of Government. Leen, who is Board Certified by the Florida Bar in City, County, and Local Government Law, has also taught State & Local Government Law and Real Property & Government adjunct professor for the University of Miami School of Law.

Prior to his job as the Coral Gables City Attorney, Leen worked for the Miami-Dade County Attorney’s Office as an Assistant County Attorney, where he served as Chief of the Federal Litigation Section and previously as Chief of the Appeals Section. He has also worked in the private sector for firms including: Morgan, Lewis & Bockius, LLP (Miami), Skadden, Arps, Slate, Meagher & Flom, LLP (Boston), and Cleary, Gottlieb, Steen & Hamilton LLP (N.Y.). In addition, Leen served as a Law Clerk to the Honorable Robert E. Keeton, United States District Judge for the District of Massachusetts.

According to the Miami Herald, Leen’s wife, Ana, a child psychiatrist, has already moved to the Washington area, and they will be living there with their two children. The couple has been active in the Miami area promoting inclusion for people with autism.

Is Senate confirmation necessary? The Obama Administration eliminated the Department of Labor’s Employment Standards Administration (ESA) in November 2009 but maintained the four component agencies previously under the ESA umbrella – the OFCCP, the Wage and Hour Division, the Office of Labor Management Standards, and the Office of Workers’ Compensation Programs. Thus, the heads of the four sub-agencies currently have the authority to report directly to the Secretary of Labor. Whether this current structure will require Senate confirmation of the OFCCP Director is unclear.

As of press time, the Department of Labor has not responded to Employment Law Daily’s inquiry regarding these reports.

Airline discriminated against employee with HIV

November 7th, 2017  |  Published in Blog

A federal jury awarded $1.3 million, including $800,000 in punitive damages, after finding Delta Air Lines failed to accommodate an employee with HIV and then terminated him.

The employee’s Americans with Disabilities Act lawsuit alleged he was denied an accommodation provided for by federal law when he got ill when Delta’s medical insurance failed to provide timely medication, and was wrongfully terminated for the two days he was ill with a protected absence due to his disability.

According to the jury’s verdict, the employee was both denied an accommodation provided for by federal law when he got ill when Delta’s medical insurance failed to provide timely medication, and was wrongfully terminated for the two days he was ill with a protected absence due to his disability. The employee filed his lawsuit under the Americans with Disabilities Act.

The unanimous verdict, announced on October 20, came after an almost four-day trial in a federal district court in Nevada. Finding Delta’s actions were knowing and reckless, the jury awarded punitive damages. Back pay, front pay and legal fees have yet to be determined.

The employee was represented by Stone & Woodrow LLP of Charlottesville, Virginia, with Thatcher A. Stone and William T. Woodrow III as lead trial counsel and Nevada State Senator Richard Segerblom. In a press statement, Segerblom said the verdict was “likely to be the largest verdict for employment discrimination in Nevada history.”

Delta was represented by Scott Mahoney of the Las Vegas office of Fisher and Phillips and Kelly Giustina, a Delta lawyer.

ARB denies JPMorgan Chase’s request for interlocutory review of ALJ’s refusal to dismiss OFCCP claims of sex bias in pay practices

October 30th, 2017  |  Published in Blog

Concluding that there were no exceptional circumstances warranting mandamus or other means of interlocutory review, a DOL Administrative Review Board (ARB or Board) panel denied JPMorgan Chase & Co.’s petition for interlocutory review of an ALJ’s refusal to dismiss an action in which the OFCCP alleges that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts. The panel found that JPMorgan failed to establish any basis for departing from the Board’s general rule against accepting interlocutory appeals. (OFCCP v. JPMorgan Chase & Co, October 5, 2017, slip op)

Pay bias allegations. In January 2017, the OFCCP filed a complaint with the DOL’s Office of Administrative Law Judges (OALJ) alleging that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts (DOL ALJ Case No 2017-OFC-007). As the result of a compliance review, the OFCCP concluded that, since at least May 15, 2012, JPMorgan paid at least 93 females employed in Application Developer Lead II, Application Developer Lead V, Project Manager and Technology Director positions within its Investment Bank, Technology & Market Strategies unit, less than comparable men employed in these same positions. This compensation disparity remained after adjusting for differences in legitimate compensation-determining factors, the agency maintains in a January 18, 2017 press release announcing the suit.

The OFCCP also claims that JPMorgan failed to evaluate the compensation systems applicable to these employees and that the bank had an “insufficient affirmative action plan” in that it failed to perform the type of in-depth analysis of its employment practices required by Executive Order (EO) 11246 and its implementing regulations.

The ALJ denied JPMorgan’s motion to dismiss the administrative complaint for failure to state a claim, rejecting the bank’s assertion that the plausibility standard for stating a claim under Fed. R. Civ. P. 8 as set forth in the U.S. Supreme Court’s rulings in Ashcroft v. Iqbal (2009) and Bell Atlantic Corp. v. Twombly, (2007) (Iqbal/Twombly)applies to OFCCP administrative complaints and was not satisfied by the complaint in this case. In addition, the ALJ denied JPMorgan’s motion for reconsideration as well as  its subsequent request to certify the issue for interlocutory review by the ARB as provided by 28 U.S.C. § 1292(b). Nevertheless, JPMorgan filed a petition for interlocutory review with the ARB.

Regulatory mechanism for interlocutory review lacking. As a preliminary matter, the ARB panel found that the OFCCP’s regulations at 41 C.F.R. Part 60-30 (“Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity under Executive Order 11246”), and the cases interpreting them (including the Seventh Circuit’s 1978 ruling in Uniroyal, Inc. v. Marshall and the Secretary’s subsequent ruling in U.S. Department of the Treasury v. Harris Trust & Savings Bank, OALJ No. 1978-OFCCP-002, May 10, 1979), do not provide a mechanism for interlocutory review in EO 11246 administrative proceedings. The regulations in two separate locations41 C.F.R. § 60-30.19(b) and 41 C.F.R. § 60-30.28—provide for the filing of exceptions with the ARB, but only after receipt of the ALJ’s recommended decision.

However, the ARB panel explained that the Secretary of Labor has delegated to the Board, via Secretary’s Order No. 02-2012 § 5(c)(13), the authority to issue final agency decisions upon appeals of decisions of DOL ALJs in cases arising under EO 11246. That order explicitly provides that the ARB may accept interlocutory appeals in “exceptional” circumstances, but it is not their general practice to accept petitions for review of non-final dispositions issued by an ALJ. The Secretary of Labor and the Board have held many times that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals, the ARB panel here noted. Importantly, the Secretary of Labor noted in the 1993 ruling in OFCCP v. Honeywell, Inc. (OALJ No. 1977-OFCCP-003; June 2, 1993) that the Secretary has never reconciled the language of the regulations with Secretary’s Order No. 02-2012, the ARB panel pointed out.

“Exceptional circumstances” also lacking. Therefore, the ARB assessed whether there were any “exceptional circumstances” warranting interlocutory review under its delegated authority. When a party seeks interlocutory review of an ALJ’s non-final order, the ARB has generally followed one or more of three different approaches for determining what might constitute “exceptional circumstances.”  Here, the court analyzed the three most common approaches, as well a fourth approach advanced by JPMorgan—a writ of mandamus.

The first approach is contained in the interlocutory review procedures at 28 U.S.C. Section 1292(b), which provides for certification of issues involving a controlling question of law as to which there is substantial ground for difference of opinion, an immediate appeal of which would materially advance the ultimate termination of the litigation. But the bank conceded that because the ALJ’s order denying its motion to certify the question of law it raised (failure to state a claim) was not the type of interlocutory order from which an appeal may not be taken pursuant to Section 1292(b).

JPMorgan did not address or argue as to the second approach, consideration of an interlocutory order meeting the ‘collateral order’ exception to finality that the Supreme Court recognized in Cohen v. Beneficial Indus. Loan Corp. (1949). The ARB assumed the bank did not advance this approach because the ALJ’s denial of its motion to dismiss does not involve a collateral order given that the order at issue here was plainly is not separate from the merits.

The third approach was derived from the Secretary of Labor’s ruling in Honeywell, Inc., where the Secretary accepted and ruled on an interlocutory appeal in an EO 11246 case because that unusual case involved many threshold procedural and substantive issues of interpretation of EO 11246 and the parties did not object to the Secretary’s review of the ALJ’s order as an interlocutory appeal. The ARB panel also noted that the Secretary reviewed the interlocutory appeal in Honeywell because it involved threshold legal issues the resolution of which would encourage the parties to engage in voluntary mediation. That was not the case here, the ARB panel stated, noting further that the OFCCP does object to this interlocutory appeal.

Turning to the approach advanced by JPMorgan, the ARB panel first noted that the Secretary’s Order (cited above) delegating authority to the ARB to issue final agency decisions in cases arising under EO 112463 does not specifically delegate mandamus authority to the Board, and the ARB has thus far declined to decide the issue or recognize such authority.

Mandamus authority, even if available, not warranted. Even if mandamus authority were available, the ARB panel found that JPMorgan failed to demonstrate that such review was warranted here. The bank had not demonstrated that the circumstances existed in this case to satisfy the criteria set forth in the U.S. Supreme Court’s 2004 ruling in Cheney v. U.S. District Court for the District of Columbia to warrant interlocutory review through a writ of mandamus. In Cheney, the High Court held that the party seeking such review must meet three criteria: (1) it must have no other adequate means to attain the desired relief,  (2) it must show that its right to issuance of the writ is “‘clear and indisputable,’” and (3) the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Since the ALJ denied JPMorgan’s request to certify the issue for interlocutory review, the third criteria was not applicable here. As to the first criteria, although the bank asserted that there is no alternative means to address the ALJ’s denial of its motion to dismiss for a failure to state a claim given that an appeal after discovery and an adjudication on the merits would be futile, it is not uncommon for courts to deny interlocutory review of motions to dismiss, the ARB observed. Second, JPMorgan failed to show that it has a “clear and indisputable” right to issuance of the writ. The ALJ’s rationale in denying the bank’s motion to dismissthat the regulations at 41 C.F.R. § 60-30.5(b) provide an applicable pleading standard for OFCCP complaints filed pursuant to EO 11246was a reasonable interpretation, the ARB panel found. [Wolters Kluwer note: the standard at 41 C.F.R. § 60-30.5(b) is comparable to the “fair notice” standard for pleading in civil rights sanctioned by the U.S. Supreme Court in its 2002 ruling in Swierkiewicz v Sorema NA].

Accordingly, the ARB panel denied JPMorgan’s petition for interlocutory review remanded the case back to the ALJ for further proceedings.

The green-eyed monster at work: when does jealousy become unlawful discrimination?

October 25th, 2017  |  Published in Blog

By Lorene D. Park, J.D.

What happens when a good employee, through no fault of her own, is fired because her boss’s jealous wife doesn’t want him working with her? Is that sex discrimination? The answer is that it depends on whether the jealousy is really because of gender. Arguably, the only reason for the jealousy is because of the potential for a romantic relationship due to the employee’s status as a member of the opposite sex, but courts don’t necessarily see it this way. In some cases, it simply depends on whether it was the employee in particular who was the focus of the jealousy (due to a friendship or other consensual relationship) or whether all individuals of the same gender would have also been targeted. To those courts, only the latter case would be unlawful discrimination.

Wife jealous of all women. For example, in an October 2, 2017 decision, a federal court in Pennsylvania refused to dismiss Title VII and state law claims by a trucking company’s female service operations manager who was treated differently than male colleagues and fired because the company president’s wife did not want him working with women. The president had avoided eye contact and excluded the plaintiff from meetings and directed her subordinates to relay important information to her. She was also told that she was no longer allowed to go into the president’s office or to address him directly in the workplace, including by email.

The employer claimed it could lawfully fire an employee due to spousal jealousy, but the court was unconvinced. It noted that neither the Third Circuit nor the U.S. Supreme Court have spoken directly on this issue, but other courts that have found spousal jealousy to be a lawful reason for firing have done so “only where the spouse was jealous of a particular individual, not where the spouse was jealous of an entire sex.” With this in mind, the court concluded that jealousy is not a lawful explanation for an adverse employment action if it encompasses the entire gender, as appeared to be the case here (Sztroin v. PennWest Industrial Truck, LLC).

Based on relationship or gender? This is not the only court that has appeared to distinguish between an employment decision based on a personal relationship (e.g., jealous of a particular individual) and a decision truly based on gender. For example, in an older case out of Iowa, a long-time dental hygienist developed a friendship with the dentist, who she considered to be a father figure, and they would exchange texts after hours (mostly about their kids). However, there was some indication that he was attracted to her (he complained to her that her clothing was too tight and “distracting”) and after his wife became jealous, the hygienist was fired. Affirming summary judgment against her sex discrimination claim, the state’s highest court concluded that it was not unlawful gender discrimination to fire the hygienist because the wife “unfairly or not, viewed her as a threat to her marriage.” The court noted that the employee was replaced by a female and that all of the dentist’s assistants were female, only the plaintiff was the subject of the wife’s jealousy (Nelson v. James H. Knight DDS ).

Sexual attraction to “cute” employee is gender based. In other cases, courts have found that jealousy directed at a particular individual is gender-based when it involves sexual attraction. For example, a New York appeals court held that firing an employee due to jealousy by the boss’s wife could be actionable under state and city law. The husband and wife owned a chiropractic and wellness company and the plaintiff was a yoga and massage therapist. Though the boss praised her performance and she claimed their relationship was “purely professional,” he also allegedly told her that his wife might become jealous because she was “too cute.” About four months later, the wife sent the plaintiff a text message in the middle of the night stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Later that morning, she received an email from the husband stating that she was fired.

Reversing the dismissal of her sex discrimination claim, the state appeals court found that she alleged facts from which it could be inferred that the husband and wife were motivated to fire her by the wife’s jealousy and belief that her husband was sexually attracted to the plaintiff. This was related to gender, noted the court, and “a discharge is actionable if the spouse urged the discharge for unlawful, gender-related reasons” (Edwards v. Nicolai).

But for her status as a woman . . . It’s hard not to compare these jealousy cases to other contexts, in which courts must decide if an atypical fact pattern involves discrimination “because of” gender. In one recent case, an employee’s supervisor, who was also the CEO’s mother, repeatedly pressured the employee to marry the CEO and became angry when she married someone else. Thereafter, she criticized the employee’s performance and spread rumors about her. Based on this, a reasonable jury could find that, “but for her status as a woman,” the employee would not have been subjected to the offensive conduct, ruled a federal court in Maryland, denying the employer’s motion for summary judgment (Allen v. TV One, LLC).

Had the courts in the jealousy cases applied the same reasoning, the results of some might have been different. But for the female employees’ status as women, their bosses’ wives would not have been jealous and they would not have been fired, right? Food for thought.

So when is jealousy-based decisionmaking unlawful? For now, and depending on the jurisdiction of course, courts are more likely to find that adverse actions prompted by jealous decisionmakers or spouses constitute unlawful sex discrimination if the jealousy is directed at an entire gender. They are also more likely to find discrimination if there is evidence of sexual attraction, even if there are no allegations of sexual harassment or quid pro quo demands.

The heartbreaking sadness of sexual harassment

October 18th, 2017  |  Published in Blog

By Joy P. Waltemath, J.D.

Amazon Studios executive Roy Price. Harvey Weinstein. Before that Bill O’Reilly. Roger Ailes. The news is all about sexual harassment allegations in tech, in Hollywood, among the movers and shakers in this world. #MeToo (a hashtag for women who have been sexually harassed or assaulted) currently is trending on Twitter (although I’ve read that as a movement, it’s been around for about a decade). Sexual harassment is again getting its 15 minutes of fame; it’s not the first time.

I last blogged about sexual harassment in April, back when the Bill O’Reilly allegations were receiving significant media attention. But what I’ve been thinking about lately is not the viral outrage, nor the media attention, that is currently on display, but instead a small, sad case that involved two women working at a hotel in a central Florida city not known for tourism.

One woman was Filipino; she worked in housekeeping. The other was white; she worked the hotel’s breakfast bar. Both were hired and ultimately fired by the hotel’s general manager, who also held an ownership interest in the business. The reason I mention the race/national origin of these women is that the general manager, an Indian male, apparently believed it was important.

The housekeeper. The women’s sexual harassment allegations withstood a motion for summary judgment filed by the company that owned and ran the hotel. According to her testimony, throughout the Filipino worker’s three years of employment, the general manager allegedly threatened her with the loss of her job, her family, and her husband—and with being sent back to the Philippines—if she did not give him oral sex and have sexual intercourse with him. Since she was Filipino, the general manager allegedly said she should be forced to have sex with Indian men, whom he claimed were “superior.” She said she was afraid of him physically and because of his position; he said if she reported him, she would be in “big trouble” because he was the “big boss,” powerful, and he could do anything he wanted, including preventing her from finding another job. She gave in to his increasing demands, including forced sex with the general manager and another man, because she said she could not risk losing her job.

The breakfast bar worker. After the breakfast bar worker was hired (two years after the housekeeper was hired), the general manager allegedly forced the two women to engage in group sex with him. He repeatedly told the breakfast bar worker that because she was local “white trash,” she should give him oral sex or have intercourse with him, she testified. If she did not, he threatened her with termination, but if she gave in, he rewarded her with extra hours. He allegedly told her that white women were lazy, stupid, and garbage, that his Indian investors would dominate the “white trash” who lived in their town, that she was white trash and only good for providing sex to powerful men like him, and that he could do what he wanted because he had power and money. She was afraid to tell anyone about the general manager’s behavior because she said she needed to keep her job, and he told her she would never work again if she complained.

But once there were two of them … The housekeeper testified that once she knew that the breakfast bar worker, who was also being sexually abused, was a witness to the general manager’s behavior, she felt more powerful. As a result, she then refused his demand for sex; he yelled at her and she slapped his face; he fired her. And as the general manager’s alleged demands for sex with the breakfast bar worker increased (he demanded that she have sex with “him and his friends” and also demanded anal sex), she too refused, telling him that what he was doing was illegal. He fired her too. Both women, in fact, alleged that they were fired after refusing oral sex.

They lost their jobs anyway. Notably, by the time the hotel’s summary judgment motion was heard, the general manager had settled with the women and was no longer part of the litigation. The hotel’s defense was to claim that Faragher/Ellerth affirmative defense applied, but the court said no. There were obviously tangible employment actions here—both women were fired—which meant the defense didn’t apply. Plus, it looked to the court like there was substantial record evidence that the general manager acted as an “alter ego” of the hotel, holding a high-level position as an owner and general manager, to render the hotel strictly liable for his behavior.

Were their objections enough? The women’s retaliation claims were straightforward; they said once they refused oral sex, they each got fired—as the general manager had threatened. The hotel argued that it was entitled to summary judgment anyway because their rejection of the general manager’s sexual advances was not “protected activity” under Title VII. And, while there is a circuit split as to whether someone who rejects a supervisor’s sexual advances actually has engaged in protected activity (the Eleventh Circuit has yet to weigh in), the court here agreed with the Sixth Circuit’s reasoning in EEOC v. New Breed Logistics that if an employee demands that her supervisor stop engaging in unlawful harassment by resisting or confronting the supervisor’s unlawful harassment, “the opposition clause’s broad language confers protection to this conduct.”

Think about this. This case is a reminder that sexual harassment is about power. These women believed that they had so few options, so little relative power, that they needed to submit to sex with their boss to keep their jobs as a housekeeper and a breakfast bar worker. Not their jobs at a television network. Not to get good work in Hollywood. Not to have a career in Silicon Valley. Not to work in BigLaw.

Have you ever been that powerless? Can you even imagine what your world would be like if this were your best option?

I worry sometimes that the Tinseltown trappings or high-profile defendants featured in what seem like ever-breaking “big name” sexual harassment allegations allow us to distance ourselves from the heartbreaking sadness of forced sexual encounters in vacant hotel rooms faced by these otherwise invisible women. When I think about sexual harassment, I want also to remember them.

The case is Charest v. Sunny-Aakash, LLC (M.D. Fla., September 20, 2017).

Off-duty police sergeant’s assault of woman at bar justified termination

October 12th, 2017  |  Published in Blog

One night, a 12-year, off-duty police sergeant was arrested and charged with third and fifth degree assault of a female following an evening of drinking at a bar. He was arrested after three witnesses identified him as the assailant. The victim suffered bruises, cuts, and abrasions. An employer investigation concluded that he was at fault, and the employer terminated him. He filed a grievance.

Subsequently, the sergeant was tried on the assault charges in criminal court, and he was acquitted. His successful defense had been based on the theory that his sister was the actual assailant. His acquittal in criminal court raised the question: Did the acquittal negate the employer’s conclusion that he was responsible for the assault? As a result, was he entitled to reinstatement following acquittal?

The arbitrator began by noting that arbitrations and criminal cases operate under different standards of proof. In the criminal trial, the standard of proof was beyond a reasonable doubt. In an arbitration involving termination, however, the standard of proof was clear and convincing evidence. The two standards, the arbitrator said, are not the same, although they are often equated.

The arbitrator, therefore, undertook his own analysis of whether the evidence established clear and convincing proof that the sergeant committed the assault. Direct evidence, which was unrebutted, implicated the officer. The sister testified, on the other hand, that she did not know how the woman received her injuries. The arbitrator characterized testimony from others supporting the officer as inconsistent and unreliable. As a result, the arbitrator concluded that this was an arbitration in which the facts established clear and convincing evidence of guilt, even if they did not establish proof beyond a reasonable doubt of criminal conduct. The arbitrator, therefore, was not bound by the acquittal, and he ruled that the employer had just cause to terminate. State of Minnesota Department of Corrections MCF-Rush City and AFSCME Council 5. July 15, 2017. A. Ray McCoy.