Legal Blog

Labor & Employment Telebrief – 12.9.13

To listen to the Telebrief click on play arrow. By Howard K. Kurman, Esquire An Edited Transcript. Issues discussed:

  1. DOL’s announces its intention to publish in November its final rule on “the advice exception”
  2. EEOC’s strategic action plan (as outlined at Denver convention of National Employment Lawyers Association
  3. Two recent federal cases involving termination due to intoxication – takeaways on when such termination is admissible under EEOC rules (NY and Arkansas)

DOL’s announces its intention to publish in November its final rule on “the advice exception”

Welcome, and hope everybody’s having a good summer. We’ll start off by mentioning that the Department of Labor put out yesterday, which was an announcement that come November it intends to publish its final rule on what they would call “the advice exception.” And, the advice exception has to do with those companies that primarily are involved in union organization attempts where they seek the advice and counsel of attorneys. And, for many years, the law and the Department of Labor basically indicated that unless somebody actually met precisely head to head with employees, there was no need for financial reporting by either the employer, company or the law firm that was rendering advice. In following the Obama administration’s pro-union anti-employer bias, as far back as 2011, the Department of Labor put out an intended rule, which would indicate that any consultant that provides any kind of advice in a union organization campaign intended to help the employer deal or persuade its employees in a union campaign would have to report such activities. There will be detailed financial reporting on both the company and on the law firm’s part, which, of course, has been very controversial and probably will be litigated to the nth degree. Anyway, yesterday the Department of Labor indicated that come November it intends to publish its final rule on this, which I’m sure will be a continuation of its position that those consultants, either labor relations consultants or law firms, that render advice without even meeting with a company or employer’s employees still has to report in a very detailed manner what those activities cost the company, the company will have to cross report, and you can see where the potential abuses lie both in terms of a potential violation of attorney-client privilege as well as onerous reporting requirements. Employer associations have been up in arms about this. The American Bar Association sent the Department of Labor a scathing letter having to do with its intent to promulgate and enforce this rule. Nevertheless, the Department of Labor is going forward, and, again, in keeping with what I’ve been mentioning for the last year to everybody on these telebriefs, which is that the agencies primarily concerned with workplace enforcement, whether it’s the DOL, whether it’s the EEOC, whether it’s OSHA, the NORB, are vigorously pro-employee and anti-employer. So, I will keep you up to date how that rule proceeds but I’m sure it will be litigated quite intensively by employer groups.

EEOC at National Employment Lawyers Association – Six Enforcement Priorities (Commissioner Yang)

Turning our attention to the EEOC, just last week, the five commissioners of the Equal Employment Opportunity Commission spoke and met with the convention which was held in Denver, Colorado, by the National Employment Lawyers Association, which is an association of plaintiff lawyers, those lawyers that represent employees. They don’t represent companies, they represent employees, and this is just an association. And, so, the EEOC appeared at this convention, and I think that there were several interesting things of practical value that came out of these statements and this convention. First, the Equal Employment Opportunity Commission officials basically reminded these NELA attorneys, that the EEOC needed continued support from the private sector attorneys, which I find to be kind of an unusual request from an agency that is supposed to be objective and unbiased. Nevertheless, now that the Equal Employment Opportunity Commission is up to full speed, it now has five commissioners. That’s what is established under the law. So, one of the commissioners spoke at this convention. Her name is Jenny Yang, Y-A-N-G, and she said that it was important for the EEOC to complement the plaintiff’s bar by stepping up its enforcement efforts in areas in which she said the path of private enforcement may be blocked. Those of you who follow the Supreme Court know that the Supreme Court has narrowed to a great extent the ability to bring class actions under various statutes; however, the EEOC can bring pattern or practice cases, and she indicated that that’s what the EEOC intends to do, which is certainly not good news for employers. She also noted that the Equal Employment Opportunity Commission was working hard to implement its recently approved strategic enforcement plan. Those of you who have participated in these telebriefs know that I’ve spoken about, in the past, the Equal Employment Opportunity Commission’s strategic enforcement plan. But, Ms. Yang reiterated that there were six national enforcement priorities under this strategic enforcement plan, all of which have practical import for you all. One is eliminating barriers in recruitment and hiring, so that these examples, according to her, would be such as asking for date of birth on a job application as a way of screening out older workers, performing credit, arrest, and other background checks as a way of screening out African-American workers, and use of what she called other exclusionary policies or practices including steering a particular class of workers into specific types of jobs. So, as I’ve indicated to you before, the EEOC as part of this strategic enforcement plan will be looking at your hiring practices to see whether or not they establish any kind of barriers to entry or barriers to employment. The second aspect that she mentioned was protecting immigrant, migrant, and other what she called vulnerable workers with regard to disparate pay, job segregation, workplace harassment, and human trafficking. Vulnerable workers she said are those employees who do not know their rights or who are reluctant or unable to exercise the rights because of immigration or other issues. The third part of the strategic enforcement plan that she mentioned was, and this is an interesting one, addressing emerging and developing issues that necessarily may change over the course of time. So, she said the EEOC currently is focused on three emerging developing areas. One is coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat issues under the ADA, the Americans with Disabilities Act, so that we know that according to the EEOC all these issues that are frequently coming up now under the ADA are front and center on their radar screen. Another developing issue that they’re paying attention to is the intersection of the ADA Amendments Act and Pregnancy Discrimination Act with regard to accommodation of pregnancy related limitations. And, the last piece of emerging or developing issues that they’re going to be paying attention to is the coverage of lesbian, gay, bisexual, and transgender workers under Title 7. So, we know that as the Supreme Court struck down the Defense of Marriage Act we know that this is simply a second step really in affording these groups of people protection at least under the EEOC’s vision of Title 7. The fourth aspect that she mentioned as part of the strategic plan was enforcing equal pay laws. And, what she mentioned here was including the targeting of compensation systems and practices that discriminate based on sex through direct investigations, commissioner charges, and other enforcement vehicles. So, those of you who have been audited by the OFCCP can expect similar audits from the EEOC with regard to your overall comp systems. The fifth aspect that is part of the strategic enforcement plan is what she called preserving access to the legal system including the targeting of employer policies and practices such as overly broad waivers and onerous settlement terms that discourage or prohibit individuals from exercising their EEO rights or that impede EEOC’s investigative and enforcement efforts. Again, this seems to me to be pretty onerous from the standpoint of an employer. It’s almost akin to the NORB looking at handbooks under a microscope. Here you have the EEOC signaling that it may very well be looking at settlement agreements or severance agreements that you may have with employees under a microscope to assess whether or not they contain what the EEOC would envision are onerous terms. And, the last part of the systemic investigation or strategic enforcement plan is what she characterized as preventing harassment through systemic enforcement and targeted outreach. One of the commissioners noted that the EEOC remains frustrated with employers’ continued failure to get the message about workplace harassment and that the agency believes targeted outreach to educate employers and employees combined with systemic enforcement will help deter future violations. As she characterized it, sort of a characteristic approach. This last one I think is also reflective of what I’ve said to you before, which is that it’s very critical that employers on a regular basis train their managers and supervisors and rank-and-file employees on workplace harassment principles and workplace harassment issues. I think that it is only in this way can you assure that you can credibly claim that everybody in the workplace knows what the policy procedure is, how it works, and what should be done if there is ever a complaint of harassment. So, this all came out of the commissioners attending this pro-employee plaintiffs bar meeting in Denver, and I think that it just portends many things that the EEOC will have high on its radar screen. And, from a practical standpoint, you all need to make sure that your pay systems and that your harassment policies are audited on a regular basis and that there is significant training for your employees and for your managers and supervisors.

EEOC v. Retail Store (harassment of employee by outside customer)

The issue: I wanted to mention an interesting case that came out of a federal district court in Oregon. This was just decided two weeks ago in a case that the Equal Employment Opportunity Commission brought against a retail store, and the interesting thing here was there were several employees who alleged that they had been sexually harassed by an outside customer. And, so, typically, we think of harassment as it occurs in being done or perpetrated by an employee or by a member of management. But, keep in mind, those of you who have customers that come into your place of business or vendors, that if sexual harassment is committed by an outside third party where the company knew or should have known that this was going on and did not remediate the situation can subject the employer to liability under Title 7. And, that’s precisely the case that happened here in Oregon. Although this case was not decided on the merits, it’s still procedurally at summary judgment level, it’s clear that the court was indicating that even though some of the incidents and some of the alleged acts on the part of the outside customer were relatively minor in nature, cumulatively taken together they indicate that you can create a pervasive atmosphere and a hostile atmosphere when the cumulative effects of even relatively minor acts create a hostile work environment. The second part of this case, which I also think is instructive, had to do with one of the employees who complained about the alleged act of harassment, who actually executed a settlement agreement and a waiver of claims, and the EEOC attacked the waiver on the basis that it did not satisfy the requirements under Title 7 for waivers of actions that would be deemed to be effective by a court. The court discussed the requirements of Title 7 and waivers under Title 7 and basically stated as follows: ‘To constitute a waiver, the release of claims must be voluntary, deliberate, and informed,’ and that the determination of whether a waiver of Title 7 claims was voluntary, deliberate and informed is really predicated by the court’s analysis of a number of factors:

  1. One is whether the release was voluntary and that in turn depends on what the court viewed as objective and subjective factors.
  2. Two was whether or not there was clarity and a lack of ambiguity in the agreement. In this case, the employer’s agreement stated that the employee was waiving rights under Title 7 but, according to the court, didn’t explain what Title 7 was.
  3. And that enters into the next factor, which is the plaintiff’s education and business experience. Here, this was a high school graduate who did not have the benefit of legal advice and wasn’t really given the benefit of legal advice in the agreement.
  4. Fourthly, whether there was a non-coercive atmosphere surrounding the execution in the agreement.
  5. And, last, whether the employee had the benefit of legal counsel. Essentially, you want to make sure that if you’re entering into settlement agreements with your employees, whether they’ve been laid off or whether they’ve been terminated and you enter into settlement agreements, obviously you want to make sure that that’s not the product of any duress or coercion. You want to write it in as clear English as you can without undue legalese, recognizing that obviously many of these are done by your attorneys. But, when I do them, I try and make sure that they would comport with what the Equal Employment Opportunity Commission desires in terms of it passing muster. So, you certainly want to indicate to employees that they have the right to consult with an attorney if they so choose, to explain that they’re waiving acts of, for instance, sexual harassment or discrimination, under Title 7, so rather than just saying Title 7, which some employees may not understand, you know, you go further and you provide some details for the employee so that the employee cannot claim that he or she really didn’t know what that person was signing. So, a word to the wise, if you’re simply using pro forma settlement agreements without really taking a good look at them, make sure that you take a good look at them and look at them from sort of a skeptical standpoint of the Equal Employment Opportunity Commission. And, as I just told you, as part of their strategic enforcement plan, they’re going to be putting some of these under a microscope to see whether they were truly voluntarily negotiated or whether they were imposed upon the employee without any kind of freedom or “voluntariness” on the part of the employee.

Second Circuit- NY Fed. Court

The Scenario: I also wanted to bring to your attention a case that was just decided by the Second Circuit. The Second Circuit includes New York Federal Court. This was decided June 19, 2013. Kind of an interesting case. In this case, an employee who was working for the county was found to have been guilty of on-duty intoxication, and it wasn’t the first time that she was so found to have been guilty of this unfitness and intoxication while on the job, and she had not been fired before. She was fired, and she claimed that the county had failed to accommodate her disability under the ADA, the disability being alcoholism. And, actually, the county went further. They suspended her, and they had her evaluated as to whether or not there would be any reasonable expectation that she again would be intoxicated on the job or that she posed a serious risk of relapse. In the report of the physician to whom this employee was assigned, and she was a cashier in a hospital cafeteria, he said that he ultimately recommended, this was the physician, that the employee not be immediately returned to work because her likelihood of imminent relapse is very great. The judgment: The court affirmed the decision of the lower court in dismissing this case and basically stated, as we all know, that alcoholism may be a disability under the ADA, I mean it is a disability under the ADA; however, unfitness for work or intoxication on the job is not protected, under the ADA. In this kind of situation, it would not be unusual at all for an employer to have (a) the employee tested, and (b) the employee evaluated. And, as you know, under the ADA, an employer is free to have the fitness for duty of an employee tested as long as it is consistent with business necessity. And, certainly, the safety of employees or the safety of the employee himself or herself often supplies or furnishes good reason for business necessity and having tested. Contrasts with EEOC case in federal court in Arkansas (June 26, 2913): If you contrast that case with another case that was very recently decided, and this was in a federal court in Arkansas dated June 26, 2013, brought by the Equal Employment Opportunity Commission where a commercial driver, a self-acknowledged recovering alcoholic , reported that he had begun to drink again. His employer had a policy, a blanket policy, which stated that under absolutely no circumstances could somebody who has an alcohol problem, past or present, be permitted to drive. And, to make a long story short, in this case, at the summary judgment level, the EEOC contended that the employer’s blanket policy without any individualistic determination as to whether or not this person after having gone through rehab would pose some risk of harm to either himself or to others was an inappropriate accommodation to this person who obviously had a known disability, i.e., the disability of alcoholism. And, therefore, what the EEOC contended, and at least what the court agreed with at the level of summary judgment, was that the blanket policy of absolutely prohibiting anybody from coming in and having that person analyzed as to whether or not there would actually be a threat to the company would violate the EEOC’s concept of an individualized assessment and an interactive process. Reasonable accommodation: The EEOC suggested that a reasonable accommodation in this situation might have been to install a breathalyzer in the truck to ensure that he could not drive it if it was in error and other measures as well. But, the company did not have any kinds of those discussions or attempts to even ascertain whether or not something could be possible that would have allowed that person to drive safely. Takeaways from these two cases: So, both of these cases coming out within a week or two weeks of each other are instructive from a practical standpoint. On the one hand, as we know, alcoholism, drug addiction et. al. are recognized disabilities under the ADA; however, current drug use or intoxication or somebody’s being unfit on the job is not “protected activity” irrespective of whether or not they have the status of being an alcoholic or a drug addict. Conversely, blanket rules, which would absolutely prohibit under all circumstances the return to work of somebody even if that person were a recovered or recovering drug addict or alcoholic, would not pass muster under the Equal Employment Opportunity Commission’s reasonable accommodation requirement and interactive dialogue process, because if you simply assume that a person cannot do the job either because of some history of intoxication or drug use, then you violate the EEOC’s concepts that there needs to be some individualized assessment, after which if there is a reasonable basis for not re-employing or re-instating an individual, then, yes, the EEOC would agree that the employer had met its burden under the ADA. So, those are the developments in the last couple of weeks. Pay attention to the EEOC, because they seem to be hot to trot on many of these kinds of enforcement issues, particularly involving class based claims of hiring, pay, etc.