Employment Law Matters

EEOC updates Guidance on employer use of arrest and conviction records.

Maria Danaher — Thu, 26 Apr 2012 19:27:38 -0500

The Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance, which takes effect immediately, is a compilation of the past policy documents and prior court decisions regarding the EEOC’s position that employers’ reliance on arrest and conviction records may have a negative impact on individuals because of race or national origin. According to the Guidance, Title VII violations may occur during background checks in two ways: (1) “disparate treatment,” when employers treat applicants/employees differently, making distinctions between employees of different races based on the employer’s subjective judgment as to the relative severity of past convictions; and (2) “disparate impact,” when an employer’s neutral background check policy or practice disproportionately affects individuals in a protected category. The Guidance focuses largely on "disparate impact" type discrimination.

When viewing an employer’s decision for disparate impact, the EEOC first identifies the policy or practice causing the alleged disparate impact. The EEOC then has the burden of showing an actual disparate impact on a protected group, using statistical evidence. Employers should be prepared for increased requests from the EEOC for applicant and hiring data on this account. Once the EEOC has established the existence of a disparate impact, the employer may assert an affirmative defense stating that its background policy or practice is job related and consistent with business necessity. Importantly, the EEOC reiterates in the Guidance a position that it has put forth in numerous past cases, that an arrest, without more, can never be “job-related and consistent with business necessity” because an arrest does not establish that criminal conduct has occurred. Under our criminal justice system, individuals are presumed innocent until proven guilty, and an arrest does not necessarily lead to a conviction establishing guilt. Therefore, employers should not make hiring decisions based solely upon arrest records.

The EEOC identifies two circumstances in which an employer can establish the "job-related and consistent with business necessity" defense. The first requires a validation study or an analysis of criminal conduct as related to subsequent work performance or behaviors, an esoteric standard which most private employers will not readily be able to meet. The second, however, is more accessible, although more time consuming and effort intensive. It involves a “targeted screening process’ for all applicants that sets parameters for the nature and gravity of offenses or conduct; the amount of time that has passed since the offense, conduct, and/or completion of the sentence; and the nature of the job held/sought. Once a group of applicants has been screened using these factors, each of those applicants then should be allowed an individualized review of his or her specific criminal background issue. The Guidance establishes a de facto requirement for individualized screening of applicants and candidates by stressing that an employment screening process that does not include individualized assessments is more likely to violate Title VII.

In its general “Best Practice” summary, the EEOC lists only two points. The first, an instruction to “train managers, hiring officers, and decisionmakers about Title VII and its prohibition on employment discrimination” will be familiar to employers as something that HR and legal advisors typically suggest. The second point, however, a directive to “eliminate policies or practices that exclude people from employment based on any criminal record,” is more problematic. According to Jay Glunt, shareholder in Ogletree Deakins’ Pittsburgh office, this one-line directive is certain to raise some concern among employers, especially in light of recent developments in “Ban-the-Box” legislation in various states and municipalities. Without additional guidance and detail, this statement indicates that the EEOC will not look favorably on any exclusionary policies, whether or not legislatively precluded. Therefore, employers must assure that any exclusion of applicants on the basis of criminal background is clearly “job-related and consistent with business necessity” to avoid negative attention from the EEOC.

The EEOC has posted a Question & Answer summary of the Guidance for public view.

To post, or not to post . . . ? A recent decision may again delay the effective date for the required Notification of Employee Rights.

Maria Danaher — Sun, 15 Apr 2012 15:40:53 -0500

Unless reversed or stayed before the end of the month, an April 13, 2012 ruling by a federal district court in South Carolina will block the implementation of a National Labor Relations Board (NLRB) rule that would require most U.S private-sector employers -- including most of the 6 million small business in the U.S. -- to post a written notice of employee rights regarding unionization. Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. Now, the posting deadline is up in the air again.

A judge for the U.S. District Court for the District of South Carolina held that the National Labor Relations Act (NLRA) does not provide or support authority to the NLRB to promulgate such a rule. Although the judge specifically stated that he “does not discredit” the NLRB's assertion that employees need additional information about their NLRA rights, he granted summary judgment to the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, noting that “the NLRA does not require employers to post general notices of employee rights under the Act,” and that the NLRA primarily “places the Board in a reactive role” in dealing with labor complaints made by employees. According to the court, there is nothing in the NLRA that allows the Board to enlarge the authority specifically granted in the Act, and that promulgating the proposed rule would do just that. The judge’s footnote to Simon & Garfunkel lyrics -- “And no one dared / disturb the sound of silence.” Simon & Garfunkel, The Sound of Silence (Columbia Records 1966) -- was an effective illustration of the court’s point that “there is not a single trace of statutory text that indicates that Congress intended for the [NLRB] to proactively regulate employers in this manner.”

Earlier this year, in a case involving a similar challenge to the rule filed by the National Association of Manufacturers and other groups, the U.S. District Court for the District of Columbia conversely held that the NLRB did not exceed its statutory authority by requiring employers to post the required "Notification of Employee Rights under the National Labor Relations Act." In that case, the court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” National Assn. of Manufacturers v. NLRB, No. 11-1629 (ABJ), .D.D.C., 3/2/2012 (see detailed summary and a link to the opinion in the March 4, 2012 posting at www.employmentlawmatters.net). While that decision has been appealed, there had been no decision as of this date from the D.C. Circuit Court of Appeals on a request to stay the implementation of the rule.

In the more recent decision, the South Carolina court concluded that promulgation of the rule is unlawful, and granted summary judgment in favor of the plaintiffs/business groups, and against the NLRB and its members. That decision will effectively suspend the April 30 deadline, unless action is taken in the coming weeks to overturn the decision or stay its effects. Apparently, this “Dangling Conversation” will have to wait for an appellate court action to create some kind of “Bridge Over Troubled Water”. . . .

Independent Contractor may be viewed as employee for purposes of Title VII liability.

Maria Danaher — Mon, 09 Apr 2012 12:29:56 -0500

The anti-discrimination provisions of Title VII of the Civil Rights Act apply only to employees. The determination of whether an individual is an “employee” for purposes of that Act depends largely on whether a putative employer exercised control over the manner and means by which the individual performed a job. While most employers assume that an employee who is hired as an “independent contractor” does not work under such control, one federal appeals court recently determined that a hospital’s quality assurance program that led a physician, who was hired as an independent contractor, into its peer review process may have created an employment relationship, allowing the physician to move forward with claims under Title VII. Salamon v. Our Lady of Victory Hospital, W.D.N.Y., No. 1:99-cv-48, 4/3/12.

In 1999, Dr. Barbara Salamon, a board certified gastroenterologist and internist with medical staff privileges at Our Lady of Victory Hospital (“OVH”) in New York State, filed a lawsuit against that hospital and four individuals, claiming that she had been discriminated against on the basis of her gender. According to Salamon, one of the individual defendants sexually harassed her and made unwanted advances. When Salamon complained about that behavior, she allegedly received undeserved negative performance reviews. Salamon also claimed that the remaining defendants were complicit when they used the hospital’s peer review process to punish her for reporting the harassment.

The Defendants in the case moved for summary judgment in 2001. After discovery and arguments, a decision was issued by the lower court in 2006, and the motion was granted, based on the lack of an employee-employer relationship. In 2008, the 2d U.S. Circuit Court of Appeals vacated that judgment and remanded the case for further consideration. Salamon v. Our Lady of Victory Hospital, et al., 514 F.3d 217 (2d Cir. 2008). Specifically, the Second Circuit asked the lower court to again review the status of the relationship between Salamon and OVH to determine whether Salamon was an “employee” for purposes of Title VII.

The hospital did not pay a salary or other monetary compensation to Salamon; she billed patients and insurers directly for her services. In addition, however, Salamon’s clinical privileges extended to the use of the hospital’s facilities and equipment in the GI lab, both of which were vital to her practice. Importantly, Salamon was required to submit to the hospital’s “Staff Rules and Regulations.” One significant piece of hospital supervision over Salamon was a “quality assurance” process under which hospital practitioners, on a rotating basis, would review procedures conducted by various physicians at the hospital. Cases flagged as “problematic” under the process would be discussed further. Doctors whose cases were flagged would be subject to a peer review and, if appropriate, reported to the National Practitioners Data Bank (NPDB).

Salamon alleged that her relationship with the hospital changed and the level of review of her practice changed significantly after she complained of unwanted sexual attention. Her cases began to be reviewed regularly and criticized to an extent substantially greater than other (male) doctors’ cases. As a result of these reviews, Salamon was ordered to undergo a three-month “re-education” and mentoring program. Salamon was warned that her failure to complete the program would lead to a report to the NPDB.

In re-considering the facts of the case on remand, the district court’s primary focus was on whether Salamon was an independent contractor or an employee. To make that determination, the court looked to the U.S. Supreme Court’s decision in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). In that case, the Supreme Court set forth thirteen factors that should be considered: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities/tools; (4) the location of the work; (5) the duration of the relationship; (6) whether the hiring party can assign additional projects to the hired party; (7) the extend of the hired party’s discretion over when/how long to work; (8) the method of payment; (9) the hired party’s ability to hire/pay assistants; (10) whether the work id part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party. While no single factor is dispositive, the primary emphasis is put on the first factor – the extent to which the hiring party controls the manner and means by which the worker completes her tasks.

While policies that merely reflect professional and governmental regulatory standards may not create the level of control that establishes an employment relationship for purposes of Title VII, the evidence submitted by Salamon indicated that the policies imposed upon her, and the imposition of the peer review process on her cases to such a large degree, may have been motivated by the hospital’s goal of maximizing revenue, and/or in reaction to Salamon’s complaints of harassment. Because a reasonable fact finder could conclude that the hospital’s quality assurance standards extended beyond health and safety concerns or to Salamon’s specific medical qualifications, and because Salamon was subject to possible negative peer review for violation of those standards, Salamon was able to demonstrate a genuine factual conflict regarding the extent of control exercised by the hospital over her performance. Therefore, the lower court’s decision was reversed, allowing the Title VII and related state claims to go forward to a jury.

Employers -- especially hospital and heath system entities -- should be aware of this decision, and should become familiar with the 13 factors set forth by the Supreme Court for use in reviewing these circumstances. Primarily, employers must recognize that the degree of control exercised over the work performance of individuals, if not established for reasons related to the quality of the service provided, can re-categorize an independent contractor into an employee for purposes of Title VII liability.

Seventh Circuit underscores a circuit split on preferential reassignment of disabled individuals to open positions.

Maria Danaher — Mon, 02 Apr 2012 19:57:38 -0500

The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that while such reassignment may be a reasonable accommodation, the ADA does not obligate employers to reassign a disabled individual if a better qualified applicant exists.

Recently, a panel of the 7th U.S. Circuit Court of Appeals again addressed the issue, and found that prior Seventh Circuit decisions obligated it to find that the ADA does not establish preferential treatment for disabled individuals. EEOC v. United Airlines Inc., 7th Cir., No.11-1774, 3/7/12. In that case, the Equal Employment Opportunity Commission sued United Airlines (UA), based upon UA’s Reasonable Accommodation Guidelines. Those guidelines specifically stated that while transfer to an equivalent or lower-level vacant position may be a reasonable accommodation, the transfer process was a competitive one, and that a disabled employee will not automatically be placed into a vacant position. Under the Guidelines, if a non-disabled individual was more qualified that a disabled applicant, the non-disabled person would be awarded the position. (The policy did state that a disabled employee could submit an unlimited number of transfer applications, and that he or she would be guaranteed an interview and would be given “priority consideration” over a similarly qualified candidate. However, the company reserved the right to hire the most qualified candidate for the position.)

The EEOC brought a lawsuit challenging those Guidelines, and arguing that the ADA requires that a disabled person be advanced over a more qualified nondisabled candidate, “provided that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” However, the Seventh Circuit previously had rejected that assertion in the case of EEOC v. Humiston-Keeling in 2000, stating that the ADA “does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”

Under the concept of stare decisis, judges are obliged to respect the precedents established by prior decisions of the same court. The Seventh Circuit panel hearing the United Airlines matter was bound by the Court’s earlier decision in the Humiston-Keeling case. In Humiston-Keeling, an individual could not perform a conveyor belt job, due to an injured arm. Although she applied for a number of clerical positions, the employee was not hired for any of them, because – according to the employer – better qualified candidates were chosen. In Humiston-Keeling, the Seventh Circuit rejected the EEOC’s argument and held that the ADA did not require preferential hiring if a more qualified applicant existed.

In an interesting twist, however, the panel urged full court review of the issue, stating that “the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive . . . .” Based upon that statement, it seems evident that the Seventh Circuit may be inclined to follow the 10th and D.C. Circuits in holding that an employer is obligated to reassign a disabled individual to a vacant position, so long as the individual is minimally qualified for the position, and there is no undue hardship created by that placement.

Because this is an unsettled issue, employers should be cautious when making decisions regarding the reassignment of disabled employees, and should fully document the reasons for such decisions to assure compliance with the ADA.

Back pay award in successful retaliation claim against former employer may be based upon position not awarded by a different employer.

Maria Danaher — Sun, 25 Mar 2012 17:02:59 -0500

It is generally understood that employees can bring Title VII claims – and be awarded damages - for hostile environment, wrongful termination, and retaliation. What is less clearly understood is the extent of the economic damages for which a former employer may be liable in the situation in which a litigant claims to have lost a job opportunity because of a retaliatory action on the part of that former employer. The 5th U.S. Circuit Court of Appeals recently answered that question by quoting the wording of Title VII, and holding that the law “does not require that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation.” Nassar v. Univ. of Texas Southwestern Medical Center at Dallas, 5th Cir., No. 11-10338, 3/8/12.

Naiel Nassar, a U.S. citizen since 1990, was born in Egypt and attended medical school there. He subsequently did a medical residency and a fellowship in infectious diseases at the University of California, Davis. In 2001, Nassar was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine. Part of Nassar’s duties required that he provide patient care at Parkland Hospital’s Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.

In 2004, UTSW hired Dr. Beth Levine as the chief of its infectious disease program. In that role, Levine directed that Nassar begin billing for the services he provided to the HIV clinic. Nassar objected to the directive, arguing that his salary for clinical services was fully funded by a federal grant, and stating that billing the patients therefore would be “double dipping.” Nassar claimed that Levine then began to “harass” him, making derogatory statement about his race and his Muslim religion, including one comment that “middle easterners were lazy.” His allegations were supported by a clinical supervisor, whose affidavit described a “disconnect between Dr. Levine’s [derogatory] statements and the reality of Dr. Nassar’s work.” Based on his concerns about Levine, Nassar ultimately applied for direct employment by Parkland Health & Hospital System in 2006. Parkland made preparations to hire Nassar, drafting a letter offering a staff physician job to Nassar. However, the offer was later withdrawn. Nassar contended - and testimony supported the claim - that UTSW retaliated against him by blocking the offer from Parkland because Nassar stated in his resignation letter that his primary reason for leaving UTSW was Levine’s harassment and discriminatory comments. Nassar ultimately accepted a job in a smaller clinic in Fresno, California, and filed a lawsuit against UTSW in federal court alleging discrimination/constructive discharge and retaliation.

At trial, the jury was presented with only two questions: (1) Whether Nassar was constructively discharged because of his race, national origin, or religious preference; and (2) Whether UTSW retaliated against Nassar by blocking or objecting to his employment by Parkland after Nassar complained about his treatment at UTSW. After one hour of deliberations, the jury answered “Yes” to both questions. Two days after the May 24, 2010 verdict, the same jury awarded $3.2 Million in compensatory damages and $438,000 in lost back pay to Nassar. The trial court reduced the compensatory damage award to $300,000 under the Title VII damage cap, but added nearly $500,000 in attorney fees and costs to Nassar’s award. Both sides appealed the awards.

Upon review, the Fifth Circuit reversed the verdict against UTSW on Nassar’s constructive discharge claim, holding that while the evidence that Nassar provided to the jury may have supported a claim of hostile environment, that evidence did not rise to the level of egregious conduct necessary to support a claim of constructive discharge. However, the Court upheld the jury’s verdict on the retaliation claim, and further upheld the method used by the jury to calculate Nassar's lost income.

While UTSW argued that Nassar’s lost income should have been the difference between that which he was earning at UTSW ($166,395 as an Assistant Professor) and his subsequent compensation in California (which varied from $165,000 to $180,000 a year, including benefits), the district court allowed the jury to calculate the lost pay by comparing Nassar’s prospective income from Parkland ($240,500 a year, including benefits) to the amount that he was earning in California. Using that method, the jury awarded Nassar $436,167.66 in lost back pay. The Fifth Circuit upheld that award because it made Nassar whole by placing him in the position that he would have been in “but for” the retaliation.

This case is a strong reminder that unlawful retaliation can take the form of a former employer preventing an individual from getting a job with another employer. Under Title VII, lost income is payable by the employer responsible for the unlawful employment practice, and may be calculated as the difference between the individual’s former pay, and that which he would have earned had the retaliation not occurred. If, as in this case, evidence indicates that the retaliation kept the individual from moving to a more highly lucrative position, the former employer risks being liable for the loss of a substantially higher wage.

In addition, employers – especially hospital and healthcare entities that are contemplating direct hiring of physicians - should understand that an employee, or former employee, can successfully prove retaliation without having successfully proven discrimination or a constructive discharge claim, and that damages for lost pay and benefits for highly compensated individuals can be substantial.

Title VII protects both current and former employees from discriminatory adverse employment actions.

Maria Danaher — Mon, 19 Mar 2012 07:28:11 -0500

Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against “any individual" on the basis of membership in a protected class. In a reminder to employers, the 4th U.S. Circuit Court of Appeals has reiterated the generally accepted interpretation that in this language, Title VII explicitly allows former employees, as well as current ones, to bring an action under that statute. Gerner v. County of Chesterfield, 4th Cir., No.11-1218, 3/16/12.

Karla Gerner was employed by Chesterfield County, Virginia, for over 25 years, with twelve of those years as the County’s Human Resources Director. In 2009, Gerner was informed that her job was being eliminated due to a reorganization of the department, and was told that she was entitled to three months of pay and benefits as a severance, if she would resign and sign a waiver of legal claims against the County. Gerner ultimately declined that offer and was fired, effective December 15, 2009.

Gerner filed a lawsuit, alleging that certain male counterparts – also former directors of County departments – had received “sweetheart” deals of up to six months of pay and benefits, or were placed into positions with less responsibility while continuing their prior pay, in order to allow them to “enhance their retirement benefits.” The district court granted the County’s motion to dismiss Gerner’s complaint, holding that the terms and conditions of the severance package did not constitute an adverse employment action. That court found that the County’s offer of a “less favorable severance package" did not constitute an adverse employment action for two reasons. First, the court held that severance benefits must be a "contractual entitlement" to provide the basis of an adverse employment action under Title VII; and second, the court held that because the offer of the severance package was made after Gerner had been terminated, it could not constitute an adverse employment action.

The Fourth Circuit reversed that decision on both grounds. First, it cited the U.S. Supreme Court’s holding in Hishon v. King & Spalding, 467 U.S. 69 (1984), which precludes the argument that an employment benefit must be a contractual right in order for its denial to provide the basis for a Title VII claim. In Hishon, the Supreme Court held that any "benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all." The Hishon Court clearly stated that benefits that an employer is under no obligation to furnish by any express or implied contract may qualify as a “privilege” of employment under Title VII, and may provide the basis for a Title VII claim, as long as the benefit is "part and parcel of the employment relationship." In Gerner’s situation, in which she did not voluntarily ask for removal from her position, but was offered the severance in return for resignation and a release of claims, the severance was deemed to be the required “part and parcel” of the relationship.

The Fourth Circuit addressed the district court’s holding that Gerner did not suffer an adverse action because she was terminated before being denied the severance, and found that rationale lacking, as well. The Court pointed to the language of Title VII, protecting “any individual,” and again cited to the Supreme Court’s opinion in Hishon (“A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship") to support the fact that an employment benefit can constitute an adverse action, even if it related to a former employee. According to the fourth Circuit, to limit actionable adverse employment actions to those taken while an individual is currently employed would be inconsistent with Title VII’s “principal goal” of "eliminat[ing] discrimination in employment."

While most employers, if asked, would say that an individual’s severance is related to that person’s employment, and would recognize that denial of or unequal benefits could constitute an adverse employment action supporting a Title VII claim, the Fourth Circuit opinion leaves no room for doubt: former employees can bring a claim for issues related to their separation from employment, including a claim based upon the terms of any offer of severance.

NLRB's power to impose penalties for employer's failure to post "Employee Rights Notice" is clarified by the D.C. Circuit.

Maria Danaher — Sun, 04 Mar 2012 17:44:22 -0500

On March 2, 2012, a federal trial judge in the D.C. Circuit Court of Appeals issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. National Association of Manufacturers v. NLRB, No. 11-1629 (ABJ), U.S. District Court for the District of Columbia (March 2, 2012).

As most employers now are aware, private-sector employers whose workplaces fall under the jurisdiction of the National Labor Relations Act (NLRA) jurisdiction soon will be required to post a notice of employee rights regarding unionization, pursuant to the NLRB’s final rule related to the Notification of Employee Rights under the NLRA. That final rule, which becomes effective on April 30, 2012, requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011. However, that deadline was extended a number of times, most recently to allow a federal judge in the D.C. Circuit Court of Appeals to make a determination on legal challenges to that final rule.

Those legal challenges came about when, after the NLRB issued the proposed final rule on August 30, 2011, the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW) brought separate actions – later consolidated - against the NLRB, its members, and its General Counsel, seeking to invalidate the Rule. In addition to claiming a violation of First Amendment rights, the actions alleged that the NLRB lacked the authority: (1) to promulgate and enforce the notice posting rule; (2) to require employers to post a notice absent the filing of an unfair labor charge or union petition; (3) to deem the failure to post to be an unfair labor practice; and (4) to toll the statute of limitations for filing an unfair labor practice charge.

In the March 2 holding, the D.C. Circuit Court judge held that the NLRB did not exceed its statutory authority by requiring employers to post its "Notification of Employee Rights under the National Labor Relations Act." The court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice of employee rights, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” The court further also declined to find that the NLRB’s promulgation of the notice posting provision was “arbitrary and capricious,” which could have invalidated the rule. In addressing the NLRB’s authority to penalize employers that failed to post the notice, the court held that "the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice." However, the court went on to say that the Board could make this determination on a case-by-case basis. Therefore, while the Board exceeded its authority under the NLRA when it promulgated a rule that failure to post the required notice would automatically be a violation of the NLRA, a determination of whether a particular failure to post would constitute such ULP still can be determined by courts on a case-by-case basis.

The court came to a similar conclusion with regard to Section 104.214(a) of the Rule, which extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, and which applies to all unfair labor practice actions against employers where the notice was not posted. The court found that the NLRA does not authorize the Board to enact a rule that permits it to automatically toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted. However, also the court opened a door in this instance for the NLRB to find that tolling is appropriate on a case-by-case basis where the notice is not posted.

Therefore, based on the March 2 court decision, employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions - depending on the facts of the specific circumstance - for an unfair labor practice under the NLRA and, an extended statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. Importantly, if an employer knowingly and willfully fails to post the notice, that failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

It should be noted that another challenge to the Rule, which was filed by the U.S. and South Carolina Chambers of Commerce, is still pending in U.S. District Court in Charleston, and has yet to be decided.

Wounded warriors want to return to work - and employers can help that transition.

Maria Danaher — Wed, 29 Feb 2012 16:35:18 -0500

On February 28, 2012, the Equal Employment Opportunity Commission (EEOC) released two publications addressing the rights of military veterans with disabilities under the Americans with Disabilities Act (ADA), as part of its efforts to aid such veterans in the transition back into civilian employment. According to government statistics, three million veterans have returned from military service over the past 10 years, and another 1 million veterans are expected to return to civilian life over the next five years. The EEOC’s revised “guide for employers” explains how legal protections for veterans with disabilities compare between the ADA and the Uniformed Services Employment and Reemployment Rights Act (the USERRA) and how employers can prevent disability discrimination and provide reasonable accommodation for returning veterans. The guide includes information on organizations that can help employers to find qualified veterans for jobs, and aid in developing accommodations for veterans’ medical and psychological impairments.

The USERRA prohibits employers from discriminating against employees (or applicants) for employment on the basis of their military status or military obligations. It also protects reemployment rights for those employees who leave their civilian jobs to serve in the uniformed services, including service in the U.S. Reserve forces and National Guards, and attempt to return after completing that service. In addition, under the USERRA, employers must make "reasonable efforts" – including training and re-training - to help each returning veteran to become qualified to perform his or her employment duties. The USERRA applies to all veterans, not just those with service-connected disabilities, and to all employers regardless of size. Reemployment rights of returning veterans are spelled out on the Department of Labor’s website at www.dol.gov/vets. The EEOC’s recently released “guide for wounded veterans” answers questions regarding veterans with service-related disabilities and their legal rights when seeking to enter or re-enter the civilian labor force.

The EEOC’s publications update guides that originally were published in February 2008, prior to the amendments to the ADA which took place in January 2009 (the ADAAA), and reflect changes stemming from those amendments. The ADAAA makes it easier for veterans with a range of impairments - specifically including traumatic brain injuries and post-traumatic stress disorder - to obtain the reasonable accommodations that will allow them to return to work or successfully apply for work. In addition to efforts by governmental agencies like the EEOC, returning veterans with impairments are being aided by non-profits, including the Wounded Warrior Project, which work to raise public awareness to the needs of injured service members.

According to Jay Glunt, shareholder in the Pittsburgh Office of Ogletree Deakins, the recent EEOC publications indicate a focus by the Commission on employers’ efforts to meet the unique needs of veterans with disabilities in making the transition back to civilian work-life. Glunt recommends that knowledgeable employers develop and ensure training for both human resource personnel and company managers in identifying, addressing, and implementing reasonable accommodations for those unique needs, thereby assuring compliance with both the USERRA and the ADAAA while doing the right thing for individuals who have given their own efforts in military service.

Employee's inability to work overtime is not a per se disability under the ADA.

Maria Danaher — Mon, 20 Feb 2012 20:10:01 -0500

The 4th U.S. Court of Appeals has dismissed an employee’s lawsuit, holding that the individual’s inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012.

Michael Boitnott, an employee of Corning, was diagnosed with a form of leukemia while on a medical leave in 2003. Although no treatment was required for his illness, Boitnott advised Corning in 2004 that he would be unable to return to his regular work schedule as a maintenance engineer. That schedule consisted of 12-hour shifts, alternating two weeks of day shifts with two weeks of night shifts. According to Boitnott’s doctor, Boitnott was capable of working a normal 8-hour day and 40-hour week, but was unable to work overtime.

Because Boitnott could not return to his prior position, he applied for – and initially was granted – long term disability (LTD) benefits in May 2004, and then filed a charge of discrimination against Corning, alleging that the company failed to accommodate his disability. However, the carrier terminated Boitnott’s LTD benefits in October of 2004, based on the fact that Boitnott was capable of working a normal 40-hour workweek, and that certain maintenance positions existed at that point which did not require overtime.

In June 2005, one of Boitnott’s doctor’s indicated that Boitnott could return to work for up to 10 hours a day, four days a week, but did not mention overtime. One other doctor said that Boitnott could work the four 10-hour days with “moderate” overtime. However, at that point, none of the day shift maintenance positions were available. Corning then worked with the union to resolve the issue by creating a new maintenance position consisting of day shift work of 8 hours a day with limited overtime. Boitnott was allowed to apply for that position, in spite of the fact that he was not on active status. He was hired for the position, and has held the job since 2005.

An individual seeking the protections of the ADA must show that his impairment “substantially limits” a major life activity. If an individual cannot demonstrate that his impairment limits what is typically viewed as a major life activity (i.e., seeing, hearing, walking, etc.), courts can then consider whether the impairment limits his ability to work. To do so, the individual must show a significant restriction in his ability to perform either a “class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”

Federal appellate courts previously have addressed the question of whether the inability to work overtime is a substantial limitation on the major life activity of working. The First, Third, Fifth, Sixth, and Eighth Circuits all have held that an employee is not “substantially limited” if he or she can work a 40-hour workweek, but is unable to work overtime hours. The Fourth Circuit now joins that group. The Court based its holding on the fact that beginning as early as February 2004, Boitnott was cleared to work a full 40-hour workweek, and that his ability to work overtime did not significantly restrict his ability to perform a class of jobs or a broad range of job in various classes in his geographic area.

While this decision is consistent with decisions of its sister circuits, the Fourth Circuit was careful to make an individualized inquiry into the local labor market to assure that other jobs actually were available that were consistent with Boitnott’s restriction of “no overtime.” Employers should be aware of that fact, and should not assume that the inability to work overtime can never support a successful ADA claim.

Employment at-will remains a viable concept - at least in Pennsylvania.

Maria Danaher — Mon, 30 Jan 2012 13:01:52 -0500

The 3d U.S. Circuit Court of Appeals has held that a health clinic’s statements to a physician and to immigrations officials regarding the physician’s “at least three year” employment commitment did not create an employment contract that would override the doctor’s employment at will status. Edwards v. Geisinger Clinic, 3d Cir., No. 11-1528, Jan. 23, 2012.

Phillips Edwards is a licensed physician from the United Kingdom with a specialty in interventional radiology. While working in Kentucky under a temporary visa, Edwards was recruited to work at Geisinger Clinic’s interventional radiology department in Danville, Pennsylvania. During the recruitment process, Edwards was informed that Geisinger requires its physicians to obtain board certification from the American Board of Radiology (ABR), which requires 4 years of uninterrupted employment in an approved residency program.

Edwards was asked whether he understood that he would have to be at Geisinger for at least 4 years and would have to be board certified within 6 years, or “Geisinger would have to review [his] situation.” Edwards indicated his understanding, and was provided an offer letter dated July 11, 2006 that included the fact that Edwards “will be granted 4-6 years from the date of employment to become board certified” and that if he didn’t, “continued employment . . . will need to be reevaluated.” This offer letter was sent to the ABR by Geisinger to ensure that Edwards would be able to sit for the boards. At some subsequent point, Edwards also signed a “Practice Agreement” in which he acknowledged that his employment with Geisinger “may be terminated at any time by either party for any or no reason.”

After signing the offer letter, Edwards returned briefly to the U.K. at the expiration of his temporary visa. At that point, Edwards and Geisinger communicated with U.S. immigration authorities to obtain an H-1B visa, which would allow Edwards to return to the U.S. and work for Geisinger. In order to obtain that visa, Edwards and Geisinger had to represent that Edwards “had at least a three year employment commitment” in the U.S. Based on representations made, Edwards received the visa, and began working for Geisinger in 2007.

In May 2008, Geisinger terminated Edwards’ employment. Edwards brought a lawsuit against the clinic for breach of contract. In September 2010, the lower court granted summary judgment in favor of Geisinger, finding that Edwards’ employment was at-will. Edwards appealed that decision, arguing that he and Geisinger had entered into an express employment contract for a definite term. The Third Circuit disagreed, and upheld the lower court’s dismissal of the case.

Like laws in many other states, Pennsylvania law presumes that employment is at-will. To overcome that presumption, an individual must show “clear and precise evidence” of the parties’ intention to form an employment contract for a definite length of time. Evidence that an employer “hopes” that an individual will remain in its employ is inadequate to prove that an employment contract was formed. In this case, the Court held that the language concerning employment for four to six years was “too vague to establish an express contract for a definite term.” Further, the Court pointed to language in the employment offer that implied that Edwards would lose his employment if he failed to become board certified within the allotted time, and held that such language clarified the board certification requirements, rather than promised continued employment for that length of time.

Importantly, the Court also held that the absence of an at-will disclaimer in the offer letter does not indicate that the parties contracted for a definite term. Further, the Court found that language that an employer will discharge only for “just cause” does not establish an express or implied contract that could only be terminated for that just cause. In addition, the Court pointed out that an H-1B visa does not guarantee employment for the maximum duration of the visa. In fact, the Immigration and Nationality Act specifically includes language to indicate that an employer may dismiss a worker before the expiration of that time. Therefore, sponsorship of an individual for such a visa does not imply that the sponsor has guaranteed employment for the full period of the visa’s duration.

Company's "100% healed" policy does not create per se disability discrimination.

Maria Danaher — Mon, 16 Jan 2012 22:27:20 -0500

In a case that adds to a split among federal appellate courts, the 7th U.S. Circuit Court of Appeals has held that a company’s insistence on an employee being “100% healed” after a medical leave does not necessarily support the employee’s legal claim under the Americans with Disabilities Act (ADA). Powers v. USF Holland, Inc., 7th Cir., No. 10-2363, December 15, 2011.

Keith Powers, a truck driver for USF Holland, Inc., injured his back in a work-related incident. After returning from a workers’ compensation leave, Powers returned to his job as a long-haul driver, and worked successfully in that position for two years. Because his wife was expecting a child, Powers asked to be transferred to a city driver route, which would keep him closer to home. However, unlike the long-haul job, the city route included frequent entering and exiting of the truck cab, and loadings and unloadings of the truck with a forklift. After the switch to city driver, Powers again began to have problems with his back and asked to transfer back to long hauls. That request was denied on the basis that the collective bargaining agreement did not allow for more than one job transfer within a one-year period.

Powers took a medical leave, after which he requested to return to work with certain restrictions that would limit him to long-haul driving, including limited dock work and loading and unloading. USF informed him that he could not return to work until he submitted a full medical release containing no work restrictions.

Powers filed a lawsuit claiming that by enforcing its “100% healed” policy, USF had discriminated against him because of his disability. The district court dismissed Powers’ ADA claims, holding that because Powers was capable of long-haul driving, he was not substantially limited in the major life activity of working. Therefore, Powers was not actually disabled within the meaning of the ADA, which requires a “substantial limitation in a major life activity,” and the 100% healed rule was not impermissibly applied to him.

On appeal to the Seventh Circuit, Powers argued that he was disabled because USF regarded him as disabled, which also would bring him under the protections of the ADA. Under the ADA’s “regarded as” prong, an employer must believe (rightly or wrongly) that the employee has a medical impairment that substantially limits him from some major life activity. In addition to agreeing with the lower court’s assessment that Powers’ impairment did not rise to the level of a substantial limitation under the ADA – that is, Powers was not actually disabled - the Seventh Circuit held that because USF did not view Powers as unable to work for other employers, USF did not regard him as substantially limited in the major life activity of working, and that therefore, application of the company’s “100% healed” policy to Powers did not violate the ADA.

The U.S. Supreme Court, in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), held that “an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment – such as one’s height, build, or singing voice – are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” (In Sutton, two visually impaired pilots who were not chosen for positions as “global airline pilots” were not disabled, because they were qualified and able to hold numerous other positions within the aviation industry.) Therefore, a particular impairment could disqualify an individual for a specific job, so long as that impairment did not substantially limit the individual from working for other employers in a class of jobs or from a broad range of jobs.

While this holding seems to support the application of a “100% healed” policy, employers who deal with return-to-work requests may also have to review state workers compensation laws, Family and Medical Leave Act issues, and requests for accommodations, and should not assume that the application of a “100% healed” policy will avoid all problems associated with medical impairments.

Further update on the NLRB's "Employee Rights Notice" - another extension of the posting deadline.

Maria Danaher — Mon, 02 Jan 2012 10:29:01 -0500

As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011, at which time employers would have been required to post written notices consistent with the rule. However, in October 2011, the NLRB announced its decision to postpone the implementation date for the notice until January 31, 2012. Since that time, the legal challenges to the rule having continued. The federal judge hearing arguments on the matter in Washington, D.C. last month told the board attorneys that either the effective date would have to be further extended, or she would enjoin the NLRB from implementing it, as she needed more time to consider the briefs and oral arguments presented by both sides in the case.

On December 23, 2011, the NLRB agreed to postpone the effective date of the notice-posting to April 30, 2012. The Board stated that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in a parallel action challenging the rule. In October 2011, Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office stated that the Board’s initial postponement of implementation would “permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions for an unfair labor practice under the NLRA and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may extend the time within which employees may file ULP charges against that employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule, and a link to the preamble that summarizes the provisions of the final rule. Employers should also know that along with the obligation to post the rule will come the right to post a notice to employees of their right to choose not to unionize – however, wording of such a notice should be discussed and cleared with legal counsel prior to posting it.

Invalid FMLA certification can form the basis of employment termination.

Maria Danaher — Mon, 19 Dec 2011 12:58:53 -0500

In order to support a valid claim of retaliation under the Family and Medical Leave Act (FMLA), an employee must demonstrate that the reason given for an adverse employment action was pretextual, and that the employee’s request for or use of FMLA leave was the actual basis of the action. The 6th U.S. Circuit Court of Appeals has held that an employer’s rejection of an invalid FMLA certification was a valid reason for termination, and that the employee’s inability to proffer evidence of an alternate explanation for the company’s actions led to the dismissal of her lawsuit. Coffman v. Ford Motor Company, 6th Cir., No. 10-3842, unpublished opinion, 11/22/11.

The FMLA entitles eligible employees to twelve weeks of unpaid leave each year for, among other things, a “serious health condition” that precludes the employee from performing his or her job. Employers are prohibited from discriminating or retaliating against an employee who exercises her FMLA rights. In order to succeed on a claim of retaliation under the FMLA, an employee must first present a prima facie case that includes her eligibility for FMLA leave, the fact that she took the leave, and the fact that an adverse action was taken against her. The burden then shifts to the employer to provide a legitimate business reason for its action. Once that is done, the employee cannot succeed on a retaliation claim unless she can prove that the proffered reason is actually a pretext. To establish pretext, the employee must either show that the proffered reason had no factual basis, that the given reason did not actually motivate the action, or that such reason was insufficient to warrant the action.

Jami Coffman began working for Ford Motor Company in July 1999. In 2004, she had frequent absences, which she attributed to health issues. Although she provided medical documentation for many of those absences, she failed to provide valid and timely information for ten periods of absence within an eight moth period. Those ten occurrences led Coffman into the company’s disciplinary process, established under a collective bargaining agreement, resulting in her termination. That termination occurred shortly after Coffman had been diagnosed with sleep apnea. Coffman then sued Ford, claiming that her termination was the result of her request for FMLA leave. The district court granted summary judgment in favor of the company, and the Sixth Circuit upheld that decision, holding that Coffman fell short of demonstrating that Ford’s reason for the termination was pretext for FMLA retaliation.

Under the company’s written policies, employees requesting FMLA leave would receive documents to be completed by a physician within 15 days. The policy specifically pointed out that incomplete certification could cause absences to be viewed as “absence without leave,” which could lead to discipline up to termination.

Coffman submitted paperwork that consisted of two forms that provided two divergent diagnoses for the absences, and neither included supporting information. Further, the signatures on the documents differed markedly from signatures of the same doctors on medical documentation previously submitted by Coffman. Faced with the contradictory, questionable certifications, Ford sought clarification by asking Coffman to request medical records to support the certifications. In response, Coffman’s doctor provided a single document that included only a list of medications. Rather than supporting the initial certification, this information simply created new contradictions. Ford took no further action, and viewed the absences as unexcused, which ultimately led to Coffman’s termination and her subsequent law suit.

In spite of Coffmans’ argument that Ford improperly classified her as AWOL, the Sixth Circuit found that although FMLA certifications that contain all required information are presumptively valid, an employer can rebut that presumption by demonstrating that the certification is invalid, contradictory, or of an otherwise suspicious nature. Here, the certifications submitted were medically contradictory and the inconsistent signatures created suspicion. To its credit, the company took the additional step of asking for further information in an attempt to clarify the contradictory nature of those certifications. However, that supplemental information actually increased the confusion, supporting the company’s decision to deny FMLA leave for the absences.

Employers cannot avoid liability under the FMLA simply by arbitrarily labeling an employee’s certification as “invalid.” Incomplete FMLA certifications are distinguishable from invalid ones. When a certification is incomplete – that is, it does not provide sufficient information to justify FMLA leave - an employee must be provided with a reasonable opportunity to cure any alleged deficiency. The regulations that support the FMLA make it clear that employers must work to clarify certifications offered by employees, and can do so by asking for a second opinion from a different provider (at the employer’s expense), or get permission from the employee to clarify or authenticate questionable certification with the healthcare provider. It is in the best interest of both employers and employees to use these discretionary measures to avoid disputes that could lead to disruptive and expensive lawsuits.

OFCCP's proposed revisions to regs require increased obligations and affirmative action regarding disabled individuals.

Maria Danaher — Mon, 12 Dec 2011 15:03:56 -0500

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

The federal government’s Office of Federal Contract Compliance Programs (OFCCP) has proposed revisions to regulations that implement and enforce Section 503. Those revisions set forth certain data collection obligations and establish utilization goals to be met by contractors to assure the effectiveness of affirmative action efforts. The major points included in the proposed revisions are: (1) increased contractor obligations for data collection and AAP content related to disabled employees; (2) expansion of requirements regarding outreach agreements and specific affirmative methods for hiring the disabled; (3) addition of written reasonable accommodation procedures.

Under the proposed rule, contractors will be required to document and annually update calculations of referral data, applicant data, hiring data (including the "hiring ratio" of disabled employees to total hires), and "job fill ratio" (job openings to job hires). Contractors must conduct ongoing analyses of the data to assure effectiveness of affirmative action policies. Part of the data will be obtained through contractors’ solicitation - under the provisions of the new regs – of voluntary self-identification of disabled status from employees and applicants. The OFCCP asserts that such self-identification does not violate the provisions of the ADA, because both the ADA and Section 503 permit contractors to conduct a pre-offer inquiry into disability if it is made pursuant to a law requiring affirmative action for individuals with disabilities (i.e., the Vietnam Era Veterans’ Readjustment Assistance Act).

The revised regs also would require contractors to list all employment opportunities in specific outreach and recruitment efforts, including "linkage" agreements with the nearest State Vocational Rehabilitation Agency office, or with other organizations in a network specified in the regs. The proposed revisions specifically require contractors to send written notification of the company’s affirmative action efforts to subcontractors and subcontractor vendors/suppliers to request similar action on their parts to assist individuals with disabilities.

An added section of the proposed regulations require each contractor with an AAP to develop and implement a written policy outlining procedures for processing requests for reasonable accommodation. The provision lists the specific elements that must be included in such policy, including contact information, a description of the process, a timeframe for the processing of such requests, and a mention of the confidentiality of the process. This is in addition to revised AAP content requirements that include a mandatory statement from the contractor’s CEO indicating support for the AAP, a comprehensive annual review (revised from "periodic") of related processes, external and internal dissemination of the AAP, and the development and maintenance of an audit and reporting system that will be used to evaluate the company’s affirmative action efforts.

The OFCCP has concluded that the establishment of a national goal for hiring individuals with disabilities is warranted. Therefore, the proposed regulations include a specific "utilization goal" of seven percent for all federal contractors. That percentage will apply for each EO 11246 job group in a contractor’s workforce. The OFCCP also is considering the establishment of a sub-goal of two percent for the hiring of individuals with certain severe disabilities, including blindness, total deafness, paralysis, and intellectual and psychological disabilities.

While the proposed regulations do not include any requirement for "priority consideration" of individuals with disabilities in recruitment or hiring, the proposal does include a section encouraging contractors to voluntarily develop and implement programs that provide such consideration. Contractors choosing to use such a program must include a description and a report of outcomes in its AAP.

On November 30, 2011, the Office of Management and Budget (OMB) approved the OFCCP’s Notice of Proposed Rule Making, in which the OFCCP outlined its proposed revisions to strength the affirmative actions provisions of Section 503. (The OMB evaluates the effectiveness of various agency programs and policies, and sets funding priorities for them. It also ensures that proposed legislation is consistent with the federal budget and policies.) The approval means that the proposed rule changes are now published in the Federal Register, and a final opportunity for comment is open until February 7, 2012. Comments can be submitted through

http://www.regulations.gov, or in writing to Debra Carr, Room C-3325, 200 Constitution Avenue NW, Washington, D.C. 20210. The reference number, which should be included with comments, is (RIN) 1250-AA02.

The proposed Section 503 regulations expand both the scope of recruitment and hiring of disabled individuals, and data collection/reporting requirements for contractors. One of the most critical provisions, however, is one requiring contractors to provide training to personnel involved in recruitment, hiring, promotion, and disciplining. That training should include the contractor’s affirmative obligations under the regs and should outline the benefits of employing individuals with disabilities, as well as informing such personnel of the contractor’s legal obligations in this area. Comprehensive, objective training in this area can help to alleviate some of the burden that the new regulations are perceived to impose.

High school diploma as pre-requisite to employment may violate the ADA.

Maria Danaher — Fri, 02 Dec 2011 18:15:31 -0500

On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, a qualification standard - including a high school diploma requirement - that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question. However, that measurement is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA. Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma. It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation. If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice. While an employer is not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.

Alleged comments by HR director sufficient to defeat company's motion for summary judgment.

Maria Danaher — Sun, 20 Nov 2011 19:56:13 -0500

Remarks by a law firm’s human resources director could be “direct evidence” of pregnancy discrimination and violation of the FMLA, according to the 7th U.S. District Court of Appeals. According to the court, such evidence falls outside of the “hearsay” objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, 7th Cir., No. 10-3330, November 9, 2011.

Lisa Makowski was employed as Marketing Director for the SmithAmundsen law firm between January 2005 and her termination in February 2008. During her employment, Makowski received annual salary increases and discretionary bonuses based on her performance. In the summer of 2007, Makowski informed the firm’s management that she was pregnant. She requested, and was granted, leave under the Family and Medical Leave Act. Between November 5 and November 25, Makowski worked from home with the firm’s permission, as she had been placed on bed rest by her obstetrician. She began her FMLA leave on November 26, and gave birth on December 2.

In January 2008, the firm’s Executive Committee conducted its firm retreat, at which it annually assessed the overall structure of the firm to determine whether staffing changes were necessary. At that retreat, the Executive Committee decided to terminate Makowski and to move another individual into the leadership position with the Marketing Department. After that meeting, the Committee informed the firm’s Human Resources Director, Molly O’Gara, that Makowski didn’t “fit into our culture,” and asked O’Gara to consult with outside counsel to discuss the implementation of Makowski’s firing.

On February 4, 2008, while Makowski was still on maternity leave, her employment was terminated over the telephone. In that conversation, Makowski was told that her position was being eliminated as part of an organizational restructuring. Later that day, Makowski came into the office to pick up her personal belongings. According to Makowski, as she was leaving the office, she was met by O’Gara, who told her that the actual reason for the termination was because of Makowski’s pregnancy and FMLA leave, and that the same thing had happened to several other women employees in the past. O’Gara allegedly suggested to Makowski that she should speak to a lawyer about a possible class action on the issue.

Makowski filed a lawsuit on December 2, 2008, alleging violations of both the Pregnancy Discrimination Act and the Family and Medical Leave Act, and cited O’Gara’s alleged remarks as direct evidence of discrimination. The firm moved for summary judgment, and the motion was granted, based on the fact that because O’Gara had not been directly involved in the decision to terminate Makowski, her statements concerning the termination were inadmissible hearsay. Without those statements, Makowski lacked evidence of the connection between her termination and any discriminatory acts by the firm.

On appeal, the Seventh Circuit reversed that decision. It found that because O’Gara’s statements concerned a matter within the scope of her duties as HR Director, they fell within an exception to the hearsay rule. Essentially, that exception means that the agent acting within the scope of his or her employment with the company speaks on behalf of the company and that, therefore, his or her statement is actually a party admission that can be used to support a claimant’s case. Here, O’Gara’s alleged comments to Makowski fit within the scope of O’Gara’s duties as an HR Director who was involved in the firm’s hirings and firings. Further, the court pointed out that O’Gara’s discussions with outside counsel at the request of the Executive Committee could actually support an argument that O’Gara was directly involved in the final decision to fire Makowski, since the Committee waited for the counsel’s imprimatur before implementing the termination.

This case sets out an important lesson for employers and underscores the need for training for managers, supervisors, and HR personnel, especially with respect to having the difficult conversations needed for disciplinary and termination meetings. The importance of the use of “talking points” for disciplinary and termination meetings cannot be overstressed. Any remarks outside of pre-established, pre-rehearsed talking points could be used – as in this case – to argue to the jury that the “official” reason given for the adverse action was simply a pretext for discrimination.

Issue: Doctors, Diapers, and . . . Discrimination?

Maria Danaher — Mon, 14 Nov 2011 13:16:01 -0500

The Pregnancy Discrimination Act (PDA) requires employers to treat pregnant employees in the same manner as other employees who are not pregnant, but who are similarly situated in their ability or non-ability to work. That means that under the PDA, a woman who is unable to work because of pregnancy-related illness is entitled to sick leave or benefits only on the same basis as employees who are unable to work for other reasons. Based on that rationale, a part-time salesperson recently was unable to convince the 10th U.S. Circuit Court of Appeals that she was denied leave and later fired on the basis of her pregnancy. Anderson v. The Cato Corporation, 10th Cir., No. 11-3003, October 27, 2011.

Because the Tenth Circuit was reviewing a summary judgment ruling, it was required to view the evidence in the light most favorable to Anderson, assuming her asserted facts to be true. In February 2008, Cynthia Anderson began her employment as a part-time sales associate with The Cato Company. After a few months, the company was considering her for a full-time assistant manager position. On April 9, 2008, Anderson discovered that she was pregnant; she informed the company on the following day. Anderson then asked for "couple of days off" to get some mediation for her nausea. According to Anderson, the store manager seemed "okay" with that request. However, Anderson claimed that she called on April 15 to inform the store manager that she had been admitted to the hospital and would need additional time off, and was told that she had been terminated from her associate position, but that the store manager would attempt to hold open the assistant manager position for her. Later that week, when Anderson called again, she claimed that she was told that the assistant manager position had been awarded to another employee.

According to Cato’s records, Anderson’s personnel records indicate a "voluntary termination" because of "complications with Pregnancy." The Recommended for Rehire box on the form was checked as "Yes." Anderson never sought to be rehired by Cato.

Because she planned to apply for unemployment compensation and public assistance, Anderson requested from Cato a letter setting forth the reasons for her termination. In response, a store manager wrote that Anderson was terminated "due to pregnancy related illnesses." The letter went on to explain that Anderson, who had only worked for the Company for two months, was not eligible for leave under Cato’s policies.

Anderson filed a legal action under the PDA, arguing that the company’s letter was direct evidence of a violation of that Act. However, the lower court granted Cato’s motion for summary judgment, holding that Cato terminated Anderson’s employment because she was unable to work and was not entitled to leave. That decision was upheld by the Tenth Circuit on Appeal.

The Tenth Circuit first determined that Cato’s written statement regarding the reason for Anderson’s termination was not direct evidence of discrimination. It based that determination on the fact that the letter was not an admission of illegal activity, but was an explanation of the fact that Anderson needed leave to which she indisputably was not entitled. It then went on to say that Anderson failed to proffer any evidence that Cato’s policy of terminating employees who needed extended leave to which they were not entitled, then offering to hire them back when they were able to work again, was not evenly applied to all employees regardless of whether the employee was pregnant.

Employers should not view this decision as a "free pass" to end the employment of individuals who ask for additional leave time to which they are not entitled under company policies. Because the case was before the court as a PDA claim - and not a claim under the Americans with Disabilities Act or any associated state-law disability statute – it is unclear whether the same rationale would apply if the case had included a claim under the ADA, since various courts have viewed requests for additional leave time as potential requests for reasonable accommodation that should be honored unless they create an "undue hardship" for the company. Such requests therefore should be reviewed on a case by case basis, with an eye toward the ADAAA regulations that were updated in March of this year.

Use of "English-only" policies is subject of disagreement between governmental agencies.

Maria Danaher — Mon, 07 Nov 2011 10:40:28 -0500

The U.S. Commission on Civil Rights (USCCR) has posted a report which recommends that the Equal Employment Opportunity Commission (EEOC) modify its position that the use of “English-only” policies is a presumptive violation of Title VII of the Civil Rights Act. See EEOC’s guideline at 29 C.F.R. § 1606.7 (2010). This report sets up an interesting dichotomy in the analysis of such policies by two governmental agencies, both of which ostensibly were formed primarily to insure civil rights.

While most individuals are aware of the existence of the EEOC, fewer have heard of the USCCR and its mission. The USCCR was established under the Civil Rights Act of 1957 (which was primarily a voting rights bill signed by President Eisenhower after the Brown v. Board of Education decision in 1955) as an independent, bipartisan, fact-finding federal agency. Its mission, according to its website, is “to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.” It does so by reviewing alleged deprivations of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, or national origin, or in the administration of justice. The agency plays a vital - but widely unrecognized - role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern both to the federal government and to the public.

Although the USCCR has been referred to as a civil rights “watch dog" that works to ensure that the federal government is enforcing civil rights laws fairly and evenhandedly, the original Commission was not configured to act as such. Originally, all of its members were appointed by the President and were subject to dismissal at any time. Also, because the Civil Rights Act first came into effect in 1964, the early USCCR had no actual civil rights laws to oversee. However, in recent years, the agency has publishing significant studies and reports on a wide range of the civil rights, including peer-to-peer violence and bullying, race neutral enforcement of the law, and even human trafficking.

The USCCR’s recent report on English-only rules stems from a conference held in December 2008 at which the issue was discussed and analyzed at length by a number of experts in the field. A transcript of the conference and resulting briefing - which was carried live on C-SPAN - is available on the Commission’s website, www.usccr.gov, and by request from the Publications Office, U.S. Commission on Civil Rights, 624 Ninth Street, NW, Room 600, Washington, DC 20425, (202) 376-8128. Based on the testimony provided by panelists, and on discussion with Commissioners, the USCCP adopted findings and recommendations on various courts’ acceptance or rejection of the EEOC guidelines, the potential reasons, both good and bad, behind employer English-only policies, and actions the EEOC and Congress might take to clarify and improve the state of the law as applied to English-only policies under Title VII.

The USCCR’s primary recommendation stemming from the conference is that the EEOC’s guideline at 29 C.F.R. § 1606.7 should be withdrawn, and that instead, employers and employees should be informed that English-only policies should be prohibited only when it can be shown by a preponderance of evidence that the policy was adopted for the purpose of harassing, embarrassing, or excluding employees or applicants for employment on account of their national origin. This view could indicate a subtle shift in the burden of proof in cases involving English-only policies. Under the EEOC’s guideline, an English-only policy is presumed to be violative of Title VII unless the employer can show that the policy was enacted for a legitimate business reason; under the USCCR’s interpretation, an employee would have to show evidence of the purpose for which the policy was enacted, and prove that such evidence contravened Title VII.

Employers who have considered the implementation of an English-only policy should be aware that this issue has come into the limelight, and that further discussion and/or proposed legislation is possible.

Supervisor's ill-considered e-mail forms the basis of an FMLA lawsuit.

Maria Danaher — Mon, 24 Oct 2011 21:52:23 -0500

The Family and Medical Leave Act (FMLA) prohibits employers from interfering with an employee’s right to take leave for which that employee is eligible under the Act. Recently, the 7th U.S. Circuit Court of Appeals overturned the dismissal of an employee’s FMLA lawsuit, and sent the case back to the lower court for further proceedings. A jury will now decide the issue of whether the individual’s employment termination was based upon his announcement that he was going to take four to six weeks of leave time for knee replacement surgery. A supervisor’s e-mail that references an upcoming medical leave will be a primary element of the employee’s claim. Shaffer v. American Medical Association, 7th Cir., No. 10-2117, October 18, 2011.

William Shaffer first worked for the American Medical Association (AMA) in 1999. Although he resigned a year later, the AMA rehired him in 2004 as a contract employee. In 2005, he was hired as a full-time employee, and advanced to become the AMA’s Director of Leadership Communications, reporting to supervisor Michael Lynch. In August 2008, the AMA began cost-saving measures, including a request to all departments to reduce budgets and, ultimately, to eliminate positions. In October 2008, Lynch was contacted by the Chief Marketing Officer, Marietta Parenti, who requested a recommendation regarding the elimination of one position in Lynch’s group. It was Lynch’s plan to eliminate the Communication Manager position held by Peter Friedman, based on certain business-related reasons. On October 28, Parenti asked Lynch whether it made sense to eliminate Shaffer’s position, as well. Lynch responded that further eliminations would not be in the AMA’s best interest at that time.

On November 20, 2008, Shaffer informed Lynch that he was planning to take 4 to 6 weeks off in January in order to undergo and recover from knee replacement surgery. On November 30, Lynch sent an e-mail to Parenti, explaining that he had re-thought his recommendation, and now believed that the AMA should eliminate Shaffer’s position and retain Friedman. The e-mail apologized for his “11th hour change of heart,” and specifically stated that the team already was “preparing for [Shaffer’s] short-term leave in January, so his departure should not have any immediate negative impact.” On December 4, Shaffer was notified by Lynch and Harvey Daniels, an AMA HR representative, that his position was being eliminated and that his employment would end on January 4, 2009.

Less than a month later, an after receiving a letter from Shaffer’s attorney, the AMA’s in-house lawyer met with Daniels to let him know that litigation was possible on the matter. The next day, Daniels typed up handwritten notes that he had taken regarding his earlier discussions with Lynch, back-dating them to November 25, 2008. The typed notes stated that Shaffer’s position was eliminated because Lynch could have the speech writing staff report directly to him, making Shaffer’s position redundant. He then shredded the original notes.

Shaffer filed a lawsuit in federal court. The lower court granted summary judgment in favor of the AMA, and dismissed his claim. Shafer then appealed to the Seventh Circuit, which analyzed the case to determine whether or not there was a genuine factual issue for trial. The Court found that Shaffer was eligible for FMLA leave, and that he had provided notice to Lynch of his intention to take that leave. Prior to that notice, there was no mention of elimination of Shaffer’s position; after that notice, he was targeted for termination. Based upon those facts, coupled with Lynch’s e-mail to Parenti in which the proposed leave was mentioned, the Seventh Circuit determined that a reasonable jury could conclude that Shaffer’s exercise of his right to take leave under the FMLA was a motivating factor in the decision to eliminate his position. It then reversed the lower court’s dismissal of the case.

While the Court also pointed to the different explanations given at different times for Shaffer’s termination, it clearly was Lynch’s e-mail to Parenti – which specifically mentioned Shaffer’s request for leave – that created the impetus for the lawsuit, and the foundation on which Shaffer’s FMLA claim rests. While it is possible that Shaffer’s proposed leave had no actual impact on his termination, the e-mail allows Shaffer to argue that Lynch was considering that leave when the decision was made to eliminate Shaffer’s position. This situation is a clear example of the need for supervisor training on the FMLA. Supervisors and managers should be informed that a claim of interference with FMLA rights does not require proof of actual “intent” to interfere, but requires only that plaintiffs prove that the employer somehow denied an exercise of rights under the Act. If an individual can produce evidence that he was fired to prevent his exercise of FMLA rights, he can succeed on an interference theory under that Act.

Allegations of workplace violence or threats of violence may lead to an OSHA visit.

Maria Danaher — Mon, 10 Oct 2011 08:47:14 -0500

The federal Occupational Safety and Health Administration (OSHA) has written an enforcement directive for purposes of investigating and dealing with incidents of workplace violence. The directive, issued on September 8, 2011, will be used by OSHA’s district supervisors and area directors in determining whether or not to conduct an investigation into allegations of workplace violence, and includes inspection procedures that will be followed by the agency’s compliance officers while conducting such inspections. It also suggests various methods of abatement available to employers in workplace violence situations.

The directive expands the typical definition of workplace violence to include “threats of assault,” as well as actual assaults, directed toward individuals at work or on duty. It lists four categories of workplace violence based upon the relationship between the perpetrator of the violence and the target of that violence. Briefly, the four categories are: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, etc.); (3) co-worker (violence against co-workers by a current or former employee); and (4) personal (violence in workplace by a non-employee who has a relationship with an employee).

The directive identifies high-risk industries that are particularly susceptible to workplace violence, and focuses on two of them: health care/social service settings, and late-night retail settings. It also spells out various risk factors that may indicate the potential for workplace violence. These include: (1) working with unstable/volatile persons in certain health care/social service or criminal justice settings; (2) working alone or in small groups; (3) working late at night or during early morning hours; (4) working in high crime areas; (5) guarding valuable property or possessions; (6) community-based health or drug abuse clinics; (7) exchanging money in certain financial institutions; (8) delivery of passengers, goods or services; and (9) mobile workplaces (i.e., taxi drivers).

OSHA advises that inspections "generally shall not be considered" if the allegation of workplace violence is based solely upon threats by co-workers, but further states that OSHA may refer such incidents to the appropriate criminal enforcement agency, the Equal Employment Opportunity Commission, or the National Labor Relations Board for follow up investigation. OSHA inspections may be initiated following a complaint, referral, fatality or catastrophic event (which is defined in the directive as hospitalization of three or more employees) involving an incident of workplace violence. Inspections are more likely in high-risk industries or workplace settings that include the cited "risk factors." Employers also may face citations for potential workplace violence issues during programmed inspections.

The directive lists certain actions or mechanisms available to employers to minimize or eliminate the risk of workplace violence (including alarm systems, panic buttons and hand-held alarms). According to OSHA, administrative controls also could include establishing liaisons with local police and state prosecutors, implementing a mandatory reporting policy, maintaining a log book of all reported assaults or threats, and advising employers of procedures for requesting police assistance or filing charges.

The importance of this new directive is its relationship to OSHA’s General Duty Clause. Under that clause, an employer has a “general duty” to provide a safe workplace, and OSHA has the power to enforce deviations from that duty and impose fines and penalties for violations. The extension of OSHA into incidents and threats of violence is an event to which employers should pay close attention. The extent and manner in which workplace violence is managed by an employer will directly affect its ability to defend against OSHA citations and other potential civil or criminal proceedings related to such incidents.