Veronica von Grabow, Esq.
Denver, Colorado Office
May 14, 2014
LeadingAge Colorado
Annual Conference & Exhibition
Vail, Colorado
U.S. Equal Employment Opportunity
Commission (EEOC)
National Labor Relations Board (NLRB)
U.S. Department of Labor (DOL)
2
Avoiding Traps Set By The
EEOC’s Systemic
Discrimination, Class
Action & Other Initiatives
3
Fiscal Year 2012 – Systemic Cases Represented
~20% of EEOC’s Active Litigation Docket
o EEOC’s Projection for Fiscal Year 2016: Increase to 22-24%
EEOC’s top systemic enforcement priorities:
investigation of “systemic barriers” in recruitment
and hiring, including pre-employment assessments:
o
o
o
o
o
Criminal History Background Checks
Credit Checks
Personality Profiles/Behavioral Assessments
Cognitive Ability Tests
Physical Requirements
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Systemic pay discrimination
Protecting immigrant and migrant workers
Addressing emerging and developing issues:
o ADA reasonable accommodations
o Accommodating pregnancy-related limitations
o Seeking protection for LGBT (lesbian, gay, bisexual and
transgender) employees and applicants under Title VII
Preserving access to the legal system (retaliatory practices
or the use of overly-broad settlement waivers)
Preventing harassment.
5
How does EEOC identify a systemic case?
o In reaction to complaints of systemic discrimination (very rare)
o By converting individual charges to systemic investigations
Common pitfalls
• Inadvertent disclosures of widespread practices or policies
• What used to be a winning response to charges now often
opens the systemic door:
– “We treated the Charging Party just like all other
applicants.”
– “The action taken was pursuant to the Company’s
consistently-applied policy.”
6
The EEOC’s most significant 2012 guidance was the enforcement
guidance on the Consideration of Arrest and Conviction Records
in Employment Decisions Under Title VII of the Civil Rights Act of
1964.
Convictions: discourages employers from using blanket exclusions
of individuals who have been convicted of crimes.
o Potential for Disparate Treatment/Impact Claims (“Green
Factors”)
Arrests: Should not be considered in making employment
decisions.
o Underlying conduct may be considered.
o Guidance respects employer’s right to make credibility
determinations.
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The Commission believes a more targeted approach that focuses
on systemic enforcement and an outreach campaign aimed at
educating employers and employees will greatly deter future
violations.
o Disability – ADA/FMLA
o Hiring
o Harassment/Pregnancy
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EEOC v. Hill Country Farms, Inc. (5/1/13)
o
o
$240 million jury verdict – the Company violated the ADA by discriminating and harassing 32 intellectually
disabled workers. The jury awarded $7.5 million to each of the 32 plaintiffs.
The court reduced the award to $1.6 million for all 32 plaintiffs.
EEOC v. Interstate Distributor Co. (11/8/12)
o
EEOC settled the ADA claim for $4.85 million.
EEOC v. Four Amigos Travel, Inc. (5/1/13)
o
Federal jury returned a unanimous verdict awarding more than $20 million to eight former employees who
suffered sexual harassment and retaliation.
EEOC v. WMK, Inc. d/b/a Mobility Works (8/1/13)
o
The Company agreed to pay a female employee $65,000 to settle her sex discrimination lawsuit.
EEOC v. Help at Home, Inc. (7/24/13)
o
The Company agreed to pay $302,500 to three former employee to settle their claims of sexual harassment
and retaliation.
EEOC v. It’s Just Lunch USA, LLC (7/22/13)
o
The Company agreed to pay approximately $900,000 to settle a sex discrimination lawsuit filed by male job
applicants.
9
Don’t inadvertently expand the scope of a potential
lawsuit by:
o inadvertently disclosing information not even requested; or,
o providing the EEOC with everything they request.
Potential avenues of inadvertent disclosure:
o Position statements
o Handbook policies, guidelines, code of conduct
o Spreadsheets or other e-data
o Discussion of all of the Company’s hiring, promotion,
termination, or compensation procedures
10
Object to requests beyond the location/position/time
frame in the charge
Submit only what is reasonably related to charge
For data requests, run analyses prior to submission
o Help determine how strenuously to object
o Help determine what compromise options are available
Then negotiate scope up the organizational chain of
command
o Knowing what the statistics show allows you to compromise
and submit broader data with no statistical “red flags”
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Strong internal complaint and investigative mechanisms
Consider revising policies in light of EEOC’s successes in leave and
attendance lawsuits, revised criminal background guidance, and
revised rules on reasonable factors other than age
Ensure all managers are trained on avoiding employment
discrimination and objective evaluations of employees focusing on
job-related performance
Field HR needs to understand that treating everyone equally may
lead to trouble (e.g., leave may need to be extended as an ADA
accommodation, attendance points may need to be forgiven)
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For non-federal contractors: obtain or do not obtain race
information from applicants
Conduct or don’t conduct self-audits on compensation,
promotions, hiring, and terminations
Blend performance measurements and avoid automatic
exclusions
Ensure leadership tone and workplace culture are
inclusive in word and deed
Consider arbitration program (does not bind the EEOC)
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Mediate criminal background and reasonable
accommodation charges (if the EEOC allows)
Probe EEOC’s theory early
Determine if the EEOC investigated, found cause and
conciliated over issues in the lawsuit
Object as appropriate to broad data requests
Engage experts early to assess risk and set the
groundwork for Daubert challenge
Limit scope of lawsuit to 300 days prior to charge or
notice of class investigation
14
EEOC v. CRST Van Expedite Inc. (8/1/13)
o Federal Appeals Court in St. Louis affirmed dismissal of 67 alleged
“aggrieved individuals” from a hostile work environment lawsuit brought
by the EEOC against an interstate trucking company because the
Agency failed to satisfy its statutory pre-suit obligations to conduct a
reasonable investigation and bona fide conciliation of those claims.
o The court awarded CRST $4.7 million in attorneys’ fees.
EEOC v. Bloomberg LP (9/9/13)
o New York District Judge Loretta Preska dismissed the claims of all but
one of the plaintiffs from a once wide-ranging pregnancy discrimination
lawsuit against Bloomberg LLP because the EEOC failed to comply with
its pre-suit conciliation obligations.
 Judge Preska - the agency’s conduct “blatantly contravene[d] Title
VII’s emphasis on resolving disputes without resort to litigation.”
o The court also awarded Bloomberg LLP the right to demand attorneys’
fees from the government.
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EEOC v. Freeman (8/9/13)
o Judge Roger Titus (District of MD) delivered another blow to the EEOC
when he granted Freeman summary judgment on the EEOC’s claim of
discriminatory disparate impact in criminal and credit background
checks.
o The Judge attacked the EEOC’s so-called “expert” report – calling it
“laughable,” “skewed,” and “an egregious example of scientific
dishonesty.”
o The report ignored data, “cherry-picked” data, used data from the wrong
time frame, and miscoded data, which contributed to a “mind-boggling
number of errors.” This “plethora of errors and analytical fallacies”
rendered the EEOC’s statistical evidence “completely unreliable, and
insufficient to support a finding of disparate impact.”
o “Something more, far more, than what is relied upon by the EEOC in this
case must be utilized to justify a disparate impact claim based upon
criminal history and credit checks.”
16
Case New Holland Inc. & CNH America LLC v. EEOC (8/1/13)
o According to a recent lawsuit filed by two employers against the
EEOC, the Agency has engaged in a shocking new tactic as part
of its “investigatory” power.
o Under the guise of an “investigation” into a claim of unlawful
conduct on the part of the employer, the EEOC, without any
advance notice to the employer, directly emailed over 1100 of the
employer’s employees (at their company email addresses) in an
attempt to develop class members for a potential class action
against the employer.
17
Later in the day, you are stopped by two
employees. They have stopped caring for patients
and one insists on talking to you about the
incentive program. The other employee listens
carefully, but does not speak. The employee doing
the talking says he will not go back to work until
you listen. What do you do?
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National Labor Relations Act
Section 7
“employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.”
20
In determining whether employee activity is entitled to the
protections of Section 7, the Board looks at the following :
whether the activity is “concerted”;
whether the activity is “for mutual aid or protection”; and
whether the activity has lost the protection of Section 7
by reasons of (1) its means or (2) its objectives.
21
It must be for the purpose of “mutual aid or protection.”
o For example: seeking improvements in wages, benefits, safety,
overtime, assignments, staffing or other terms and conditions of
employment.
o This concept has been broadly interpreted to cover conduct that
has only minimal impact on the “terms and conditions of
employment” of an employee’s employment.
22
Activity that is engaged in by two or more employees together.
Activity by one employee on the authority of other employees.
Individual activities that are the “logical outgrowth of concerns
expressed by the employees collectively.”
Individuals seeking to initiate, induce, or prepare for group action.
Activity involving only a speaker and a listener if the content is for
the purpose of making common cause, even if it is over the
speaker’s personal concerns.
23
Class action lawsuit.
Calling a government agency about working conditions at the
company.
Filing administrative charges to remedy sexual harassment at
the company.
Complaining to legislators about safety issues at the
company.
Complaining to the news media about working conditions at
the company.
Complaining to customers about low wages at the company.
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1. If you see a group of three employees talking softly and then abruptly stop
when they see you?
2. You see a notice in the break room from “Jobs with Justice”, complaining
about pay issues at the workplace?
3. If an employee asks for a list of employee names and addresses so he can
send them Holiday cards this year?
4. If you see a woman you don’t recognize in the parking lot putting leaflets on
cars?
5. If you see a petition being passed among employees in the break rooms?
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6. If you’re away from the worksite and an employee tells you there’s union
talk by other employees?
7. If just after the shift begins, an employee asks if you’d like to contribute
money to send flowers to the hospital room of an ailing employee?
8. If you see a notice taped to the bulletin board announcing a meeting “for all
interested employees” at the local bar on Friday night?
9. If an employee hands you an envelope containing union authorization cards
signed by 70% of the employees?
10. If an employee says that a union’s the only way to get the company’s
attention?
26
Wikipedia: The use of web-based and mobile technologies to
turn communication into an interactive dialogue.
Answers.com: the online forms of communicating that any
individual can employ, which include blogs, microblogs (e.g.
Twitter), and social networking sites (e.g. Facebook).
DailyBlogTips.com: the various forms of user generated
content and the collection of websites and applications that
enable people to interact and share information online.
Merriam-Webster: forms of electronic communication through
which users create online communities to share information,
ideas, personal messages, and other content (photos,
videos, etc.).
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 Facebook Statistics:
More than 1.15 billion active users – more than 2x
population of United States!!
699 million daily active users.
Average user has 130 friends.
More than 800 million active users access Facebook
through their mobile devices.
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How many working hours are lost to social networking?
o
o
o
o
o
50% of Facebook users log on every day.
The median age of the user is 22.
One out of every 7 minutes spent online is on Facebook.
300 million pictures are uploaded to Facebook everyday.
22% of employees visit social networking sites 5 or more
times per week; many admit to logging in while at work.
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Employers’ social media policies should not be so sweeping so as to
prohibit Section 7 rights.
An employer rule will be found unlawful where:
It explicitly restricts protected, concerted activity;
Employees would reasonably construe the language of the rule to
prohibit protected, concerted activity;
The rule was promulgated in response to union activity; or
The rule has been applied to restrict protected, concerted activity.
Lutheran Heritage Village-Livonia, 343 NLRB 824 (1998).
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NLRB Initiative: Policy Compliance By Every Employer,
Even In The Absence Of Discipline
It is unlawful to maintain any rule that
would “reasonably tend to chill
employees in the exercise of their
section 7 rights,” even if the rule is not
enforced.
It also is separately unlawful to enforce
such a rule against an employee.
32
Do employees’ posts suggest collective action by
employees?
Do employees’ posts reference prior discussions
among employees that could indicate concerted
activity?
Did other employees respond to the post?
Did employee responses indicate agreement with
complaint or statements or only express sympathy
regarding complaint?
“Like” buttons count!
Do employees’ posts contain acknowledgment of a
personal gripe?
Did employees take action after making posts,
such as engaging in further discussions offline?
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Social media/electronic
communications rules.
E-mail rules.
Confidentiality rules.
Goals and objectives, “in
the company’s interests,”
cooperation, loyalty and
attitude rules.
Rules about speaking to
the media.
Chain of command rules.
Rules about off-duty
misconduct.
Rules regulating
employee statements and
conduct.
Nondisparagement/gossip
rules.
34
The NLRB identifies problematic policy language.
Examples:
o Prohibiting employees’ posts discussing non-public
information, confidential information, and legal matters of the
employer (without any further clarification of the meaning of
these terms);
o Prohibiting employees from harming the image and integrity
of the company, making statements which are detrimental to
the employer, disparaging or defamatory, and prohibiting
discussion of dissatisfaction;
o Prohibiting employees from making posts that are
inaccurate or misleading; making offensive, demeaning or
inappropriate remarks; instructing employees to use a
friendly tone and not engage in inflammatory discussions;
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Requiring employees to secure permission prior to posting
photos, music, videos, and the quotes and personal information
of others;
Prohibiting non-commercial use of employer’s logos or
trademarks;
Discouraging employees from “friending” co-workers;
Prohibiting online discussion with government agencies
concerning the company;
Encouraging employees to solve work problems in the
workplace rather than posting about such problems online; and
Threatening employees with discipline or criminal prosecution for
failing to report violations of an unlawful social media policy .
36
The NLRB officers a sample social media policy deemed to be lawful.
Insight:
Policy should provide examples of prohibited conduct so, in context,
employees would not reasonably read the rules to prohibit protected,
concerted activity. Compare:
o Overly Broad - Policy commanding employees be respectful and “fair and
courteous” in the “posting of comments, complaints, photographs, or videos.”
o Lawful – Policy containing same language with additional guidance that individuals
not post items that “could be viewed as malicious, obscene, threatening or
intimidating” or “contribute to a hostile work environment on the basis of any status
protected by law or company policy.”
o In latter policy, GC’s office found the employer was in fact advancing legitimate
interests without infringing upon right to engage in protected, concerted activity.
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Explain the Basis of Restrictions.
Avoid Undefined Terms.
Disclaimers Will Not Cure.
o
GC’s report noted a social media policy's "savings clause" stating the
policy would “be administered in compliance with applicable laws and
regulations (including Section 7 of the National Labor Relations Act)”
was insufficient to cure ambiguities in the policy's overbroad rules.
It Remains Lawful to:
o
Prohibit employees from sharing confidential and proprietary
information online (provide explanation and examples).
o
Prohibit employees from using vulgar or obscene language online.
38
In three seminal decisions, the NLRB has expanded its traditional views of what is
“protected concerted activity” under the National Labor Relations Act:
Hispanics United of Buffalo Inc. (12/14/12)
o The Board affirmed an ALJ’s finding that an employer violated the NLRA by
firing five employees for posting Facebook comments in response to a coworker’s criticism of their job performance.
Design Technology Group, LLC (4/19/13)
o The Board held that an employer unlawfully terminated employees who
complained to management about working late hours in an unsafe
neighborhood and who later continued their protest on Facebook.
Knauz BMW (9/28/12)
o An ALJ held that an employer did not violate the act when it terminated a
salesperson from posting photographs and comments related to an automobile
accident which occurred on its premises. The ALJ also found that a
salesperson’s critical comments over a sales event at the dealership were
protected.
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Banner Health System (7/30/12)
o A blanket rule prohibiting employee discussions of ongoing
investigations is invalid because it does not take into account the
employer’s burden to demonstrate a particularized need for
confidentiality in any given situation.
Quicken Loans, Inc. (6/21/13)
o “Overbroad” confidentiality and non-disparagement provisions
contained in an employment agreement are unlawful under the
NLRA.
40
Recent decisions and Board guidance reflect an increasing focus on this
issue.
While more decisions are certain to follow, in the interim employers
should take away some general principals to apply to their employment
policies. Employers should:
o Prohibit vulgar or obscene language, but not disparaging or derogatory language,
about the company or its employees.
o Include specific examples of prohibited conduct in a policy, so employees will be
less likely to construe the policy as prohibiting or limiting concerted activity.
o Avoid vague or unidentified terms within policies, as any ambiguities will be
construed against the employer. The Board has noted that an employee should not
have to consult a dictionary to understand an employer’s rules.
o Use caution in relying on savings clauses or disclaimers.
41
Piedmont Gardens (12/15/12)
o NLRB has reversed long-standing precedent that all written
statements by employee-witnesses are automatically exempt
from disclosure as long as they qualify as “witness
statements.”
o The Board now will apply a “balancing test,” and will weigh the
union’s need for the statements against “any legitimate and
substantial confidentiality interest established by the
employer.”
42
Weyerhaeuser Co. (6/20/13)
o The Board held that a notice from management to workers that
restricted the use of the company’s e-mail system by union
representatives for union purposes on its face discriminated
against statutorily protected activities in violation of the NLRA.
o The notice was not an application of the company’s existing
electronic media use policy, but was a “freestanding restriction
on union-related email that the [company] put in place
independently of its previous efforts to regulate the use of its
electronic media.”
This decision illustrates the importance of having content-neutral work
place policies.
43
NLRB Launches New Mobile Phone Application:
o The new software application, which launched
August 30, 2013, allows iPhone and Android users
to obtain free information about the agency and the
National Labor Relations Act.
44
Like A Bad Penny,
The U.S. DOL Is Back –
What Is It Looking for?
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For fiscal year 2013, the DOL asked Congress for
$237.7 million and 1,839 full-time equivalent employees
for the its Wage and Hour Division (the DOL division
responsible for enforcing the FLSA)
o This request is an increase of $10.7 million and 80 full-time
equivalent employees as compared to fiscal year 2012.
Based on its FY2013 budget request, the Wage and
Hour Division is focusing on three main initiatives:
o The Misclassification Initiative;
o The “Fissured Industries” Initiative; and,
o The Low Wage Industries Initiative.
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The largest portion of the requested increase for fiscal
year 2013 – $4 million and 35 new investigators – will
support the “misclassification initiative,” which targets
the following industries that DOL believes often
misclassify employees as independent contractors:
o Construction
o Transportation and Warehousing
o Janitorial
o Poultry and Meat Processing
o Home Health Care
o Landscaping
o Child Care
o Professional and Personnel Services
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The DOL is targeting industries that use organizational
methods outside of the traditional direct employment
relationship (e.g., third party management, franchising,
and subcontracting):
o Construction
o Food Services
o Janitorial
o Home Health Care
o Hospitality
The DOL believes these arrangements often allow
employees to be exploited by making the workeremployer relationship tenuous or less transparent.
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This initiative which focuses on industries where
employees make at, or just above, minimum wage:
o Garment
o Hospitality
o Agriculture
o Guard Services
o Health Care
o Janitorial
o Day Care
o Landscaping
o Restaurants
o Temporary Help
According to DOL, these industries have high rates of
violations and vulnerable employees who are less
likely to complain if not paid as the FLSA requires.
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