EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Is it legal to fire an employee for off-duty alcohol consumption?

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy—no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the EEOC took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.

The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the ADA protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.

Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 

Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.

[Hat tip: Drug & Alcohol Testing Law Advisor, c/o Texas Employment Law Blog]

This is what a retaliatory waiver of EEOC rights looks like

In case you missed it last Friday, a federal judge dismissed the EEOC’s lawsuit against CVS, which had challenged as retaliatory various garden-variety provisions in the retailer’s employment separation agreement.

On that same day, the EEOC announced the filing of another lawsuit, which also challenged as retaliatory a provision in an employment document. Unlike the CVS lawsuit, however, this lawsuit likely has merit.

The EEOC alleges that a Florida restaurant franchisor operator requires, as a condition of employment, all applicants and employees to submit all employment-related claims to binding arbitration, and waive their rights to file discrimination charges with the EEOC. You can read the allegedly offending arbitration clause here.

Unlike the challenged clauses in the CVS case, this clause expressly prohibits individuals from pursuing discrimination charges with the EEOC (or its state or local counterparts). The employment discrimination laws, however, prohibit as retaliatory any effort by an employer to require employees to forsake their rights to see redress with the EEOC. Thus, in my opinion, as a management-side employment lawyer, this employer’s agreement has problems.

The proper way to draft an arbitration agreement, or other agreement that waives certain rights or remedies, is to carve out EEOC charges. You would say something like this:

Nothing in this Agreement is intended to, or shall, interfere with the employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against the Employer, regardless of who filed or initiated any such complaint, charge, or proceeding.

Because this clause protects the EEOC’s right to investigate and remedy violations of, and otherwise enforce, the law, it should pass muster with the EEOC. (Of course, before you implement any such language in your agreements, you must consult with your own employment counsel).

My advice to the employer in this case is to settle with the EEOC as soon as possible on the best terms possible, and avoid the expense of a costly uphill legal battle that will be difficult to win.

BREAKING: Federal judge dismisses EEOC severance agreement lawsuit against CVS

The Chicago Tribune is reporting that U.S. District Judge John Darrah has granted CVS’s motion to dismiss a lawsuit filed by EEOC, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).

When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.

The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.

In the meantime, this is not the end of this issue. It is possible, it not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.

[Hat tip: Ameet Sachdev]

WIRTW #337 (the “page limit” edition)

When you were in school, did you ever fudge the margins, or the font, or the line-spacing to fit your term paper within the confines of a teacher’s page limit. Let me give you lawyers reading today’s post a little practice pointer. Don’t do that when you file a brief with a court. Slate.com quotes the opinion of District Court Judge Carl Barbier, who took BP to task for playing with page limits.

BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck.

Ouch.

Here’s the rest of what I read this week:

Discrimination

• Iowa Editor Fired Over “Gaystopo” Blog Post Claims He’s A Victim of Religious Discrimination — via Jim Romenesko
• Nepotism in the Workplace - is it discrimination? — via Employment Law Bits
• Ten “Reasonable Accommodations” For Employees With Disabilities — via Employment Discrimination Report
• What employers need to know about “subtle bias” before it becomes an in-your-face lawsuit — via Eric Meyer’s The Employer Handbook Blog
• What can a disabled comedian teach HR? — via Mike Haberman’s Omega HR Solutions
• You’re Damned if You Automatically Fire an Employee Who Has Cancer — via damnedif
• EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs — via Next Blog

HR & Employee Relations

• Fantasy Football’s Impact on the Workplace — via HR Defense Blog
• Some Extra Points about Fantasy Football and Your Workplace — via EntertainHR
• You Stink! How to Have Difficult Conversations with Employees — via Blogging4Jobs
• Analytics and … Employment Law? — via The Labor Dish
• Off-duty domestic violence — what’s an employer to do? — via Robin Shea’s Employment & Labor Insider
• The Good, the Bad, and the Ugly: What You Should Know About Ban the Box — via TLNT
• How Long Can You Enforce a Non-Compete Agreement For? — via Dan Schwartz’s Connecticut Employment Law Blog
• How To Protect an Employer’s Intellectual Property — via Minnesota Employer
• Fired for What!? - Judge Loses Job Over Social Media Posts — via Phil Miles’s Lawffice Space

Wage & Hour

• Wage-and-Hour Implications for Telecommuting — via Employment Essentials
• Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation — via Texas Employment Law Blog
• Food Concession Employers Win Major (But Costly) FLSA Victory — via Employer Advocate
• Lawyers Hit Rough Patch in Unpaid Intern Class Actions— via Law.com
• Cheerleaders Win Wage Theft Lawsuit — via Overtime Lawyer Blog
• Working “Off the Clock” is Not OK — via DOL’s Work in Progress
• Can We Terminate an Employee for Working a Second Job While on FMLA Leave? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB goes rogue against small business — via The Hill
• NLRB reinstates free meals for striking BBQ workers — via Ross Runkel Report
• Your Next Airline Delay May Carry the Union Label — via LaborPains.org
• Protecting the Employer’s Brand During a Labor Dispute — via Vorys on Labor
• Chipotle’s Sweatshop! — via The Tim Sackett Project
• Decertification Fight At Cablevision Turns Nasty — via Labor Relations Today

The best defense to a discrimination claim is…

Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.

Psych. Claims: Not the Dead Bang Loser You May Think

One of the benefits of my new firm is that it exposes me to new practice areas. Case-in-point, workers’ comp, which I could not previously offer. Today, I am introducing you to my partner, Steve Dlott, who heads the Workers’ Compensation Department at Meyers Roman, and is a Certified Specialist in Workers’ Compensation Law.

Steve was kind enough to author a guest post, discussing a tricky issue under Ohio’s workers’ comp laws, psych claims.

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Having worked with several different TPA’s regarding psych. claims, there seems to be a general doomsday mindset about the inevitability of such claims. As I have been accustomed to hearing, “What’s the point in fighting them? They always get allowed.” Certainly, based on the IC’s history when it came to such claims, this reaction was entirely understandable. However, based on my own recent experience of taking a string of psych. claims to hearing, these claims are winnable. In fact, I have won the last 5 psych. claims that went to hearing. And, to reinforce this point, several of those claims were state funded claims where the BWC psychologist supported the C-86. That is not to say, of course, that every psych. claim is winnable, or that this streak will indefinitely continue. Certainly, it will not. The point is simply to dispel the commonly held notion, upon getting a C-86 for depression or PTSD, that success is hopeless-or dismal at best.

Two factors account for this new outlook-one, clarification of existing law, the other, good old fashioned detective work. First, in Armstrong v. Jurgensen, the Ohio Supreme Court reiterated the legal requirement for establishing a psych. condition. As the court noted, the psych. condition must result from the physical injuries in the claim and not simply relate to the injured worker’s involvement in the accident. In Armstrong, the injured worker (Armstrong) was slightly injured in an accident in which the other driver was killed. After Armstrong’s claim was allowed for soft tissue injuries, he sought to additionally allow his claim for PTSD. The IC allowed the PTSD and the employer appealed the disallowance to court. The employer ended up taking the case to trial. The judge overturned the IC’s decision, finding the claim not compensable because it did not arise from the allowed conditions. The case was ultimately appealed to the Ohio Supreme Court, which affirmed the trial court’s decision. While employers have always argued this was the law, as apparent from the IC’s decision, hearing officers did not always buy this argument. Now, with the Supreme Court’s decision, they must. 

Without question, Armstrong has changed the landscape in terms of giving employers a significant advantage in getting psych. claims denied, provided it can be shown-which happened in 3 of the 5 cases I won-that the psych. condition did not arise from the physical injuries.

The second step in successfully fighting psych. claims is simply good old fashioned detective work. In one claim, I discovered claimant had a previous history of psychological treatment. Claimant had denied this to both her psychologist and to the BWC psychologist. While this certainly is not unusual, through discovering a record buried in other documents in the injured worker’s file which led to my discovering claimant’s previous history of depression, I was able to discredit claimant at the hearing. Not surprisingly, hearing officers do not like liars, and, not just in this case, but in all of the cases I’ve won to date, the claimant’s credibility has been a major focus of the hearing. Because credibility is such a key component in psych. claims-more so than in any other claim because the condition is based almost entirely on the claimant’s subjective symptoms (“I’m depressed”, “I can’t sleep”, “I can’t concentrate”, etc.), a thorough investigative background is absolutely critical (and often overlooked) in making the difference between success and failure at the IC.

So, my advice to tpas and others is: Bring it on. Don’t assume that fighting that psych. claim that was just filed is a hopeless cause. With Armstrong at our side and good detective work of the injured worker’s background aggressively pursued, who knows, it may be a winner after all.